P.E.R.C. No. 2015-23, Passaic Cty Supp Staff Assn/NJEA

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PASSAIC COUNTY SUPPORT STAFF ASSOCIATION/NJEA, Respondent, -and- Docket No. CI-2013-064 STEPHEN THOMAS ERNST, Charging Party. PASSAIC COUNTY COLLEGE, Respondent, -and- Docket No. CI-2013-065 STEPHEN THOMAS ERNST, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission affirms the decision of the Director of Unfair Practices refusing to issue a Complaint based on unfair practice charges filed by Stephen Thomas Ernst against Passaic County College and the Passaic County Support Staff Association/NJEA. The charges allege that the College and Association violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when the College refused to process a wage grievance and the Association refused to actively support his wage grievance. The Commission agrees with the Director that the Association’s decision not to arbitrate the grievance did not breach its duty of fair representation, and that because Ernst cannot prove a breach of the duty of fair representation against his majority representative, he does not have standing to assert that the College negotiated in bad faith. ¶

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 PASSAIC COUNTY SUPPORT STAFF ASSOCIATION/NJEA, Respondent, -and- Docket No. CI-2013-064 STEPHEN THOMAS ERNST, Charging Party. PASSAIC COUNTY COLLEGE, Respondent, -and- Docket No. CI-2013-065 STEPHEN THOMAS ERNST, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, New Jersey Education Association Uniserv Office 29, Bucceri and Pincus, attorneys ¶

(Sheldon Pincus, of counsel) ¶

For the Respondent, Passaic County Community College ¶

(Michael Silvestro, Vice President Human Resources) ¶

For the Charging Party, Stephen Thomas Ernst, pro se ¶

DECISION ¶

Stephen Thomas Ernst has appealed a decision of the Director of Unfair Practices.1/ That decision refused to issue a complaint based on unfair practice charges filed on June 20, 2013 against the Passaic County Support Staff Association/NJEA and Passaic County Community College. D.U.P. No. 2014-16, 41 NJPER 37 (¶9 2014). The charge against the Association alleges it violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4b(1), (2), (3) and (5)2/ when Association representatives “[n]eglected and/or refused to actively support and/or obtain legal representation of a wage grievance for underpayment of the union’s wages for fiscal 2010-2013"; refused to acknowledge a violation of the contract; denied Ernst due process by “misdirection” ; and failed to represent him in the grievance in a timely manner. As a remedy, Ernst sought legal representation and arbitration of his grievance. ¶

The charge against the College alleges it violated N.J.S.A. 24:13A-5.4a(5) and (7)3/ when it “...ignored or refused to process a wage grievance for underpayment of base salary for rank [and] file union employees” and that “...[m]anagement through misdirection has denied (Ernst) due process by union contract.” ¶

The Association and College filed statements of position responding to the charges and an exploratory conference was held. On April 2, 2014, the Director of Unfair Practices issued a letter to the parties indicating her tentative findings of fact and her conclusion that she was not inclined to issue a complaint. The parties were invited to respond. Ernst and the Association responded. The College did not file a response. ¶

On June 5, 2014, the Director issued her decision dismissing the two unfair practice charges. The Director found Ernst’s charge against the Association to be untimely as Ernst was informed in April 2012 that the Association did not consider his allegations actionable. As Ernst filed his charges in June 2013, he was outside the six month limitations period. As to Ernst’s allegation against the College, the Director found that individual employees normally do not have standing to assert a 5.4a(5) violation because the employer’s duty to negotiate in good faith runs only to the majority representative, unless that employee has also asserted a viable claim of a breach of the duty of fair representation against the majority representative. Since the facts asserted by Ernst against the Association did not indicate that the Association breached its duty of fair representation, the Director declined to issue a complaint on the allegations against the College. ¶

The grievance Ernst’s sought to have arbitrated by the Association concerns the College’s decision to pay employees over 27 pay periods rather than 26 pay periods in FY 2010-2011. He asserts his compensation was reduced and he was never paid for two weeks of labor that year. On appeal, Ernst argues that he was never at a meeting the Director cites took place on or about December 17, 2010 as he was in Virginia.4/ He further argues that the Association’s assertion that he was informed it would not further process his grievance in May 2012 is false. Ernst requests that this Commission therefore find that the proper date to calculate the time from which he was required to file his charges is May 2013. He cites Tp. of Irvington, P.E.R.C. No. 2005-76, 31 NJPER 148 (¶66 2005)(grievance challenging change in pay period is mandatorily negotiable) to establish the College acted in violation of the Act when it changed the pay periods. ¶

The Association responds that Ernst’s submission seeks to allege facts that were not previously presented.5/ Specifically, that he was in Virginia on December 17, 2012. It argues that the Director appropriately concluded the Association did not breach its duty of fair representation. ¶

We are reluctant to allow a party to supplement a record in an unfair practice case after receiving an adverse ruling, particularly when that evidence was available at the time of the initial proceeding. Even if we were to accept Ernst’s new dates and found his charge timely, it would not change our concurrence with the Director that the allegations, if true, would not establish that the Association breached its duty of fair representation. ¶

A union will breach its duty of fair representation and when its conduct toward a negotiations unit member is arbitrary, discriminatory or in bad faith. 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); see also Lullo v. International Ass’n of Fire Fighters, 55 N.J. 409 (1970); OPEIU Local 153, P.E.R.C. No. 84-60, 10 NJPER 12 (¶15007 1983). A wide range of reasonableness must be allowed a majority representative in servicing the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. PBA Local 187, P.E.R.C. No. 2005-78, 31 NJPER 173 (¶70 2005) citing Ford Motor Co. v. Huffman, 345 U.S. 330, 337- 338 (1953). Thus, the duty of fair representation does not require a union to arbitrate every grievance. Carteret Ed. Ass’n (Radwan), P.E.R.C. No. 97-146, 23 NJPER 390 (¶28177 1997); Camden Cty. College (Porreca), P.E.R.C. No. 88-28, 13 NJPER 755 (¶18285 1987). ¶

A complaint will not issue unless the allegations in an unfair practice charge, if true, might constitute an unfair practice. N.J.A.C. 19:14-2.1. Absent some arbitrary, discriminatory or bad faith conduct, it would not be an unfair practice for the Association to decide to not pursue the grievance in issue. We note that the cases cited by Ernst refer to a scope of negotiations case where the majority representative sought arbitration. We did not rule on the merits of the grievance in that case, just that the issue was mandatorily negotiable between the employer and majority representative. ¶

The Director’s decision thoroughly examines the Association’s actions and investigation in response to the grievance. The Director reviewed Ernst’s time line of events from 2010 through 2013 as well as his argument and documents submitted. Having also reviewed the record, we find that the Association’s actions and its subsequent decision not to arbitrate the grievance falls within the range of reasonableness a majority representative must be afforded and that there is no allegation that, if true, would establish that the Association acted in bad faith. Since Ernst can not prove a breach of the duty of fair representation, we also find that he can not establish a case that the College negotiated in bad faith. ¶

OrderORDER ¶

The refusal to issue a complaint is sustained. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson and Jones voted in favor of this decision. None opposed. Commissioners Voos and Wall were not present. ¶

ISSUED: October 30, 2014 ¶

Trenton, New Jersey ¶

Note1/ We deny Ernst’s request for oral argument. ¶

2/ 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. (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit. . . . [and] (5) Violating any of the rules and regulations established by the commission.” ¶

3/ These provisions prohibit public employers, their representatives or agents from: “. . .(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. . . .[and] (7) Violating any of the rules and regulations established by the commission.” ¶

4/ Ernst also requests that the Commission issue “a decision as to the validity of using County public employees in a private business venture of PCC, in providing services to the [S]tate of N[ew] J[ersey] in direct violation of NJ minimum wages for those services” and cites N.J.S.A. 34:11- 56.25. These allegations fall outside our jurisdiction under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ¶

5/ The College did not respond to Ernst’s appeal. ¶