A.B.D. No. 90-3

STATE OF NEW JERSEY

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION APPEAL BOARD

JAMES K. DALY,	OAL DKT NO. PRB-1165-87

Petitioner,	AGENCY DKT NO. AB-87-5

v.

HIGH BRIDGE TEACHERS' ASSOCIATION,

Respondent.

THOMAS GAY	OAL DKT NOS. PRB-6258-88

PRB-2244-89

Petitioner,

AGENCY DKT NOS. AB-88-27

v.	AB-88-5

PASCACK VALLEY REGIONAL

EDUCATION ASSOCIATION,

Respondent,

ROBERT B MELLERT,	OAL DKT NO. PRB-6259-88

Petitioner,	AGENCY DKT NO. AB-88-35

v.

BROOKDALE COMMUNITY COLLEGE

FACULTY ASSOCIATION,

Respondent.

Hugh L. Reilly (National Right to Work Legal Defense Foundation, Inc.) for petitioners

Richard A. Friedman (Zazzali, Zazzali, Fagella & Nowak) and Robert H. Chanin, Bruce R. Lerner (Bredhoff & Kaiser, Washington, D.C) for respondents

DECISION AND ORDER

On July 22, 1986, November 6, 1987, April 4, 1988 and May 10, 1988, James K. Daly (AB-87-5), Thomas W. Gay (AB-88-5 and 88-27) and Robert B. Mellert (AB-88-35) filed petitions of appeal with the

Public Employment Relations Commission Appeal Board ("Appeal Board"). The petitioners all pay representation fees in lieu of dues to majority representative organizations which are affiliated with the New Jersey Education Association ("NJEA") and the National Education Association ("NEA"): Daly to the High Bridge Teachers' Association ("HBTA"); Gay, to the Pascack Valley Regional Education Association ("PVREA"); and Mellert to the Brookdale Community College Faculty Association ("BCCFA"). The petitions each allege that the procedures used to collect the fees are improper and that the amounts collected exceed the sums to which the majority representatives are entitled by law.

Each respondent filed an Answer and the cases were transmitted to the Office of Administrative Law for hearing. On July 31, 1989 Administrative Law Judge Joseph Lavery issued an "Initial Decision-Summary Decision" which contained an order dismissing the petitions. Judge Lavery concluded that an offer by respondents to pay each petitioner an amount equivalent to their full representation fees plus interest for the periods covered by the petitions rendered the contested cases moot and warranted dismissal even though petitioners had refused to accept the refund offers.

On August 17, 1989 the petitioners filed exceptions. On August 25, 1989 the respondents filed a reply. These cases are now before the Appeal Board to accept, reject or modify the Initial Decision-Summary Decision of Judge Lavery.

Petitioners except to Judge Lavery's decision on two alternative grounds. First, that the repondents' unaccepted offer does not moot issues addressed in our previous decision involving petitioner Daly.1/ Second, if Judge Lavery is correct that the offer moots the cases, then the previous Daly decisions must be vacated. Petitioners' exceptions, including their May 26, 1989 letter memorandum, assert that the tender of the amounts merely prevents further interest from accruing. They distinguish Jonathan Mallamud v. Rutgers Council AAUP Chapters, A.B.D. No. 86-9, l2 NJPER 324 (¶17127 l986), appeal dism'd as moot App. Div. Dkt. No. A-4715-85T6 (6/l/87) on the grounds that the refund offer in Mallamud was accepted. Petitioners further state that unless the earlier Daly decisions are vacated, they would be deprived of a right to bring the issues decided in the prior decision before an appellate court.

The respondents urge adoption of the Administrative Law Judge's decision. They contend that the petitioners' ability to review at this time the prior Daly decisions is a question for the Appellate Division of Superior Court and not the Appeal Board.

We adopt the Administrative Law Judge's decision substantially for the reasons stated in his opinion. We review the adequacy of a majority representative's demand and return system

1/	James K. Daly v. High Bridge Teachers Ass'n, A.B.D. No. 89-l, l4 NJPER 700 (¶l9300 l988); recon. granted, order unchanged; James K. Daly v. High Bridge Teachers Ass'n, A.B.D. No. 89-2, l5 NJPER l39 (¶20059 l989).

when that issue bears upon a petitioner's entitlement to a refund. A majority representative's use of improper fee collection procedures is an unfair practice under the jurisdiction of the Public Employment Relations Commission. Boonton Bd. of Ed. v. Kramer, P.E.R.C. No. 84-3, 9 NJPER 472 (¶l4l99 l983), aff'd as mod. 99 N.J. 523 (l985), cert. den. l06 S. Ct. l388 (l986). The Commission can order a majority representative to alter representation fee collection procedures. See Boonton and Bacon, et al. and District 65, UAW, P.E.R.C. No. 87-72, l3 NJPER 57 (¶l8025 l986), aff'd aff'd App. Div. Dkt. No. A-2994-86T8 (8/l6/88), certif. den. 114 N.J. 308 (l988). The optimum Appeal Board remedy, when circumstances warrant it, is a refund of all representation fees. Where a full refund with interest is offered, continued litigation before this agency could not augment the remedy which is now available. Such litigation would be a waste of everyone's resources.2/

We also decline to vacate our earlier decisions or comment on the availability of appellate review. We observe that the claims of petitioners Gay and Mellert were not addressed in those decisions. We have left interlocutory decisions which rule upon substantive issues intact, even where a dispute has been settled

2/	The pleadings state that petitioners Gay and Mellert also filed unfair practice charges with the Commission making the same claims they assert in AB-88-5 and AB-88-35, respectively. As we have not received any order either consolidating the unfair practice charges with these petitions or determining which agency has the predominant interest, our decision does not dispose of the pending unfair practice claims.

after remand. See Talamini, et al. v. Cliffside Park Education Ass'n, A.B.D. No. 86-6, l2 NJPER l87 (¶l7070 l986) and Talamini, et al. v. Cliffside Park Ed. Ass'n, A.B.D. No. 87-1, l2 NJPER 723 (¶l7269 l986).

ORDER

The Initial Decision-Summary Decision of the Office of Administrative Law is adopted and these petitions are dismissed.

BY ORDER OF THE APPEAL BOARD

WILLIAM L. NOTO

Chairman

Chairman Noto and Board Members Dorf and Verhage voted in favor of this decision.

DATED: TRENTON, NEW JERSEY

September 5, l989