D.U.P. NO. 2000-8 1.
D.U.P. NO. 2000-8
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF UNFAIR PRACTICES
In the Matter of
TRENTON BOARD OF EDUCATION and
NEW JERSEY EDUCATION ASSOCIATION,
Respondents,
-and- Docket No. CI-99-42
GENE QUEVAL,
Charging Party.
Appearances:
For the Respondent - Board of Education,
Sumners, George & Dortch, attorneys
(Thomas Sumners, of counsel)
For the Respondent - Education Association
Zazzali, Zazzali, Fagella & Nowak, attorneys
(Richard A. Friedman, of counsel)
For the Charging Party
Gene Queval, pro se
DECISION
On December 22, 1998, Gene Queval, an employee of the Trenton Board of Education (Board) and a member of the New Jersey Education Association (Association), filed an unfair practice charge against the Association, alleging that the Association ignored his July 1, 1998 grievance in violation of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.,
specifically provisions 5.4a(1), (3), (4) and (7)1/ and provisions 5.4b(1) and (3).2/ On January 14, 1999, Queval amended his charge, alleging that the Association violated provisions 5.4a(1), (3), (4) and (7) and provisions 5.4b(1) and (3) of the Act when it discarded Queval's July 15, 1998 grievance without comment. On February 24, 1999, Queval again amended his charge against the Association alleging violations of provisions 5.4a(1), (3), (4) and (7) and 5.4b(1) and (3) when after months of refusing to schedule a hearing date, the Association, in writing, refused to represent him.
On March 24 and March 29, 1999, Queval further amended his charge against the Association and also included allegations against the Board. These amendments allege the Board and the Association
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. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act. (7) Violating any of the rules and regulations established by the commission."
2/ These provisions 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. (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."
violated provisions 5.4a(1), (3), (4) and (7) and provisions 5.4b(1) and (3), respectively. Specifically, the March 24, 1999 amendment alleges the Board and the Association violated the Act when Queval was denied overtime in October 1998 in retaliation for his actions against the Association and the Board. The March 29, 1999 amendment alleges that the Board and the Association violated the Act when, on October 30, 1998, the Board began a campaign of "harassment and terrorism" against Queval to intimidate and punish him for his complaints against the Association and the Board.
On June 11, 1999, Queval amended his charge once more to allege that the Board and the Association violated 5.4a(1), (3), (4) and (7) and 5.4b(1) and (3), respectively, when the Board assigned another employee to perform Queval's duties as accounts payable clerk, and when the Association and the Board conspired to deny Queval timely access to the grievance process.
The Association claims that Queval's December 22, 1998 and January 14, 1999 allegations are barred by the principles of res judicata , collateral estoppel, or both. Specifically, the Association claims that these allegations are moot by virtue of a settlement agreement reached in a prior unfair practice charge by Queval, CI-98-83. Under the terms of the settlement agreement, the Association was required to advise Queval of the status of his July 1 and July 15, 1998 grievances. The Association complied with the agreement, Queval withdrew the charge and I refused to reopen the case. Accordingly, the Association asserts that the agreement is
binding on Queval and the instant allegations should be dismissed. The Association further claims that the December 22, 1998 and January 14, 1999 allegations are frivolous and untrue.
As to the February 24, 1999 amendment, the Association explains that its representative offered to meet with Queval prior to a grievance hearing scheduled for February 16, 1999, but that Queval refused and the hearing was cancelled, at Queval's request. The Association further claims that the March 24, 1999 amendment lacks merit because it does not include the dates of the alleged wrongful conduct and that both the March 24 and March 29, 1999 amendments cite portions of the Act which prohibit employer, not employee organization, unlawful conduct and, therefore, cannot state any cognizable claims against the Association. The Association also asserts that both the March 29 and June 11, 1999 amendments are untimely, as they were not filed within six months of the alleged unfair practices and that the June 11, 1999 amendment lacks factual specifics. Moreover, the Association claims that Queval's assertion in the June 11, 1999 amendment that another employee performed his duties does not demonstrate a breach of the duty of fair representation by the Association; nor does the amendment contain facts to support the allegation that the Association engaged in a conspiracy to deny Queval access to the grievance process.
The Board denies the allegations of the March 24, 1999 amendment. It explains that Queval was given an assignment by Robert Lawrence, the Board's Director of Information Systems, to
complete the annual report. After Queval reported that he was too busy to begin the assignment, the task was reassigned to another employee without Queval's objection. Approximately one week later, Queval filed a grievance alleging he was not afforded overtime. The Board asserts that Lawrence met with Queval about the grievance and advised him that only employees who performed assignments during work time and were unable to complete them by 4:00 p.m. were afforded the opportunity for overtime. The Board further asserts that other employees did not receive overtime; that improvements in the Board's computer program and equipment have reduced the need for human labor on the annual report; and that Queval's limited computer skills restricted the Board's ability to use Queval to complete the report. As to the June 11, 1999 amendment, the Board claims that on December 11, 1998, when Queval was on vacation, his supervisor assigned another employee to perform some of Queval's duties in accordance with the Board's managerial prerogative and Article X of the parties' collective agreement, entitled "Management Rights."
* * *
The Commission has authority to issue a Complaint where it appears that the Charging Party's allegations, if true, may constitute an unfair practice within the meaning of the Act. N.J.S.A. 34:13A-5.4c; N.J.A.C . 19:14-2.1. The Commission has delegated that authority to me. Where the Complaint issuance standard has not been met, I may decline to issue a Complaint. N.J.A.C. 19:14-2.3. In correspondence dated September 2, 1999, I
advised the parties that I was not inclined to issue a complaint on any of the allegations Queval asserted against the Association and certain allegations asserted against the Board and set forth the basis upon which I arrived at that conclusion. I provided the parties with an opportunity to respond. On September 2, 1999, Queval filed a response. In his response, Queval asserts that: 1) his original charge and all his amendments should be treated separately; 2) his prior charge, CI-98-83, has not been resolved since the Board and the Association did not satisfy the terms of the settlement agreement; 3) he is not able to presently name specific individuals in his allegations, but he could elicit their names if given the opportunity to do so at hearing; and 4) the facts in our September 2, 1999 correspondence are not accurate and, if given the opportunity, Queval could correct them at hearing or during the discovery process. I have considered his arguments and do not find them persuasive with respect to whether or not, as a matter of law, a complaint should issue.
Queval's December 22, 1998 and January 14, 1999 filings allege the same facts and issues addressed in the settlement agreement reached in his prior charge, CI-98-83. I have previously concluded that no good cause existed to reopen that charge after Queval withdrew it pursuant to the settlement agreement. Since no new viable allegations have been raised, I decline to issue a complaint on these filings.
Further, the February 24, 1999 amendment alleging the Association refused to provide Queval with representation, and the portion of the June 11, 1999 amendment alleging a conspiracy to deny Queval access to the grievance process, fail to meet the requirements of N.J.A.C . 19:14-1.3(a)3. This Rule provides that a charge must contain the following:
A clear and concise statement of the facts constituting the alleged unfair practice. The statement must specify the time and place the alleged acts occurred, the names of the persons alleged to have committed such acts and the subsection(s) of the Act alleged to have been violated.
The above-mentioned allegations fail to specify the time and places of the alleged actions and the names of the persons who allegedly committed them. Thus, pursuant to N.J.A.C. 19:14-1.3(a)3, I hereby dismiss them. See CWA and Williams, D.U.P. No. 95-7, 20 NJPER 417 ( & 25213 1994). Moreover, Queval's February 24 and March 24 amendments filed against the Association which assert violations of 5.4a of the Act are dismissed since such portions of the Act prohibit employer actions, not employee organization conduct and cannot constitute viable claims against the Association.
In addition, Queval's June 11, 1999 amendment alleging that on December 11, 1998, someone other than him performed his duties of accounts payable clerk also must be dismissed. Queval has not alleged that the performance of the duties by someone else was related to or in retaliation for his exercise of any activity protected by our Act, or that Queval's terms and conditions of
employment were in any way affected by the assignment. Thus, those allegations do not set forth a violation of the Act by the Association or the Board.
Moreover, Queval, as an individual, lacks standing to assert any of his 5.4b(3) allegations against the Association, thus they must be dismissed. Trenton Bd. of Ed., D.U.P. No. 81-26, 7 NJPER 406 ( & 12179 1981). Further, he has not alleged any facts in support of his allegations against the Association in his March 24 and March 29, 1999 amendments, thus they must also be dismissed.
As to the 5.4a(7) allegations set forth in his original charge and all of his amendments, Queval must state which Commission rule the employer allegedly has violated. Burlington Tp. Bd. of Ed., D.U.P No. 97-31, 23 NJPER 152 ( & 28073 1997). Here, Queval has not done so and, therefore, I hereby dismiss those allegations as well.
Finally, the remaining 5.4a(1), (3) and (4) allegations against the Board in the March 24 and March 29, 1999 amendments allege that the Board retaliated against Queval by denying him an overtime opportunity in October 1998 and began harassing him in October 1998 because of his earlier charge filings. These allegations, if true, may constitute unfair practices within the meaning of the Act. Therefore, under separate cover, I will issue a Complaint and Notice of Hearing limited to those allegations.
ORDER
Queval's December 22, 1998 charge and his January 14, February 24 and June 11, 1999 amendments are dismissed. All
remaining allegations against the Association, as well as the 5.4a(7) allegation against the Board, are also dismissed. A Complaint and Notice of Hearing will issue with respect to the remaining 5.4a(1), (3) and (4) allegations against the Board in the March 24 and March 29, 1999 amendments.
BY ORDER OF THE DIRECTOR
OF UNFAIR PRACTICES
Stuart Reichman, Director
DATED: September 27, 1999
Trenton, New Jersey***** End of DUP 2000-8 ***** |