H.E. No. 82-42

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission dismiss charges of unfair practices filed by the Charging Party for want of prosecution. A Complaint and Notice of Hearing was issued on February 23, 1981 and, following numerous adjournments, including the institution of discovery proceedings, the matter has languished during settlement discussions and there has been no report to the Hearing Examiner since January 1982. In view of the inordinate lapse of time since the Complaint and Notice of Hearing was issued and the failure of counsel for the charging party to report ot the Hearing Examiner on the status of settlement, the Hearing Examiner concluded that the Charge of unfair practices should be dismissed for want of prosecution.

A Hearing Examiner's recommended report and order is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the recommended report and order and any exceptions thereto filed by the parties and issues a decisoin which may adopt, reject or modify the Hearing Examiner's conclusions and recommendations.

PERC Citation:

H.E. No. 82-42, 8 NJPER 247 (¶13108 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.227

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-042.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-42 1. H.E. NO. 82-42 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of OCEAN COUNTY UTILITIES AUTHORITY & OIL, CHEMICAL AND ATOMIC WORKERS UNION, Respondents, -and- Docket No. CO-81-212-106 AMALGAMATED LOCAL UNION 355, Charging Party. Appearances: For the Ocean County Utilities Authority Aron, Till and Salsberg, Esqs. (David A. Wallace, Esq.) For the Oil, Chemical and Atomic Workers Union Mr. Thomas V. Dooley For Amalgamated Local Union 355 Schneider, Cohen, Solomon & DiMarzio, Esqs. (J. Sheldon Cohen, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND ORDER An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on January 22, 1981 by Amalgamated Local Union 355 (hereinafter the A Charging Party @ ) alleging that the Ocean County Utilities Authority (hereinafter the A Respondent Authority @ ) had engaged in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent Authority in November 1980 purchased all of the assets and took over the operations of the Dover Municipal Utilities Authority and continued the employment of certain employees represented by the Charging Party and thereafter considered said employees as its own and covered by a collective negotiations agreement between the Respondent Authority and the Oil, Chemical and Atomic Workers Union, infra, as a result of which the said employees represented by the Charging Party have suffered unilateral changes in their terms and conditions of employment, including, but not limited to, reductions in salary and, further, the Respondent Authority has refused to negotiate with the Charging Party for the unit of employees formerly employed by the Dover Municipal Utilities Authority, all which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5) of the Act.1/ On April 21, 1981, the Charging Party amended its unfair Practice Charge to allege that the Oil, Chemical and Atomic Workers Union (hereinafter the A Respondent OCAW @ ) had asserted representation rights concerning the terms and conditions of employment of employees previously represented by the Charging Party, supra, and that the Respondent Authority by unlawfully assisting the Respondent OCAW additionally violated N.J.S.A. 34:13A-5.4(a)(2)2/ and, further, that the Respondent OCAW violated N.J.S.A. 34:13A-5.4(b)(1) and (2)3/ by interfering with the rights of the employees represented by the Charging Party and by asserting representation rights concerning the terms and conditions of employment of employees previously represented by the Charging Party. It appearing that the allegations of the original Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 23, 1981. The Notice of Hearing set April 27 and April 28, 1981 as dates for hearing in Newark, New Jersey. As noted previously, the original Unfair Practice Charge was amended on April 21, 1981 to include allegations against the Respondent OCAW. At the request of counsel for the Respondent Authority the original hearing dates were rescheduled to May 7 and May 8, 1981. Under date of April 15, 1981 counsel for the Charging Party sought to initiate discovery by way of written interrogatories, which was resisted by counsel for the Respondent Authority, as a result of which the May 1981 hearing dates were cancelled. Following a meeting of counsel for the Respondent Authority and the Charging Party on July 7, 1981 with the Hearing Examiner the mechanics of discovery were amicably resolved. A schedule was established for the production of certain documents by the Respondent Authority and the deposing of witnesses in August and September 1981 with the hearing dates rescheduled to October 14 and October 15, 1981. The representative of the Respondent OCAW was apprised of these developments and the October hearing dates. At the request of counsel for the Respondent Authority and the Charging Party the October hearing dates were cancelled and rescheduled to November 20 and December 9, 1981. Thereafter, the November 20 hearing date was cancelled by agreement and the date of December 9, 1981 was confirmed. However, the December 9, 1981 hearing date was eventually cancelled due to the pendency of settlement discussions. On January 6, 1982 counsel for the Charging Party telephoned the Hearing Examiner to advise that the matter was settled but had yet to be reduced to writing. Counsel said that he would call the Hearing Examiner in two weeks. Under date of January 7, 1982 counsel for the Respondent Authority addressed a letter to the counsel for the Charging Party, which confirmed the terms of a proposed settlement and requested that Mr. William Higgins of the Respondent OCAW indicate in writing whether or not the Respondent OCAW approved the proposed settlement. Under date of January 15, 1982 counsel for the Charging Party confirmed the correctness of the proposed settlement between the Respondent Authority and the Charging Party. On February 23, 1982 the Hearing Examiner telephoned counsel for the Charging Party for a status report. Counsel was not in and a message was left to return the call. No return telephone call was ever received, notwithstanding that the Hearing Examiner telephoned again on February 24 and February 25, 1982. On March 1, 1982, the Hearing Examiner personally requested counsel for the Charging Party, who was nearby, to meet with him in his office to discuss the status of the matter, but there was no response. On March 2, 1982, the Hearing Examiner made one final telephone call to counsel for the Charging Party. No response has been received to date. * * * In view of the fact that counsel for the Charging Party has failed, refused and neglected to report to the Hearing Examiner on the status of settlement of the instant Unfair Practice Charge, as amended, since mid-January 1982, the Hearing Examiner is of the opinion, and concludes, that there should be a final disposition of this matter. Accordingly, the Hearing Examiner recommends that the instant Unfair Practice Charge, as amended, be dismissed for want of prosecution, it being more than one year since the issuance of the Complaint and Notice of Hearing on February 23, 1981. RECOMMENDED ORDER In view of the failure, refusal and neglect of the Charging Party to proceed to hearing, or to withdraw the instant Charge of unfair practices, the Hearing Examiner ORDERS that the instant charge of unfair practices be dismissed for want of prosecution. /s/Alan R. Howe Hearing Examiner DATED: March 11, 1982 Trenton, New Jersey 1/ These Subsections prohibit public employers, their representatives or agents from: A (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. (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. @ 2/ This Subsection prohibits public employers, their representatives or agents from: A (2) Dominating or interfering with the formation, existence or administration of any employee organization. @ 3/ These Subsections prohibit public employee representatives, their representatives or agents from: A (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. @ ***** End of HE 82-42 *****