H.E. NO. 78-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PARSIPPANY-TROY HILLS TOWNSHIP

BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CI-77-11-89

YVONNE BARANOWSKI; THOMAS KNIPP, ET AL.,

Charging Party.

Appearances:

For the Parsippany-Troy Hills Township Board of Education, Murray, Meagher & Granello, Esq.

(Robert J. Hrebek, of Counsel)

For Yvonne Baranowski, Thomas Knipp, et al.

(John W. Davis)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On September 16, 1976, Thomas Knipp, an individual, filed this charge on behalf of all Parsippany-Troy Hills Board of Education bus drivers claiming the Parsippany-Troy Hills Board of Education (the "Board") committed an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a)(1) and (5)1/ by excluding from a newly negotiated contract two items which were incorporated in the memorandum of understanding that was executed by the Board and the Parsippany-Troy Hills Matron, Maintenance, Custodial and Bus Drivers Association (the "Association"). On December 17, 1976, the unfair practice charge was amended to list the charging party as Yvonne Baranowski, Thomas Knipp and all other affected bus drivers. The hearing in this matter was commenced on March 28, 1977, and concluded on the second day of earing, May 11, 1977. Sequential briefs were submitted by both parties with the final brief received on July 28, 1977.2/

Mr. Knipp, as one of the individuals bringing this charge, testified on his own behalf. Mr. Knipp is a bus driver for the Board and was one of four members of the negotiating team for the Association for the 1975-1977 collective negotiations contract. Knipp testified that on or about September 17, 1975, the parties entered into a memorandum of agreement which incorporated terms of settlement for the two years in question. The memorandum contained two provisions which are now in issue. Item #1 states "the Board and the Association agree that any and all trips using buses, vans or substitute vehicles owned or contracted by the Parsippany-Troy Hills Board of Education shall be driven by regularly employed Parsippany-Troy Hills Board of Education bus drivers." Item #2 provides that "the Board and Association agree that the lead bus driver shall be placed on the lead man's salary guide." The agreement was ratified by all Association members and on November 13, 1975, the Board at a public meeting ratified the memorandum of agreement with the reservation that the language of Item #1 of the memorandum had to be clarified. No action was immediately taken to clarify this language and Knipp took the initiative and contacted Board members to set up a meeting to do so and in fact sent a proposal for the clarification of said language to both his other negotiating team members and individual members of the Board. However, no action was taken on the language and although the salary provisions of the memorandum were instituted in December of 1975 the final contract had not yet been drawn up in June of 1976.

Knipp went on vacation in July of 1976. Upon his return in mid-July he found that the contract between the parties had been printed. Articles I and II of the memorandum had been deleted from the contract. He thereupon approached Walter Badaraca and Jack Kelchaw, President and Vice President of the Association, respectively, and fellow members of the negotiating team, but could not get a satisfactory answer from them as to what had happened. He then approached members of the Board but again could not get what he considered a satisfactory answer to what had happened in his absence and brought this charge.

Joseph Winish is Secretary and Business Administrator to the Board. His testimony was basically in accord with that of Knipp as to those events which led up to the ultimate signing of the contract in this matter. Winish stated that on June 22 there was a meeting between himself, his labor counsel Mr. Robert Murray, and Badaraca and Kelchaw for the Association. They met in an effort to resolve the outstanding language dispute in the memorandum of understanding. Winish further testified that at that meeting an agreement was entered into between the Association representatives and himself and Bob Murray for the Board. The agreement, in its entirety, states, "Items #1 and #2 of the proposals for 1975-76 entitled 'Drivers and Trips' and 'Bus Driving Lead Men' are hereby deleted by mutual agreement." Signed for the Association by Badaraca and Kelchaw and for the Board of Education by Robert Murray. Winish stated that after this agreement was entered into he went back to the Board which approved his actions although no official ratification was taken of this new agreement.

It is not clear from the record whether or not a ratification vote was taken by the Association. However, Knipp stated that he never received any notification from the Association of a meeting to ratify this agreement nor did any of his fellow bus drivers advise him of such a meeting. As noted above the original charge filed in this case was in the name of the Parsippany-Troy Hills bus drivers. A letter was introduced into evidence by the Board signed by Kelchaw, the Vice President of the Association, and addressed to this Commission which stated, "This action [the filing of the charge] does not have the consent of the Association" and the Association requested that it be "removed from further action."

On the basis of the facts presented, the undersigned cannot find where the Board committed an unfair practice. The Board has a duty only to negotiate with the designated employee representatives and there is no question that they did so in this case. Even though Knipp was a member of the negotiating team and an employee representative, it was the Board's understanding that the officers of the Association were the chief negotiating representatives. [Knipp characterized the president as being the "chief."] While one might question the wisdom of the Association officers in giving up two of the bus drivers' negotiated benefits simply to have the contract signed, the Board is not responsible for the actions of the Association's representatives. There is no question that the Association representatives entered into an agreement which did get the contract signed. The Charging Party argues that the amendments resulting in the contract were not binding for there was no ratification of the June 22nd agreement by the Board. However, assuming arguendo that Baranowski and Knipp as individuals have a right to raise this argument, ratification is not a condition precedent to the validity of a contract. If the Board negotiators are cloaked with apparent authority, then there is a binding contract. See In re Bergenfield, P.E.R.C. No. 90, 1 NJPER 44 (1975); In re East Brunswick, P.E.R.C. No. 77-6, 2 NJPER 279, H.E. No.76-13, 2 NJPER 204 (1976). Similarly, the Association representatives who signed the agreement on June 22nd made no reference or reservations concerning the necessity of ratification.

The Board raised several other defenses to this matter which are not necessary to comment on here with two exceptions. The Board questioned the right of an individual to bring a refusal to bargain charge against a public employer and maintains that only the designated representatives of a public employee may bring a refusal to bargain charge. Nowhere in the New Jersey Public Employer-Employee Relations Act is there any limitations expressed as to who may bring such an action. Since the Act was intended to protect individuals' rights as well as rights of association as a whole,3/ the undersigned will not recommend that the Commission dismiss the instant action on the basis of the lack of standing of the Charging Party.

The Board also alleged that this action was defective for the Charging Party did not name the Association as a co-
respondent. As noted above, the Association chose not to take part in this action and, for their own reasons, Knipp, et al. chose not to name the Association as co-respondents. However, had the Board chose to, they themselves might have attempted to name the Association as a third-party respondent, but for reasons of their own the Board chose not to. Further, if either party needed the testimony of the Association officers they could have been subpoenaed. The fact that the charges alleged in the Complaint might have been easier for the Charging Party to prove (or the Board to disprove) is simply a matter of hearing strategy and is not a prima facie grounds for dismissal of the Complaint.

Accordingly, for the reasons set forth above, it is hereby recommended that the Commission dismiss the Complaint in its entirety.

_________________________

Edmund G. Gerber

Hearing Examiner

DATED:	Trenton, New Jersey

February 1, 1978.