P.E.R.C. No. 2010-14, Sharon Davis

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of FOP LODGE 12, Respondent, -and- Docket No. CI-2008-015 SHARON DAVIS, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the FOP Lodge 12’s motion for summary judgment seeking dismissal of an unfair practice charge filed by Sharon Davis. The charge alleges that the FOP violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when it refused to provide satisfactory legal counsel or union representation throughout disciplinary proceedings that resulted in Davis’ termination. The FOP submitted a certification that Davis was not treated differently than other members assigned legal counsel. Davis did not respond to the FOP’s motion. The Commission holds that the FOP’s position is undisputed and grants the FOP’s motion. ¶

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 FOP LODGE 12, Respondent, -and- Docket No. CI-2008-015 SHARON DAVIS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Markowitz & Richman, attorneys (Stephen C. Richman, of counsel) ¶

For the Charging Party, Sharon Davis, pro se ¶

DECISION ¶

This matter comes to us by way of a motion for summary judgment. The underlying charge alleges that FOP Lodge 12 violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1), (3) and (5),1/ by unlawfully refusing to provide former Newark Police Officer Sharon Davis satisfactory legal counsel or union representation throughout internal departmental hearings and before the Office of Administrative Law ( “OAL” ) relating to disciplinary charges levied against her by the City of Newark. Davis further alleges that this lack of representation resulted in her termination. ¶

On June 27, 2008, Davis appealed a decision of the Director of Unfair Practices that had refused to issue a complaint based on her unfair practice charge against the FOP. D.U.P. No. 2008- 8, 34 NJPER 138 (¶58 2008). Because an allegation in the charge was made that, if true, might constitute an unfair practice, we remanded the case to the Director to issue a complaint on that allegation. P.E.R.C. No. 2009-9, 34 NJPER 246 (¶84 2008). ¶

On October 20, 2008, the Director issued a Complaint and Notice of Hearing. ¶

On June 25, 2009, the FOP filed a motion for summary judgment, with a supporting certification from FOP President Derrick Hatcher. Davis has not responded. We grant the FOP’s motion. ¶

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). ¶

A majority representative has a duty to represent unit members in a manner that is not arbitrary, discriminatory or in bad faith. See Vaca v. Sipes, 386 U.S. 171 (1967); Belen v. Woodbridge Tp. Bd. of Ed. and Woodbridge Fed. of Teachers, 142 N.J. Super. 486 (App. Div. 1976). ¶

In the underlying charge, Davis alleges, among other things, that the FOP has hired attorneys to represent other officers terminated by the City. Davis also alleges that the FOP’s president was retaliating against her for conversations she had with him about the attorney assigned to her. Davis was not satisfied because the attorney she was assigned was allegedly not communicating with her and did not prepare her for hearing. ¶

Davis further alleges that in response to her April 23, 2007 complaints to the FOP’s president about the attorney assigned to her through the FOP Legal Defense Plan, the president acknowledged that the FOP had an obligation to provide another attorney, and did not do so even though it had used or paid for other attorneys for other unit members. Davis continues that the FOP failed to provide an attorney or representative at her June 15, 2007 OAL proceeding. ¶

In P.E.R.C. No. 2009-9, we were not able to definitively decide the extent of the FOP’s obligation to Davis and, in remanding the case to the Director to issue a complaint on this allegation, stated: ¶

While a majority representative may not be required to provide an attorney or union representative to all unit members facing discipline, it is obligated to treat all unit members in a manner that is not arbitrary, discriminatory or in bad faith. In this case, if the FOP has provided attorneys or union representatives to similarly situated unit members, not providing one to Davis might constitute a breach of the duty of fair representation. ¶

[34 NJPER at 246] ¶

The FOP’s president has certified that there has been no situation similar to that presented in this case where an FOP unit member involved in a disciplinary matter rejected representation by an attorney from the FOP Legal Defense Plan and was later provided an attorney or had an attorney paid for by the FOP. As noted above, Davis did not file any opposition statement or information. ¶

In view of the uncontradicted assertion of the FOP’s president, the FOP’s motion for summary judgment is granted. ¶

OrderORDER ¶

The FOP’s motion for summary judgment is granted. The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Branigan, Buchanan, Colligan, Fuller, Joanis and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: September 24, 2009 ¶

Trenton, New Jersey ¶

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 . . . [and] (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶