H.E. NO. 84-34

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY EDUCATION ASSOCIATION,

NATIONAL EDUCATION ASSOCIATION &

BERGEN COMMUNITY COLLEGE FACULTY

ASSOCIATION,

Respondents,

-and-	Docket No. CI-84-19-38

STUART D. SHAW,

Charging Party.

Appearances:

For the Respondents

Greenberg, Kelley & Prior, Esqs.

(James F. Schwerin, Esq.)

For the Charging Party

Stuart D. Shaw, pro se

DECISION AND ORDER ON RESPONDENTS'

MOTION FOR SUMMARY JUDGMENT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on September 12, 1983, and amended on November 21, 1983 and December 28, 1983, by Stuart D. Shaw (hereinafter the "Charging Party" or "Shaw") alleging that the New Jersey Education Association (hereinafter the "NJEA"), the National Education Association (hereinafter the "NEA") and the Bergen Community College Faculty Association (hereinafter the "Association"), also, collectively, the "Respondents," have engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"). Inasmuch as the allegations in the Unfair Practice Charge, as amended, are admitted for the purpose of disposing of the Respondents' Motion for Summary Judgment, they will not be set forth at this time, but will be set forth in the "Admitted Findings of Fact," infra. Suffice it to say that a breach of the duty of fair representation is alleged. The Unfair Practice Charge, as amended, alleges a violation by the Respondent of N.J.S.A. 34:13A-5.4(b)(1) and (5) of the Act.1/

Prior to the issuance of a Complaint, infra, Hearing Examiner Edmund G. Gerber denied Shaw's request for interim restraints on October 12, 1983: I.R. No. 84-4, 9 NJPER 645 (1983). Briefs filed by the parties at that time are before the instant Hearing Examiner for consideration in disposing of the Respondents' Motion for Summary Judgment.

It appearing 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 October 25, 1983. The scheduled hearing dates were cancelled when the Respondents filed a Motion for Summary Judgment on December 8, 1983. The Hearing Examiner heard oral argument by the parties on December 28, 1983.

Pursuant to N.J.A.C. 19:14-4.8(a), the Chairman of the Commission had referred the Respondents' Motion for Summary Judgment to the instant Hearing Examiner under date of December 12, 1983.

Upon the record papers filed by the parties in the instant proceeding to date, the Hearing Examiner makes the following:

ADMITTED FINDINGS OF FACT

1.	The New Jersey Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

2.	The National Education Association is a party of record in this proceeding, an appearance having been made on its behalf, but no finding is made that it is a public employee representative within the meaning of the Act, as amended, over which the Commission has jurisdiction.

3.	The Bergen Community College Faculty Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

4.	Stuart D. Shaw is a public employee within the meaning of the Act, as amended, and is subject to its provisions.

5.	Shaw was a member of the faculty of the Bergen Community College until his termination on a date not disclosed by the Unfair Practice Charge, as amended. Shaw grieved his termination through the grievance procedure of the collective negotiations agreement between the Association and Bergen Community College. The final step of the grievance procedure is an appeal to the Board of Trustees of Bergen Community College. There is no provision for arbitration, which prompted the court proceedings described hereinafter.

6.	At some point after his termination, Shaw sought and obtained a commitment on March 1, 1983 from the NJEA to finance a Federal lawsuit on behalf of himself and his wife, who also had been terminated by Bergen Community College. The authority for such financing by the NJEA is set forth in certain guidelines for a legal services program, which was adopted by the NJEA on May 15, 1981.

7.	Prior to obtaining the commitment to finance his Federal lawsuit on March 1, 1983, Shaw had disclosed to the NJEA that he intended to name as a defendant, Peter Helff, the Treasurer of the Association and an agent of the NJEA.

8.	James Zazzali of the Newark law firm of Zazzali, Zazzali and Kroll was retained by the NJEA to represent Shaw. A Complaint was filed in the District Court in Newark on April 8, 1983, which named Helff as a defendant along with the Bergen Community College and several members of the Board of Trustees. Twelve days after the filing of the aforesaid complaint, Zazzali dropped Helff as a defendant at the behest of the NJEA, all of which was done without notice to or the consent of Shaw.

9.	On May 23 and June 8, 1983, Shaw requested in writing that Zazzali reinstate Helff as a defendant forthwith. This was done by Zazzali on June 17, 1983.

10.	Thereafter Zazzali became concerned about a possible conflict of interest due to the fact that the litigation was being financed by the NJEA while at the same time an NJEA representative, Helff, was named as a defendant. Zazzali ultimately decided to move in Federal Court for withdrawal as counsel for Shaw which, notwithstanding Shaw's opposition, was granted by the Court on September 8, 1983. Since that date, Shaw and his wife have represented themselves pro se.

11.	The original Unfair Practice Charge, which complained about the foregoing, was filed on September 12, 1983 and amended as set forth above.

DISCUSSION

Based on the foregoing "Admitted Findings of Fact" it is clear that the instant proceeding is ripe for disposition of the Respondents' Motion for Summary Judgment: see the analysis and discussion by the Commission in Essex County Educational Services Commission, P.E.R.C. No. 83-65, 9 NJPER 19, 20 (1982). Under the authorities set forth therein, a motion for summary judgment may properly be granted when the record papers disclose that "...there is no genuine issue as to any material fact...and that the moving party is entitled to a judgment or order as a matter of law..." The Hearing Examiner is satisfied that the requisites for the grant of the Respondents' Motion for Summary Judgment are met. Based on the foregoing, and the legal arguments made by the representative of the parties, the Hearing Examiner hereby grants the Respondents' Motion for Summary Judgment for the following reasons:

The Admitted Facts In No Way Support

A Finding That The Respondents Breached

Any Duty Of Fair Representation to Shaw

As will be apparent hereinafter, a breach of the statutory duty of fair representation must necessarily arise in the context of either negotiations for a collective agreement between an employee representative and an employer, or the administering of such an agreement during its lifetime: Donnelly v. United Fruit Co., 40 N.J. 61, 76 (1963).

In the Federal sector, beginning with Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944), the duty of fair representation has been limited to the collective bargaining or contractual setting, i.e., the obligation of the exclusive representative to represent all employees in the collective negotiations unit fairly and without hostile discrimination or bad faith: See, for example, Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), Conley v. Gibson, 355 U.S. 41 (1957), Humphrey v. Moore, 375 U.S. 335 (1964), Vaca v. Sipes, 386 U.S. 171 (1967), Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976), Bowen v. U.S. Postal Service, __ U.S. ___, 112 LRRM 2281 (1983), and in National Labor Relations Board cases beginning with Miranda Fuel Co., 140 NLRB 181, 51 LRRM 1584 (1962).

The Commission, too, in its fair representation decisions has always had before it facts involving the conduct of the exclusive collective negotiations representative either in negotiating an agreement or administering an existing agreement: See, for example, Hamilton Township Education Association, P.E.R.C. No. 79-20, 4 NJPER 476 (1978), Council No. 1, AFL-CIO, P.E.R.C. No. 79-28, 5 NJPER 21 (1978), N.J. Turnpike Employees Union Local 194, etc., P.E.R.C. No. 80-38, 5 NJPER 412 (1979), Middlesex Council No. 7, NJCSA, P.E.R.C. No. 81-62, 6 NJPER 555 (1980) and FMBA Local No. 12, P.E.R.C. No. 82-65, 8 NJPER 98 (1982). Two of the foregoing decisions concerned collective negotiations and the treatment of employees in the unit (Hamilton and FMBA Local No. 12) while the other three cases dealt with the problem of an employee in resorting to the contractual grievance procedure (Council No. 1, N.J. Turnpike and Middlesex).

Consistent with the Federal sector, the Commission has not expanded the scope of the duty of fair representation beyond the contractual setting, which obligates the exclusive representative to act fairly and without hostile discrimination: See State of N.J., D.U.P. No. 80-6, 5 NJPER 429, aff'd P.E.R.C. No. 80-50, 5 NJPER 485 (1979), which held that there was no obligation on the part of a majority representative to file or pursue an unfair practice charge on behalf of a unit member or members. In the Federal sector, the Courts have been uniform in holding that the duty of fair representation does not extend beyond the National Labor Relations Act and the Railway Labor Act: See, for example, Airline Stewards v. American Airlines, 490 F.2d 636 (7th Cir. 1973), cert. den. 416 U.S. 993 (1974) [the duty does not extend to Title VII claims] and Hawkins v. Babcock & Wilcox Co., 105 LRRM 3438 (N.D. Ohio 1980) [the duty does not extend to advising employees of their administrative or judicial remedies].

Based on the foregoing authorities, the Hearing Examiner finds and concludes that Shaw has failed to allege any facts which would bring his Unfair Practice Charge, as amended, within the ambit of an arguable breach of the duty of fair representation.

A Claim Arising From An Alleged

Violation Of Internal Union

Procedures Is Not Cognizable As

An Unfair Practice Under The Act

As an examination of the admitted facts, supra, discloses, Shaw's allegations deal solely with the conduct of the NJEA in failing to provide Shaw with counsel to prosecute a suit in Federal Court in Newark. Plainly, this involves the problem which Shaw has encountered under an internal union mechanism wherein legal fees are paid on behalf of members of the NJEA under certain circumstances. The grant or denial of funds for legal counsel appears clearly to be an internal union matter and in no way arises out of the contractual relationship between the Association and Bergen Community College.

The Respondents correctly cite the Commission's decision in City of Jersey City, P.E.R.C. No. 83-32, 8 NJPER 563 (1982) for the proposition that the Commission lacks jurisdiction to consider a claim of the violation of a union constitution. In that case certain employees, who were members of an association, alleged that an unfair labor practice was committed when they were denied the right to hold union office even though they enjoyed every other membership benefit. The Commission noted that it was reluctant to intercede in what was solely an intra-
union dispute, a matter over which the Courts of the State would have jurisdiction. Since the case had come before the Commission following an order of the Superior Court in Hudson County, the Commission stated "...Thus, those members...who had joined the Union are free to return to that forum (the Court) to pursue their challenge...." (8 NJPER at 566).

The Respondents also correctly cite the decision of the Director of Unfair Practices in Newark Building Trades Council, D.U.P. No. 82-34, 8 NJPER 333 (1982) where he refused to issue a complaint regarding a claim by an individual union member that the constitution and by-laws of the union were being violated.

In conclusion, the Hearing Examiner notes that in the Hawkins case, cited above, on facts nearly identical to those in the instant case, it was held that an individual employee was not inadequately represented when his union refused to advise the employee of his legal rights under Title VII, which was outside of the context of the collective bargaining agreement. The Court said that the union had no duty to act as an attorney at law and to advise the member of all possible alternatives of legal recourse.2/

Thus, the Hearing Examiner finds and concludes that, based on the foregoing authorities, Shaw has failed to state a claim over which the Commission has jurisdiction, i.e., only internal union procedures are involved herein.

* * *

Upon the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondents' Motion for Summary Judgment is granted.

2.	The Respondents, by their conduct herein, have not violated N.J.S.A. 34:13A-5.4(b)(1) and (5).

ORDER

It is hereby ORDERED that the Respondents' Motion for Summary Judgment be and same is hereby granted.

/s/Alan R. Howe

Hearing Examiner

DATED:	January 11, 1984

Trenton, New Jersey