H.E. No. 83-19

Synopsis:

A Hearing Examiner found that Local #3 of the Cooks, Bartenders & Cafeteria Workers Union committed an unfair practice when it failed to properly represent the Head Cooks employed by the Newark Board of Education. There was a proviso in the contract that the Head Cooks would not receive a $300 pay bonus which was received by all other members of the unit. It was found this discriminatory action was taken by the union in retaliation for an attempt by the Head Cooks to create a representation unit of their own.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-19, 9 NJPER 59 (¶14031 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

23.3 73.113

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-019.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-19 1. H.E. NO. 83-19 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 83-19 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of LOCAL #3, AFL-CIO, COOKS, BARTENDERS & CAFETERIA WORKERS, Respondent, -and- Docket No. CI-82-11-99 FRANCES NELSON, Charging Party. Appearances: For the Charging Party Frances Nelson, Pro Se HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On September 10, 1981, Frances Nelson, an individual, filed an Unfair Practice Charge with the Public Employment Relations Commission on behalf of the seven Head Cooks employed by the Newark Board of Education against Local #3 of Cooks, Bartenders and Cafeteria Workers, AFL-CIO. It was alleged that all employees in the cafeteria department of the Newark Board of Education except for the Head Cooks received a $300 bonus on July 2, 1982, and that the union willfully failed to fairly represent the Head Cooks. It was claimed that this action constituted a violation of the New Jersey Employer-Employee Relations Act (Act), specifically N.J.S.A. 34:13-5.4(b)(1), (3) and (4).1/ It appearing that the allegations of the charge, if true, might constitute a violation of the Act, a Complaint and Notice of Hearing was issued on April 15, 1982. The Respondent union never filed an answer or made any other response to the instant charge. A prehearing conference in this matter was scheduled for May 13, 1982. No representative of the union appeared at the conference on behalf of the union. The undersigned called the offices of the union and in response to that call James Benjamin, the President of Local #3, came to the conference about 45 minutes late. At the conference Benjamin told the undersigned that he intended to have his attorney present at the hearing. However on May 17, the scheduled date of the hearing, the union did not make an appearance. The undersigned twice called the union offices that morning.2/ Approximately one hour after the scheduling starting time of the hearing Mr. Benjamin arrived at the hearing room. Mr. Benjamin stated that his attorney was not able to be present but would be available the following day. This was the first time that Benjamin ever sought an adjournment. Further, the undersigned was never contacted by an attorney for any reason concerning this matter. Mr. Benjamin was told that his request, coming as it did one hour after the scheduled start of the hearing, was untimely and would not be considered and the hearing would commence immediately. Benjamin chose not to participate in the hearing. He excused himself and left the Commission offices. The hearing was conducted without a representative of the union present. The cafeteria workers employed by the Newark Board of Education are represented by the Bartenders, Cooks, Cafeteria, Luncheonette and School Employees Union Local No. 3, AFL-CIO. The Charging Party, Frances Nelson, is one of seven Head Cooks employed by the Board. The salary provision of the contract provides that essentially all employees3/ will receive a bonus of $300 except that A The Head Cooks will not receive this bonus. @ 4/ At the hearing two Head Cooks testified although all seven were present. They testified that they had conflicts with Benjamin, the President of Local #3. The cooks considered themselves as supervisory personnel but Benjamin undermined their authority by telling the cooks the Head Cooks were not supervisors. Only one of the seven Head Cooks was a member of the Local #3. Further they testified that they filed a representation petition with the Commission seeking representation by the Newark Education Association for their own unit. There was a determination that the petition was untimely and the petition was withdrawn. It was after the filing of the petition that the Head Cooks were excluded from the $300 payment. On the basis of the testimony adduced at the hearing, in the absence of any defense raised by the Respondent, and pursuant to Commission rule 19:14-3.1, all allegations in the complaint if no answer is filed...shall be deemed to be true and shall be so found by the Commission. The undersigned finds that the Respondent Bartenders, Cooks, and Cafeteria Workers Local #3 did not fairly represent the Head Cooks. In City of Union City and F.M.B.A. Local No. 12 and Wesley Spell, P.E.R.C. No. 82-65, 8 NJPER ( & 13040 1982), the Commission adopted the test for the duty of fair representation as stated in Vaca v. Sipes, 386 U.S. 171, 190 (1967) 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. The timing of the Head Cooks = exclusion from the receipt of the $300 bonus, coming on the heels of the Head Cooks filing a representation petition, creates an unrebutted presumption that the denial of the $300 was motivated by discriminatory intent. It is therefore recommended that the Commission find that the Bartenders, Cooks, and Cafeteria Workers Local #3 violated ' 5.4(b)(1) when it failed in its duty to fairly and in good faith represent the Head Cooks employed by the Newark Board of Education. It is further recommended that since no evidence was adduced at the hearing to demonstrate violations of ' 5.4(b)(3) and (4) those allegations of the complaint be dismissed. It is further recommended that the Commission ORDER: 1. That the Bartenders, Cooks, and Cafeteria Workers Local #3 pay to each of the seven Head Cooks the sum of $300. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notices on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and after being signed by the Respondent = s authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: December 7, 1982 Trenton, New Jersey WE WILL NOT discriminate against the Head Cooks on the basis of their effort to be represented by another employee representative. WE WILL pay each Head Cook the $300 which was unlawfully denied them when we failed to fairly represent them. 1/ These subsections prohibit employee organizations, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit; (4) Refusing to reduce a negotiated agreement to writing and to sign such agreement. @ 2/ Both times the undersigned called Mr. Benjamin his secretary stated he was on his way. 3/ In the pertinent contract provision the individual job titles are broken down into large groups, i.e. Food Service Worker, Senior Food Service Worker, Cashier, Senior Cook. 4/ The contract went on: A This lump sum payment is in exchange for the conversion of the formula for calculating the daily rate of pay. As mutually agreed, the daily rate will be determined by dividing the annual salary by 213 instead of 183. @ Docket No. (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 83-19 *****