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, 1979 ^2/ 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:

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 A grievance @ in pertinent part as follows:

A 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:

A 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, 1977^3/ 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 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 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 A 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 Charging party principally argues that on December 2 Smith and Witt were engaged in A 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 cases^7/ and Corbin on Contracts . The Charging Party urges, in the alternative, that at the meeting on December 2 Smith was A 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 A 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 A negotiations @ with respect to the A terms and conditions of employment @ of Harold Smith or a 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 A negotiations @ with respect to the A 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 A 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 A 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 A grievance @ with the Board at the December 2 meeting. Although the term A 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 A violation, misinterpretation or inequitable application of the provisions of the agreement, @ nor did it involve his being A 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 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 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 A 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:

Alan R. Howe
Hearing Examiner

Dated: March 6, 1979

1/ These subsections prohibit 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.
(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 grievance presented by the majority representative. @
2/ The hearing was originally scheduled to commence on August 3, 1978 but, at the request of counsel for the Respondent, an adjournment was granted to September 20 due to the unavailability of witnesses on vacation. The Charging Party completed its case on September 20. Due to scheduling conflicts between counsel for the parties and the Hearing Examiner the first mutually agreeable date thereafter was November 1, on which date counsel for the Charging Party was ill and remained out of the office for several weeks. Thereafter the next mutually agreeable date was January 4, 1979 when the Respondent presented and completed its case.
3/ All dates hereinafter are in 1977 unless otherwise indicated.
4/ In so crediting Smith and Whitlock the Hearing Examiner notes that there is essentially little difference between the testimony of Smith and Whitlock on the one hand and Witt and Renick on the other. Witt and Renick both testified that Witt said to Smith and Whitlock: A Is this a grievance? @ , to which Smith replied A no @ , whereupon Whitlock allegedly smiled with a shrug and voluntarily left Witt = s office.
5/ Witt testified credibly that if Smith had said he was pressing a grievance Whitlock could have remained in her office, citing Article III, paragraph B of the collective negotiations agreement (Finding of Fact No. 4, supra ), which would have guaranteed Whitlock the right to remain. The Respondent = s witnesses were unanimous in their testimony that there is a clear right under the agreement and past practice for an Association representative to be present at a A grievance @ meeting but not at a A conference @ involving no grievance. Witt also testified without contradiction that in past negotiations the Board has always taken the position of A no representation @ unless a A grievance @ is being pressed while the Association has always sought (without success) the right to be present at A conferences @ without regard to whether they involved A grievances @ .
6/ The final result was that Smith paid back the full amount of $1,518.00 after making an initial payment of $80.00 during the first pay period in January 1978.
7/ Galloway Township Board of Education v. Galloway Township Association of Educational Secretaries , 78 N.J. 1 (1978); Galloway Township Board of Education v. Galloway Township Education Association , 78 N.J. 25 (1978); and Red Bank Regional Education Association v. Red Bank Regional high School Board of Education , 78 N.J. 122 (1978).
8/ The Hearing Examiner had requested in a post-hearing letter that the parties brief the applicability of these two cases to the instant proceeding.
9/ Respondent= s brief, p.3.
10/ In fact, the Hearing Examiner ultimately sustained an objection to continued cross-examination of Witt with respect to the alleged A negotiations @ with Smith because, in the opinion of the Hearing Examiner, counsel for the Charging Party was arguing with the witness and seeking to elicit from her a legal conclusion (2Tr. 56, 57).