H.E. NO. 79-36

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EAST BRUNSWICK BOARD OF EDUCATION

Respondent,

-and-	Docket No. CO-78-167-76

EAST BRUNSWICK EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the East Brunswick Board of Education

Rubin, Lerner & Rubin, Esqs.

(Frank J. Rubin, Esq.)

For the East Brunswick Education Association

Rothbard, Harris & Oxfeld, Esqs.

(Sanford R. Oxfeld, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on February 3, 1978 by the East Brunswick Education Association (hereinafter the "Charging Party or the "Association") alleging that the East Brunswick Board of Education (hereinafter the "Board" or the "Respondent") 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 "Act"), in that the Board on December 2, 1977 had refused Harold Smith, a member of the negotiations unit, the right to be represented by Verne Whitlock, the President of the Associations, during a conference which dealt with the initial stages of a grievance regarding the withholding by the Board of Mr. Smith's November 30, 1977 paycheck, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.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 May 30, 1978. Pursuant to the Complaint and Notice of Hearing, hearings were held on September 20, 1978 and January 4, 19792/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The Charging Party filed a post-
hearing brief on February 7, 1979 and the Respondent filed a post-hearing brief on February 27, 1979.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and after hearing and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

Findings of Fact

1.	The East Brunswick Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The East Brunswick Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Association and the Board were parties to a collective negotiations agreement effective during the term July 1, 1976 to June 30, 1978 (J-1).

4.	Article III of the said collective negotiations agreement contains a detailed grievance procedure, paragraph A of which defines a "grievance" in pertinent part as follows:

"A 'grievance' shall mean a complaint by an employee (1) that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of the agreement or (2) that he/she has been treated unfairly or inequitably by reason of any act or condition which is contrary to established Board policy or administrative practice governing or affecting employees..." (J-1, pp. 6,7).

Paragraph B of Article III provides:

"Employees shall be assured freedom from restraint, inference, or coercion in the exercise of their grievance rights as contained in this agreement. The employee shall have the right to present his/her own appeal or to have a representative of his choosing appear with him/her." (Emphasis supplied). (J-1, p.7).

5.	Harold M. Smith has been employed by the Board for 11 years as a maintenance journeyman and is a member of the collective negotiations unit represented by the Association. Smith is a Vice-President of the Association and is also a member of the Professional Rights and Responsibilities Committee, the responsibility of which is to determine whether or not an employee complaint is a grievance under the collective negotiations agreement.

6.	On June 23, 19773/ Smith was injured in the course of his employment and, after filling out an accident report, a workmen's compensation claim was subsequently filed and prosecuted on his behalf. Smith did not return to work until April, 1978.

7.	Under date of September 7, the Great American Insurance Companies, the Board's workmen's compensation insurance carrier, issued a check to the order of Smith only in sum of $1,518.00, which represented 11 weeks of disability payments from June 24 through September 8 (R-1A). Smith endorsed and deposited the said check to his own account on or about September 16 (R-
1B). Since the date of his injury, June 23, Smith had been receiving his regular full pay from the Board.

8.	In a latter part of October Norbert H. Renick, the Secretary of the Board, first learned that Smith had received the aforesaid workmen's compensation check and, after determining that Smith had in fact endorsed and deposited the check, Renick asked Smith's supervisor, Ben Wright, to have Smith contact him as he, Renick, wanted to verify personally the fact of Smith's having endorsed and deposited the check.

9.	On or about November 30, the end of a payroll period, Smith went to his supervisory, Wright, for his regular paycheck from the Board. Smith was told by Wright there was a "problem" and that he should see Renick. On his way to meet Renick, Smith encountered Verne Whitlock, the President of the Association, and both together went to Renick's office where Renick said that Smith had improperly received the check for $1,518.00 and would have to pay it back to the Board. Renick told Smith that he would have to see Brenda Witt, the Assistant Superintendent for Personnel, regarding repayment to the Board. Smith and Whitlock then went to Witt's office and upon learning that she was not then available an appointment was scheduled for December 2.

10.	On December 2 Smith and Whitlock arrived at Witt's office at about 1:30 p.m. where Witt and Renick were present. The Hearing Examiner credits Smith and Whitlock with respect to their collective recollection that Witt asked Whitlock to leave since the subject matter was not a "grievance".4/ Whitlock left Witt's office after stating that if it becomes a grievance he wanted to be present.5/

11.	The said meeting was devoted to the method of repayment by Smith of the $1,518.00 he had received from the workmen's compensation insurance carrier. Smith initially stated that he was not sure that he should pay the money back and that he wanted legal advice in this regard. Witt stated that Smith knew the receipt by him of the money was "wrong", with Smith replying that it was the fault of the insurance carrier and that he, Smith, was being blamed. The meeting eventually shifted to a discussion of the amount that Smith was to pay back per pay period, Witt demanding $80.00 per pay period and Smith offering $50.00. During the course of the meeting there was an apparent dispute as to whether or not Smith had agreed to pay back $80.00 or $50.00 per pay period (see CP-1 and CP-2).6/

THE ISSUE

Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when, at a meeting on December 2, 1977 in Brenda Witt's office with respect to the repayment to the Board by Harold Smith of monies received from the workmen's compensation carrier, Verne Whitlock was not permitted to be present?

DISCUSSION AND ANALYSIS

Positions of the Parties

The Charging party principally argues that on December 2 Smith and Witt were engaged in "negotiations" with respect to Smith's terms and conditions of employment and that, for this reason alone, Whitlock should have been permitted to be present on behalf of the Association. In support of this contention the Charging Party cites the Supreme Court's decision in the Galloway and Red Bank cases7/ and Corbin on Contracts. The Charging Party urges, in the alternative, that at the meeting on December 2 Smith was "faced with a distinct possibility of discipline" and therefore was entitled to have Whitlock present, citing and discussing N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975) and N.L.R.B. v. Quality Mfg. Co., 420 U.S. 276, 88 LRRM 2698 (1975).8/

The Respondent, after quoting in full the charge of unfair practices (C-1), contends that the "sole issue is whether the exclusion of Mr. Whitlock from the meeting constituted a refusal to negotiate terms and conditions of employment in good faith."9/ It is also contended that the Wingarten and Quality Mfg. cases have no application to the instant case since there was no element of threatened discipline involved and, additionally, respondent notes that it was Smith and not representatives of the Board who requested the meeting. The Respondent also cites that one case where the Commission considered the Weingarten rule: Clinton Township Board of Education, P.E.R.C. No. 78-45, 4 NJPER 78 (1978), adopting the Hearing Examiner's recommendations (H.E. No. 78017, 3 NJPER 410).

The Respondent Board Did Not Violate

Subsections (a)(1) and (5) of The Act

By Its Conduct at The Meeting of

December 2, 1977

After considering fully the arguments and contentions of the parties, and the instant record, the Hearing Examiner finds and concludes that the meeting in Brenda Witt's office on December 2 in no way involved either "negotiations" with respect to the "terms and conditions of employment" of Harold Smith or a "grievance" under the agreement, nor was Smith, who requested the meeting, at any time threatened with discipline.

Clearly, if the meeting of December 2, and the conduct of Witt at that meeting with Smith, constituted "negotiations" with respect to the "terms and conditions of employment" of Smith then Whitlock would perforce have had a right to be present. Counsel for the Charging Party made much in his cross-examination of Witt of the fact that she had said on direct examination that she was "negotiating" with Smith over the amount that Smith was to repay per pay period to the Board because of having received and deposited the check from the workmen's compensation's insurance carrier.10/ The matter of the overpayment of Smith was clearly not a dispute involving his "terms and conditions of employment". He stood to be unjustly enriched if he was permitted to keep the $1,518.00 which he received from the insurance carrier over and above his regular pay from the Board. The Board was entirely correct in seeking to recoup the amount of the overpayment from Smith by making deductions from his pay check in an agreed upon amount, as was ultimately done.

Further, Smith was not raising a "grievance" with the Board at the December 2 meeting. Although the term "grievance" is broadly defined in Article III, paragraph A of the collective negotiations agreement (Finding of Fact No. 4, supra), it plainly does not embrace any problem that Smith had regarding the aforesaid overpayment. Specifically, the Hearing Examiner finds and concludes that Smith's problem with respect to the overpayment did not involve any "violation, misinterpretation or inequitable application of the provisions of the agreement," nor did it involve his being "treated unfairly or inequitably" by representatives of the Board. It is noted that, according to Witt, Smith indicated that the meeting of December 2 that the matter did not involve a grievance and that, according to Smith, Witt said that the matter did not involve a grievance. Smith, as a member of the Professional Rights and Responsibilities Committee, which decides on what matters of employees are grievable, must have clearly understood that his problem with the Board over the workmen's compensation check was not a "grievance" under the collective negotiations agreement, supra. There was clear unanimity on the part of the Respondent's witnesses that if Smith's problem had been a "grievance" then Whitlock would have had the right to be present.

Finally, notwithstanding the Charging Party's contention, in the alternative, that Smith on December 2 was "faced with a distinct possibility of discipline", and that therefore Smith had the right to have Whitlock present under Weingarten and Quality Mfg., supra, the Hearing Examiner finds and concludes that the element of discipline was in no way involved in the meeting at any time. In so finding and concluding, the Hearing Examiner notes, in agreement with counsel for the Respondent, that Smith having requested the meeting, rather than representatives of the Board, the principles of Weingarten and Qualify Mfg. should have no application to the instant proceeding. It seems abundantly clear that an essential condition for application of Weingarten is that the employer, and not the employee, must initiate the interview or meeting where there is involved a reasonable fear on the part of the employee that discipline may result.

*	*	*	*	*

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) by the conduct of its representatives at the meeting on December 2, 1977.

RECOMMENDED ORDER

The Respondent Board not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated:	March 6, 1979

Trenton, New Jersey