P.E.R.C. No. 2006-2, NJ/State (Corrections)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY and NEW JERSEY STATE CORRECTIONS OFFICERS ASSOCIATION/FOP LODGE 200, Respondents, -and- Docket No. CO-2005-092 STATE CORRECTIONS OFFICERS PBA LOCAL 105 and NEW JERSEY STATE PBA and INDIVIDUALS, Charging Parties. -------------------------------- STATE OF NEW JERSEY, Respondent, -and- Docket No. CI-2005-014 JOSEPH MARTIN, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part summary judgment motions filed by State Corrections Officers PBA Local 105, the New Jersey State PBA, and 28 named Individuals. The Commission orders the State of New Jersey and the New Jersey State Corrections Officers/FOP Lodge 200 to cease and desist from collecting and distributing representation fees in lieu of dues on behalf of the FOP without first complying with all statutory and regulatory requirements for the collection of such fees. The Commission also orders the State and the FOP to refund to Joseph Martin and other named charging parties the representation fees in lieu of dues collected on July 29, 2004. The Commission denies the motion for summary judgment without prejudice to the parties refiling their motions within 21 days with supporting certifications and documents concerning August 12 representation fees. The Commission denies the respondents’ cross-motions for summary judgment. ¶

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 STATE OF NEW JERSEY and NEW JERSEY STATE CORRECTIONS OFFICERS ASSOCIATION/FOP LODGE 200, Respondents, -and- Docket No. CO-2005-092 STATE CORRECTIONS OFFICERS PBA LOCAL 105 and NEW JERSEY STATE PBA and INDIVIDUALS, Charging Parties. -------------------------------- STATE OF NEW JERSEY, Respondent, -and- Docket No. CI-2005-014 JOSEPH MARTIN, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, State of New Jersey, Peter C. Harvey, Attorney General (George N. Cohen, Deputy Attorney General) ¶

For the Respondent, FOP, Joseph A. Carmen, P.A., attorney ¶

For the Charging Parties (CO-2005-092), Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys (Robert A. Fagella, of counsel; Colin M. Lynch, on the brief) ¶

For the Charging Party (CI-2005-014), Joseph Martin, pro se ¶

DECISION ¶

In June 2004, New Jersey State Corrections Officers ¶

Association/FOP Lodge 200 replaced State Corrections Officers PBA Local 105 as the majority representative of certain law enforcement officers employed by the State of New Jersey. On July 29 and August 12, 2004, the public employer deducted representation fees from the paychecks of employees who did not belong to the new majority representative and transmitted the fees to the FOP. The August 12 deductions are being held in escrow by the FOP. ¶

On October 8, 2004, Local 105 and the New Jersey State PBA filed an unfair practice charge alleging that the employer and the FOP violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., when fees were deducted from paychecks and transmitted to the FOP without a negotiated agreement authorizing these deductions, a demand and return system allowing employees to object to the amount of the fees, or an adequate explanation to employees of the basis for the fees charged. On February 24, 2005, the charge was amended to add 28 individuals as charging parties. On March 25, the Director of Unfair Practices issued a Complaint on allegations that the employer violated 5.4a(1) and (3) 1/ and the FOP violated 5.4b(1) of the Act.2/ Neither respondent filed an Answer. See N.J.A.C . 19:14- 3.1. ¶

On October 13, 2004, Joseph Martin filed a related unfair practice charge (CI-2005-014). His charge, as amended on January 3, 2005, alleges that the employer violated N.J.S.A. 34:13A- 5.5a3/ by deducting agency fees without a new agreement with the FOP; violated N.J.S.A. 34:13A-5.5b4/ by deducting a larger fee amount than permitted; and violated N.J.S.A . 34:13A-5.75/ by allowing deductions that discriminate against him and all parole officers. A Complaint issued and his case was consolidated with CO-2005-092. The employer did not file an Answer. ¶

On June 1, 2005, the charging parties in CO-2005-092 moved for summary judgment and submitted a supporting certification of PBA Local 105 President Joseph Malagrino and documents. On June 13, the employer and the FOP filed cross-motions for summary judgment. ¶

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). The facts in the following chronology are undisputed. ¶

June 4, 2004 - FOP replaces PBA as majority representative. ¶

July 28 - PBA counsel notifies FOP and the Director of the employer’s Office of Employee Relations that fees cannot be legally deducted until there is a written agreement to do so and until a demand and return system is in place. ¶

July 29 - Employer deducts fees from bi-weekly paychecks and transmits them to FOP. ¶

On or about August 10 - Employer acknowledges that there is no basis to continue deductions and agrees to cease practice. ¶

August 12 - FOP Counsel writes a letter to the PBA asserting that FOP is now in compliance and that any possible unfair practice charge can address only the July 29 deductions. ¶

August 12 - Employer deducts fees from bi-weekly paychecks and transmits them to FOP which places them in escrow pursuant to agreement between PBA and FOP. ¶

The Act requires majority representatives to represent all unit employees, regardless of union membership. N.J.S.A . 34:13A- 5.3. In an effort to limit the ability of nonmembers to receive the benefit of services performed by the majority representative without sharing in the costs incurred, the Legislature amended the Act in 1979 to authorize provisions in collective negotiations agreements requiring nonmembers to pay representation fees. Such fees cannot exceed 85% of regular membership dues, fees and assessments. N.J.S.A. 34:13A-5.5 et seq.; In re Hunterdon Cty., 369 N.J. Super. 572 (App. Div. 2004), certif. den. 182 N.J . 139 (2004). The statute also provides, however, that the representation fee shall be available only to a majority representative that has established and maintained a demand and return system allowing nonmembers to object to any portions of the fee that are being spent for non-chargeable purposes. See N.J.S.A . 34:13A-5.5. Regulations governing the collection of representation fees specifically require that: ¶

Prior to the commencement of payroll deductions of the representation fee in lieu of dues for any dues year, the majority representative shall provide all persons subject to the fee with an adequate explanation of the basis of the fee, which shall include: ¶

* * * ¶

2. A copy of the demand and return system established by the majority representative. . . . [ N.J.A.C. 19:17-3.3] ¶

The Legislature amended section 5.5 in 2002 to permit majority representatives to receive representation fees even though no agreement with the employer has been reached, provided they file a petition with this Commission and we determine that two statutory conditions have been met. L.2002, c .46. Those conditions are that a majority representative demonstrate both that a majority of employees in the negotiations unit are union members and that it maintains a demand and return system in conformity with N.J.S.A . 34:13A-5.5(c). Thus, whether by negotiated agreement or by operation of the 2002 amendment to the Act, the collection of representation fees is contingent upon a demand and return system being in place. Boonton Bd. of Ed ., P.E.R.C. No. 84-3, 9 NJPER 472 (¶14199 1983), aff’d as mod. sub nom. Boonton Bd. of Ed. v. Kramer, 99 N.J. 523 (1985), cert. den. 475 U.S . 1072 (1986) (no representation fees may be available to the majority representative unless that representative has already established a demand and return system). ¶

We reject the employer’s contention that any harm from the alleged violation is de minimis and that any objection should be addressed through the demand and return system. We have previously exercised jurisdiction to consider contentions that a demand and return system is non-existent or defective, or that a majority representative failed to give adequate notice of its demand and return system. Boonton Bd. of Ed., 9 NJPER at 479. In Boonton , representation fee deductions began on September 1, 1981 despite the fact that the demand and return system was not in place until September 30. We ordered that the individual charging party be paid back the amount collected before the establishment of the demand and return system - $19.04 plus interest. As in Boonton , we conclude that the public employer and the FOP violated the Act by collecting and distributing a representation fee in lieu of dues from the paychecks of the 28 named charging parties on July 29, 2004, before the FOP had a demand and return system in place and before the FOP and the employer had a written agreement providing for the collection of representation fees or we had issued an order requiring the deduction of such fees. We will order the respondents to return the July 29 fees to the 28 named charging parties and to Martin. We deny the motion and cross-motions for summary judgment, without prejudice, as to the August 12 fees because the parties have not established whether or not the FOP and the employer had complied with the requirements for fee deductions by that date. ¶

The unfair practice charge filed by the PBA also seeks a refund of representation fees withheld from unnamed members of the PBA. We conclude that the PBA does not have standing to seek that relief. ¶

In City of Jersey City , P.E.R.C. No. 83-32, 8 NJPER 563 (¶13260 1982), the Non-Permanent Civil Service Employees filed an unfair practice charge against the majority representative, the Jersey City Supervisors Association. The negotiations unit consisted of approximately 130 employees, including 35 Comprehensive Employment Training Act, or CETA, employees. Those CETA employees were all members of the charging party; some were also members of the Association. We found that the Association had been improperly collecting representation fees from all nonmember CETA employees and ordered a refund of all representation fees paid by those nonmembers. In this case, the PBA does not allege that it represents the entire class of unit members from whom the FOP has collected representation fees. Nor does it allege any separate harm to the PBA as an organization. See City of Camden, H.E. No. 88-64, 14 NJPER 485 (¶19205 1988) (Hearing Examiner found that minority union did not have standing to allege that representation fees were improperly deducted); see also Union Tp., D.U.P. No. 84-20, 10 NJPER 163 (¶15080 1984). Under these circumstances, we limit relief to the named charging parties. 6/ ¶

We invite the parties to refile their motions within 21 days with supporting certifications and documents that specify when the employer and the FOP entered into an agreement for the collection of representation fees, and when the FOP complied with all the other statutory and regulatory requirements associated with the development of a demand and return system. Such a procedure should permit us to resolve the remaining allegations without a hearing. ¶

OrderORDER ¶

The State of New Jersey and New Jersey State Corrections Officers Association/FOP Lodge 200 are ordered to: ¶

A. Cease and desist from collecting and distributing representation fees in lieu of dues on behalf of New Jersey State Correction Officers Association/FOP Lodge 200 without first complying with all statutory and regulatory requirements for the collection of such fees. ¶

B. Refund to Joseph Martin and the named charging parties in Docket No. CO-2005-092, the representation fees in lieu of dues collected on July 29, 2004. ¶

C. The public employer shall post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

D. Within twenty (20) days of receipt of this decision, notify the Chairman of the Commission of the steps the Respondent has taken to comply with this order. ¶

The motion and cross-motions for summary judgment are otherwise denied, without prejudice to these motions being refiled within 21 days as to the August 12 representation fees. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

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

DATED: July 28, 2005 ¶

Trenton, New Jersey ¶

ISSUED: July 28, 2005 ¶

NOTICE TO EMPLOYEES ¶

PURSUANT TO ¶

AN ORDER OF THE ¶

PUBLIC EMPLOYMENT RELATIONS COMMISSION ¶

AND IN ORDER TO EFFECTUATE THE POLICIES OF THE ¶

NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, ¶

AS AMENDED, ¶

We hereby notify our employees that: ¶

WE WILL cease and desist from collecting and distributing representation fees in lieu of dues on behalf of New Jersey State Correction Officers Association/FOP Lodge 200 without first complying with all statutory and regulatory requirements for the collection of such fees. ¶

WE WILL refund to Joseph Martin and the named charging parties in Docket No. CO-2005-092, the representation fees in lieu of dues collected on July 29, 2004. ¶

STATE OF NEW JERSEY and ¶

NEW JERSEY STATE CORRECTIONS ¶

CO-2005-092 OFFICERS ASSOCIATION/FOP ¶

CI-2005-014 LODGE 200, ¶

Docket No. ¶

Date: ¶

By: ¶

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. ¶

If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, P.O. Box 429, Trenton, NJ 08625-0429 (609) 984-7372 ¶

APPENDIX "A" ¶

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/ 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.” ¶

3/ This provision provides: “Notwithstanding any other provisions of law to the contrary, the majority representative and the public employer of public employees in an appropriate unit shall, where requested by the majority representative, negotiate concerning the subject of requiring the payment by all nonmember employees in the unit to the majority representative of a representation fee in lieu of dues for services rendered by the majority representative. Where agreement is reached it shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative. If no agreement is reached, the majority representative may petition the commission to conduct an investigation. If the commission determines during the investigation that a majority of the employees in the negotiations unit are voluntary dues paying members of the majority representative and that the majority representative maintains a demand and return system as required by subsection c. of this section and section 3 of P.L.1979, c.477 (C.34:13A-5.6), the commission shall order the public employer to institute a payroll deduction of the representation fee in lieu of dues from the wages or salaries of the employees in the negotiations unit who are not members of the majority representative.” ¶

4/ This provision provides: “The representation fee in lieu of dues shall be in an amount equivalent to the regular membership dues, initiation fees and assessments charged by the majority representative to its own members less the cost of benefits financed through the dues, fees and assessments and available to or benefitting only its members, but in no event shall such fee exceed 85% of the regular membership dues, fees and assessments.” ¶

5/ This provision provides: “Any action engaged in by a public employer, its representatives or agents, or by an employee organization, its representatives or agents, which discriminates between nonmembers who pay the said representation fee and members with regard to the payment of such fee other than as allowed under this act, shall be treated as an unfair practice within the meaning of subsection 1(a) or subsection 1(b) of this act.” ¶

6/ In his charge, Joseph Martin seeks a refund of representation fees for himself and all parole officers. We conclude that Martin does not have standing to represent the interests of all parole officers. We note also that Martin has not filed a motion for summary judgment. However, in the interests of administrative convenience, we will extend our order to Martin. Otherwise, we would be required to sever his case from the one we are deciding today even though the issues and relief are identical. As part of including Martin in the relief ordered, we dismiss the allegation in his charge challenging the amount of the representation fee collected. Any objection to the amount of a fee may be raised through the demand and return system and by appeal to the Public Employment Relations Commission Appeal Board. See N.J.A.C. 1:20-1.1 et seq.; N.J.A.C . 19:17.1.1 et seq. ¶