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A.B.D. No. 2006-1

Synopsis:


PERC Citation:

A.B.D. No. 2006-1, 32 NJPER 138 (63 2006)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

24.1951

Issues:

Dues and assessments, agency fees, political or ideological refudns, procedures for obtaining

DecisionsWordPerfectPDF
NJ PERC:.ABD 2006-001.wpdAB 2007 1.pdf

Appellate Division:

Supreme Court:



A.B.D. No. 2006-1
STATE OF NEW JERSEY
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION APPEAL BOARD



MICHAEL JACOBS,

Petitioner,

v. DKT NO. AB-2006-001

TEAMSTERS LOCAL 97

Respondent.
          MICHAEL JACOBS, petitioner pro se,
          LEONARD C., SHIRO, (Mets & Schiro, attorneys) for respondent.

DECISION AND ORDER
On August 1, 2005, Michael Jacobs (Petitioner) filed a petition of appeal with the Public Employment Relations Commission Appeal Board ("Appeal Board"). The Petitioner is employed by the Teaneck Board of Education. According to his petition, since April 2004, he has paid a representation fee in lieu of dues to Teamsters Local 97, (Local 97 or Respondent) the majority representative organization. The petition asserts that Local 97 does not provide an annual accounting of uses made of the fees it collects, both on behalf of the collective negotiations unit of Teaneck Board of Education employees and "elsewhere." The Petitioner asserts that he had made six requests of Local 97 to provide the information, but that there has been no response to them.
On the same day the petition was filed, a letter was sent to Local 97's President, John J. Gerow, advising that an Answer to the petition was required to be filed on or before August 24, 2005. The letter stated that a copy of the Answer was to be served on the petitioner and that it should contain:
    (1) A statement of the amount of the regular membership dues, initiation fees and assessments charged by the majority representative to its own members in the petitioners' collective negotiations unit.

    (2) A statement of the representation fee in lieu of dues charged the petitioners.

    (3) A description of the disposition of the petitioners' demand and return system proceeding. A copy of any written decision or result of that proceeding shall be appended as an exhibit to the Answer.

    (4) A clear and concise statement which specifically admits, denies or explains any of the factual allegations contained in the petition of appeal.

    (5) Any affirmative defenses which the majority representative may have to the legal and factual allegations of the petition of appeal.

No Answer was filed.
On November 3, 2005, the Appeal Board = s Counsel sent a letter to Mr. Gerow recounting that the petition was served on Local 97 on July 12, 2005 and filed with the Appeal Board on August 1, 2005. The letter quotes N.J.A.C. 1:20-6.2 which reads:
No later than 20 days from the date of service of the petition upon respondent by the petitioner, the respondent shall file with the Appeal board and serve upon the petitioner an Answer to the petition. For good cause, the Appeal Board may extend the time for Answer. Failure to file and serve an Answer on time may result in a default judgment against the respondent.

The letter warns that a default judgment could be entered against Local 97. It also sets forth a procedure to be followed if the Respondent sought permission to file an Answer out of time. That procedure includes obtaining the written position of the petitioner and filing a sworn affidavit setting forth reasons constituting good cause to allow the filing of a late Answer. The letter also advises that no Answer should be filed until a ruling had been made on whether the Respondent would be allowed to file an Answer out of time.
A letter dated November 9, 2005 was sent from counsel for Local 97 to the Appeal Board enclosing a letter dated August 19, 2005 and a three-page attachment labeled A Teamsters Local 97 Demand and Return System.1 On November 15, 2005, counsel for the Appeal Board wrote to counsel for Local 97, declining to accept the letter as Local 97's Answer and noting that it had to be preceded by a motion to file it out of time, together with the written position of the petitioner concerning the motion and a sworn affidavit establishing good cause.
On November 16, 2005, the Appeal Board received a A Notice of Motion to file an Answer @ from counsel for Local 97, supported by a brief and an unsworn certification from counsel. On November 28, 2005 the Appeal Board received a copy of a letter dated November 22, 2005 from the Petitioner opposing Local 97's application.
On December 1, 2005, counsel for the Appeal Board wrote to counsel for Local 97, noting that the application to file a late Answer was opposed by the petitioner who had also requested that a default judgment be issued granting his petition. The letter stated that Local 97's application did not establish good cause to allow an Answer to be filed out of time and was therefore denied. It also advised that the case would be submitted to the Appeal Board.
This case is now before the Appeal Board to consider granting a default judgment and the relief sought by the petitioner.
In contrast to most civil cases and contested cases before administrative agencies, in Appeal Board cases, the burden of proof is on the majority representative, not the petitioner. See N.J.S.A. 34:13A-5.6; N.J.A.C. 1:20-14.2. Absent any statement or evidence showing the expenses that were supported by representation fees, a majority representative cannot meet its burden of proof. See Paul L. Stracker v. Local 195 Intern. Fed. of Prof. and Tech. Engineers, AFL-CIO, A.B.D. No. 86-10, 12 NJPER 333 ( & 17128 1986).


The petitioner asserts that he has repeatedly asked for financial information as to the uses made by Local 97 of the representation fees he has paid. The statement sought by petitioner is commonly referred to as a A Hudson @ notice, taking its name from Chicago Teach. Union v. Hudson, 475 U.S. 292 (1986). A majority representative must provide such a notice personally to each non-member once a year. See N.J.A.C. 19:17- 3.3; Boonton Bd. of Ed. of the Town of Boonton v. Judith M. Kramer, 99 N.J. 523 (l985), cert. den. l06 S. Ct. l388 (l986). Unless a majority representative provides the notice, it is not authorized to collect a representation fee. Boonton, 99 N.J. at 530, 533.
Where there is no showing that a majority representative has complied with its procedural obligation to provide advance notice to non-members of its expenses that are supported by representation fees, or that it provides a system to accommodate non-member challenges, the Appeal Board can order that the non- member = s fees be refunded. See Peter Wodzinski, Stephanie Robin Faught and Howard Salles v. Woodbridge Tp. Ed. Ass'n, A.B.D. No. 88-5, l4 NJPER 38l ( & l9l49 l988). Such relief is warranted here.
The petition was accompanied by a statement showing that between April 1, 2004 and May 27, 2005, $675.15 in representation fees was deducted from the petitioner = s salary. We will order that Local 97 immediately pay that sum to the petitioner.

ORDER
The petition of appeal is granted. Respondent, Teamsters Local 97, is directed to immediately pay the sum of $657.15 to petitioner, Michael Jacobs.

BY ORDER OF THE APPEAL BOARD


JOHN F. TESAURO
Chairman

DATED: DECEMBER 13, 2005
ISSUED: FEBRUARY 1, 2006

1 Counsel = s November 9 letter concedes that it has no proof that the letter/Answer was served on the petitioner.
***** End of ABD 2006-1 *****