H.E. NO. 2005-7

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PBA LOCAL 187,

Respondent,

-and-	DOCKET NO. CI-2002-64

JAMES CIPRIANO,

Charging Party.

SYNOPSIS

The Hearing Examiner grants the union's Motion for Summary Judgment and dismisses an unfair practice charge filed by James Cipriano against PBA Local 187. The charge alleged that Local 187 violated the New Jersey Employer-Employee Relations Act when it refused to process Cipriano's grievance. The union filed a Motion for Summary Judgment arguing that Local 187 did not breach its duty of fair representation. The Hearing Examiner found that the charging party did not assert facts that showed that the union acted in bad faith or in an arbitrary or discriminatory manner, therefore, Local 187 was entitled to summary judgment.

A Hearing Examiner's Decision on a Motion for Summary Judgment which resolves all the issues in the Complaint becomes a recommended decision, pursuant to N.J.A.C. 19:14-4.8(e). A recommended report and decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law. If no exceptions are filed, the recommended decision shall become a final decision unless the Chair or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further.

H.E. NO. 2005-7

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PBA LOCAL 187,

Respondent,

-and-	DOCKET NO. CI-2002-64

JAMES CIPRIANO,

Charging Party.

Appearances:

For the Respondent,

Loccke & Correia, attorneys

(Michael Bukosky, of counsel)

For the Charging Party,

Gregory S. Schaer, attorney

HEARING EXAMINER'S DECISION ON MOTION FOR SUMMARY JUDGMENT

On June 14, 2002, James Cipriano filed an unfair practice charge against PBA Local 187. Cipriano alleges that the PBA violated 5.4(b)(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when it failed to process his grievance to arbitration.

On September 10, 2004, a Complaint and Notice of Hearing issued. On September 28, the PBA filed an Answer denying the alleged failure to process Cipriano's grievance.

On September 27, 2004, the PBA filed a Motion for Summary Judgment accompanied by a supporting brief only. On October 5, 2004, the Motion was referred to me for decision. N.J.A.C. 19:14-4.8. On November 3, 2004, Cipriano filed a reply opposing the Motion. Cipriano's response was not supported by affidavits or other documents. On November 29, 2004, the PBA filed a reply including attachments which had not previously been submitted. The attachments included a letter to Cipriano from Mike Vasil, PBA President, dated March 20, 2002 addressing Cipriano's grievance. Cipriano was given an opportunity to respond specifically to the letter. On December 14, 2004, Cipriano filed a reply which did not address the letter included in the PBA's reply brief.

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 fact finder 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 fact finder 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. Mandel v. UBS/Paine-Webber, 373 N.J. Super 55, 71-72 (App. Div. 2004); 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 pleadings, I make the following:
FINDINGS OF FACT

1. James Cipriano has been employed by the Mercer County Sheriff's Department since September 14, 1992. Cipriano was initially employed as an investigator, an unclassified position under the auspices of the New Jersey Department of Personnel.

2. After passing a qualifying examination, Cipriano became a sheriff's officer on November 12, 2000. Sheriff's officer is a classified position under the auspices of the Department of Personnel.

3. Section 11.1 of the collective negotiations agreement between the Mercer County Sheriff's Office and the PBA provides in pertinent part:

Seniority is defined as an employee's continuous length of service with the Sheriff's Office, beginning with the date of appointment as a permanent Civil Service employee, Sheriff's Officer. Investigators shall be maintained on a separate list.

4. On January 1, 2002, a departmental seniority list was promulgated in which Cipriano's seniority was calculated from the date he received a permanent civil service appointment as a sheriff's officer (November 12, 2000) and not from his date of hire as an investigator (September 14, 1992). Cipriano's rank on the list concomitantly descended from number 61 to number 78.
5. On March 11, 2002, Cipriano filed a grievance with the PBA against the Mercer County Sheriff contesting the calculation of his seniority and requesting that the Sheriff recalculate his seniority based upon his September 14, 1992 hire date.

6. On March 20, 2002, Mike Vasil, PBA Local 187 President, sent a letter to Cipriano. Vasil wrote:

This letter is in reference to our conversation of March 15, 2002 regarding the grievance you filed with the Sheriff of Mercer County. The grievance is based on your belief of unequal treatment based on the seniority list. After learning of your concerns and consulting with the attorney for PBA Local #187, it is our belief that you have no grounds to submit this grievance. Based upon this opinion, this local cannot support your actions based on the following reason: 1) the grievance you submitted does not violate the current contract between the Mercer County Sheriff's PBA Local #187 and the Sheriff of Mercer County/the County of Mercer.

7.	Cipriano admits that he received Vasil's letter.

ANALYSIS

N.J.S.A. 34:13A-5.3 provides in part:

A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership.

Section 5.3 of the Act empowers an employee representative to represent employees in the negotiation and administration of a collective agreement. With that power comes the duty to represent all unit employees fairly in negotiations and contract administration.

In the specific context of a challenge to a union's representation in processing a grievance, the United States Supreme Court has held: "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." Vaca v. Sipes, 386 U.S. 171 (1967) ("Vaca"). Courts and this Commission have consistently embraced the standard of Vaca in adjudicating such unfair practice representation claims. See, e.g., Saginario v. Attorney General, 87 N.J. 480 (1981); In re Board of Chosen Freeholders of Middlesex County, P.E.R.C. No. 81-62, 6 NJPER 55 (¶11282 1980), aff'd App. Div. Docket No. A-1455-80 (April 1, 1982), pet. for certif. den. 91 N.J. 242 (1982); New Jersey Turnpike Employees Union Local 194, P.E.R.C. No. 80-38, 5 NJPER 412 (¶10215 1979); In re AFSCME Council No. 1, P.E.R.C. No. 79-28, 5 NJPER 21 (¶10013 1978). Fair Lawn Bd. of Ed., P.E.R.C. 84-138, 10 NJPER 351 (¶15163 1984); OPEIU Local 153 (Johnstone), P.E.R.C. 84-60, 10 NJPER 12 (¶15007 1983). Whether a union's conduct in deciding whether to file a proposed grievance violates its duty of fair representation will be evaluated by this standard: Did it act arbitrarily, discriminatorily or in bad faith? Vaca.2/

A majority representative does not have an obligation to file every grievance which a unit member asks it to submit. Camden Cty. College (Porreca), P.E.R.C. No. 88-28, 13 NJPER 755 (¶10285 1987); Trenton Bd. of Ed., P.E.R.C. No. 86-146, 12 NJPER 528 (¶17198 1986). We have held that a union must conduct some minimal investigation of grievances brought to its attention. Jersey City Medical Center, D.U.P. No. 88-3, 13 NJPER 688 (¶18257 1981); NLRB v. American Postal Workers Union, 618 F.2d 1249, 103 LRRM 3045 (8th Cir. 1980).3/ The thoroughness with which unions must investigate grievances in order to satisfy the duty varies with the circumstances of each case. Although unions are afforded a reasonable range of discretion in deciding how to handle grievances, union conduct that shows an egregious disregard for the rights of union members [unit employees] constitutes a breach of the duty of fair representation. Tenorio v. NLRB, 680 F.2d 598, 110 LRRM 2939 (9th Cir. 1982). Proof of mere negligence, standing alone, does not suffice to prove a breach of the duty of fair representation. OPEIU (Wasilewski), P.E.R.C. No. 98-131, 24 NJPER 256 (¶29122 1998) aff'ng H.E. No. 98-4, 23 NJPER 573 (¶28287 1997).

Undisputed facts show that the PBA investigated Cipriano's grievance in March 2002. Based on a consultation with its attorney, the PBA determined that there was no violation of the collective agreement between the Mercer County Sheriff's Office and the PBA with respect to Cipriano's seniority calculation. Cipriano does not contest the seniority provision nor allege that the PBA's interpretation of it is derived from bad faith. That Cipriano interprets the seniority provision differently than the PBA does not alone establish a genuine issue of material fact precluding summary judgment. Cipriano has not alleged facts indicating a violation of the PBA's collective agreement with the Mercer County Sheriff. Nothing in the record suggests that there existed any animus between Cipriano and the PBA; he argues merely that he disagrees with the PBA's interpretation of the seniority provision. Cipriano has not asserted facts showing that the PBA acted in bad faith or in an arbitrary or discriminatory manner. Accordingly, PBA Local 187 is entitled to judgment as a matter of law.4/

RECOMMENDED DECISION

I grant PBA Local 187's motion for summary judgment and recommend that the complaint be dismissed.

Jennifer Malinowski

Hearing Examiner

Dated: February 15, 2005

Trenton, New Jersey

Pursuant to N.J.A.C. 19:14-7.1, this case is deemed transferred to the Commission. Exceptions to this report and recommended decision may be filed with the Commission in accordance with N.J.A.C. 19:14-7.3. If no exceptions are filed, this recommended decision will become a final decision unless the Chairman or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further. N.J.A.C.

19:14-8.1(b).

Any exceptions are due by February 28, 2005.