P.E.R.C. No. 2025-3, PBA Loc 334

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of POLICEMEN’S BENEVOLENT ASSOCIATION, LOCAL 334 Respondent, -and- Docket No. CI-2022-015 JUAN MENDOZA, Charging Party, -and- NEW JERSEY STATE POLICEMEN’S BENEVOLENT ASSOCIATION Intervenor. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the PBA’s motion for summary judgment on Mendoza’s unfair practice charge. The charge alleges that the PBA violated N.J.S.A. 34:13A-5.4b(1) of the New Jersey Employer-Employee Relations Act by suspending Mendoza from the PBA and not assisting him with a grievance in retaliation for his protected activity of filing an unfair practice charge against the PBA. The Commission finds that the matter is not moot because Mendoza remains permanently banned from PBA leadership positions. The Commission also finds that there are material factual disputes concerning the PBA’s internal hearing process as applied to Mendoza and the PBA’s determination not to assist with Mendoza’s grievance. The matter is therefore returned to the Hearing Examiner for an evidentiary hearing. ¶

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 POLICEMEN’S BENEVOLENT ASSOCIATION, LOCAL 334, Respondent, -and- Docket No. CI-2022-015 JUAN MENDOZA, Charging Party, -and- NEW JERSEY STATE POLICEMEN’S BENEVOLENT ASSOCIATION, Intervenor. ¶

AppearancesAppearances: ¶

For the Respondent, Detzky, Hunter & DeFillippo, LLC, attorneys (Stephen B. Hunter, of counsel) ¶

For the Charging Party, Juan Mendoza, pro se ¶

For the Intervenor, Zazzali, P.C., attorneys (Robert A. Fagella, of counsel and on the brief; Albert J. Leonardo, on the brief) ¶

DECISION ¶

Procedural History ¶

This case comes before the Commission by way of a motion for summary judgment filed by the Policemen’s Benevolent Association, Local 334 (Local 334) on May 20, 2024 concerning an unfair practice charge filed by the Charging Party (Mendoza). Mendoza’s January 11, 2022 charge, as amended on February 25, 2022, alleges that Local 334 violated the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1, et seq., by filing internal union charges against him on May 24, 2021 and suspending him from Local 334 on August 13, 2021 in retaliation for his filing of an unfair practice charge and his allegations of misuse of union finances, and by not processing a grievance on his behalf despite his requests for assistance. ¶

On June 22, 2023, the Director of Unfair Practices (Director) issued a decision partially refusing to issue a complaint on Mendoza’s unfair practice charge. D.U.P. No. 2023-28, 50 NJPER 27 (¶9 2023). The Director found that a complaint was warranted on Mendoza’s 5.4b(1)1/ claim that Local 334 breached its duty of fair representation by not processing his grievance. The Director declined to issue a complaint on Mendoza’s remaining allegations. On June 29, Mendoza filed a request for special permission to appeal the Director’s decision partially refusing to issue a complaint. On October 26, the Commission issued a decision granting Mendoza’s request for special permission to appeal and remanding to the Director for issuance of a complaint on Mendoza’s 5.4b(1) allegation that Local 334 suspended him in retaliation for his protected conduct. P.E.R.C. No. 2024-16, 50 NJPER 243 (¶54 2023). We found that Mendoza’s amended unfair practice charge provided sufficient allegations of retaliation for protected activity which, if true, may constitute an unfair practice. 50 NJPER at 246. ¶

On November 2, 2023, the Director issued a complaint and notice of pre-hearing on the remaining 5.4b(1) allegations in Mendoza’s charge. On November 8, Local 334 moved for reconsideration of the Commission’s decision in P.E.R.C. No. 2024-16. On December 14, the Commission denied Local 334's motion for reconsideration. P.E.R.C. No. 2024-27, 50 NJPER 290 (¶69 2023). The case was returned to the unfair practices section, where the Hearing Examiner held a conference and corresponded with the parties concerning discovery and motions. ¶

On March 28, 2024, the New Jersey State Policemen’s Benevolent Association (State PBA) filed a motion for leave to appear as amicus curiae and submitted a brief in support of Local 334's anticipated motion for summary judgment. On April 4, Mendoza filed a brief opposing the State PBA’s motion to appear and opposing summary judgment. On April 17, the State PBA filed a brief in response to Mendoza’s opposition and clarified that Local 334's motion for summary judgment would be forthcoming. On April 22, the Commission Chair advised that she was treating the State PBA’s motion to appear as a motion to intervene and granted the motion to intervene. On May 20, Local 334 filed its motion for summary judgment seeking dismissal of Mendoza’s charge. On May 23, Mendoza filed his opposition to Local 334's motion for summary judgment. On June 7, Local 334 filed a reply brief to Mendoza’s opposition to summary judgment. On June 7, the Chair referred Local 334's motion for summary judgment to the Commission for decision. N.J.A.C. 19:14-4.8(a). ¶

Summary of Facts ¶

Mendoza is employed by Hudson County as a Sheriff’s Officer and is represented by Local 334, the majority representative for the County’s non-supervisory Sheriff’s Officers. Local 334 and the County are parties to a collective negotiations agreement (CNA) effective January 1, 2016 through December 31, 2020, which the parties extended through a Memorandum of Agreement (MOA) effective January 1, 2021 through December 31, 2025. ¶

Mendoza has been the President of Local 334 since October 2019. On January 17, 2020, the State PBA informed Local 334 that it would be assuming temporary operations of the Local due to various allegations against Local 334 members. On January 21, Local 334's charter was suspended by the State PBA and its operations were assigned to a Delegate (referred to by initials H.E.). Mendoza and Local 334's entire Executive Board were suspended from Local 334's operations pending resolution of the alleged improprieties. Mendoza appealed his suspension as Local 334 President to the State PBA. His hearing was scheduled for March 18, 2020 but was postponed due to the COVID-19 pandemic. From May to October 2020, Mendoza and H.E. engaged in several e- mail exchanges concerning grievances, preparation for contract negotiations, and H.E.’s role overseeing Local 334. H.E. declined Mendoza’s request to be on the contract committee. ¶

On October 21, 2020, Mendoza filed an unfair practice charge (Docket No. CI-2021-008) against Local 109 alleging that it restricted him from collective negotiations and contract administration when it suspended him from being Local 334 President and took over administration of Local 334. This prior charge ( “2020 UPC” ) was dismissed as untimely on May 12, 2021. ¶

On October 28 and December 8, 2020, the State PBA’s Judiciary Committee Chairman denied Mendoza’s appeals of his temporary suspension and removal as Local 334 President. The December 8 denial letter referenced a further appeal process and noted the matter would be held in abeyance along with other pending Local 334 issues “until written proof is provided that any litigation, investigation or otherwise pertaining to these matters within PBA Local 334 are disposed of.” ¶

From December 2020 through April 2021, Mendoza engaged in e- mail exchanges with the County Counsel, State PBA, and H.E. concerning the dispute between Mendoza and H.E. about who had authority to represent Local 334 in contract negotiations and in other matters. In March through May 2021, Mendoza notified H.E. of alleged mismanagement of union funds and submitted bank statements and financial documents concerning his allegations. ¶

On May 24, 2021, the State PBA filed internal union charges against Mendoza. The May 24 letter of charges (Charges Letter) provided, in pertinent part: ¶

On my oath and affirmation, I attest that Brother Mendoza did knowingly violate the established principles, Bylaws, rules and regulations of this Association and committed an act that may be considered detrimental to this Association, specifically by filing an Unfair Labor Practice Charge with the NJ Public Employment Relations Commission against [H.E.], contrary to Article XVI, Section 1(A) - COURT PROCEEDINGS. ¶

Article XVI, section 1(A) of the State PBA bylaws provides: ¶

A. COURT PROCEEDINGS - No court proceedings will be instituted or maintained by any member or Local Association against the Association or any Local Association without first seeking redress from and within the Association. No Local Association will institute or commence court proceedings of any kind or nature against the Association or another Local Association without first seeking redress from and within this Association. The provisions of this section will constitute an adequate administrative remedy and a condition precedent to the institution of any court action by this Association, by a Local Association or any individual member thereof. ¶

On June 15, 2021, the State PBA’s Judiciary Committee held a hearing on the charges against Mendoza, as well as the revocation of the Local 334 Charter and suspension of its Executive Board in January 2020. On July 27, the State PBA Judiciary Committee issued a letter (Suspension Letter) to Mendoza denying his appeals concerning Local 334 governance and unanimously sustaining charges against him on three bylaws violations. The Suspension Letter reprimanded Mendoza for “filing an Unfair Labor Practice Charge at PERC against [H.E.]” allegedly in violation of the State PBA Constitution and By-Laws. Mendoza was suspended from the State PBA for three years and was permanently banned from holding an Executive Board position with Local 334. During his suspension, Local 334 has excluded Mendoza from union meetings, negotiations, and communications. ¶

On January 1, 2022, Mendoza sought Local 334's assistance with a grievance against the County concerning a service- connected injury he allegedly sustained on December 15, 2021. Mendoza alleged the County violated Article XVIII of the CNA by charging his sick leave for absences related to his service- connected injury. Article IX.D. of the CNA sets forth the steps of the grievance procedure, which provide that the PBA is to make written submissions at Step 2 and beyond. Article IX.E. provides that an employee may nonetheless process his or own grievance. On February 2, Mendoza filed his own grievance after not receiving a response from Local 334 to his requests for assistance. In a May 29, 2022 e-mail, Mendoza stated that he hired his own workers’ compensation attorney for the alleged service-connected injury involved in his grievance. ¶

Arguments ¶

Local 334 asserts it is entitled to summary judgment because Mendoza’s unfair practice charge is now moot. It argues that because Mendoza’s three-year suspension from the PBA will be completed by August 2024, except for the permanent ban from Local 334 Executive Board positions, continued litigation of his charge would focus the parties on a divisive past. Local 334 asserts that Mendoza’s allegation of a failure to fairly represent him in his grievance should be dismissed because he filed his own grievance and hired his own attorney. Local 334 and the State PBA assert that it is not an unfair practice for the PBA to find that Mendoza violated PBA bylaws by filing an unfair practice charge with the Commission before exhausting the PBA’s internal hearing and appeals processes. ¶

Mendoza asserts this case is not moot because even after his PBA suspension ends, he has been permanently excluded from holding a Local 334 Executive Board position. He argues that the PBA’s retaliation against him for filing an unfair practice charge causes a chilling effect on protected conduct. Mendoza asserts he was justified in seeking redress through the Commission after his internal appeals were repeatedly delayed. He argues that Local 334 breached its duty of fair representation by failing to fairly consider his request for assistance with his sick leave grievance. ¶

Standard of Review ¶

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(e); 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). In determining whether summary judgment is appropriate, we must ascertain “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill at 540. “Although summary judgment serves the valid purpose in our judicial system of protecting against groundless claims and frivolous defenses, it is not a substitute for a full plenary trial” and “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DiMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

Analysis ¶

N.J.S.A. 34:13A-5.4b(1) prohibits an employee organization from “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by the Act.” An employee organization violates this proscription when its action tends to interfere with protected rights and lacks a legitimate and substantial organizational justification. FOP, Lodge No. 12 (Colisanti), P.E.R.C. No. 90-65, 16 NJPER 126 (¶21049 1990). ¶

Section 5.3 of the Act empowers a union to negotiate collectively and administer the collective negotiations agreement on behalf of all unit employees. With that exclusive authority comes the duty to fairly represent all unit employees in negotiations and contract administration. A breach of the duty of fair representation occurs when a union’s conduct towards a member of the negotiations unit is arbitrary, discriminatory or in bad faith. Lullo v. IAFF, 55 N.J. 409 (1970); D’ Arrigo v. New Jersey State Bd. of Mediation, 119 N.J. 74, 76 (1990); Belen v. Woodbridge Tp. Bd. of Ed., 142 N.J. Super. 486 (App. Div. 1976); see also Vaca v. Sipes, 386 U.S. 171 (1967). “The complete satisfaction of all who are represented is hardly to be expected” and “[a] wide range of reasonableness must be allowed a statutory bargaining 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)). A breach of the duty of fair representation violates subsection 5.4b(1) of the Act. ¶

Mootness: ¶

The Commission will find a case moot where “continued litigation over past allegations of misconduct which have no present effects unwisely focuses the parties’ attention on a divisive past rather than a cooperative future.” Ramapo Indian Hills Bd. of Ed., P.E.R.C. No. 91-38, 16 NJPER 581, 582 (¶21255 1990). Other considerations are whether there remain open issues which have practical significance; whether there is a continuing chilling effect from the earlier conduct which has not been erased; whether, after a respondent’s corrective action, a cease and desist order is necessary to prevent other adverse action against the same or other employees; and, whether the offending conduct is likely to recur. See Galloway Township Bd. of Ed., 78 N.J. 25 (1978); Neptune Tp. Bd. of Ed. (App. Div. 1994), aff’ g P.E.R.C. No. 94-79, 20 NJPER 76 (¶25033 1994); Rutgers University, P.E.R.C. No. 2017-4, 43 NJPER 71 (¶18 2016); Hudson Cty., P.E.R.C. No. 2012-48, 38 NJPER 331 (¶111 2012); and Matawan-Aberdeen Reg. Bd. of Ed., P.E.R.C. No. 82-56, 8 NJPER 31 (¶13013 1981). ¶

Here, we find that Mendoza’s unfair practice charge is not moot because, even though the three-year State PBA suspension will be completed by August 2024, he remains permanently banned from holding an Executive Board position with Local 334, where he had been President. ¶

Mendoza’s claim that he was suspended from PBA membership for filing an unfair practice charge: ¶

Employee organizations are free to create rules binding on their members to accomplish organizational objectives, often in the form of constitutions and by-laws. Calabrese v. PBA Local 76, 157 N.J. Super. 139 (Law Div. 1978); Danese v. Ginesi, 280 N.J. Super. 17, 25 (App. Div. 1995). 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). The Commission will not intercede in intra-union disputes unless they are connected to allegations that an unfair practice has been committed. NJ State PBA & PBA Local 199 (Rinaldo), P.E.R.C. No. 2011-83, 38 NJPER 56 (¶8 2011); City of Jersey City, P.E.R.C. No. 83-32, 8 NJPER 563, 565-566 (¶13260 1982). ¶

However, the Appellate Division has held that “N.J.S.A. 34:13A-5.4(b)(1) prohibits interference with a right guaranteed by the Employer-Employee Relations Act, and the Act explicitly protects the right to ‘assist’ in a labor organization, N.J.S.A. 34:13A-5.3.” In re Probation Ass’n (Tortoreto), 442 N.J. Super. 185, 195 (App. Div. 2015). Thus, the Commission may find an unfair practice where an employee organization excludes or suspends a negotiations unit employee if its actions were arbitrary, capricious, discriminatory, or invidious. Probation Ass’n (Tortoreto), 442 N.J. Super. at 194-196 (union member who made allegations of union financial mismanagement could challenge suspension from union as arbitrary); PBA (Smith), P.E.R.C. No. 99-18, 24 NJPER 450 (¶29208 1998) (PBA violated subsection 5.4b(1) of the Act when it sought removal of member for filing an unfair practice charge against the union). ¶

There are multiple genuine issues of material fact concerning the PBA’s internal hearing and appeals process that preclude summary judgment. The record indicates the original March 18, 2020 hearing date was delayed due to COVID-19. On June 15, 2021, after multiple appeals and requests for stay of his suspension were denied and his case was held in abeyance, the PBA held a hearing that considered Mendoza’s suspension along with the May 24, 2021 internal union charges against him. While Mendoza argues the PBA’s delayed hearing and appeals processes indicate that their internal remedies were inadequate and biased against him, Local 334 claims that the process was delayed and was not ripe for external review due to the continuing investigations into the alleged improprieties within Local 334 related to the suspension of him and the Executive Board. ¶

The record does not indicate the underlying reasons for the hearing moving forward in June 2021. The record is also incomplete regarding the PBA’s typical processing of internal appeals. This information is important in determining whether Mendoza was warranted in bringing his allegations to the Commission as an unfair practice charge instead of waiting to exhaust his internal union appeal processes. See PBA (Smith), P.E.R.C. No. 2001-1, 26 NJPER 356 (¶31140 2000) (discussing Clayton v. UAW, 451 U.S. 679 (1981)); and NLRB v. Marine Workers, 391 U.S. 418 (1968). ¶

Mendoza’s claim that Local 334 improperly failed to assist with his grievance: ¶

The duty of fair representation does not require a union to pursue every grievance to arbitration. Essex Cty. (Miller), P.E.R.C. No. 2019-16, 45 NJPER 195 (¶50 2018); Passaic Cty. Support Staff Ass’n, P.E.R.C. No. 2015-23, 41 NJPER 169 (¶60 2014). However, a union must exercise reasonable care and good faith in investigating grievances and evaluating the merits of requests for arbitration. Middlesex Cty. and NJCSA, P.E.R.C. No. 81-62, 6 NJPER 555, 557 (¶11282 1980), aff’d, NJPER Supp.2d 113 (¶94 App. Div. 1982), certif. den., 91 N.J. 242 (1982); Carteret Ed. Ass’n, P.E.R.C. No. 97-146, 23 NJPER 390 (¶28177 1997); Jersey City Medical Center (Shine), P.E.R.C. No. 87-19, 12 NJPER 740 (¶17277 1986); and Trenton Bd. of Ed. (Salter), P.E.R.C. No. 86-146, 12 NJPER 528 (¶17198 1986). A union also “must treat individuals equally by granting equal access to the grievance procedure and arbitration for similar grievances of equal merit.” OPEIU Local 133, P.E.R.C. No. 84-60, 10 NJPER 12 (¶15007 1983). ¶

Here, the record does not indicate why Local 334 decided not to assist Mendoza with his sick leave grievance, whether it exercised reasonable care in investigating the grievance, and whether it treated Mendoza equally to similarly situated Local 334 members in declining to assist him. Those questions all present material issues of fact. Although Mendoza pursued the grievance on his own as permitted by the CNA,2/ that fact alone does not resolve the question of whether Local 334 fairly represented him and exercised good faith in declining to assist him as he pursued the grievance. ATU Div. 540 (Coley), P.E.R.C. No. 2022-7, 48 NJPER 131 (¶33 2021) (union violated its duty of fair representation due to its arbitrary presentation of his grievance to ATU membership, its failure to ensure he had a meaningful opportunity to advocate for himself when it did not assist him with obtaining available evidence, and its failure to file his lunch break grievance without explanation). ¶

There is also a material issue of fact concerning whether Local 334's decision not to assist Mendoza was impacted by his hiring of a private attorney concerning his related workers’ compensation issue. The record does not establish when Local 334 became aware of Mendoza’s hiring of an attorney in relation to its decision not to assist with his grievance, or how Local 334 has previously handled grievances when a member has hired a private attorney. All of these facts concerning Local 334's evaluation of Mendoza’s grievance and requests for assistance are material to a determination of whether it breached its duty of fair representation in violation of 5.4b(1) of the Act. ¶

Based on the above, we find that Local 334 is not entitled to summary judgment as a matter of law regarding its decision to discipline Mendoza for allegedly violating a State PBA bylaw by filing an unfair practice charge with the Commission before exhausting internal union remedies, or its decision not to assist with Mendoza’s sick leave grievance. Mendoza’s 5.4b(1) allegation of arbitrary or invidious suspension from the union in retaliation for protected activity will proceed to hearing along with his claimed breach of the duty of fair representation. ¶

OrderORDER ¶

PBA Local 334's motion for summary judgment is denied. The case is referred back to the Hearing Examiner for an evidentiary hearing. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford and Kushnir voted in favor of this decision. None opposed. Commissioner Papero recused himself. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ Subsection 5.4b(1) of the Act 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.” ¶

2/ We note that effective January 18, 2022, only the PBA could move a grievance to arbitration. N.J.S.A. 34:13A-62. ¶