P.E.R.C. No. 2020-44, Rutgers University

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Respondent, -and- Docket No. CI-2019-031 AAUP - BIOMEDICAL AND HEALTH SCIENCES OF NEW JERSEY, Respondent, -and- DR. GAETANO G. SPINNATO, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the refusal of the Director of Unfair Practices to issue a complaint, D.U.P. 2020-8, 46 NJPER 75 (¶308 2020), on allegations of the Charging Party about a variety of conduct by the Respondent, Rutgers, the State University of New Jersey, and the Respondent union, AAUP-Biomedical and Health Sciences of New Jersey, arising from a dispute concerning compensatory time off for holidays that fell on his day off and disputes regarding revoking his membership in the union. The Commission sustains the Director’s refusal to issue a complaint for the reasons set forth in his Decision. The Commission adds that, on appeal, the Charging Party has not stated a factual or legal basis for concluding that he was prevented from filing his complaint within the six-month statute of limitations; and that otherwise the Charging Party seeks to relitigate the merits of a breach of contract claim, over which the Commission lacks jurisdiction and which does not state an unfair labor practice. Lastly, the Commission finds that the Director addressed in detail the Charging Party’s dues revocation request. ¶

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. The Commission further finds that the record does not support that the transfer was effected predominately to fill a staffing need at another school. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Respondent, -and- Docket No. CI-2019-031 AAUP - BIOMEDICAL AND HEALTH SCIENCES OF NEW JERSEY, Respondent, -and- DR. GAETANO G. SPINNATO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Rutgers, the State University ¶

of New Jersey (David Cohen, of counsel) ¶

For the Respondent, AAUP - Biomedical and Health Sciences of New Jersey (Diomedes Tsitouras, Executive Director) ¶

For the Charging Party, Rubas Law Offices, attorneys ¶

(Michael P. Rubas, of counsel) ¶

DECISION ¶

On March 6 and 13, 2019, Dr. Gaetano G. Spinnato (Charging Party) filed an unfair practice charge and amended charge against his employer, Rutgers University (Rutgers), and his majority representative, AAUP-BHSNJ (Union). The charge, as amended, complains of a variety of conduct arising from disputes concerning compensatory time off for holidays that fell on the Charging Party’s day off and a dispute regarding revoking his membership in the Union.1/ As amended, the charge alleged that Rutgers’ conduct violated section 5.4(a)1, 3, 4, 5, 6, 7,2/ and the Union’s conduct violated section 5.4(b)1, 3, 4, 5,3/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (Act). ¶

On January 21, 2020, the Director of Unfair Practices refused to issue a complaint. D.U.P. No. 2020-8, 46 NJPER 75 (¶308 2020). On January 24 the Charging Party filed a deficient appeal, and was given until February 3 to cure the deficiencies. ¶

On February 3, 2020, the Charging Party perfected his appeal. Rutgers filed a response on February 24. The Union did not file a response. ¶

We sustain the Director’s refusal to issue a complaint for the reasons set forth in his comprehensive, well-reasoned Decision. On appeal, we find that the Charging Party has not stated a factual or legal basis for not sustaining that Decision. N.J.A.C. 19:14-2.3(b). We add the following. ¶

On appeal, the Charging Party asserts that his reliance on alleged misrepresentations contained in a July 2, 2018 email from the Union’s Executive Director, Diomedes Tsitouras, “prevented him from timely re-filing and proceeding with the unfair labor charge.” The Charging Party asserts that this fact renders erroneous the Director’s conclusion that the Charging Party’s unfair practice allegations against the Union regarding its representation and processing of his holiday-time grievance were time-barred because the charge was filed after the six-month statute of limitations had expired. N.J.S.A. 34:13A-5.4c. D.U.P. at 6-7. ¶

The Charging Party had withdrawn a prior similar unfair practice charge based upon an expectation that the grievance would be resolved in arbitration. (Charging Party’s Br. at 2.) The Charging Party admits that after he received Tsitouras’ July 2, 2018 email, “the matter never proceeded to arbitration and the reasons why are clearly contained therein.” (Ibid, emphasis added.) That email in fact clearly states, among other things, that the Union’s “position was that we decided that this matter be resolved at the bargaining table.” These facts establish that by July 8, 2018, if not before, the Charging Party had notice that the Union would not pursue arbitration. They do not provide a basis to conclude that the Charging Party’s reliance on these facts prevented him from re-filing an unfair practice charge (that among other things contested the Union’s failure to pursue arbitration) until March 6, 2019, outside the six-month statute of limitations. ¶

Next the Charging Party contends on appeal that the disputed facts underlying the holiday-time grievance are evidence that Rutgers did not negotiate in good faith regarding its decisions affecting his alleged contractual entitlement to compensatory time off for holidays that fell on his day off. (Charging Party’s Br. at 3.) We find that this does not state a legal basis for reversing the Decision on appeal, because we agree with the Director’s conclusion that here the Charging Party merely seeks to relitigate the merits of a grievance about a breach of contract claim. The Commission lacks jurisdiction over such claims and, in any case, they do not state an unfair labor practice. D.U.P. at 8, citing State of New Jersey, (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419, 421 (¶15191 1984). ¶

Lastly, we do not agree with the Charging Party’s final claim on appeal that the Director’s Decision and Order “failed to specifically address his request for the ‘revocation’ of his union dues.” (Charging Party’s Br. at 4.) In fact, the Director addressed this claim at length and in detail. D.U.P. at 12-15. The Charging Party on appeal advances no factual or legal basis to conclude otherwise. ¶

OrderORDER ¶

The refusal to issue a complaint is sustained. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Ford, Jones, Papero and Voos voted in favor of this decision. None opposed. ¶

ISSUED: March 26, 2020 ¶

Trenton, New Jersey ¶

Note1/ The Charging Party alleged Rutgers: wrongly denied him compensatory time off for 23 holidays that coincided with his day off; made mistakes in denying the grievance contesting that issue; failed to withdraw his membership from the Union; and refused to stop deducting dues after being told of his decision to withdraw membership. The Charging Party alleged the Union held his grievance arbitration in abeyance against his wishes, and refused to process his resignation from the Union. ¶

2/ 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;” “(4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act;” “(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;” “(6) Refusing to reduce a negotiated agreement to writing and to sign such agreement;” and “(7) Violating any of the rules and regulations established by the commission.” ¶

3/ 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;” “(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 the unit;” “(4) “Refusing to reduce a negotiated agreement to writing and to sign such agreement” and “(5) Violating any of the rules and regulations established by the commission.” ¶