H.E. NO. 99-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF PARAMUS,

Respondent,

-and-	Docket No. CO-H-97-27

PARAMUS EMPLOYEES ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Ruderman & Glickman, attorneys

(Joel G. Scharff, of counsel)

For the Charging Party, Maccarone & Farhi, attorneys

(Michael Farhi, of counsel)

HEARING EXAMINER'S RECOMMENDED DECISION

ON MOTION FOR SUMMARY JUDGMENT

On July 22, 1996, the Paramus Employees Association filed an unfair practice charge against the Borough of Paramus. The charge alleges that on July 10, 1996, during negotiations for a 1995-97 collective agreement, the Mayor issued a letter to "all PEA members" enumerating specific proposals made to the PEA negotiations team and expressing his "disappointment" that he had not yet learned the "membership's position on this offer." The charge alleges that the correspondence is an "attempt to interfere with and dominate the Association's operation, management nd handling of contract negotiations", violating 5.4a(1), (2), (5)

and (7)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

On February 11, 1997, a Complaint and Notice of Hearing issued.

On February 26, 1997, the Borough filed an Answer admitting that the July 10, 1996 letter was issued but denying that it engaged in any unfair practice. The Borough asserts that the letter was lawful and that its overall conduct in negotiations was in good faith.

On October 20, 1997, the Complaint was deemed withdrawn. The PEA sought to reopen the case, pursuant to N.J.A.C. 19:14-1.5. The Borough opposed the Motion. On November 10, 1997, the Director of Unfair Practices advised the parties that a decision on the Motion was being deferred until an arguably related representation election (RO-98-37) was conducted and a certification issued.

On April 13, 1998, new Director of Unfair Practices and Representation Stuart Reichman granted the Motion to Reopen and reassigned the hearing to me.

1/	These provisions prohibit public employers, 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) Dominating or interfering with the formation, existence or administration of any employee organization. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. (7) Violating any of the rules and regulations established by the commission."

On July 31, 1998, the Borough filed a Motion to Dismiss the Complaint. The Borough contends that on July 29, 1997, the parties signed the 1995-97 collective agreement. It argues that the issues raised in the Complaint are now moot.

On August 7, 1998, the PEA filed a letter opposing the Motion. The PEA contends that the parties are now engaged in successor negotiations and that a "hovering specter of 'direct dealing' by the Borough's highest official creates a chilling effect." It contends that granting the Motion gives the Borough a "green light to again engage in prohibited conduct."

The Motion was referred to me for a decision. N.J.A.C. 19:14-4.8.

Summary judgment will be granted:

if it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and the movant...is entitled to its requested relief as a matter of law.

[N.J.A.C. 19:14-4.8(d)]

Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), specifies the standard to determine whether a "genuine issue" of material fact precludes summary judgment. The factfinder must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." If that issue can be resolved in only one way, it is not a "genuine issue" of material fact. A motion for summary judgment should be granted cautiously --

the procedure may not be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 182 (App. Div. 1981); Essex Cty. Ed. Serv. Comm., P.E.R.C. No. 83-65, 9 NJPER 19 (¶14009 1982); N.J. Dept. of Human Services, P.E.R.C. No. 89-54, 14 NJPER 695 (¶19297 1988).

Applying these standards and relying upon the briefs and supporting documents, I make the following:

FINDINGS OF FACT

1. The Paramus Employees Association is the majority representative of certain non-supervisory employees of the Borough of Paramus.

2. On June 26, 1996, the Borough negotiations team, including Mayor Cliff Gennarelli met with the Association team in a continuing effort to reach a collective agreement for non-supervisory employees for 1995-97. During the session, the Mayor insisted that the Association team promptly communicate the Borough's offer to the membership.

The Association team advised that it needed some time to review the latest offer.

3. On July 10, 1996, the Mayor issued a letter to all "PEA members." The text of the letter states:

I am writing to you in an attempt to resolve the P.E.A. contract in an expedient way. As you probably know, I and the Borough's Negotiation Team met with the PEA Negotiation Team and Michael Farhi on June 28, 1996.

The offer we made at that time was as follows:

1. $2,080 increase for 1995 for the Dispatchers

2. $1,200 increase for 1995 for all other employees

3. A 4% increase for 1996 for all employees

4. A 3.1% increase for 1997 for all employees

I feel this offer is not only fair but generous. I am very disappointed that we have not been notified as to the union membership's position on this offer. By copy of this letter, I am requesting a response from Mr. Farhi to our offer of June 26, 1996.

4. On or shortly before July 29, 1997, the parties signed a 1995-97 collective agreement. Article XXXVIII (Term of Agreement) provides in a pertinent part, "The parties shall meet to negotiate a successor agreement pursuant to the rules of the Public Employment Relations Commission." It also states, "If a successor agreement is not executed by December 31, 1997, then this Agreement shall continue in full force and effect until successor agreement is executed."

5. On December 31, 1997, the PEA filed an unfair practice charge (CO-98-239) against the Borough. The charge alleged that the Borough "arbitrarily gave a salary increase and transfer" to a unit employee without negotiations and did so after representing that the transfer was lateral and would not result in a salary increase. The Borough's actions allegedly violated 5.4a(1), (3), (5) and (7) of

the Act. On February 13, 1998, the charge was amended to allege additional facts.

On April 6, 1998, the parties signed a settlement agreement resolving the unfair practice charge. Without conceding any wrongdoing, the Borough acknowledged its duty to negotiate in good faith, including the duty to negotiate changes in salary of unit employees. On April 7, the case was closed.

6. On or around April 1, 1998, the parties commenced negotiations on a successor 1998-2000 agreement.

ANALYSIS

Resolution of a contract often makes moot disputes over alleged misconduct during negotiations, particularly where there is no evidence that the successful completion of negotiations was affected by the alleged misconduct. See e.g., Ramapo-Indian Hills Reg. H.S. Dist. Bd. of Ed., P.E.R.C. No. 91-38, 16 NJPER 581 (21255 1990). The Commission has so held regardless of whether the charging party is a majority representative or a public employer. "Continued litigation over past allegations of misconduct which have no present effects unwisely focuses the parties' attention on a divisive past rather than a cooperative future." Ramapo-Indian Hills at 16 NJPER 582. Also see Bayonne Bd. of Ed., P.E.R.C. No. 89-118, 15 NJPER 287 (¶20127 1989), aff'd App. Div. Dkt. No. A-4871-88T, (3/5/90); Belleville Bd. of Ed., P.E.R.C. No. 88-66, 14 NJPER 128 (¶19049 1988), aff'd App. Div. Dkt. No. A-3021-87T7

(11/23/88); Matawan-Aberdeen Reg. Sch. Dist. Bd. of Ed., P.E.R.C. No. 88-52, 14 NJPER 57 (¶19019 1987), aff'd App. Div. Dkt. Nos. A-46-87T1, A-2433-87T1, A-2536-87T1 (1/24/90); Rutgers, the State Univ., P.E.R.C. No. 88-1, 13 NJPER 631 (¶18235 1987), aff'd App. Div. Dkt. No. A-174-87T7 (11/23/88); State of New Jersey, P.E.R.C. No. 88-2, 13 NJPER 634 (¶18236 1987); State Bd. of Higher Ed., P.E.R.C. No. 84-69, 10 NJPER 27 (¶15016 1983); Oradell Bor., P.E.R.C. No. 84-26, 9 NJPER 595 (¶14251 1983); Rockaway Tp., P.E.R.C. No. 82-72, 8 NJPER 117 (¶13050 1982); Union Cty. Reg. H.S. Bd. of Ed., P.E.R.C. No. 79-90, 5 NJPER 229 (¶10126 1979); see also Asbury Park Bd. of Ed. v. Asbury Park Ed. Ass'n, 155 N.J. 76 (App. Div. 1977).

No facts are disputed.

The Association argues that "a hovering specter of direct dealing...creates a certain 'chilling effect' on present negotiations." The Association also refers to a resolved charge, CO-98-239, as demonstrating a "pattern of unfair practices, whether blatant or borderline" [Assn. correspondence of 9/20/98].

In Neptune Tp. Bd. of Ed., P.E.R.C. No. 94-79, 20 NJPER 76 (¶25033 1994), the Commission found a violation of 5.4a(1) and (5) of the Act when the Board, during post-factfinding collective negotiations, attempted to deal directly with unit members by publicly releasing proposed salary guides that had never been disseminated to the Association.

The Commission wrote that the release may have

effectively locked-in the Association to the Board's position, since any adjustments giving some teachers more could have been resisted by other teachers who would have gotten less. These circumstances interfered with the parties' ability to reach reasonable accommodations through the collective negotiations process.

[Id. at 20 NJPER 77]

Another important fact in that case was that about two months before the Board released the guides, "...the parties settled an unfair practice charge alleging that the Board had tried to circumvent the negotiations process. The parties agreed in writing that they would communicate their negotiations positions through proper channels." Id. at 20 NJPER 76.

No facts of comparable significance are alleged in this case. No evidence suggests that any Borough action compromised or interfered with the Association's ability to negotiate the now-expired collective agreement. Nor do the facts indicate that the Borough contravened any pact on the dissemination of negotiations positions. Finally, the December 31, 1997 unfair practice charge appears unrelated to negotiating a successor agreement.

I see no indication that similar circumstances will recur during the current collective negotiations. If they do, the Association may file a new unfair practice charge and cite this matter as relevant evidence.

The Motion is granted. Accordingly, I dismiss the Complaint.

Jonathon Roth

Hearing Examiner

Dated:	December 22, 1998

Trenton, New Jersey