H.E. NO. 85-18

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TRANSPORT WORKERS UNION OF

AMERICA, AFL-CIO, LOCAL 225,

Respondent,

-and-	Docket No. CI-84-38-45

CHARLES T. METROS,

Charging Party.

Appearances:

For the Respondent

O'Donnell & Schwartz

(Malcolm A. Goldstein, Of Counsel)

For the Charging Party

Rothbard, Harris & Oxfeld

(Mark J. Blunda, Of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

Charles Metros was a night custodian employed by the Howell Township Board of Education ("Board"). Local 225 of the Transport Workers Union represents the custodians employed by the Board. Metros brought the instant action complaining that the TWU violated its duty of fair representation to him and, further, restrained and coerced Metros in the exercise of his protected rights.

The instant charge resolves around the Metros' relationship with, and the status of, the Head Custodian, Ray Reed. The Head Custodian is included in the custodian's unit. Reed also held office in the TWU Local as Section Chairman. (The Section Chairman is head of the section of the local which represents the custodial work of the Board.)

Rosemary Bechtol, the Nigh and Head Custodian at the school where Metros worked, complained to Reed about Metros' excessive use of the telephone, his failure to properly secure the building at night, and his failure to communicate with her in a civil manner. Reed confronted Metros with these accusations. Metros became upset and told Reed that he cannot work, he was becoming agitated, was taking sick leave and going home.

Reed then reported this conduct to Herbert Massa, Assistant Superintendent and Board Secretary to the Howell Twp. Public Schools. Subsequently, Metros provided the Board of Education with a doctor's note explaining his use of sick leave and the Board did not attempt to discipline Metros for leaving the school. The Board did, however, schedule a formal hearing concerning Metros' alleged misconduct, as reported by Bechtol. The hearing was held on April 26, 1983 and Metros was found to have engaged in misconduct and was suspended for two days.

The union challenged the suspension by way of a grievance filed on behalf of Metros. There was a grievance meeting between the Board representative, Mason, the President of TWU Local 225, Frank Caiazzo and Metros. The grievance was denied and Metros, by way of a letter to Caiazzo, requested that the union bring the matter to arbitration.

Pursuant to the by-laws of the Association, Caiazzo referred this request to the local's grievance committee to decide whether to demand arbitration. (This is the unions regular procedure.) Caiazzo discussed the matter with the members of the grievance committee and, further, discussed Metros' letter which outlined his complaint both against the School Board and Reed. The committee decided not to proceed to arbitration in this matter.

At the Unfair Practice Hearing, I granted the TWU Motion to Dismiss the Unfair Practice concerning all allegations of the unions failure to properly represent Metros before the employer.

Although Metros, in his arguments, relied on Reed's dual position as Board Head Custodian and Union Section Chairman, the Charging Party failed to demonstrate a prima facie case.1/ There was no evidence that Reed ever participated in any manner in this entire controversy in his capacity of union representative. He acted solely as Head Custodian.

Metros testified that a union representative, Leroy Walsh, represented him at the Board's disciplinary hearing and Metros was satisfied with Walsh's representation. Metros also was satisfied with Caiazzo's representation of him at the grievance meeting. Finally, Reed took no part in the union's decision not to bring this matter to arbitration.

I declined to grant the Motion to Dismiss as to certain alleged misconduct by Reed at union meetings. Specifically, there was a motion made at a section union meeting to have Reed removed from office because he brought the complaint against Metros to the Board. Reed was conducting the meeting and refused to entertain such motion. At the hearing, Reed testified that he had consulted with Caiazzo about the motion. It was Caiazzo's opinion that such a motion is an improper one, for under the union by-laws, a union official cannot be removed by motion at a section meeting. It is not for this Commission to determine, if Reed was acting properly in refusing to entertain the motion, such procedures are purely internal matters and are not within the jurisdiction of the Commission. Internal matters can shed light on improper motivations and I did consider this conduct as to question of credibility and motivation.

Metros also alleged that Russell threatened him by stating that: "If you (Metros) keep pushing this then you're dead with the union."

Russell, who no longer holds a position in the union, testified that he never made the alleged threat.

Metros' testimony was disjointed and confused. He testified about the conversation when the threats were allegedly made several times, but only mentioned the threats the third time his testimony touched upon the conversation.

Reed's testimony was more coherent and forthright. Reed was far more credible. Accordingly, I credit Russell's testimony and find that Metros failed to prove that he was threatened.

None of the union conduct testified to at the hearing demonstrated an abrogation of the union's duty of fair representation. (That is, a union cannot act in a manner that is arbitrary, capricious, or in bad faith.) See Lawrence Tp. PBA Local 119 and David E. Burns, et al., P.E.R.C. No. 84-76, 10 NJPER 41 (¶15023 1983), In re City of Union City and FMBA Local 12, P.E.R.C. No. 82-65, 8 NJPER 98 (¶13040 1982), Hamilton Twp. Ed. Assoc. and Hamilton Twp. School Social Workers Assoc., P.E.R.C. No. 79-20, 4 NJPER 476 (¶4215 1978).

Accordingly, I recommend that the complaint in this matter be dismissed in its entirety.

/s/Edmund G. Gerber

Chief Hearing Examiner

DATED:	October 24, 1984

Trenton, New Jersey