P.E.R.C. No. 2011-83, NJ State PBA

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY STATE PBA and PBA LOCAL 199, Respondent, -and- Docket No. CI-2010-050 JAMES EDWARD RINALDO, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the decision of the Director of Unfair Practices refusing to issue a complaint based on an unfair practice charge filed by James Edward Rinaldo against the New Jersey State PBA and PBA Local 199. D.U.P. No. 2011-4. The charge alleges that the respondents violated 5.4b(1), (2) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. when Rinaldo was expelled from membership in the organizations and in the Union County Correction Officers PBA, Local 199A and when the State PBA removed him from the position of president of Local 199A. The Commission finds that it does not have jurisdiction over alleged violations of the State PBA’s constitution and by-laws; there is no evidence to support the allegations of a breach of the duty of fair representation; the Commission lacks jurisdiction over State constitutional claims; and the alleged 5.4b(2) and (5) allegations are not supported. ¶

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 NEW JERSEY STATE PBA and PBA LOCAL 199, Respondent, -and- Docket No. CI-2010-050 JAMES EDWARD RINALDO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, New Jersey State PBA ¶

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys (Robert A. Fagella, of counsel) ¶

For the Respondent, PBA Local 199, Mets Schiro & McGovern, attorneys (James M. Mets, of counsel) ¶

For the Charging Party, Rinaldo and Rinaldo, attorneys ¶

(Grant S. Ellis, of counsel) ¶

DECISION ¶

On October 12, 2010, the Director of Unfair Practices dismissed an unfair practice charge filed by James Edward Rinaldo against the New Jersey State Policemen’s Benevolent Association ( “State PBA” ) and the Union County Corrections Officers Policemen’s Benevolent Association, Local 199 ( “Local 199” ). D.U.P. No. 2011-4, 36 NJPER 390 (¶152 2010). Rinaldo has appealed the dismissal of the charge. For the reasons set forth in this opinion, we affirm. ¶

Rinaldo’s charge, filed on June 11, 2010, alleged that the respondents violated 5.4b (1), (2), and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when he was expelled from membership in their organizations and in the Superior Officers Association, Union County Correction Officers Policemen’s Benevolent Association, Local 199A ( “Local 199A” ) and when the State PBA removed him from the position of president of Local 199A. The State PBA expelled and removed Rinaldo because he instituted court proceedings against Local 199 members. At the time of his expulsion, Local 199 represented corrections officers below the rank of sergeant and Local 199A represented superior officers in the ranks of sergeant, lieutenant and captain. Shortly after his expulsion, the Fraternal Order of Police Lodge 213 replaced Local 199A as the superior officers’ majority representative and Rinaldo became Lodge 213’s president. ¶

The Director determined that the allegations in the charge did not meet the Complaint issuance standards set by N.J.A.C. 19:14-2.1. The Director reasoned that neither respondent owed Rinaldo a duty of fair representation because neither one served as his majority representative and that even if the charge had alleged that Rinaldo’s majority representative, Local 199A, violated its duty of fair representation, the matter is moot given the absence of any economic damage to Rinaldo and the change in majority representatives. The Director also found that the Commission lacked jurisdiction to entertain Rinaldo’s claims that his expulsion violated the State PBA’s constitution and by- laws. Further, he found that the charge did not allege that Rinaldo’s majority representative expelled him arbitrarily, discriminatorily, or invidiously. He found that Rinaldo lacked standing to assert that his expulsion and removal violated Local 199A’s rights and that Rinaldo’s expulsion and removal did not interfere with the right of superior officers to select Local 199A as their majority representative and later replace it with FOP Lodge 213. Finally, the Director found that Rinaldo also lacked standing to assert a violation of 5.4b (2) since the right protected by the provision belongs to the public employer, not an individual employee and the charge did not specify a violation of a Commission rule or regulation, as required to find a violation of 5.4b(5). ¶

In his appeal, Rinaldo asserts that the respondents’ jurisdictional positions in previous Superior Court litigation estop them from arguing that the Commission lacks jurisdiction in this case; the respondents’ obligations towards Rinaldo are not limited to the duty of fair representation and extend to not arbitrarily, discriminatorily, or invidiously expelling and removing him in violation of his statutory and constitutional rights; and the propriety of his expulsion is not moot because the Director’s holding leaves Rinaldo with no forum to clear his name. ¶

The respondents have filed briefs asserting that the Director properly dismissed the charge. The State PBA argues that the Director correctly concluded that Rinaldo lacked standing to pursue a duty of fair representation claim; the charge was moot; the Commission lacked jurisdiction over this intra-union dispute; and the charge did not allege any arbitrary conduct by the State PBA, interference with any organizational rights; or cognizable violation of 5.4b(2). Local 199 makes similar arguments. ¶

We begin by reviewing the limits on our jurisdiction over disputes involving the relationship between a union and its members. We do not have power to enforce union constitutions and by-laws. These documents may establish judicially enforceable contractual rights, but a violation of their provisions does not generally constitute an unfair practice under our Act. Teamsters Local 331 (McLaughlin), P.E.R.C. No. 2001-30, 27 NJPER 25, 27 (¶32014 2000); Calabrese v. PBA Local 76, 157 N.J. Super. 139 (Law Div. 1978). Nor do we have authority to referee or resolve internal union disputes unconnected to allegations and proof that an unfair practice has been committed. City of Jersey City, P.E.R.C. No. 83-32, 8 NJPER 563, 565-566 (¶13260 1982); cf. Danese v. Ginesi, 280 N.J. Super. 17, 25 (App. Div. 1995) (unions are entitled to considerable latitude in making membership rules). Nor do we have jurisdiction to enforce the New Jersey Constitution as opposed to the statutory rights specifically granted by the New Jersey Employer-Employee Relations Act. In contradistinction to all these broader disputes, our unfair practice jurisdiction over membership matters is statutorily confined under the Act we administer to two instances. The first instance is where a majority representative violates its duty to represent its members fairly in contract negotiations and grievance processing, N.J.S.A. 34:13A-5.3; OPEIU Local 153 (Johnstone), P.E.R.C. No. 84-60, 10 NJPER 12 (¶15007 1983). The second instance is where a majority representative arbitrarily, discriminatorily, or invidiously excludes or expels a negotiations unit employee seeking to participate in majority representative affairs affecting his or her employment conditions. FOP Lodge 12 (Colasanti), P.E.R.C. No. 90-65, 16 NJPER 126 (¶21049 1991); PBA Local 199 (Abdul-Haqq), P.E.R.C. No. 81-14, 6 NJPER 384 (¶11198 1980). ¶

The unfair practice charge alleges several violations of the State PBA’s constitution and by-laws. We agree with the Director that these alleged violations fall outside our unfair practice jurisdiction. We reject Rinaldo’s argument that respondents should be estopped from contesting our jurisdiction because of inconsistent positions asserted in previous Superior Court litigation; neither respondent was a party to that litigation and in any event, an estoppel argument cannot expand our statutorily- constricted jurisdiction.2/ ¶

The charge also asserts that the respondents violated their duty of fair representation to Rinaldo. We agree with the Director that this alleged violation has not been properly supported. Neither the State PBA nor Local 199 ever served as Rinaldo’s majority representative and there are no allegations that they or Local 199A ever took any actions in contract negotiations or grievance processing that would violate the duty of fair representation. ¶

The charge also asserts that the respondents arbitrarily expelled Rinaldo from membership in their organizations and Local 199A and removed him from being the latter’s president. We agree with the Director that this alleged violation has not been properly supported. Under our case law, a violation will generally not be found unless an employee has been expelled by his or her majority representative. Neither Local 199A, Rinaldo’s majority representative, nor Local 199 played any role in the State PBA’s decision to expel and remove Rinaldo for instituting court proceedings against other union members. Even if we assume that the State PBA had a duty as Local 199A’s parent not to arbitrarily expel Rinaldo from membership in his majority representative, we cannot say that the State PBA acted arbitrarily. The State PBA removed Local 199 from participating in the decision-making about Rinaldo’s potential expulsion and acquitted him of all charges except improperly bringing court proceedings against Local 199 members. Employee organizations are free to create rules affecting their members to accomplish organizational objectives. Danese v. Ginesi; Calabrese. ¶

Finally, we agree with the Director that the alleged violations of 5.4b(2) and (5) have not been properly supported. An individual employee does not have standing to assert a violation of the employer’s right to select its own negotiations or grievance representatives and the charge does not identify any Commission regulation alleged to have been violated. ¶

OrderORDER ¶

The dismissal of the unfair practice charge in this case is affirmed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Krengel and Voos voted in favor of this decision. None opposed. Commissioners Colligan and Eskilson recused themselves. Commissioner Wall was not present. ¶

ISSUED: June 30, 2011 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit employee organizations and their representatives or agents from: These provisions prohibit 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. (2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of negotiations or the adjustment of grievances. . . . [and] (5) Violating any of the rules and regulations established by the commission.” ¶

2/ A description of the Superior Court litigation can be found in Rinaldo v. Burkert (App. Div. 2011). The Court emphasized that it lacked power to grant relief, even if it had been deemed appropriate, because Rinaldo did not sue the entities responsible for his expulsion or appeal from the State PBA decision expelling him. ¶