H.E. NO. 85-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

JOHN E. RUNNELLS HOSPITAL,

Respondent,

-and-	Docket No. CI-84-55-138

ROCCO GORNELLI,

Charging Party.

___________________________________

UNION COUNCIL NO. 8, NEW JERSEY

CIVIL SERVICE ASSOCIATION,

Respondent,

-and-	Docket No. CI-84-56-139

ROCCO GORNELLI,

Charging Party.

Appearances:

For the Respondent Hospital

Weinberg & Manoff, Esqs.

(Irwin Weinberg, of Counsel)

For the Respondent Association

Fox & Fox, Esqs.

(Frederic M. Knapp, of Counsel)

For the Charging party

Rocco Gornelli, pro se

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On January 24, 1984, Rocco Gornelli ("Mr. Gornelli") filed unfair practices charges against both the John E. Runnells Hospital ("Hospital") and Union Council #8, N.J.C.S.A. ("Council #8") with the Public Employment Relations Commission. The first charge alleges that the Hospital violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically subsection 5.4(a)(1) when it denied his request for union representation on September 22, 1983 at "a hearing concerning the termination of my employment."1/ The charge further alleges that he was told by the superintendent of the Hospital and a supervisor, that he had no rights to representation nor the right to appeal the termination decision. The second charge alleges that Council #8 violated the Act, specifically subsection 5.4(b)(1) when it failed to represent him or intervene in any manner either during the hearing or subsequent thereto.2/

It appearing that the allegations of the unfair practice charges may constitute unfair practices within the meaning of the Act, two Complaints and Notices of Hearing, along with an Order Consolidating Cases were issued on May 7, 1984. The Hospital filed an Answer in which it stated that Mr. Gornelli was hired as an electrician on June 27, 1983, and that his working test period, pursuant to Civil Service Rules and Regulations ended on September 27, 1983. It further stated that on September 22, 1983, Mr. Gornelli was called into a supervisor's office and informed that he would be terminated effective September 27, 1983. The Hospital denies that this meeting was an investigatory hearing, and states that the meeting's sole purpose was to inform Mr. Gornelli that he was being terminated. If further denies that Mr. Gornelli made any request for union representation at that meeting. On May 21, Council #8 filed its Answer. It denied having refused to represent Mr. Gornelli and stated that it has met its legal obligations concerning him.

A hearing was held in this matter on August 14, 1984, in Newark, New Jersey, at which time the parties had the opportunity to examine and cross-examine witnesses, present relevant evidence, and argue orally.3/ No post-hearing briefs were filed.4/

Unfair practice charges having been filed with the Commission, questions concerning alleged violations of the Act exist, and after hearing, 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 John E. Runnells Hospital is a public employer within the meaning of the Act and is subject to its provisions.

2.	Union Council No. 8, N.J.C.S.A. is an employee representative within the meaning of the Act and is subject to its provisions. It represents all white and blue collar employees employed by the County of Union, including probationary and part-time employees.

3.	Mr. Gornelli was hired by the Hospital as an electrician on June 27, 1983, and pursuant to Civil Service Rules and Regulations, he was given a probationary working test period which lasted until September 27, 1983. See N.J.S.A. 11:12-1.

4.	On July 29, 1983, Mr. Gornelli was approached by his supervisor, Mr. Leroy Weeks, who asked him to go to the hospital clinic and undergo some type of medical test (T 18, 55).5/ Mr. Gornelli refused to submit to this medical test and was asked to go home (T 17, 20).6/

Mr. Weeks then punched out Mr. Gornelli's time card, but rather than leave the grounds, Mr. Gornelli contacted his shop steward Daniel Bragg, and asked for assistance (T 21, 56, 57, 58). A meeting was conducted in Mr. Bragg's office immediately, and at this meeting Mr. Weeks told Mr. Bragg that he was sending Mr. Gornelli home because he refused to take a medical examination. Mr. Bragg then told Mr. Weeks that Mr. Gornelli looked fit to work (T 18, 22, 57, 59).

Mr. Gornelli stated to Mr. Weeks that he would go home if Mr. Weeks prepared a note that said that he was fit to work but that he was going home because he refused to submit to a medical examination (T 18, 20, 21). The note was written by an assistant of Mr. Weeks (T 61) and when it was completed, Mr. Bragg, acting in defense of Mr. Gornelli, stated that Mr. Weeks was no doctor and that he had no authority to send Mr. Gornelli home. The note was torn up at Mr. Bragg's request (T 18, 20, 62, 63, 64, 127). Mr. Gornelli went home anyway and received pay for that day (T 64, 67).7/

5.	On September 22, 1983, at 10:30 a.m., Mr. Gornelli's foreman, Frank Romano, contacted Mr. Gornelli at his job site and told him that he was to report to the office of the superintendent of the building, Mr. White. Upon entering Mr. White's office, he also found Mr. Romano and Mr. Weeks (T 9). Mr. Gornelli was told that the purpose of the meeting was to inform him of his termination.8/ Mr. Gornelli asked for reasons, and reasons were given which Mr. Gornelli disputed (T 9, 10, 11, 12, 13, 37, 42, 43). Mr. White then read to him the following letter from William M. Stillwell, Hospital Administrator:

Please be advised that effective September 27, 1983, at 4:00 p.m. you are terminated from employment at the John E. Runnells Hospital of Union County for lack of performance during your probation period as required by the standards of the County of Union.

You are entitled to three vacation days which you will take Friday, Monday and Tuesday, September 23, 26 and 27, 1983. (R-1 in evidence)

After hearing of the reasons for his termination, Mr. Gornelli asked Mr. White for a union representative and was told that he had no right to one (T 13, 15, 43). The meeting lasted approximately fifteen minutes (T 14).

6.	Following the meeting, an inventory of the toold in Mr. Gornelli's possession was taken and he was asked to sign a form stating that he was returning these materials to the County. He refused tosign the form because it indicated that he had received all of his pay at the time he signed (T 45). It was after refusing to sign this form and approximately one-half hour after leaving Mr. White's office that he spoke with Mr. Bragg9/ (T 46).

During this conversation, Mr. Gornelli told Mr. Bragg about the termination meeting and asked if there was anything that could be done. Mr. Bragg informed Mr. Gornelli that he was not a permanent employee but rather had just completed his working test period and that the Hospital had the right to dismiss him at the end of that period if it did not believe he had adequately performed his duties. Mr. Bragg explained that if he chose to appeal the Hospital's decision, he could do so with the Civil Service Commission and gave him directions to that office (T 15, 48, 90, 110). Mr. Gornelli did not request Mr. Bragg or Council #8 to represent him before Civil Service (T 78, 112). Mr. Bragg never heard anything more from Mr. Gornelli following this conversation (T 116).

Mr. Bragg also informed Mr. Gornelli about the need to sign the Hospital's inventory form and that it had nothing to do with the correctness of the Hospital's termination decision, but only served to show that he had returned all of his tools to the Hospital (T 109).10/

7.	After receiving this assistance from Mr. Bragg, Mr. Gornelli traveled to the Civil Service office in Newark where he was told to write a letter to Mr. Peter Calderone, Assistant Commissioner in the Division of Appellate Practices and Labor Relations, and ask for an appeal of the Hospital's termination decision (T 77). On September 27, 1983, Mr. Gornelli sent the following letter to Mr. Calderone:

I was hired by Union County as lead electrician for John E. Runnells Hospital, after taking and passing the Civil Service exam and becoming a certified electrician for that county, on June 27, 1983. I was also made permanent on June 27, 1983.

My services have been terminated as of September 27, 1983 without my union representative being present (The New Jersey Civil Service Association, Union Council #8) of which I am a paying member. I was terminated on the grounds that my work was unsatisfactory, which I know is not true, also I have never received any written or verbal reprimands. Because of this treatment I am making an appeal and would like to be granted a hearing to express my claim (C-1 in evidence).11/

8.	Sometime near the end of the second week in October, 1983, Mr. Gornelli received a form letter from Marie J. Hart, Council #8's Membership Chairperson.12/ The letter states in part:

Thank you for your interest in seeking to become a member of Union Council No. 8, New Jersey Civil Service Association. You will be voted into membership on Thursday, October 20, 1983.

Meetings are held on the third Thursday of each month 8:00 p.m. (except July and August), at the Veterans of Foreign Wars Building...If you cannot make this meeting, you may be sworn in at another time.

We hope you will become familiar with our policies and Constitution. One point we refer to you is that it is our policy to carefully screen requests for representation on matters which occurred prior to membership. Of course, at all times we will fairly represent employees when it is proper to do so.

Dues are $48.00 a year. Your dues for 1983 will be $12...

I, personally, look forward to meeting you and welcoming you as a member of Union Council No. 8. (C-1 in evidence)13/

Two days after receiving the above letter, Mr. Gornelli phoned Olga Sachenski, President of Council #8, to complain about Mr. Bragg's lack of assistance during the time of his termination meeting and immediately following it. She told him that she would not go over Mr. Bragg's head.14/ There was no mention by Mr. Gornelli that he had appealed his termination nor was there any request for Council #8's assistance in the procedure (T 22, 54, 78, 79, 116).15/

DISCUSSION

The issue to be determined concerns only Mr. Gornelli's allegation that Council #8 violated its duty of fair representation when it failed to properly assist him following the Hospital's decision to terminate his employment, all other matters were treated on the record.16/

In Vaca v. Sipes, 386 U.S. 171, 190 (1967), the United States Supreme Court held that: "A breach of the statutory duty of fair representation occurs only when a union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith."17/

I am not convinced that Council #8 breached its duty of fair representation. In order to prevail in this matter, Mr. Gornelli would have had to have shown that Council #8's conduct toward him was arbitrary, discriminatory, or in bad faith, and this he has failed to do so. The record in fact indicates that the only time Mr. Gornelli requested Council #8's assistance, Mr. Bragg immediately came to his aid and was able to prevent the Hospital from sending him home because of its suspicion that he was under the influence of a controlled substance.

On the day Mr. Gornelli was notified of his termination, he never first requested that a Council #8 representative accompany him to the office of Mr. White. Mr. Gornelli testified that prior to the meeting, he asked his supervisor Mr. Weeks, what the meeting was about, but asked no one else (T 52). Following the terminating meeting, Mr. Gornelli spoke with Mr. Bragg and asked him what he could do about the termination. Mr. Bragg told him that he could appeal the decision and Mr. Gornelli seemed satisfied with that information. Mr. Gornelli never asked Council #8 to represent him and in fact never even told any Council #8 representative that he had appealed the Hospital's decision.

In N.L.R.B. v. El Dorado Mfg. Co., 108 LRRM 2600 (1981), a federal appeals court stated a standard for determining a union's liability in failing to process a discharge grievance. "Liability for failure to process discharge grievances cannot attach unless the grievances would have been meritorious and unless the Union's failure to process was in bad faith." El Dorado at 2606.18/ In the present instance, it had been determined by an Administrative Law Judge that the Hospital acted appropriately in terminating Mr. Gornelli and I see no reason to believe that the result would have been any different had Mr. Gornelli been represented by Council #8 in that proceeding.

The next question concerns whether Council #8 exhibited bad faith in not representing Mr. Gornelli. It first is important to note that Council #8 never refused to represent him. Mr. Bragg in his testimony stated that he had never refused to represent anyone and I do not doubt his statement. Mr. Bragg's testimony was forthright and convincing and his answers were always responsive and direct.

The Commission has held that an employee organization does not violate its duty of fair representation when it fails to initiate a grievance on behalf of an employee who has never made that request known to his employee representative. In re N.J. Sports and Exposition Authority, P.E.R.C. No. 84-66, 10 NJPER 23 (¶15013 1983). While in the instant case Mr. Gornelli asked his shop steward if the Hospital's termination decision could be appealed, I do not perceive this as being a request to Council #8 that it appeal the decision. After receiving the requested information from Mr. Bragg, Mr. Gornelli went off on his own, never advised Council #8 that he had filed an appeal. It is obvious that Mr. Gornelli was dissatisfied with Mr. Bragg, but I believe this dissatisfaction stems only from the fact that Mr. Bragg was unable to be present at the termination meeting on September 22, 1983, and that Mr. Bragg was unable to convince anyone immediately following that meeting, that Mr. Gornelli's services should not have been terminated. I do not know what more either Mr. Bragg or Council #8 could have done on behalf of Mr. Gornelli, absent giving him representation at his appeal. This representation was never requested either immediately after his termination or several weeks later when Mr. Gornelli phoned Council #8's president to complain about Mr. Bragg.

In this conversation Mr. Gornelli testified that he called the president and stated that Mr. Bragg had not "helped much." When Mr. Gornelli was asked what he had asked the president to do, he responded:

A	I just told her that--I said Mr. Bragg didn't even talk to Mr. White or the superintendent about when I was terminated.

Q	At this meeting?

A	At the termination meeting. (T 78)

It is not certain what Mr. Gornelli wanted Mr. Bragg to do at the termination meeting except to be a witness to the events that were transpiring, but it is certain that Mr. Bragg had no right to be at the meeting as Mr. Gornelli's representative. After the meeting perhaps Mr. Gornelli wanted Mr. Bragg to raise questions concerning the termination, but he never made this request known, either on that day or on the days following.

Mr. Bragg also testified that Mr. Gornelli was the only unit member of whom he knew who was terminated at the end of a working test period. Because of this, there is no previous incident with which to compare Council #8's actions, which might indicate that Council #8 acted in bad faith regarding Mr. Gornelli.

The only indication which supports Mr. Gornelli's allegation is found in the form letter which was signed by Council #8's membership chairperson. The letter states, inter alia: "One point we refer to you is that it is our policy to carefully screen requests for representation on matters which occurred prior to membership." While this alone would certainly place into doubt whether Council #8 adheres to its duty of fairly representing all employees within its unit, I believe that the surrounding factors sufficiently dispel that doubt.19/

Mr. Bragg explained that the letter which was sent to Mr. Gornelli was a form letter sent to all new members (T 114) and that this very same letter has been sent to new members for many years (T 134, 135). He further testified that this letter was meant to discourage employees who sought Council #8 membership solely to utilize the legal services of Council #8's attorney (T 115). He stated as well, and I find his testimony to be credible, that Council #8 represents everyone in its unit (T 121). In support of this statement, at least as it concerns Mr. Gornelli, is the fact that Mr. Bragg came to his aid and represented him on July 29, 1983, even though he was not a member of Council #8.

It is apparent from the foregoing that 1) Mr. Gornelli was not entitled to union representation at the meeting in which his termination was announced; 2) Mr. Gornelli never requested any assistance from Council #8 outside of asking Mr. Bragg if the Hospital's decision could be appealed; and 3) whatever action Council #8 did or did not take in regard to Mr. Gornelli, it did not act arbitrarily, discriminatorily, or in bad faith.

Based upon the foregoing, I recommend that the charge against Council #8 be dismissed in its entirety.

/s/Nathaniel L. Fulk

Hearing Examiner

DATED:	November 21, 1984

Trenton, New Jersey