H.E. No. 82-40

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission dismiss an unfair practice charge following the issuance of an arbitrator's decision after a deferral to arbitration by the Hearing Examiner. The Hearing Examiner denied the Charging Party's request to reassert jurisdiction on the (a)(5) since the arbitrator reached the merits of the contract violation charge and also refused jurisdiction on the (a)(3) since there was not a sufficient statement of facts alleged to support that charge.

A Hearing Examiner's Recommended Report and Decision 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 Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 82-40, 8 NJPER 243 (¶13106 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.82

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-040.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-40 1. H.E. NO. 82-40 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ENGLEWOOD, Respondent, -and- Docket No. CO-80-333-130 PBA LOCAL 216 (ENGLEWOOD UNIT), Charging Party. Appearances: For the Respondent Lesemann & Rupp, Esqs. (William F. Rupp, Esq.) For the Charging Party Osterweil, Wind & Loccke, Esqs. (Richard D. Loccke, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (the A Commission @ ) on May 12, 1980 by PBA Local 216 (the A Charging Party @ or the A PBA @ ) alleging that the City of Englewood ( A Respondent @ or the A City @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), in that Respondent had unilaterally increased the workload obligation of unit members without granting additional compensation and refused to negotiate any aspect of the change. The charge also alleged the change was motivated as a retaliatory move because of public statements made by representatives of the majority representative, all which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (4), (5) and (7).1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 26, 1980. A prehearing conference was held on October 9, 1980. At the conference the undersigned was advised that the same issue was being submitted to binding arbitration under the parties = collective negotiations agreement. Since the parties agreed to proceed with the arbitration proceeding and defer the unfair practice proceeding, the undersigned informally deferred to arbitration and retained jurisdiction of the charge. On February 27, 1981, the Charging Party forwarded me a copy of the arbitrator = s award and requested that the matter be set down for hearing. The parties were then advised that pursuant to the Commission = s deferral to arbitration policy jurisdiction of the charge was retained for the purpose of entertaining an appropriate and timely application for further consideration upon a proper showing that (a) the grievance or arbitration procedures had not been fair or regular, or (b) the grievance or arbitration procedures had reached a result repugnant to the Act. The Respondent did not join in the request to proceed with the unfair practice haring and on June 8, 1981, requested that the charge be dismissed.2/ On January 28, 1982, the Charging Party submitted a statement of position on the matter. The charge alleges that on April 15 and 30, 1980, the employer unilaterally implemented a schedule change for members of the Criminal Investigation Bureau (Detective Bureau) which increased the annual work obligation of these employees by 17 days. Charging Party also alleges the Respondent refused to negotiate this change, which change they allege was A in part motivated as a retaliatory move by the City of Englewood because of certain public statements and efforts made by the employee organization and representations made by employee representative before various public groups and organizations in the City of Englewood. The following issue was submitted to the arbitrator: Did the City violate the contract by changing the Detective Bureau Schedule? If so, what shall the remedy be? The arbitrator noted that the PBA grieved this change in schedule, claiming that it resulted in the addition of 17 work days per year without compensation. The arbitrator denied the grievance because she found that the schedule shift change was permissible under the parties = collectively negotiated agreement.3/ In requesting that the Commission reassert jurisdiction, the Charging Party states: A [W]e do not subscribe to the narrow definition of criteria for Commission review after an arbitration award as set forth in your letter... @ There is no authority cited for using any other criteria nor no other criteria is suggested. In re State of New Jersey (Stockton State College), P.E.R.C. No. 77-31, 3 NJPER 62 (1977) established the criteria for determining when deferral to an arbitration award is appropriate: (1) the arbitrator must have had authority to consider the issues of contractual interpretation underlying the unfair practice charge, (2) the proceedings must be fair and regular, and (3) the award not repugnant to the Act. See also In re Englewood Bd/Ed, E.D. No. 76-34, 2 NJPER 175 (1976).4/ When these criteria have been satisfied, recognition or an arbitrator = s award furthers the desirable objective of encouraging the voluntary settlement of labor disputes (town of Harrison, P.E.R.C. No. 82-73, 8 NJPER ___ ( & _____ 1982)). The Commission held in Stockton State College, supra, that the above bases for deferral remain a constant and essential requirement for deferral during the entire process. If the standards are met, the Commission will defer to the arbitration award. The Commission noted A Just because one party or the other is dissatisfied with the award does not mean that deferral is inappropriate. @ It also does not mean that the standard is inappropriate. In Stockton the complaint was dismissed after the arbitrator = s award because the deferral criteria had been met. Initially, I recommend dismissal of those aspects of the complaint alleging violations of (a)(2), (4) and (7). There is not one fact alleged relating to any aspect of any portion of these subsections. N.J.A.C. 14:14-1.3(a)(3). As to the (a)(5), the PBA alleges that a change in terms and conditions of employment (increase in workload) without negotiations is an unfair practice charge that the Commission has exclusive jurisdiction to hear and the arbitrator only has jurisdiction to hear contract violations. Alleged unilateral changes in terms and conditions of employment may also constitute contract violations. In re Piscataway Twp. Bd/Ed, P.E.R.C. No. 77-65, 3 NJPER 169 (1977), aff = d 164 N.J. Super. 98 (App. Div. 1978). The Commission has made it clear that when the above requirements for deferral are met the arbitration award becomes the sole remedy for both the contractual and statutory violations. Stockton State College, supra. The arbitrator found that the parties = agreement allowed the employer to institute the new schedule. Therefore, the change in schedule was found to be within the bilaterally negotiated agreement and not a unilateral change as alleged.5/ The Charging Party has submitted no reason to believe that the arbitrator = s award was not fair and regular or that the decision was repugnant to the Act. Just because the PBA is dissatisfied with the award does not mean the deferral is no longer appropriate. Stockton State College, supra; Town of Harrison, supra. Therefore, I recommend dismissal of the (a)(5). The Charging Party also argues that since the charge asserts that the A unilateral change was made as a retaliation for certain exercises of rights guaranteed the majority representative under the Act, @ this alone should A spur Commission action as this is an issue not even available to the arbitrator. @ 6/ The charge alleges: The unilateral change described above was in part motivated as a retaliatory move by the City of Englewood because of certain public statements and efforts made by the employee organization and representations made by employee representatives before various public groups and organizations in the City of Englewood. This retaliatory interfered with, restrained and coerced employees in the exercise of their rights guaranteed them under the act, and further as a result of interfering with existence and administration of the employee organization. This is part of a program to divide the employee organization and diminish its ability to administer the contract, effectively represent all of its membership and to remain a viable majority representative. N.J.A.C. 19:14-1.3(a)(3) requires: A clear and concise statement of the facts constituting the alleged unfair practice, including, where known, the time and place of occurrence of the particular acts alleged and the names of respondent = s agents or other representatives by whom committed and a statement of the portion or portions of the act alleged to have been violated. The conclusionary statement in the charge does not meet this requirement. There was ample time to amend the charge. On May 6, 1981, the undersigned directed the Charging Party to supply such information as required under the Commission = s Rules. Since no facts constituting an alleged violation of either (a)(1) or (3) have been offered, I recommend these portions of the charge also be dismissed. Accordingly, for the reasons stated above, I hereby recommend that the complaint be dismissed in its entirety. /s/Joan Kane Josephson Hearing Examiner DATED: March 9, 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; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (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; (7) Violating any of the rules and regulations established by the commission. @ 2/ There ensued a series of correspondence. The Charging Party was ultimately advised on January 21, 1982, that since the appropriate application for further consideration had not been made, the decision would be issued unless such application was made within seven days. 3/ The arbitrator noted that the same parties previously arbitrated a virtually identical clause and issue and the Town was found not to have violated the contract in that case. The arbitrator = s award was confirmed in the Superior Court of New Jersey. 4/ In accordance with the New Jersey Supreme Court = s suggestion that precedents and policies under the federal Labor- Management Relations Act may be helpful in interpreting and implementing our Act, Lullo v. Int = l Assn of Fire Fighters, 55 N.J. 409 (1970), our deferral policy is based on Spielberg Mfg. Co., 112 NLRB 1081, 36 LRRM 1152 (1955). See also Dreis v. Krump Mfg. Co. v. NLRB, 544 F.2d 320 (7th Cir. 1975); Hawaiian Hauling Services Ltd. v. NLRB, 545 F.2d 674 (9th Cir. 1976), cert. den., 431 U.S. 965 (1977). 5/ The Charging Party points out that the arbitrator noted that her decision was confined to the contractual dispute. She had noted that the parties had argued whether the schedule change was negotiable and it was in this context that she stated she was not passing judgment on the statutory issue but confining herself to the contract. If negotiability was in question, the issue should have been submitted to the Commission in a scope of negotiations petition prior to the arbitration proceeding. 6/ While the Charging Party has not raised the issue of deferral in (a)(3) cases, this statement does suggest that policy. The Commission does not normally defer to arbitration where a violation of ' (a)(3) of the Act is charged. In City of Elizabeth, P.E.R.C. No. 82-74, 8 NJPER ___ ( & _____ 1982), the Commission noted there are certain (a)(3) cases in the context of a grievance that might be appropriate for deferral. I believe this is such a case. The parties = contract specifically contains a non- discrimination clause that provides that there will be no discrimination in appointments, assignments, promotions because of union affiliation. There is no reason why this could not have been placed before the arbitrator. The parties chose binding arbitration for the resolution of contractual disputes, including allegations of union discrimination. ***** End of HE 82-40 *****