H.E. NO. 85-9

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOARD OF MANAGERS OF PREAKNESS

HOSPITAL - BOARD OF CHOSEN

FREEHOLDERS OF PASSAIC COUNTY,

Respondent,

-and-	Docket No. CO-84-178-142

AFSCME COUNCIL 52, LOCAL 2273,

Charging Party.

Appearances:

For the Respondent

Peter T. Bongiorno, Esq.

For the Charging Party

Oxfeld, Cohen & Blunda, Esqs.

(Sanford R. Oxfeld, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On January 11, 1984, AFSCME Council 52, Local 2273 ("Charging Party" or "Local 2273") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the Board of Managers of Preakness Hospital, Board of Chosen Freeholders of Passaic County ("Respondent" or "Preakness") 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. ("Act") by refusing to implement a third step grievance decision, thus repudiating the negotiated grievance procedure between the parties, in violation of N.J.S.A. 34:13A-5.4(a)(1), (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 May 9, 1984, and hearings were held on July 10 and 20, 1984 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-hearing letter briefs by August 6, 1984.

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

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

FINDINGS OF FACT

1.	Preakness Hospital - County of Passaic is a public employer within the meaning of the Act and is subject to its provisions.

2.	AFSCME Council 52, Local 2273 is a public employee representative within the meaning of the Act and is subject to its provisions.

3.	Preakness and Local 2273 are parties to a collective negotiations agreement covering the period January 1, 1983 to December 31, 1984 (Exhibit J-1).

4.	The charge concerns the evolution of a grievance relating to the accrual of sick leave benefits filed by Local 2273 in the late summer of 1983. Local 2273 sought crediting of sick leave to employees at the beginning of each calendar year, while Preakness credited sick leave to unit employees at the rate of one and one-quarter days per month. The grievance advanced to Step 3 of the contractual grievance procedure, which provides for a meeting between Local 2273 and the Director of Labor Relations of Passaic County or his designee, and a written decision by the County designee within seven days of that meeting (J-1, p. 31-
32). The contract further provides that either party dissatisfied with the grievance resolution at Step 3 may request binding arbitration (Step 4) within ten days of receipt of the Step 3 decision. By separate memorandum, Preakness and Local 2273 agreed that "[a]n appeal to Step 4 of the [contractual grievance] procedure which is not filed within the prescribed time limit, will be deemed to be untimely and the third step decision will stand without appeal."

5.	The County designee at the Step 3 hearing concerning the sick leave grievance was Martin Verp, Esq., Special Counsel (T-I at p. 20),2/ who thereafter issued a letter to Thomas Lauricella, Assistant Hospital Administrator, and Elizabeth Baker, AFSCME Staff Representative. Verp summarized the documents and arguments presented by the parties, and concluded:

...while the Hospital must be construed as a semi-autonomous body, with the power to govern itself and its employees, those rights were abrogated by virtue of an executed agreement by and between the Hospital and the County, which accord emanated from a law suit. The Stipulation of Settlement arising from said litigation indicated that the Hospital would adhere to the personnel policies of the County. Accordingly, it is the opinion of the undersigned that until such time as the County redelegates this power to the Hospital or changes its personnel policy with respect to sick leave, Hospital employees should receive fifteen (15) days sick leave at the commencement of each calendar year (following the initial year of employment). This decision is not inconsistent with the contractual provisions by and between the bargaining unit and the Hospital.

This problem will be presented to the appropriate County officials at the earliest opportunity [J-2, p. 3].

6.	Neither Preakness nor Local 2273 filed for arbitration within ten calendar or business days after Verp's November 3 letter (T-1 at p. 24). Baker testified that she considered Verp's letter as a decision in favor of Local 2273 and therefore she saw no need to proceed to arbitration (T-I at p. 21).

7.	On November 29, 1983, Verp sent a letter to Baker and Lauricella, stating:

The Freeholders of Passaic County at a workshop session on November 23, 1983, directed the undersigned to prepare a resolution changing the personnel policy with respect to sick leave, which would have the effect of sick leave accumulating at the rate of 1-1/4 days per month (following the initial year of employment) as distinguished from being credited with 15 sick days at the commencement of each calendar year.

This resolution will be prepared prior to the next regular meeting of the Board of Chosen Freeholders of Passaic County.

8.	Grievances filed subsequent to Verp's letters of November 3 and 29 have been held in abeyance pending the conclusion of unfair practice proceedings before PERC (T-I at pp. 50-52). In the interim, the Hospital continues to credit unit employees with one and one-quarters days of sick leave per month (T-2 at p. 22).

ANALYSIS

The Charging Party raises a limited issue: Did Preakness refuse to negotiate in good faith with Local 2273 by failing to adhere to the contractual grievance procedure? Local 2273 does not seek review of the merits of its grievance; instead, Local 2273 asserts that a Step 3 grievance decision issued on November 3, 1983 in its favor must be implemented in the absence of a timely appeal of the Step 3 decision by Preakness. Preakness asserts that Special Counsel VERP's November 3 letter was not a Step 3 decision; instead, Preakness maintains that Verp's letter of November 29, 1983 is the final Step 3 decision (T-II at pp. 5-
6). Accordingly, Respondent argues, Preakness won the Step 3 decision, and that decision should stand in the absence of a timely arbitration filing by Local 2273.

When reviewed in the context of the contractual grievance procedure and the related memorandum of agreement between the parties (J-3), the letters of November 3 and November 29 do not support Preakness' position. The grievance procedure simply does not provide for a two-part Step 3 decision. Instead, the contract provides for a written decision within seven days of a Step 3 meeting between representatives of Local 2273 and Preakness. In this letter of November 3, 1984, Verp referred to his action as a "decision" (J-2 at p. 3), and issued a determination consistent with the position taken by Local 2273. On its face, Verp's November 3 letter appears to be a Step 3 decision consonant with the contractual grievance procedure.

Preakness argues that the final paragraph of the November 3 letter, where Verp pledged to present "[t]his problem...to the appropriate County officials at the earliest opportunity...," served notice on Local 2273 that the letter was not actually a final Step 3 decision. However, in the context of the grievance, the "problem" referred to by Verp appears to be a problem between the County and its semi-autonomous hospital, Preakness: the sick leave policy adopted by Preakness was not consistent with the County's policy and thus contravened a stipulation of settlement between the County and Preakness "...which accord emanated from a law suit" (J-2 at p. 3). In view of this background, and in the absence of an express warning by Verp to Local 2273 that his "decision" was not really a decision, the undersigned concludes that Verp's letter of November 3, 1983 was clearly the Step 3 decision on the sick leave grievance, and that Local 2273 could not reasonably have been expected to draw any other conclusion.

In rebuttal of Local 2273's reliance on the November 3 letter, Preakness offered Verp's letter of November 29, 1983 as the actual Step 3 decision. Again, a careful review of the record does not support Preakness' argument. The November 29 letter does not reference either the underlying grievance, Step 3 of the grievance procedure, or even Verp's letter of November 3. Moreover, the letter only refers to the request of the County Freeholders to have Verp "...prepare a resolution changing the personnel policy with respect to sick leave..." to effectively impose the position taken by Preakness at the Step 3 hearing. Assuming arguendo that such an action would render moot Local 2273's grievance,3/ the undersigned notes that the November 29 letter does not prove that such an action by the County Freeholders ever took place. Indeed, Preakness did not introduce such a resolution into evidence, and its only witness, Assistant Hospital Administrator Lauricella, testified that he was not aware whether or not such a resolution was ever passed by the Freeholders. Accordingly, the undersigned finds that Preakness has not rebutted the propriety of Local 2273's reliance on the Step 3 grievance decision, nor otherwise introduced evidence4/ to negate its good faith responsibility to either implement the Step 3 decision or file for arbitration under the grievance procedure. Accordingly, the undersigned concludes that Preakness violated N.J.S.A. 34:13A-5.4(a)(5) and, derivatively,5/ subsection (a)(1).

In so ruling, the undersigned notes that the unfair practice finding is predicated on a factual pattern not previously reviewed by the Commission. The Commission has held that a public employer does not violate N.J.S.A. 34:13A-5.4(a)(5) by refusing to implement an arbitration award; however, this finding was based on the existence, by statute (N.J.S.A. 2A:24-7), of an alternate forum for enforcement of an arbitration award. Matawan Regional Bd. of Ed., P.E.R.C. No. 77-61, 3 NJPER 163 (1977), mot. for recon. den. P.E.R.C. No. 78-8, 3 NJPER 318 (1977); see also Jersey City Bd. of Ed., D.U.P. No. 82-27, 8 NJPER 236 (¶13100 1982). The undersigned believes that the Commission is the appropriate and only forum for enforcement of a binding grievance procedure issued outside of arbitration.

The factual pattern in this matter should also be distinguished from Commission case law dismissing subsection (a)(5) allegations of a public employer's failure to process grievances. In such cases, the Commission and its agents have held that where a grievance procedure is self-executing, an employee organization should press a grievance to the subsequent step rather than file unfair practice charges. See, e.g. City of Northfield, P.E.R.C. No. 82-95, 8 NJPER 277 (¶13123 1982); Twp. of Millburn, D.U.P. No. 81-24, 7 NJPER 370 (¶12168 1981); and In re Englewood Bd. of Ed., E.D. No. 76-34, 2 NJPER 175 (1976). In the instant matter, the parties had a self-executing grievance procedure (J-1, p. 30), but in view of its victory at Step 3, the Charging Party could not and should not have proceeded to Step 4. While Preakness could have proceeded to Step 4 by the terms of the collective agreement, its failure to do so and concomitant failure to implement the Step 3 decision was a violation of N.J.S.A. 34:13A-5.4(a)(5).

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that:

A.	The Preakness Hospital cease and desist from:

1.	Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, and

2.	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, specifically by failing to either appeal or implement a Step 3 grievance decision adopting the position of AFSCME Council 52, Local 2273.

B.	Preakness Hospital take the following affirmative action:

1.	Implement the Step 3 grievance decision issued by Special Counsel Martin Verp, Esq., on November 3, 1983.

2.	Make whole all employees adversely affected by its failure to previously implement that decision, including subsequent grievants whose grievances have been held in abeyance pending a PERC decision. Effected employees shall accrue the proper number of sick days in accordance with the Step 3 decision, and shall be reimbursed for any monetary loss in their paychecks directly attributable to Preakness Hospital's prior mode of computation of sick leave accrual, together with twelve (12) percent interest per annum.

3.	Post in all places where notices to employees are customarily posted copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof and, after being signed by the Preakness Hospital's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the Preakness Hospital to insure that such notices are not altered, defaced or covered by other materials.

4.	Notify the Chairman of the Commission within twenty (20) days of receipt of what steps the Preakness Hospital has taken to comply herewith.

C.	The allegation of a violation of N.J.S.A. 34:13A-
5.4(a)(7) should be dismissed.

/s/Mark A. Rosenbaum

Hearing Examiner

DATED:	August 31, 1984

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, and

WE WILL NOT refuse to or fail to negotiate in good faith with the AFSCME Council 52, Local 2273 concerning terms and conditions of employment of its unit members, particularly by failing to either appeal or implement Step 3 grievance decisions in Local 2273's favor.

WE WILL forthwith implement the Step 3 grievance decision issued on November 3, 1983 by Special counsel Martin Verp, Esq.

WE WILL make whole all employees adversely affected by our failure to previously implement that decision, including subsequent grievants whose grievances have been held in abeyance pending a PERC decision. Effected employees shall accrue the proper number of sick days in accordance with the Step 3 decision, and shall be reimbursed for any monetary loss in their paychecks directly attributable to our prior mode of computation of sick leave accrual, together with twelve (12) percent interest per annum.