H.E. NO. 89-3

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

WEST NEW YORK POLICE SUPERVISORS

ASSOCIATION,1/

Respondent,

-and-	Docket No. CI-H-88-32

JOHN SANTA MARIA,

Charging Party.

Appearances:

For the Respondent, Alfred G. Osterweil, Esq.

For the Charging Party, Loccke & Correia, Esqs.

(Manuel A. Correia, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on December 10, 1987, and amended on February 19 and May 5, 1988, by John Santa Maria ("Charging Party" or "Santa Maria") alleging that the West New York Police Supervisors Association ("Respondent" or "PSA") has 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. ("Act"), in that in December 1985, Santa Maria became a sergeant and six months thereafter in June 1986, he became eligible

1/	As amended at the hearing.

to join the PSA but since the PSA did not become the certified collective negotiations representative until June 1987, Santa Maria did not apply for membership in the PSA until that time; that Santa Maria was denied membership in the PSA until he paid an "initiation fee," which included monthly dues from the time that he became eligible to join the PSA in June 1986; that an additional application for membership was made by Santa Maria at a regular membership meeting of the PSA on September 9, 1987, where he was again denied membership unless he paid dues back to July 1986; and that Santa Maria has been prohibited in participating in any meetings or discussions of the PSA concerning contract-related matters, including ratification, having specifically been excluded from a meeting of the PSA in December 1987, which was devoted to the proposed 1987-88 contract settlement; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(b)(1) and (5) of the Act.2/

It appearing that the allegations of the unfair practice charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 25, 1988. Pursuant to the Complaint and Notice of Hearing, following agreed upon adjournments, a hearing was held

2/	These subsections prohibit employee organizations, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (5) Violating any of the rules and regulations established by the commission."

on May 25, 1988, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by July 28, 1988.

An unfair practice charge, as amended, 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 West New York Police Supervisors Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

2. John Santa Maria is a public employee within the meaning of the Act, as amended, and is subject to its provisions.

3. The PSA was formed when it adopted a constitution and by-laws on April 10, 1985 (J-1). This constitution and by-laws has been amended twice (see J-1, J-2 and footnote 8, infra). Article II, "Membership," after providing in a Section 2 that all applications for membership are to be referred to "Advisory Board for investigation," provides in Section 3 as follows:

New members shall submit to the Association an initiation fee of Fifty ($50.00) dollars, and

shall pay dues in the amount of Twelve ($12.00) Dollars per month.

a) any police officer with the present rank of Sergeant or above, may within ninety (90) days join this Association by submitting the initiation fee. Thereafter, a penalty of Twelve ($12.00) Dollars per month shall be paid in addition to the initiation fee.

b) any police officers promoted, in the future, shall be subject to the same ninety (90) day grace period, beginning with the date of promotion. Thereafter, he shall be subject to the same penalty as in (a) above.3/

4.	At the time that the PSA was formed in April 1985,4/ the police supervisors (sergeant and above), employed by the Town of West New York ("Town"), were represented in collective negotiations by Policemen's Benevolent Association, Local No. 88 ("PBA") in a unit, which included patrolmen. On August 15, 1985, the PSA filed a petition seeking to sever the police supervisors from the overall unit, supra. The Commission on March 24, 1987, overruled its Hearing Officer and ordered that severance of the Town's police supervisors was required due to a conflict of interest: P.E.R.C. No. 87-114, 13 NJPER 277 (¶18115 1987).

3/	Daniel Murphy, the Recording Secretary of the PSA and a witness for the Charging Party, testified that the membership has interpreted the above provisions of Article II, Section 3, as requiring a grace period of 180 days from the date of promotion of a police officer to Sergeant. Thus, the penalty of twelve dollars per month does not become effective until 180 days, or approximately six months, after the police officer is promoted to Sergeant.

4/	Between February and April 1985, the charter members of the PSA each loaned the sum of $50 in lieu of initiation fee to generate the funds necessary to incorporate it. The loans of these individuals were re-paid by the PSA within the year following its incorporation.

5.	Thereafter, an election was conducted among the police supervisors and on May 29, 1987, the Commission issued a Certification of Representative to the PSA for a unit of "All police supervisors, including sergeants, lieutenants, captains and deputy chiefs..." excluding, inter alia, "police officers" (CP-1).

6.	Santa Maria has been employed in the Town's Police Department for 11 years and on December 23, 1985, he was promoted from Patrolman to Sergeant. Santa Maria had been a past officer of the PBA and at or about the time of his promotion he had served on several PBA committees.

7.	Shortly after Santa Maria was promoted to Sergeant, he was solicited by Donald Heck, a Captain in the Police Department, who was then the President of the PSA, to apply for membership. Heck gave Santa Maria an application, spoke to him several times and invited him at one point to a meeting and dinner. On the date that Santa Maria was promoted, two other patrolmen, Michael Caliguiro and Frank Caraccio, were likewise promoted to Sergeant. Heck also solicited Caliguiro and Caraccio to join the PSA at that time. However, while Santa Maria elected to "wait," Caliguiro and Caraccio tendered the $50 initiation fee and were voted into membership in March 1986.5/

5/	Heck testified without contradiction that he explained to Santa Maria, Caliguiro and Caraccio the requirement that each pay a timely $50 initiation fee and that their failure to do so would result in a penalty of $12 per month from the last day of the 180-day grace period under J-1. Santa Maria acknowledged on cross-examination that Heck had done so.

8.	In February 1987, the Town promoted ten additional patrolmen to the position of sergeant and by September 9, 1987, all of those promoted had made timely application for membership in the PSA, tendering only the $50 initiation fee with no penalty imposed under Article II of J-1.

9.	Under the PSA membership's interpretation of J-1, Article II, supra, Santa Maria had 180 days from his promotion on December 23, 1985, to fulfill the PSA's membership requirements. However, he did not make application for membership until June 3, 1987, almost one year after the grace period. At that time he tendered an application and the $50 initiation fee to the PSA Recording Secretary Murphy. Several days later, Murphy returned the tender because Santa Maria had not included the penalty of $12 a month since July 1986, or $132 additional. Santa Maria complained by letter dated June 9, 1987 to Mario Karcich, the then President of the PSA (CP-2). Santa Maria testified that the reason for the delay in applying for membership was that the PBA had continued as bargaining agent for the police supervisors until the PSA was certified on May 29, 1987. If he had applied for membership prior thereto, he would have been engaged in "dual unionism," particularly since he had been a past officer and committee member in the PBA. Santa Maria added that the PSA had performed no services for him prior to its certification.

10.	Murphy testified that Santa Maria never renewed his application for membership after June 3, 1987. Essentially, Santa

Maria did not contradict Murphy since his testimony was that he had not re-submitted his application after addressing the membership of the PSA at a September 9, 1987 regular meeting.6/

11.	The minutes of the September 9th meeting (CP-3) reflect that Santa Maria spoke regarding the penalty clause and after discussion, a motion to amend the by-laws was defeated.

12.	Collective negotiations for the PSA's first agreement commenced in the summer of 1987. As of the date of the hearing, no final collective negotiations agreement had been negotiated and ratified by the PSA membership. However, on January 20, 1988, the PSA membership had at a special meeting ratified a monetary settlement with the Town, following which retroactive wages were paid to PSA unit members.

13.	On December 9, 1987, a regular meeting of the PSA was held where the only reference to the status of negotiations was that "Nothing new has taken place. PBA is going to arbitration." (CP-4). While the testimony of Murphy was that nothing regarding the contract was discussed "in any detail," Santa Maria testified that at the meeting of December 9, 1987 or January 20, 1988, he attempted to attend because contract matters were being discussed but was told by Karcich that he had no right to attend. Santa Maria also testified that Karcich asked the membership whether he should be permitted to attend, but the question was voted down.

6/	His appearance before the membership resulted from his request to Karcich on June 9, 1987 (CP-2) for permission to appear.

14.	The Hearing Examiner finds as a fact that Santa Maria was familiar with the membership requirements in the PSA, including the $50 initiation fee and the $12 per month penalty for untimely application, notwithstanding Santa Maria's testimony that he never received a copy of J-1 and was not shown a copy until December 1987. As previously found, Heck testified without contradiction that he had fully explained the application procedure to Santa Maria, including the $50 initiation fee and the $12 per month penalty.

15.	Finally, Santa Maria insisted that he was under no obligation to pay the $12 per month penalty until the PSA was certified in May 1987, and that even if he were to reapply as of the date of the hearing, he should only be required to pay the "representation fee" from the date of certification, May 29, 1987,7/ and be entitled to death and retirement benefits under J-1, as amended.8/

7/	Santa Maria's use of the term "representation fee" is ambiguous since it is not clear whether he was referring to the "agency shop" fee permitted under our Act with appropriate safeguards or whether he was referring to the $12 per month penalty under the PSA's constitution and by-laws.

8/	Murphy testified that J-1 has been amended twice to provide for death and retirement benefits, which are paid from the general treasury of the PSA. He testified further that it was for this reason that the PSA requires the back payment of dues, i.e., the $12 monthly penalty, when an individual makes an untimely application for membership.

DISCUSSION ANALYSIS

The PSA Did Not Violate §§5.4(b)(1) Or (5) Of The Act By Requiring John Santa Maria To Comply With The Provisions Of Article II, Section 3 Of Its Constitution And By-laws Since This Involves An Internal Union Matter And Not A Breach Of The Duty Of Fair Representation.

The Hearing Examiner is convinced that the PSA has not breached its duty of fair representation to Santa Maria. First, there is no collective negotiations agreement in effect between the PSA and the Town from which a breach of the duty of fair representation by the PSA might arise, notwithstanding that the PSA membership ratified a monetary settlement on January 20, 1988. Santa Maria benefited monetarily from this settlement. Secondly, Santa Maria's sole dispute with the PSA is over its interpretation of the membership requirements of Article II of the constitution and by-laws. This is purely an intra-union dispute, which can only be remedied, if at all, by resort to the judicial forum. The Commission's decisions in this regard are consistent.

A starting point is City of Jersey City, P.E.R.C. No. 83-32, 8 NJPER 563 (¶13260 1982) where temporary CETA employees sought relief from the Commission regarding their right to hold elected office. The union had denied these employees the right to hold office under its constitution and by-laws. The constitution mandated that only a permanent employee of Jersey City was eligible for elected office. The Commission, in dismissing this aspect of the unfair practice charge, stated that it was "...reluctant to intercede in what is only an intra-union dispute..." (8 NJPER at 565). The Commission cited Calabrese v. PBA Local No. 76, 157 N.J.

Super. 139, 147 (Law Div. 1978) where the Court stated that a private organization "...must have considerable latitude and rule making in order to accomplish their objectives, and their private rules are generally binding on those who wish to remain members." The Commission also cited Barnhart v. U.A.W., 12 N.J. Super 147 (App. Div. 1951) where the Court stated that: "...Courts are loath to interfere with the internal management of an unincorporated, voluntary association. The right of a voluntary association to interpret and administer its own rules and regulations is as sacred as the right to make them..." (12 N.J. Super. at 152).9/

In a subsequent decision, FMBA Local 35, P.E.R.C. No. 83-144, 9 NJPER 336 (¶14149 1983), the Commission held that the union had rebutted the presumption that it violated the Act when it denied membership to an employee who sought re-admittance. The Commission stated that to rebut the presumption, the union must prove that the rejection of the applicant was for good cause and if it succeeds then it has not violated §5.4(b)(1) of the Act. In that case, the applicant had engaged in a series of actions detrimental to the union, namely, seeking to have positions eliminated, forming a rival organization and instituting an unsuccessful suit against the union to obtain monies held in a special death and retirement fund (see 9 NJPER at 203, 204).

9/	The Hearing Examiner perceives no legal distinction between Barnhart and this case, regarding an unincorporated versus an incorporated association. Labor organizations are involved in each case with the same functions and objectives.

In ATU Local 824, D.U.P. No. 85-9, 10 NJPER 600 (¶15279 1984) the Director of Unfair Practices refused to issue a complaint based on allegations that Local 824 charged persons newly hired from a bankrupt company an initiation fee of $300, notwithstanding that Local 824's by-laws provided that the amount of the initiation fee was $75. The Director found that there was no breach of the duty of fair representation involved under our Act since nothing in the Act directly or indirectly regulates union membership fees, excepting, however, agency shop fees (see N.J.S.A. 34:13A-5.6). Thus, "...The instant dispute is strictly an internal matter which does not fall under the guise of the Act..." (10 NJPER at 601).10/

Finally, note is taken of two recent Commission decisions where the issue was the conduct of a union regarding its procedures for contract ratification votes. First, the Director of Unfair Practices refused to issue a complaint in Camden County College Faculty Association, D.U.P. No. 87-13, 13 NJPER 253 (¶18103 1987) where it was charged that the union conducted an improper and inaccurate contract ratification vote. The Director stated that

10/	See also, Jersey City POBA, D.U.P. No. 85-2, 10 NJPER 475 (¶15212 1984), where a complaint was not issued based on allegations that the union interfered with a member's freedom of speech by denying him access to membership lists and that the union's by-laws established an "attendance quota" for candidates for union office; and Bergen Community College Faculty Association, P.E.R.C. No. 84-117, 10 NJPER 262 (¶15127 1984) where an issue involving the funding of a federal law suit by the union for a member was deemed "...a fundamental issue of internal union governance and does not implicate the duty of fair representation..." (10 NJPER at 263).

"...The ratification process affects all members of the negotiations unit and is essentially an internal union matter. Absent allegations of arbitrary, discriminatory or bad faith conduct we will not issue a complaint on a matter involving internal union activities..." 13 NJPER at 254.

In State Troopers NCO, D.U.P. No. 88-7, 14 NJPER 14 (¶19004 1987) complaint issuance was refused where the issue was the union's refusal to permit non-members, or members who failed to attend union meetings, to vote on contract ratification. Citing a Chancery Division decision in Middlesex County, the Director noted that the Court there said that the by-law procedure for a membership vote on contract ratification is "...an internal process...in the formulation of a collective agreement..." Further, the Director noted that the Court also stated that "...exclusion from the membership prerogative to vote on ratification deprive them of no right, statutory or otherwise..."

It is obvious to the Hearing Examiner, based on his consideration of all of the foregoing authorities, that the sole issue involved herein is an internal union dispute between Santa Maria and the PSA regarding the attaining of membership, which can only be remedied, if at all, in the courts of law on this State. It in no way implicates any violation of our Act by the PSA, specifically, a breach of the duty of fair representation. Accordingly, the Hearing Examiner must recommend dismissal of the Complaint.

* * * *

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

CONCLUSION OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(b)(1) or (5) since the issue of attaining membership in the Respondent Association pursuant to its constitution and by-laws is an internal union matter, which does not arise to a breach of the duty of fair representation.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

DATED: August 2, 1988

Trenton, New Jersey