H.E. NO. 80-45

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matters of

WILLINGBORO BOARD OF EDUCATION and

WILLINGBORO EDUCATION ASSOCIATION,

Respondents,

-and-	Docket No. CI-79-53-60

ERNEST E. GILBERT,

Charging Party.

____________________________________

WILLINGBORO EDUCATION ASSOCIATION,

Respondent,

-and-	Docket No. CI-79-56-61

ERNEST E. GILBERT,

Charging Party.

___________________________________

Appearances:

For the Willingboro Board of Education

Barbour & Costa, Esqs.

(John T. Barbour, Esq.)

For the Willingboro Education Association

Selikoff & Cohen, Esqs., P.A.

(Joel S. Selikoff, Esq.)

For the Charging Party

Ernest E. Gilbert, Pro Se

HEARING EXAMINER'S DECISION ON MOTION TO DISMISS

BY THE WILLINGBORO EDUCATION ASSOCIATION AND ORDER1/

PROCEDURAL HISTORY

On May 14, 1979, the Charging Party, Ernest E. Gilbert (hereinafter the "Charging Party" or "Gilbert") filed a second amended Unfair Practice Charge, which was docketed as No. CI-79-
53-602/ against the Association alleging that it had 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. (hereinafter the "Act"), in that the Association by Mark Franceschini, Barbara Terry and others of its members had, inter alia, conspired on April 24, 1979 to have Gilbert charged with an illegal "assault," followed by his arrest and, further, had harassed and ostracized Gilbert since November 1977 because he crossed the picket line during an "illegal strike," and because he had filed an Unfair Practice Charge, in denial of Gilbert's "civil rights"3/ and the "effectiveness of the grievance procedure," all of which was alleged to be a violation by the Association of N.J.S.A. 34:13A-5.4(b)(1) and (4) of the Act.4/

In addition to the foregoing, the Charging Party on May 7, 1979 filed an Unfair Practice Charge against the Association only, which was docketed as No. CI-79-56-61, and which was also amended on May 14, 1979, the said amendment alleging that the Association had engaged in unfair practices within the meaning of the Act, in that members of the Association had attempted to harass, coerce, intimidate, slander and otherwise interfere with Gilbert in the performance of his duties since November 1977; that the Association had engaged in a "scab" or "hate" campaign resulting, inter alia, in the tampering with Gilbert's car, the sending of derogatory reports to credit bureaus, the removal of his name plate from his mailbox and te painting of the word "scab" thereon; and, further, that the Association breached its contract with Gilbert by denying him the rights and privileges set forth in its constitution and by-laws and, additionally, that the Association denied Gilbert support for his "grievances and complaints;" and, lastly, that the Association did conspire to use the "evaluation process" to "slander and defame" him as an outgrowth of the aforesaid "scab" campaign. All of the foregoing is alleged by Gilbert to have contributed to his suspension from employment on April 24, 1979 and to be a violation of N.J.S.A. 34:13A-5.4(b)(1), (3) and (5) of the Act.5/

Finally, the charges of unfair practices under both of the above docket numbers were further amended by Gilbert on October 5, 1979 with the filing of a 33-page "Summary of Related Facts." With respect to the Association only, this "Summary" alleged, inter alia, that: (1) Angelo Coppola, a member of the Board's administration with alleged "strong ties" to the New Jersey Education Association (NJEA), with which the Association is affiliated, participated in "defamatory" evaluations of Gilbert ("Summary" pp. 7, 10, 16, 17, 25); (2) During a meeting held at the time of the strike in November 1977, John Gilligan, a member of the Association, "warned (Gilbert) that members of the organization would be opposing (Gilbert)" n response to his plan to cross the picket line ("Summary" p. 22); (3) Andrew Fedor, a building representative of the Association, told Gilbert that he (Fedor) "could not bring himself" to assist Gilbert in obtaining legal assistance with respect to the physical confrontation between Gilbert and Mark Franceschini ("Summary" pp. 23, 29); (4) During the Association's ratification meeting, held in November 1977, Gilbert was denied the right to speak ("Summary" p. 24); (5) The Association transmitted information to Franceschini, which Gilbert had given to officers of the Association ("Summary" pp. 30, 31); and (6) an attorney, Gerald Skey, who was provided by the NJEA for Gilbert, failed to follow Gilbert's suggestions and inadequately represented him in a legal matter ("Summary" p. 32).

It appearing that the allegations in the aforesaid 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 26, 1980.6/ Thereafter, the Association filed an Answer on March 24, 1980 and a Supplemental Answer on April 7, 1980. On April 16, 1980, the Association filed the instant Motion to Dismiss, supra, and a supporting Memorandum of Law. The Charging Party filed a response in opposition on April 25, 1980. Thus, the instant matter is now properly before the Hearing Examiner for disposition.

THE ISSUES

Viewing the allegations contained in the unfair practice charges filed against the Association herein most favorably to the Charging Party can violations of Subsections (b)(1), (3), (4) and (5) of the Act be sustained.7/

DISCUSSION AND ANALYSIS

Introductory Statement

The Hearing Examiner stresses at the outset that he is herein ruling on a Motion to Dismiss prior to hearing. Thus, the threshold question as to alleged violation of each of the above Subsections of the Act is two-fold: (1) Does the Charging Party have standing as a matter of law to allege a violation of the Act; and (2) Has the Charging Party alleged legally sufficient facts, which, if proven, would constitute violations of the several Subsections of the Act.

The Charging Party Has Standing To

Allege A Subsection (b)(5)

Violation But Has Failed To Allege

A Specific Rule Of The Commission

That The Association Has Violated

Nor Can He Do So

The Hearing Examiner initially finds and concludes that the Charging Party, as an individual complainant, has standing to allege a Subsection (b)(5) violation.

However, based upon a thorough reading of the Unfair Practice Charges herein, including the 33-page "Summary of Related Facts," it is apparent that Gilbert has not alleged, either directly or indirectly, a violation by the Association of any of the "rules and regulations established by the commission." There is ample precedent in decisions of the Director of Unfair Practices and the Executive Director to enable the Hearing Examiner to conclude that the Charging Party's failure to cite a specific rule or regulation is fatal to an alleges Subsection (b)(5) violation: FOP Lodge 62, D.U.P. No. 79-24, 5 NJPER 178 (1979); PBA Local 113, D.U.P. No. 77-5, 3 NJPER 177 (1977); and Madison Township Board of Education, E.D. No. 76-8 (1975).

The Association is correct in its contention that requiring the Charging Party to cite a specific rule or regulation violated "...is a matter of fundamental fairness to the parties..."8/ Moreover, since the Hearing Examiner cannot discern a Commission rule which could possibly be related to the subject matter of the instant Unfair Practice Charges, the Charging Party will not be granted leave to amend further.

Thus, that portion of the Complaint alleging a violation of Subsection (b)(5) is dismissed.

The Charging Party Lacks Standing

To Allege A Subsection (b)(4)

Violation Of The Act

The Association correctly contends that the Charging Party, as an individual, could only have standing to assert a violation of Subsection (b)(4) if that provision imposed a duty on the Association, as majority representative, to an individual employee such as Gilbert.

The Hearing Examiner finds and concludes that the reference in Subsection (b)(4) to "...negotiated agreement..." clearly relates to the end point of collective negotiations between a public employer and a public employee organization or representative. Thus, it is the public employer alone who can, under the instant Subsection, file a charge of unfair practices against a public employee organization or representative in the event of the refusal of the latter "...to reduce a negotiated agreement to writing and to sign such agreement." To construe Subsection (b)(4) in any other way, i.e., to permit an individual public employee to file such a charge, would be to introduce chaos into the orderly administration of the Act and to undermine the Declaration of Policy in Section 2 of the Act.9/

Therefore, that portion of the Complaint alleging a violation of Subsection (b)(4) is dismissed.

The Charging Party Lacks Standing

To Allege A Subsection (b)(3)

Violation Of The Act

The Association also contends correctly that the Charging Party, as an individual public employee, lacks standing to assert a violation of Subsection (b)(3) by the Association as majority representative.

The Hearing Examiner finds and concludes that the language of Subsection (b)(3) indicates clearly that it is the public employer only who may file a charge of unfair practices against a public employee organization, which, as the majority representative, has allegedly refused "...to negotiate in good faith with a public employer...concerning terms and conditions of employment..." (emphasis supplied). Clearly, Subsection (b)(3) is the counterpart of Subsection (a)(5), which imposes upon the public employer the obligation and duty "...to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment..." (emphasis supplied).

The Hearing Examiner is satisfied that there is ample precedent to support his conclusion herein: Hamilton Township Education Association, H.E. No. 79-10, 4 NJPER 381 (1978), aff'd., P.E.R.C. No. 79-20, 4 NJPER 476 (1978); and Township of Springfield, D.U.P. No. 79-13, 5 NJPER 15 (1978).10/

Thus, on the basis of the foregoing, the Hearing Examiner must dismiss that portion of the Complaint alleging a Subsection (b)(3) violation.11/

The Charging Party Clearly Has Standing

To Allege A Subsection (b)(1) Violation

But Has Failed To Allege Legally

Sufficient Facts In Support Thereof, And

Will Be Granted Leave To Amend Further

The Hearing Examiner finds and concludes that the Charging Party's allegations in the Unfair Practice Charges filed against the Association are legally insufficient to sustain a violation of Subsection (b)(1) of the Act.12/ The disposition of the Subsection (b)(1) aspect of the Association's Motion to Dismiss will be facilitated by first setting forth certain basic legal propositions, which are pertinent to the subject matter of the instant charges of unfair practices.

1.	The six-month limitation in Section 5.4(c) of the Act provides that "...no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge...," in which latter event the six-month period is extended pro tanto. In the case of the Association herein, the first charge of unfair practices was filed against it on May 7, 1979. Therefore, any charge of unfair practices allegedly committed by the Association must relate to conduct which occurred subsequent to November 7, 1978.13/

2.	Section 5.4(b) prohibits "Employee organizations, their representatives or agents..." (emphasis supplied) from committing the enumerated unfair practices in Subsections (b)(1) through (5). Thus, for the Association to be successfully charged with having committed unfair practices the Charging Party must allege "agency," i.e., that authorized representatives or agents of the Association engaged in conduct proscribed by Section 5.4(b) of the Act and that such conduct was either within the scope of their authority or ratified by the Association.14/

3.	The benefits derived from membership in the Association must be distinguished from the Association's "duty of fair representation." Subsection (b)(1) of the Act clearly embraces the duty of the Association to represent fairly the Charging Party, and others in the collective negotiations unit, in matters pertaining to the administration of collective negotiations agreement, i.e., the fair and impartial processing of grievances through the grievance and arbitration procedure.15/ However, benefits as an incident of membership do not fall within the ambit of Subsection (b)(1) of the Act.16/

The Hearing Examiner now considers more specifically the Charging Party's allegations as they pertain to an alleged Subsection (b)(1) violation by the Association.17/

A.	With respect to the allegations that on April 24, 1979 Mark Franceschini, Barbara Terry and other unnamed persons "conspired" to bring criminal charges against Gilbert and to harass, intimidate and coerce him because he filed an Unfair Practice Charge with the Commission,18/ the Hearing Examiner finds and concludes that these allegations are insufficient in the absence of an allegation that these individuals were acting as "representatives or agents" of the Association. Further, the actions of unnamed persons, whether in a "conspiracy" or otherwise, cannot be attributed to the Association.19/

B.	With respect to the allegations that unnamed members of the "staff" have harassed Gilbert since November 1977 because he crossed the picket line during the "illegal strike" at that time, and because he speaks out on "civil rights" and is concerned about "the plight of minorities in Willingboro,"20/ the Hearing Examiner finds and concludes that these allegations are insufficient for the following reasons:

(1)	The reference to the activities of unnamed members of the "staff" must fail for want of identification of the members by name and, also, for want of an allegation that said members, if named, were "representatives or agents" of the Association.

(2)	Although crossing a picket line may be deemed a protected activity under the Act, there are no allegations that "representatives or agents" of the Association engaged in specific acts or conduct against Gilbert because he crossed the picket line in November 1977. Even if specific acts or conduct were alleged by Gilbert such acts or conduct would have to have occurred subsequent to November 7, 1978 - the six-month limitation period, supra.

(3)	While Gilbert's speaking out on "civil rights" and his concern for the "plight of minorities" may be considered protected by the United States and New Jersey Constitutions, there is not, in the opinion of the Hearing Examiner, any like protection afforded by Section 5.3 of the Act.21/

C.	With respect to the allegations that a "scab" or "hate" campaign has been in operation within the Association since December 1977, as a result of which the Association has denied Gilbert the rights and privileges set forth in its constitution and by-laws, and that unnamed members of the Association have denied Gilbert support for his "grievances and complaints," the foregoing having been motivated by Gilbert's crossing of the picket line in November 1977 and by racial discrimination,22/ the Hearing Examiner finds and concludes that these allegations are insufficient for the following reasons:

(1)	The denial by the Association of Gilbert's rights and privileges under the constitution and by-laws of the Association may be actionable in a court of law but cannot, in the opinion of the Hearing Examiner, constitute an abridgment of Gilbert's rights under the Act.

(2)	The denial of support for Gilbert's "grievances and complaints" by unnamed members of the Association is deficient, first, because of the failure to identify members by name and, second, even if members were named, because of the failure to allege that "representatives or agents" of the Association were involved.

(3)	Further, Gilbert's allegations with respect to "grievances and complaints" are deficient in the absence of supporting allegations indicating a specific grievance or grievances that he filed or attempted to file on or after November 7, 1978, the subject matter of such grievance or grievances, and the acts or omissions of the Association's "representatives or agents," which constituted a denial of "support" for any such grievance or grievances.23/

D.	With respect to the allegations that, as a result of the "scab" or "hate" campaign against Gilbert, which has been in operation within the Association since December 1977, Gilbert's car has been tampered with, derogatory reports have been sent to credit bureaus, Gilbert's name plate has been removed from his mailbox and the word "scab" painted thereon,24/ the Hearing Examiner finds and concludes that these allegations are insufficient, in that again no representative or agent of the Association is identified or connected with any of the acts complained of and, further, there is no indication as to when the acts occurred in relationship to the six-month limitation for the filing of the charges of unfair practices, supra.

E.	With respect to the allegation that Angelo Coppola, Vice Principal and a member of the Board's administration who has "strong ties" with the NJEA, participated in "defamatory" evaluations of Gilbert,25/ the Hearing Examiner finds and concludes that this allegation is insufficient, in that Coppola, whom the Hearing Examiner presumes is not a member of the Association's collective negotiations unit, is not alleged to be a representative or agent of the Association. Thus, any actions of Coppola vis-a-vis the Charging Party cannot be attributed to the Association.26/

F.	With respect to the allegation that during a meeting held at the time of the strike (November 1977), John Gilligan, a member of the Association warned the Charging Party that members of the Association would oppose his plan to cross the picket line,27/ the Hearing Examiner finds and concludes that this allegation is insufficient, in that Gilligan's conduct occurred more than six months prior to November 7, 1978, and that Gilligan is not alleged to have been a representative or agent of the Association and, finally, that "opposing" Gilbert does not connote per se job-related reprisals.

B.	With respect to the allegation that Andrew Fedor, a building representative of the Association, told Gilbert that he, Fedor, "...could not bring himself" to assist Gilbert in obtaining legal assistance with respect to the psychical confrontation between Gilbert and Mark Franceschini on April 24, 1979,28/ the Hearing Examiner finds and concludes that, notwithstanding that Fedor as an Association building representative was thereby a representative or agent of the Association, his conduct on April 24, 1979 cannot constitute interference with, restraint or coercion of Gilbert in the exercise of rights guaranteed to him by the Act since the obtaining of legal assistance would clearly be a benefit incident to membership in the Association (see footnote 16, supra).

H.	With respect to the allegation that during the Association's ratification meeting held in November 1977, Gilbert was denied the right to speak, the President of the Association, James McAndrews, refusing to "acknowledge" Gilbert,29/ the Hearing Examiner finds and concludes that this allegation is insufficient, in that it is barred by the six-month limitation, supra, and, since it involves the internal affairs of the Association, it can in no way constitute activity protected by the Act.

I.	With respect to the allegation that Association "officials" transmitted information to Franceschini, which Gilbert had given to the said Association officials in the context of a criminal trial involving Gilbert and Franceschini,30/ the Hearing Examiner finds and concludes that this allegation is insufficient, in that it could not, in the opinion of the Hearing Examiner, possibly constitute an unfair practice by the Association under Subsection (b)(1) of the Act.

J.	With respect to the allegation that an attorney, Gerald Skey, who was provided by the NJEA for Gilbert, and who was, in the opinion of Gilbert, "...not adequately prepared for the case" and failed to follow Gilbert's suggestions in a criminal trial,31/ the Hearing Examiner finds and concludes that this allegation is insufficient for the following reasons:

(1)	The providing of an attorney for Gilbert was a benefit incident to membership in the Association and did not involve the Association's "duty of fair representation" to Gilbert in the context of the administration of the collective negotiations agreement.

(2)	It is not alleged that the attorney was a representative or agent of the Association, or of the NJEA, with which the Association is affiliated.

(3)	Even assuming that the attorney was a representative or agent of the Association and/or the NJEA, at most his conduct involved errors in judgment or inadequacy of representation, which, without more, do not constitute a breach of the "duty of fair representation."32/

* * *

Based upon the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Charging Party has standing to allege a violation of N.J.S.A. 34:13A-5.4(b)(5), but has failed to allege a specific rule of the Commission that the Association has violated, nor can he do so, based upon the allegations contained in the Complaint.

2.	The Charging Party lacks standing to allege a violation of N.J.S.A. 34:13A-5.4(b)(4) since standing to allege such a violation is reserved exclusively to the public employer.

3.	The Charging Party lacks standing to allege a violation of N.J.S.A. 34:13A-5.4(b)(3) since standing to allege such a violation is reserved exclusively to a public employer.

4.	The Charging Party has standing to allege a violation of N.J.S.A. 34:13A-5.4(b)(1), but has failed to allege legally sufficient facts in the allegations contained in the Complaint. The Charging Party will, however, be granted leave to amend further, but only with respect to specific instances of failure by the Association's representatives or agents since November 7 1978 to support the Charging Party's grievances, cognizable under the collective negotiations agreement, because of the Charging Party having crossed the picket line in November 1977 and/or because of the Charging Party's race.

ORDER

It is hereby ORDERED that:

1.	The Complaint be dismissed in its entirety as to alleged violations by the Association of N.J.S.A. 34:13A-
5.4(b)(1), (3), (4) and (5).

2.	The Charging Party is granted leave to amend further within ten (10) days hereof the charges of unfair practices in the Complaint with regard to alleged violations by the Association of N.J.S.A. 34:13a-5.4(b)(1), but only with respect to specific instances of failure by the Association's representatives or agents since November 7, 1978 to support his grievances, cognizable under the collective negotiations agreement, because of the Charging Party having crossed the picket line in November 1977 and/or because of the Charging Party's race.

/s/Alan R. Howe

Hearing Examiner

DATED:	May 9, 1980

Trenton, New Jersey