H.E. NO. 81-7

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY TURNPIKE AUTHORITY,

Respondent,

-and-	Docket No. CI-79-31-75

JEFFREY BEALL,

Charging Party.

Appearances:

For the Respondent,

Bernard M. Reilly, Esq.

For the Charging Party,

Barbour & Costa, Esqs.

(John T. Barbour of Counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDATIONS

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on November 24, 1978 by Jeffrey Beall (the "Charging Party") alleging that the New Jersey Turnpike Authority (the "Authority") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"). Specifically, the Charging Party alleges that on or about December 27, 1977, the Authority acted unreasonably and without just case by harassing and excessively disciplining the Charging Party, and by allegedly refusing to permit a grievance concerning his discharge to be pursued to binding arbitration, all of which are alleged to be a violation of N.J.S.A. 34:13A-
5.4(a)(1) and (5) of the Act.1/

It appearing to the Commission that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 17, 1980.2/ By answer filed on March 26, 1980, the Respondent denied the allegations of unfair practice and set forth affirmative defenses with respect to the charge. Essentially, the Respondent argued that the charge failed to state a cause of action, and that the Charging Party's claim was a result of actions by a third party (Local 194, IFPTE) over which the Authority had no control, and which was not jointed as a party to this action.

Pursuant to the Complaint and Notice of Hearing, hearings were held in this matter on May 20, 21, 22, and 28, 1980, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, to present relevant evidence and to argue orally. Both parties filed post-hearing briefs the last of which was received by July 24, 1980, on August 4, 1980.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act 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 determina-
tion.

Upon the entire record the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The New Jersey Turnpike Authority is a public

employer within the meaning of the Act and is subject to its provisions.

2.	Jeffrey Beall was a public employee within the

meaning of the Act at the time of his employment with the Authority and was terminated therefrom on December 27, 1977.

3.	The New Jersey Turnpike Employees Union, Local

194, I.F.P.T.E., AFL-CIO ("Local 194") is an employee representa-
tive within the meaning of the Act, and was a party to a collective negotiations agreement effective June 27, 1977 (Exhibit J-1) with the Authority covering toll collection and maintenance employees which included the Charging Party's title.

4.	After his termination from the Authority in

December 1977, the Charging Party filed a grievance concerning that action which was processed through the grievance procedure as set forth in Articles XVI and XVII of the collective agree-
ment. Article XVII(B) provides for a hearing by the Deputy Executive Director (or the Personnel Director) of the Authority in matters constituting Administrative discipline such as in the instant case. Such a hearing was held on January 18, 1978 regarding the Charging Party's termination and the same was up-
held. The hearing officer found that the Charging Party had failed to report to work on his regular work day of December 26, 1977 and that he failed to notify the Authority of the reasons for his absence. Local 194 represented the Charging Party at that hearing and Mr. Beall testified that he was operating under his old work schedule which did not have him scheduled to work on December 26, 1977.3/

The hearing officer, however, found that based upon the December incident, as well as previous incidents, the dismissal of the Charging Party was warranted. The other incidents of primary importance that were referred to included an unauthorized leave of absence by the Charging Party on August 5, 1977. Mr. Beall admitted his mistake in that matter and voluntarily accepted a five (5) day suspension.4/ The other incident referred to occurred on October 8, 1977 and included a charge of unauthorized leave, possession of alcoholic beverages while on duty, and abuse of sick leave. The Charging Party was originally given a 40 day suspension for that incident, but after a hearing on the matter at which he was represented by Local 194, the suspension was reduced to 15 days. Arbitration was not requested in that matter and the 15 day suspension was served.5/

5.	After the hearing on his dismissal, the Charging

Party requested that Local 194 pursue the matter to arbitration. Since that request came shortly before the end of the period to file for arbitration, Local 194 could only conduct a telephone vote of the Executive Board to determine whether arbitration should be granted.6/ The Executive Board voted overwhelmingly against taking the Charging Party's grievance to arbitration, and the Charging Party did not appeal that decision, although he could have, to the union membership as a whole.7/ The Charging Party had, through his attorney, Thomas Foy, advised Local 194 of his willingness to pay the cost of arbitration and represent himself. Members of the Executive Board, however, did not believe that money was the controlling factor in denying the Charging Party's request for arbitration, rather, they believed that his grievance did not have a reasonable chance of success.8/ Since Local 194 did not take the Charging Party's grievance to arbitration, the Authority believed it was under no obligation to the Charging Party to agree to arbitrate the grievance at the Charging Party's expense.9/ The Charging Party alleged that Local 194 failed to fairly represent him at his hearing of January 18, 1978 by inadequately investigating the circumstances leading up to his discharge, as well as the other incidents referred to herein. In addition, the Charging Party alleged that the Executive Board's decision refusing to request arbitration resulted from a reliance upon insufficient information which demonstrated a failure of its fair representation duty.

6.	The Charging Party argued that his dismissal

occurred, at least in part, because of harassment directed at him by supervisors of the Authority. The facts showed that in 1974 the Charging Party witnessed Supervisor Joseph Fabrizi stealing dirt from the Authority and reported him for that action. Fabrizi was subsequently disciplined because of the incident.10/ Several people in the Charging Party's work location knew that he had reported a supervisor,11/ yet it was also clear that many people, although award of the "Fabrizi incident" were unaware of who actually reported him.12/ The Charging Party testified that after the Fabrizi incident his troubles began, he was treated differently and watched by the supervisors.13/ Nevertheless, he admitted that he was watched by supervisors before and after the Fabrizi incident.14/ Finally, although the Charging Party main-

tained that he was treated differently by supervisors after the Fabrizi incident, two supervisors, Jim Colby and Joseph Hornblower testified that they did not discriminate against the Charging Party.15/

7.	The Charging Party also argued that the Authority

and Local 194 by their actions in combination with one another had deprived him of his right to pursue his grievance to arbitration. In his opening remarks at the hearing the Charging Party's attorney maintained that the Authority and Local 194 to-
gether acted in a way to deprive the Charging Party of his rights guaranteed by the Act.16/	In fact, the Charging Party's attorney

maintained in his post-hearing brief:

"that the Authority exerted improper influence on

Local 194 not to take the Charging Party's case

to arbitration and Local 194 acceeded to such

pressure."

Despite the above assertion, the record is devoid of any evidence that would establish a collusive relationship between the Authority and Local 194. There was no evidence of a conspiracy or of a secret agreement between the Authority and Local 194 to deprive the Charging Party of his rights, and there was no evidence to support the allegation that the Authority exerted influence over Local 194 not to take the Charging Party's grievance to arbitration. The Charging Party had the opportunity to examine officials of both the Authority and Local 194 at the hearing but could not elicit any testimony even hinting of an attempt by the Authority to influence Local 194's actions. The undersigned credits the testimony of the union officials who stated that the reason the Charging Party's grievance was not sent to arbitration was because there was little likelihood for success.17/

8.	The Commission in In re New Jersey Turnpike

Authority, P.E.R.C. No. 80-106, 6 NJPER 106 (¶11055 1980), ordered the issuance of a complaint in this matter but did not rule upon the merits of the charge. With respect to the alleged (a)(5) violation of the Act, the Commission held that the statute of limitations period applied against Local 194,

"...would not prevent the Charging Party from

putting on proofs of a breach of Local 194's duty

of fair representation as a means of establishing

the Authority's violation of N.J.S.A. 34:13A-5.4

(a)(5)" at slip op p. 6.

With respect to the alleged (a)(1) violation of the Act, the Commission acknowledged that an employer's refusal to hear a grievance filed by an individual arguably could amount to inter-
ference, restraint or coercion of employee rights.

9.	At the close of the Charging Party's case the

Respondent made a motion on the record to dismiss the complaint in its entirety arguing that the Charging Party failed to establish a violation of the Act. The undersigned reserved judgement on the motion to dismiss and permitted the Respondent to present its case. The Respondent completed its case at the same hearing and the entire hearing in this matter was concluded that day. The undersigned, therefore, will consider the merits of the motion to dismiss based upon all of the evidence in this case and reach a conclusion on the motion to dismiss merged with that of the decision on the entire record.

THE ISSUES

Did the Respondent Authority violate (1) Subsections (a)(5) and/or (a)(1) of the Act when it refused the Charging Party's request, acting alone, to pursue the grievance relative to his discharge to binding arbitration, (2) whether the Charging Party was harassed by supervisors of the Authority, and (3) whether the Charging Party's discharge was "unreasonable, capricious and in violation of his contractual rights?"18/

DISCUSSION AND ANALYSIS

A determination of the primary issues require an interpretation of whether the Authority was required, pursuant to contract, the Act, or the State Constitution, to permit an individual employee to pursue a grievance to arbitration after Local 194, the other party to the contract, refused to send the grievance to arbitration.

Collusion and Local 194's Alleged

Failure of Fair Representation

The Charging Party alleged that the Authority violated the Act by putting pressure on Local 194 to deny the Charging Party's request for arbitration. Therefore, the Charging Party believed that by proving that Local 194 failed in its duty of fair representation he could establish a collusive relationship between the Authority and the union to deny him his rights under the Act. The undersigned has previously found, however, that there was insufficient evidence of a collusive relationship, and no basis upon which to attack the veracity of the union officials who testified that they denied arbitration because the grievance lacked the likelihood of success.19/

Despite a finding that no collusion existed between the Authority and Local 194, the Charging Party raised certain issues with respect to the union's duty of fair representation which needs to be considered herein. The Charging Party made a common mistake in attacking Local 194's refusal to request arbitration. It is a well settled labor law principle that a union, acting in good faith, does not violate the law by refusing to process a grievance to arbitration. The United States Supreme Court established that principle in Vaca v. Sipes, 386 U.S. 171, 190-
191, 64 LRRM 2369, 2377 (1967), when it said:

"Though we accept the proposition that a union

may not arbitrarily ignore a meritorious grievance

or process it in a perfunctory fashion, we do not

agree that the individual employee has an absolute

right to have his grievance taken to arbitration

regardless of the provisions of the applicable

collective bargaining agreement."

The Court also said:

"The breach of the statutory duty of fair represen-

tation occurs only when a union's conduct toward

a member of the...unit is arbitrary, discrimi-

natory, or in bad faith. 64 LRRM at 2376.

The Federal Courts and the National Labor Relations Board have interpreted "arbitrary, discriminatory, or bad faith" to mean something more than mere negligence, rather, there must be a showing of personal hostility. In Teamsters Local 692 (Great Western Unifreight), 209 NLRB 446, 85 LRRM 1385 (1975), the Board held that negligent union action or inaction by itself would not be considered arbitrary, irrelevant, invidious, or a breach of the duty of fair representation. The courts have expanded on this principle and held that proof that a union acted negligently or provided poor quality representation does not support a violation of fair representation even if the grievance is later found to be meritorious. Bazarte v. United Transportation Union, 429 F.2d 868, 75 LRRM 2017 (3d Cir. 1970), Encina v. Luma Boot Co. Inc., 316 F. Supp. 239, 75 LRRM 2012, aff'd. 448 F.2d 1264, 78 LRRM 2382 (1971).

The Charging Party argued herein that Local 194's failure to thoroughly investigate the facts leading to his dis-
charge demonstrated a failure of the duty of fair representation. Absent any showing of personal hostility, however, the courts do not support that contention. In a case on point, Berry v. Pacific Intermountain Express Co., (DC NM) 85 LRRM 2408 (1974), a union representative neither conducted an investigation or interviewed witnesses, failed to introduce relevant material at the hearing, and, the hearing only lasted 15 minutes. Neverthe-
less, the court found that absent a showing of malice or personal hostility, a union's failure to investigate facts and collect evidence or interview witnesses does not constitute bad faith. Finally, the United States Supreme Court held that to establish a claim of a breach of the duty of fair representation,

"...carries with it the need to adduce substantial

evidence of discrimination that is intentional,

severe, and unrelated to legitimate union objec-

tives."20/

This Commission and the New Jersey Courts have frequently relied upon Federal policy including court and N.L.R.B. decisions in formulating its own labor policy. See Lullo v. International Assoc. of Firefighters, 55 N.J. 409 (1970). In fact, in Belen v. Woodbridge Twp., 142 N.J. Super. 486, 490-491 (App. Div. 1976), the court held that the duty of fair representation as developed under the National Labor Relations Act was an appropriate guide for interpreting our Act.

In In re New Jersey Turnpike Employees Union, Local 194 IFPTE, P.E.R.C. No. 80-38, 5 NJPER 412 (¶10215 1979), the Commission considered a case similar to the instant matter and held that,

"...the union was not obligated to provide

unsurpassable representation, but such

representation as would adequately protect

those interests of the grievant which could

be adversely affected." At slip. op. p. 5.

The Commission identified the principles of a union's duty of fair representation and held,

"The union must exercise reasonable care and

diligence in investigating, processing and

presenting grievances; it must make a good

faith judgement in determining the merits of

the grievance; and, it must treat individuals

equally by granting equal access to the

grievance procedure and arbitration for

similar grievances of equal merit. At slip.

op. pp. 3-4.

In the instant matter, Local 194 met the above criteria. Although the union did not investigate the facts of the concluded August and October incidents, it did review the facts of the December incident, it made a good faith attempt at processing the grievance and representing the Charging Party at the January hearing, and it decided not to proceed to arbitration based upon a good faith belief that the grievance lacked merit.

From the totality of the evidence presented, and based upon the cited decisions, the undersigned finds that Local 194 was not in collusion with the Authority to deny the Charging Party of his rights, and it did not violate its duty of fair representation in refusing to process his grievance to arbitration. Since the union did not violate the Act with respect to the Charging Party's rights, the Authority could not have violated Section a(5) of the Act. In order to have found that the Authority in this case "refused to process a grievance presented by the majority representative" there had to be a finding that Local 194 requested arbitration, or unlawfully failed to request arbitration. No such finding was made herein. Local 194 did present the Charging Party's grievance through the grievance procedure but decided in good faith not to request arbitration. The Authority properly processed the grievance through the lower steps of the grievance procedure, but absent collusion with or a violation by Local 194, the Authority did not violate Section a(5) by refusing the Charging Party's request for arbitration because that request was made by the majority representative.

The Authority's Alleged Interference And Its

Refusal To Proceed To Arbitration

Having found that there was no collusion between the Authority and Local 194, the Charging Party could only establish a violation of the Act under Section (a)(1) by proving that the Authority interfered with or harassed him, discharged him in violation of his contractual rights, or denied him the right to present his grievance.

Regarding the first two allegations, the Charging Party relied upon the facts of the Fabrizi incident and argued that he was harassed by various supervisors of the Authority because of what he had done to Fabrizi. However, the facts do not establish harassment or interference by supervisors of the Authority against the Charging Party nor do they prove that the Charging Party was discharged in violation of any of his rights. The Fabrizi incident occurred in 1974, yet the three primary incidents that the Charging Party was involved with that led to his discharge occurred in 1977. The timing is not close. It is unreasonable to conclude that supervisors would wait that long to "harass" the Charging Party. Moreover, the facts of each incident demonstrate that the Charging Party had a poor work attitude and he showed very little willingness to improve the same. The Charging Party attempted to build a case of harassment at hearing, yet, there was no proof of any personal animosity directed toward the Charging Party and there was no substantial proof that the Charging Party was treated differently than other employees. Although the Charging Party testified that he believed that he was being harassed, the evidence does not support such a conclusion. The undersigned credits the testimony of the supervisors and the superintendent of maintenance concerning the Charging Party's attitude and the three 1977 incidents. Therefore, the undersigned finds that the Charging Party was not harassed by the Authority nor discharged in violation of any contractual right.

Regarding the allegation that the Authority denied the Charging Party the right to present his grievance, the under-
signed concludes that the Authority did not violate the Act or the State Constitution by refusing the Charging Party's request for arbitration after Local 194 had declined to pursue the matter to that level.

Article I, paragraph 19 of the New Jersey Constitution of 1947 provides in pertinent part:

"...Persons in public employment shall have the

right to organize, present to and make known

to the State, or any of its political subdivi-

sions or agencies, their grievances and prop-

sals through representatives of their own

choosing."

Our Act provides at N.J.S.A. 34:13A-5.3:

"Public employers shall negotiate written policies

setting forth grievance procedures by means of

which their employees or representatives of em-

ployees may appeal the interpretation, applica-

tion or violation of policies, agreements, and

administrative decisions affecting them pro-

vided that such grievance procedures shall be

included in any agreement entered into between

the public employer and the representative

organization. Such grievance procedures may

provide for binding arbitration as a means for

resolving disputes."

Neither the Constitution nor the Act require that an employee have an absolute right to pursue a grievance to binding arbitration. The Act says only that a grievance procedure may provide for binding arbitration, not that the public employee is required to permit individual employees to request arbitration in the absence of the majority representative.21/

In the instant matter the Charging Party clearly presented his grievance to the public employer through Local 194 and in fact a hearing was held concerning that grievance. The Charging Party is actually arguing that he had a right, acting without the union, to pursue his grievance to arbitration, but the law does not support that contention. In Red Bank Reg. Ed. Assoc. v. Red Bank Reg. H.S. Bd of Ed., 78 N.J. 122 (1978), the New Jersey Supreme Court held that a majority representative of a unit of employees is:

"(Their sole representative within the meaning of

Art. I, para. 19 for purposes of presentation

of their grievances to their public employer."

78 N.J. at 135.

The Court further indicated that once an employee elects to have his grievance presented through his majority representative it is no longer viewed as solely his grievance.22/ Finally, the Court held that it is not an unfair practice for a public employer to refuse to process a grievance presented by an individual once the primary responsibility for presenting the grievance has been entrusted to a majority representative.23/

Although Red Bank did not specifically discuss the right to pursue a grievance to arbitration, it is difficult to believe that the Court would find that the majority representa-
tive controls the presentation of grievances and then not extend that same rationale to the request for arbitration.

In Vaca v. Sipes, supra, the U.S. Supreme Court established the principle that:

"(If an individual employee could compel arbitration

of his grievance regardless of its merit, the

settlement machinery provided by the contract would

be substantially undermined..." 64 LRRM at 2377.

Based upon an examination of Red Bank, supra, the above principle is equally applicable in New Jersey. If each unit member were permitted to pursue grievances to arbitration despite the majority representative's good faith refusal to do the same, it would seriously undermine the collective negotiations process, and actually subject the public employer to a negotiations process with each individual employee. That certainly was not the Legislature's intent in the passage of our Act.

Having found that no collusion existed between the Authority and Local 194, and that no evidence of an independent Section (a)(1) violation existed, the undersigned finds that the Authority was under no obligation to permit the Charging Party, without the majority representative, to present his grievance to binding arbitration.

Accordingly, the undersigned finds that the Charging Party failed to prove by a preponderance of the evidence that representatives of the Authority harassed him, or that the Authority interfered with the processing of his grievance, or unlawfully prevented him from presenting his grievance, or dis-
charged him in violation of his contractual rights.

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

CONCLUSIONS OF LAW

The Respondent Authority did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5) by denying the Charging Party's request to proceed to arbitration, or by discharging him for the reasons outlined herein.

RECOMMENDED ORDER

The Respondent Authority not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

Arnold H. Zudick

Hearing Examiner

DATED:	September 8, 1980

Trenton, New Jersey