H.E. NO. 89-30

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

AMALGAMATED TRANSIT UNION,

LOCAL 819,1/

Respondent,

-and-	Docket No. CI-H-88-85

EMERSON ELDER,

Charging Party.

Appearances:

For the Respondent, Amalgamated Transit Union, Local 819

Weitzman & Rich, Esqs. (Richard P. Weitzman, of counsel)

For the Charging Party, Emerson, Elder, pro se

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on May 10, 1988, and amended on May 11, 1988, by Emerson Elder ("Charging Party" or "Elder") alleging that the Amalgamated Transit Union, Local 819 ("ATU") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq. ("Act"), in that ATU, following the third step of the grievance procedure, unanimously refused Elder's request for

1/	New Jersey Transit Bus Operations, Inc. was an original Respondent but it has been deleted from the present caption since its Motion to Dismiss and/or Motion for Summary Judgment was granted on March 6, 1989 [H.E. No. 89-26].

arbitration, which is his right as a member of ATU and, further, Elder was not given any "charges, or rules and regulations, or statements in writing" as to why ATU denied his request for arbitration; Elder alleges further that other employees with like offenses had their cases taken to arbitration; all of which is alleged to be in violation of N.J.S.A. 34:l3A-5.4(b)(1) through (5) of the Act.2/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act as to ATU, a Complaint and Notice of Hearing was issued on December 29, 1988. Pursuant to the Complaint and Notice of Hearing, hearing dates were originally scheduled for February 14 and 15, 1989, in Newark, New Jersey, but these dates were thereafter adjourned without date, pending the disposition of the above-noted Motion to Dismiss and/or Motion for Summary Judgment by New Jersey Transit Bus Operations, Inc., ("NJT"). Following the grant of this Motion, supra, a hearing was held on the Complaint of

2/	These subsections prohibit employee organizations, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of negotiations or the adjustment of grievances. (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. (5) Violating any of the rules and regulations established by the commission."

Elder against ATU on March 27, 1989. On this date the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally and the instant decision is rendered upon the record, including the oral argument of the parties.

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act by ATU exists and, after hearing, and after consideration of the oral argument of the parties, 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 Amalgamated Transit Union, Local 819 is a public employee representative within the meaning of the Act.

2.	Emerson Elder, who was discharged on February 9, 1988, is, for purposes of this proceeding, a public employee within the meaning of the Act, as amended, and is subject to its provisions.

3.	Elder was hired by NJT on July 26, 1982, as a bus operator. As noted previously, Elder was discharged on February 9, 1988.

4.	Elder testified as to various disciplinary incidents, in which he was involved as a bus operator, between January 10, 1985 and February 3, 1988. Although Elder provided considerable detail as to the circumstances of the discipline administered by NJT for

various infractions, he did not testify as to any failure of the ATU to represent him until the last incident of February 3, 1988, following which he was discharged.3/

5.	Elder testified on cross-examination as to the following facts, which occurred on February 3, 1988: He reported for work at the Orange Garage at about 12:30 p.m. where he took out Bus No. 1066 on the Route No 21 line between West Orange and Penn Station in Newark; at some point in the late afternoon Elder's fare box became jammed and he was instructed to return the bus to the Orange Garage for a "change over"; this he did sometime between 6:00 p.m and 6:15 p.m. (CP-1, CP-2, CP-3, RU-1, RU-3); when Elder returned to the Orange Garage sometime between 6:00 and 6:15 p.m., he noticed that his automobile was not in its parking space on the parking lot and he made a call from a public telephone to ask if someone in his family had taken the car; then, upon being angered by the response, he "ran home" and was very upset upon finding that a friend had taken the key to his car and removed it; this upset which Elder endured over the next three to four hours resulted in Elder's having decided to falsify the entries on his "day card" (RU-1) such that entries were shown for his having operated a "phantom" Bus No. 7031 between the hours of 7:01 p.m. and 8:22 p.m. and his having

3/	The Hearing Examiner, although allowing Elder to testify regarding the infractions prior to February 3, 1988, by way of background, has attached no significance to this testimony since it did not implicate any failure on the part of ATU to fulfill its duty of fair representation as to Elder.

allegedly received fares of $28.00 (RU-1); Elder returned his Day Card to the Orange Garage with the falsified entries contained therein sometime between 9:00 p.m. and 11:00 p.m.

6.	When NJT learned of Elder's misconduct of February 3, 1988, he was summoned to a first-step grievance hearing4/ on February 9th where NJT Supervisor Frank L. Jones conducted a hearing in the presence of Elder and ATU Delegate Fred Wright (CP-1). Jones submitted his report on this first-step grievance hearing, which contained most of the factual essentials previously found.

7.	Wright, the ATU Delegate who represented Elder at the first-step hearing on February 9th, impressed the Hearing Examiner by his demeanor as a truthful witness. Wright testified that he has been a Delegate for five years and has handled approximately 2500 first-step hearings. Wright testified that prior to Elder's first-step hearing, he reviewed the situation with Elder, including the charge that Elder had falsified his Day Card and Elder's defense that he had been "upset" on the night of February 3, 1988. Wright testified that Elder had had a chance to respond to the charges specified by Jones, and that he presented Elder's defense to the charge, namely, Elder's personal problems of upset and not being in a "right frame of mind." Wright stated that he "fought hard" for Elder's job and even took a "break" to discuss the matter further

4/	The collective negotiations agreement between NJT and ATU contains a four-step grievance procedure, terminating in binding arbitration (J-1).

since falsification of records warrants discharge. Wright's plea to Jones was that he should reduce the penalty of discharge.

8.	A second-step grievance hearing was held on February 18, 1988, at which Elder was represented by Richard Outlaw, a Vice President of ATU for ten years (CP-2). The second-step hearing was conducted by Ed Cunningham of NJT; Jones, who conducted the first-step hearing, was also present. According to CP-2 and Outlaw's testimony, he stated that he was grieving the severity of the discipline and requested that Elder be reinstated. However, Cunningham sustained the discharge at the second-step. Outlaw testified at the instant hearing that he had reviewed the matter with Elder before entering the second-step hearing. Outlaw, who also impressed the Hearing Examiner as a truthful witness, testified that he requested leniency because of the circumstances and had hoped to resolve the matter in Elder's favor with lighter discipline. This, however, did not occur.

9.	A third-step hearing occurred on March 1, 1988, before James J. Vergari, the Assistant Manager of Labor Relations for NJT (CP-3). Present were Vergari, Elder and ATU President, Ralph Lombardi, in addition to Supervisor Jones. According to CP-3, Lombardi, who did not testify at the instant hearing, asked that NJT

consider giving Elder one last chance and modify his discharge to a suspension.5/

10.	Elder requested the opportunity to appear before the Executive Board of ATU and did so on March 11, 1988. Elder complained that his opportunity to present his case to the Executive Board was "not full" although he spoke for 10 to 15 minutes! The Hearing Examiner does not credit Elder's testimony that the Executive Board members present interrupted his presentation and did not give him a full and adequate opportunity to speak. The Hearing Examiner accepts as more credible the testimony of Wright, who is an Executive Board member, that Elder made a full explanation and that he was questioned by the Executive Board members. However, after the members caucused, they voted unanimously to deny Elder's request for arbitration at the fourth step, because, in view of the severity of the falsification infraction, it was "no case" for an arbitrator. The testimony of Outlaw corroborated that of Wright as to the conduct of the Executive Board in considering Elder's request for arbitration. Outlaw confirmed Elder's testimony that at the conclusion of the Executive Board meeting Lombardi said to Elder "good day." Elder never appeared at any subsequent membership

5/	Elder confirmed in his testimony that Outlaw had asked for reinstatement and that Lombardi had, at the third-step hearing, asked Vergari to give Elder a last chance and a lesser penalty of suspension.

meeting to seek reversal of the Executive Board's decision6/ although Elder acknowledged that he had been to a few union meetings over the years and was aware that the union membership meetings take place once each month.7/

DISCUSSION AND ANALYSIS

The ATU Did Not Breach Its Duty Of Fair

Representation In Violation Of Section

5.4(b)(1) Of The Act When It Refused To

Arbitrate ELder's Discharge Grievance.8/

Elder's terminal difficulties with NJT resulted from his conduct on February 3, 1988, which, as previously found, centered on his admitted falsification of the Day Card on that date. Elder was represented at the first three steps of the grievance procedure in the collective negotiations agreement (J-1, pp. 2, 3) by ATU representatives Wright, Outlaw and Lombardi. It need not be reiterated here that each of these representatives consulted initially with Elder before the hearings at steps one through three

6/	Wright testified, without contradiction, that a union member can appear before a membership meeting and request that it overrule the decision of the Executive Board.

7/	In 1988 the ATU Executive Board voted to take five discharge cases to arbitration from among 8 to 10 cases in which a request for arbitration was made. These were from among a total of 25 applications for arbitration made to the Executive Board in 1988.

8/	Since Elder adduced no evidence whatever that ATU violated §§5.4(b)(2) through (5) of the Act, the Hearing Examiner will recommend dismissal of his allegations that ATU violated these four subsections of the Act. The sole question is whether or not ATU breached its duty of fair representation which, if proven, would constitute a violation of §5.4(b)(1) of the Act.

and spoke forcefully on his behalf before the representatives of management. Thus, the Hearing Examiner can perceive no dereliction in the duty of fair representation as to Elder by three ATU representatives.

After Elder's discharge was sustained, Elder, with the assistance of Lombardi, made a request to the ATU Executive Board that his case be taken to arbitration. A meeting of the Executive Board was convened on March 11, 1988, and after Elder had made his presentation, which lasted about 10-15 minutes, the Executive Board caucused and unanimously decided that Elder's case not be taken to arbitration. The Executive Board had, during 1988, considered 25 applications for arbitration, among which were eight to ten cases involving discharges. Of the latter, only five were voted upon favorably for arbitration.

The instant case must now be analyzed in the light of prior decisions of the Commission and the courts involving claims of a breach of the duty of fair representation by a labor organization. The courts of this State and the Commission have consistently embraced the standards established by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 64 LRRM 2369 (1967). See e.g., Saginario v. Attorney General, 87 N.J. 480 (1981); Council of State College Locals, AFT (Patrick), P.E.R.C. No. 89-26, 14 NJPER 605 (¶19256 1988); Distillery Workers Local 209 (Merricks), P.E.R.C. No. 88-13, 13 NJPER 710 (¶18263 1987); In re Board of Chosen Freeholders of Middlesex County, P.E.R.C. No. 81-62, 6 NJPER 555

(¶11281 1980), aff'd. Ap. Div. Docket No. A-1455-80 (1982), pet. for certif. den. (1982); New Jersey Turnpike Employees Union Local 194, P.E.R.C. No. 80-38, 5 NJPER 412 (¶10215 1979); and In re AFSCME Council No. 1, P.E.R.C. No. 79-28, 5 NJPER 21 (¶10013 1978). The Court in Vaca 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. 386 U.S. at 190.

In fact, the U.S. Supreme Court has also held that to establish a claim of a breach of the duty of fair representation there must be adduced substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives. Amalgamated Assoc. of Street, Electric Railway and Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 301, 77 LRRM 2501, 2512 (1971).

Further, the National Labor Relations Board has held that where a majority representative exercises its discretion in good faith, proof of mere negligence, standing alone, does not suffice to prove a breach of the duty of fair representation. Service Employees Int'l Union, Local No. 579 AFL-CIO, 229 NLRB 692, 95 LRRM 1156 (1977); Printing and Graphic Communication, Local 4, 249 NLRB No. 23, 104 LRRM 1050 (1980), reversed on other grounds 110 LRRM 2928 (1982).9/

9/	See, also, Bergen Community College Adult Learning Center, H.E. No. 86-19, 12 NJPER 42, 45, 46 (¶17016 1985), aff'd P.E.R.C. No. 86-77, 12 NJPER 90 (¶17031 1985).

It is abundantly clear to the Hearing Examiner that Elder has not proven by a preponderance of the evidence that the ATU breached its duty of fair representation under the legal authorities set forth above. Vaca speaks in terms of arbitrary, discriminatory or bad faith conduct on the part of a union representative. Lockridge speaks further in terms of conduct that intentional, severe and unrelated to legitimate union objectives. The NLRB adds that proof of "mere negligence," standing alone, does not suffice to prove a breach of the duty of fair representation.

Finally, Vaca also holds that the decision to refuse to arbitrate a grievance is not in and of itself evidence of a breach of the duty of fair representation. See also, New Jersey Turnpike Employees Union Local 194 and Distillery Workers Local 209, supra and Rutgers, The State University et al. (Jennings), P.E.R.C. No. 88-130, 14 NJPER 414 (¶19166 1988).

The Hearing Examiner cannot conclude other than that the ATU, in its representation of Elder in the grievance procedure, including his request for arbitration, has not breached its duty of fair representation. First, the ATU's conduct in the representation of Elder was neither arbitrary nor discriminatory nor has the ATU manifested bad faith. Second, the United States Supreme Court's Amalgamated Ass'n. decision, supra, requires that there be substantial evidence of discrimination which is intentional, severe and unrelated to legitimate union objectives.

The Hearing Examiner, in evaluating the ATU's overall representation of Elder in this matter, concludes that the ATU did not engage in the type of discrimination which the United States Supreme Court dealt with in Amalgamated Ass'n. Further, the ATU appears at all times to have acted in furtherance of legitimate union objectives.

Finally, the Commission, following Vaca, has held in several decisions that the mere fact that a union refuses to arbitrate a grievance is not in and of itself evidence of a breach of the duty of fair representation. In N.J. Tpk. Employees Union, supra, the Commission stated that:

If in the past every discharge (here promotion) case had been processed through arbitration no matter how questionable the case, the Charging Party's allegation that the Union had breached its duty of non-discrimination would have been stronger...However, the Hearing Examiner found that in prior grievances the (Union)...had determined that some did not merit arbitration...Accordingly, the decision not to proceed to arbitration in this instance did not constitute unequal access to the grievance process...(emphasis supplied). (5 NJPER at 413, 414).

These conclusions of the Hearing Examiner, regarding the representation of Elder by the ATU's representatives, follow from the fact that Elder was fully and fairly represented at steps one through three under the contractual grievance procedure, notwithstanding that the ATU Executive Board on March 11, 1988, decided unanimously not to take his case to arbitration. Wright testified credibly that he felt that Elder was treated fairly vis-a-vis many other grievants who had sought to have their cases

taken to arbitration. Elder's falsification infraction was the main issue in the decision of the Executive Board not to take his case to arbitration. Finally, it appears to the Hearing Examiner that given the fact that the Executive Board was during 1988 presented with eight to ten requests to take discharge cases to arbitration, its decision to take only five such cases to arbitration hardly suggests a pattern of discrimination against Elder by its refusal to take his case to arbitration.

For all of the foregoing reasons, the Hearing Examiner must recommend that the Complaint be dismissed.

* * * *

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

CONCLUSION OF LAW

The Respondent ATU did not violate N.J.S.A. 34:13A-5.4(b)(1) through (5) when it refused to arbitrate the discharge grievance of Emerson Elder on March 11, 1988.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: April 7, 1989

Trenton, New Jersey