P.E.R.C. No. 2005-73, Wayne Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WAYNE TOWNSHIP, Respondent, -and- Docket No. CI-2003-036 PBA LOCAL 136, Respondent, -and- BARRY WIESER, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Township of Wayne’s motion for summary judgment, denies PBA Local 136's motion for summary judgment, and remands the case to the Hearing Examiner for further proceedings. Barry Wieser filed an unfair practice charge against the Township alleging that it violated the New Jersey Employer-Employee Relations Act when it failed to provide him with a copy of the collective negotiations agreement between the Township and the PBA and when it refused to cease deducting representation fees from his pay. Wieser, who is a member of the Fraternal Order of Police, also filed a charge against the PBA, alleging that the PBA violated the Act when, between January 1983 and May 2003, it continued to collect representation fees from him despite having denied him membership in the PBA in 1970 and when it discriminatorily denied him a copy of the collective negotiations agreement. The Commission grants the Township’s summary judgment motion and dismisses all the allegations against the Township. The Commission denies the PBA’s motion for summary judgment, finding that if the charging party proves its allegations that the PBA treated him illegally because of his FOP membership, a cease and desist order and a posting may be appropriate remedies. The Commission denies Wieser’s cross- motion for summary judgments since the allegations were not supported by certifications or affidavits. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WAYNE TOWNSHIP, Respondent, -and- Docket No. CI-2003-036 PBA LOCAL 136, Respondent, -and- BARRY WIESER, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent - Wayne Township, John J. McKniff, of counsel ¶

For the Respondent - PBA, Loccke & Correia, attorneys ¶

(Michael A. Bukosky, of counsel) ¶

For the Charging Party, Fusco & Macaluso, P.A. (Ciro Spina, III, of counsel) ¶

DECISION ¶

On March 29, 2005, Charging Party Barry Wieser filed exceptions to a Hearing Examiner’s Report and Recommended Decision. In that decision, the Hearing Examiner recommended granting the respondents’ motions for summary judgment and dismissing the Complaint in its entirety. H.E. No. 2005-12, 31 NJPER 51 (¶24 2005). The Hearing Examiner also recommended denying the charging party’s cross-motion for summary judgment. ¶

The case is based on an unfair practice charge filed by the charging party against his employer, Wayne Township, and his majority representative, PBA Local 136. The charging party alleges that the Township violated the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3), 1/ when it failed to provide him with a copy of the collective negotiations agreement between the Township and the PBA and when it refused to cease deducting representation fees from his pay. 2/ The charging party, who is a member of the Fraternal Order of Police, alleges that the PBA violated 5.4b(1) of the Act, 3/ when, between January 1983 and May 2003, it continued to collect representation fees from him despite having denied him membership in the PBA in 1970 and when it discriminatorily denied him a copy of the collective negotiations agreement. ¶

After the filing of the unfair practice charge, the PBA notified the Township that it should immediately cease collecting representation fees from the charging party. The Township complied. The PBA also sent the charging party a check reimbursing him for representation fees collected during the eight months before the charge was filed. The PBA also sent the charging party’s attorney a copy of the Township-PBA collective negotiations agreement. ¶

A Complaint issued, but the respondents then moved for summary judgment. The Township argued that it did not breach any legal obligation toward the charging party. The PBA argued that its actions in response to the charge mooted the parties’ dispute. The charging party cross-moved for summary judgment in its favor. The Hearing Examiner recommended granting the respondents’ motions and denying the charging party’s motion. In its exceptions, the charging party objects to the Hearing Examiner’s decision not to consider any factual allegations in his brief or attachments since no certifications or affidavits supporting those documents and assertions were submitted. He argues that for over 30 years, the PBA illegally collected fees from him and that a posting is required to erase the chilling effect of that illegality. He also takes exception to the dismissal of his allegations concerning the refusal of the Township and the PBA to give him a copy of their contract. ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. N.J.A.C. 19:14-4.8(d); Brill v. Guardian Life Ins. Co. of America , 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co ., 17 N.J. 67, 73-75 (1954). ¶

We grant the Township’s motion for summary judgment. The charging party has provided no basis to distinguish our case law holding that an employer is not responsible for ensuring that union membership is available on an equal basis before representation fees are deducted. Bergen Cty. Sheriff, P.E.R.C. No. 88-9, 13 NJPER 645 (¶18243 1987), aff’d 227 N.J. Super . 1 (App. Div. 1988), recon. den. 3/15/88, certif. den. 111 N.J . 591 (1988). In addition, the charging party has not provided any basis for finding that the Township violated the Act when it did not act after receiving a copy of the charging party’s requests to the PBA for a copy of the collective negotiations agreement. Accordingly, we dismiss the allegations against the Township. ¶

We deny the PBA’s motion for summary judgment. If the charging party proves its allegations that the PBA treated him illegally because of his FOP membership, a cease and desist order and a posting may well be appropriate remedies. Compliance with statutory commands after the filing of an unfair practice charge does not necessarily moot a charge. See Independent Metal Workers Union, Local No. 1, 147 NLRB 1573 (1964) (voluntary discontinuance of illegal conduct after the commencement of litigation does not moot a case). In a case addressing similar representation fees issues, we ordered the union to cease and desist and to post a notice of its violation. Bergen Cty. Sheriff . By that action, we alerted any similarly situated unit members to their legal rights. 4/ Nor are we prepared to rule that providing Wieser with a copy of the contract after he filed his charge necessarily moots that aspect of his overall claim that the PBA discriminated against him based on his FOP membership. Under these circumstances, we do not dismiss the allegations against the PBA. We leave the parties to their proofs and legal arguments. ¶

We deny the charging party’s cross-motion for summary judgment. Factual allegations in motions must be supported by certifications or affidavits. See PBA Local 187, P.E.R.C. No. 2005-61, 31 NJPER 60 (¶29 2005) (reiterating that in a motion for summary judgment, undisputed material facts must be in a supporting record submitted by way of certifications or affidavits made on personal knowledge). Even if we were to consider the attachments to the charging party’s motion, those documents do not prove that the PBA illegally failed to provide him with a copy of the contract or illegally collected representation fees. ¶

This matter is remanded to the Hearing Examiner for further proceedings consistent with this opinion. ¶

OrderORDER ¶

The Township of Wayne’s motion for summary judgment is granted. PBA Local 136’s motion for summary judgment is denied. Barry Wieser’s cross-motion for summary judgment is denied. This matter is remanded to the Hearing Examiner for further proceedings consistent with this opinion. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Katz and Mastriani voted in favor of this decision. Commissioners Fuller and Watkins were not present. None opposed. ¶

DATED: May 26, 2005 ¶

Trenton, New Jersey ¶

ISSUED: May 26, 2005 ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.” ¶

2/ Representation fees in lieu of dues are paid by employees in a negotiations unit who are not members of the majority representative for services rendered by the majority representative. N.J.S.A. 34:13A-5.5. ¶

3/ This provision prohibits employee organizations, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.” ¶

4/ Case law of the Public Employment Relations Commission Appeal Board is distinguishable because that agency does not issue cease and desist orders or require the posting of notices. See, e.g., Mallamud and Rutgers Coun. of AAUP Chapters , A.B.D. No. 86-9, 12 NJPER 324 (¶17127 1986), app. dism. as moot NJPER Supp.2d 180 (¶157 App. Div. 1987). ¶