H.E. NO. 89-26

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY TRANSIT BUS OPERATIONS, INC.

& AMALGAMATED TRANSIT UNION, LOCAL 819,

Respondents,

-and-	Docket No. CI-H-88-85

EMERSON ELDER,

Charging Party.

Appearances:

For the Respondent, New Jersey Transit

Hon. Peter N. Perretti, Jr., Attorney General

(Harriet H. Miller, D.A.G.)

For the Respondent, Local 819

Weitzman & Rich, Esqs.

(Richard P. Weitzman, of counsel)

For the Charging Party, Emerson Elder, pro se

HEARING EXAMINER'S RECOMMENDED DECISION AND

ORDER ON RESPONDENT NEW JERSEY TRANSIT'S MOTION

TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on May 10, 1988, and amended on May 11, 1988, by Emerson Elder ("Charging Party" or "Elder") alleging that New Jersey Transit Bus Operations, Inc. ("New Jersey Transit") and Amalgamated Transit Union, Local 819 ("ATU") have engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq. ("Act"), in that New Jersey Transit, which is the

sole subject of the instant motion, discharged Elder on February 9, 1988, because of "personal feeling" and a "double standard" without documented rules and regulations; also, that the discharge was because "of their mood" and because Elder had been "singled out because I stood up for my rights" and "was an example to others who spoke out for fair treatment"; further, that Elder was discharged while other employees like-situated received two days' suspension or were not discharged, notwithstanding dischargeable offenses committed, i.e., disparate treatment; that New Jersey Transit allowed "such practices to go on uncontested"; and in August 1987, Elder was threatened with discharge; all of which is alleged to be a violation of N.J.S.A. 34:l3A-5.4(a)(1), (3) through (7) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within

1/	These subsections 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. (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. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. (7) Violating any of the rules and regulations established by the commission."

the meaning of the Act, a Complaint and Notice of Hearing was issued on December 29, 1988. Pursuant to the Complaint and Notice of Hearing, hearing dates were originally scheduled for February 14 and 15, 1989, in Newark, New Jersey, but these dates were adjourned without date upon the filing of a Motion to Dismiss by New Jersey Transit on February 2, 1989.2/ On February 8, 1989, Elder filed his opposition to the Motion to Dismiss and on February 15, 1989, the ATU filed a letter, indicating that it took no position with respect to New Jersey Transit's Motion to Dismiss and reiterating the position set forth in its Answer.

The Respondent New Jersey Transit's Motion to Dismiss is hereby decided in accordance with N.J.A.C. 19:14-4.7.

INTERIM FINDINGS OF FACT3/

1.	New Jersey Transit Bus Operations, Inc. is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Emerson Elder is a public employee within the meaning of the Act, as amended, and is subject to its provisions.

3.	Elder was discharged from his position as a bus operator at the Orange Garage on February 9, 1988, after he had admitted at the first step of the grievance procedure under the

2/	The ATU filed its Answer on January 24, 1989, and New Jersey Transit filed its Answer on February 2, 1989.

3/	These findings are based upon the Unfair Practice Charge, as amended, and the Answer and moving papers of New Jersey Transit.

collective negotiations agreement with ATU that he had violated company rules on three occasions on February 3, 1988, by (1) falsifying his day card, (2) failing to make trips as per instructions and (3) pulling in ahead of time. [Answer of New Jersey Transit, Count One, ¶¶1, 2 - not denied by Elder in his opposition papers].

4.	Elder's disciplinary record consists of eight infractions between April 19, 1984 and August 3, 1987, prior to his discharge on February 9, 1988. [Answer of New Jersey Transit, Count One, ¶3 - not denied by Elder in his opposition papers].

5.	Under the collective negotiations agreement between New Jersey Transit and ATU, New Jersey Transit has no discretion or control over the decision of ATU to grieve a particular employee's dispute or grievance under the agreement.

6.	Elder was discharged on February 9, 1988, notwithstanding that other employees like-situated were not discharged or received a two-day suspension for dischargeable offenses committed.4/

4/	The Hearing Examiner cannot make "Interim Findings of Fact" based upon such conclusionary allegations by Elder as that his discharge occurred because of "personal feelings," a "double standard" or because "of their mood"; nor because he "stood up for his rights" or "spoke out for fair treatment." Likewise the Hearing Examiner can attach no weight to Elder's having been threatened with discharge in August 1987.

DISCUSSION AND ANALYSIS

New Jersey Transit in its moving papers seeks a Motion to Dismiss. A motion to dismiss is governed by N.J.A.C. 19:14-4.7, which provides only that if the motion is granted by the Hearing Examiner before the filing of his Recommended Report and Decision, then the Charging Party may obtain review by the Commission, provided the request for such review is filed within ten days of the order of dismissal. This rule does not, however, provide guidance as to the standard to be applied by the Hearing Examiner in determining whether to grant or deny the motion to dismiss.

However, the Hearing Examiner is unable to perceive any significant difference between the standard for disposing of a motion to dismiss and that of a motion for summary judgment, which is provided for N.J.A.C. 19:14-4.8. This rule provides in Section (a) that "...Any motion in the nature of a motion for summary judgment may only be made subsequent to the issuance of the complaint and shall be filed with the chairman of the commission, who shall refer the motion to either the commission or the hearing examiner..." Thus, it appears to the Hearing Examiner that he may treat New Jersey Transit's Motion to Dismiss as a motion for summary judgment even though it was filed directly with the Hearing Examiner and not with the Chairman.

N.J.A.C. 19:14-4.8(b) establishes the standard which the Commission utilizes in deciding whether or not to grant a motion for summary judgment, namely, that "...there exists no genuine issue of material fact and the movant or cross-movant is entitled to its

requested relief as a matter of law...," in which case summary judgment may be granted and the requested relief ordered.

The Commission has, in many cases, followed the New Jersey Civil Practice Rules (R.4:46-2) and a leading decision of the New Jersey Supreme Court in Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954) in deciding motions for summary judgment under N.J.A.C. 19:14-4.8. Both the Civil Practice Rules and Judson apply the same standard.

But summary judgment is to be granted with extreme caution. The moving papers must be considered in the light most favorable to the opposing party, all doubts must be resolved against the movant, and the summary judgment procedure may not to be used as a substitute for a plenary trial: State of N.J. (Human Services), P.E.R.C. No. 89-52, 14 NJPER 695 (¶19297 1988), citing Baer v. Sorbello, 177 N.J. Super. 182, 185 (App Div. 1981); Essex Cty. Ed. Services Comm'n., 9 NJPER 19 (¶14009 1982).

The Hearing Examiner, guided by the above-stated requisites for the grant of Summary Judgment, concludes that the motion of New Jersey Transit must be granted. This decision follows from careful consideration of the above Interim Findings of Fact [¶'s 3-6] and is rendered after resolving all doubts in favor of Elder.

It will be recalled that Elder has alleged that New Jersey Transit violated all but one of the seven subsections appearing in §5.4(a) of the Act. The six subsections involved are grouped for discussion as follows:

I

Sections 5.4(a)(1) & (3) of the Act --

These two subsections have a common element in that the alleged discriminatee must have engaged in a recognized protected activity or activities in exercising his rights guaranteed by the Act. It is immediately apparent that there is nothing in the Elder's allegations as to New Jersey Transit, which would constitute an independent violation of §5.4(a)(1) of the Act within the meaning of N. J. Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 fn. 1 (¶10285 1979). Elder's allegations are devoid of any element of coercion or interference by New Jersey Transit with his rights under §5.4(a)(1) of the Act.

The next question to be resolved is whether or not the Elder's allegations as to New Jersey Transit are sufficient to support a violation of §5.4(a)(3) and, derivatively, §5.4(a)(1) of the Act. To constitute a sufficient allegation in this respect Elder must demonstrate that he has engaged in protected activities under the Act,5/ that New Jersey Transit knew that he had engaged in such protected activities and, finally, that New Jersey Transit manifested hostility or animus toward Elder in his exercise of rights protected by the Act: Bridgewater Tp. v. Bridgewater Public

5/	See, also, N.J. Job Corps Center, D.U.P. No. 82-4, 7 NJPER 425 (¶12189 1981) where the Director declined to issue a complaint upon an employee's unfair practice charge, notwithstanding his discharge, since the employee did not claim that he had engaged in activities on behalf of a union and was discriminated against for this reason.

Works Ass'n, 95 N.J. 235 (1984). The above Interim Findings of Fact contain no suggestion that New Jersey Transit did other than discharge Elder for cause, which might be remedied by an arbitrator under the collective negotiations agreement but does not satisfy the requirements of Bridgewater. There are no allegations in Elder's Unfair Practice Charge of May 10, 1988, as amended, which imply that he was engaged in protected activity or activities under the Act prior to his discharge. Even assuming that Elder had engaged in such activity, the Hearing Examiner cannot infer hostility from the mere fact that he was discharged on February 9, 1988. Thus, it appears clear that there is nothing in the record papers, which could constitute a violation by New Jersey Transit of §§5.4(a)(1) and (3) of the Act.

II

Section 5.4(a)(4) of the Act --

With respect to this subsection of the Act, the Hearing Examiner can perceive no theory upon which Elder might allege a violation based upon the Interim Findings of Fact. Unlike Hunterdon Cty. Bd. of Chosen Freeholders,6/ Elder was not discharged or otherwise discriminated against because he had signed or filed an affidavit, petition or complaint, nor had he given any information or testimony under the Act. In Hunterdon, the Commission concluded

6/	P.E.R.C. No. 87-150, 13 NJPER 506 (¶18188 1987), aff'd App. Div. Dkt. No. A-5558-86T8 (1988), appeal pending Sup. Ct. Dkt. No. 28,806.

that §5.4(a)(4) of the Act was violated when the County undertook discriminatory action against employees because the union there had filed an unfair practice charge, which predated the subsequent unfair practice charge upon which the Commission's decision was based. In the instant case, as noted previously, Elder had engaged in no conduct within the meaning of §5.4(a)(4), which could have triggered a violation of this subsection of the Act by New Jersey Transit.

III

Section 5.4(a)(5) of the Act --

Next there is the question of Elder's allegation that New Jersey Transit violated §5.4(a)(5) of the Act by having wrongfully discharged him. The above Interim Findings of Fact establish that Elder was discharged on February 9, 1988, after admitting certain infractions at the first step of the grievance procedure. Elder had a disciplinary history involving eight infractions since April 19, 1984. New Jersey Transit has no discretion or control over the decision of ATU to grieve a particular employee's dispute or grievance. Elder has alleged that other employees like-situated were not discharged or received a two days' suspension, notwithstanding that they had committed dischargeable offenses.

New Jersey Transit has cited N.J. Tpk. Auth. (Jeffrey Beall), P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980) and Red Bank Reg. Ed. Ass'n v. Red Bank Reg. H.S. Bd. of Ed., 78 N.J. 122 (1978) in support of its position that it has not violated §5.4(a)(5). In

N.J. Tpk. Auth., the Commission rendered a definitive decision as to when and under what circumstances an individual may charge a public employer with having violated subsection (a)(5) of the Act. In order to understand the Commission's rationale in deciding Beall, it is important to consider the factual setting, which was, briefly, as follows:

Beall was terminated for failure to report to work when scheduled and for taking an unauthorized leave of absence. Beall filed a grievance, which was processed through the contractual grievance procedure to an administrative hearing, which was the last step prior to arbitration. The hearing officer sustained the discharge and Beall requested that the union proceed to arbitration. However, the Executive Board of the union voted overwhelmingly against arbitration because it concluded there was little likelihood for success. The employer rejected Beall's request that it proceed to arbitration with Beall alone, notwithstanding his offer to arbitrate at his own expense. Finally, Beall contended that the employer and the union by their actions in combination with one another and had conspired to deprive him of his right to pursue his grievance to arbitration, i.e., the employer

exerted improper influence on the union not to take Beall's case to arbitration and the union acceded to such pressure.7/

The Commission in Beall adopted the findings and conclusions of the hearing examiner, noting first that the allegation of a §5.4(a)(5) violation amounted to an attempt by Beall to have the merits of his discharge grievance adjudicated as an unfair practice, i.e., that his discharge was not for just cause under the agreement. The Commission then said that since the union had not improperly refused to take Beall's grievance to arbitration

"...we must find that the Authority could not have violated N.J.S.A. 34:13A-5.4(a)(5)..." (6 NJPER at 561).

The Commission next stated that the negotiations obligation in §5.3 of the Act permits majority representatives to file unfair practice charges alleging violations of §5.4(a)(5) based upon claimed breaches of collective negotiations agreements. Since Beall's unfair practice charge amounted to exactly such a claim, the Commission stated:

As a general matter, we do not believe that an individual employee, in the absence of any allegations of collusion or unfair representation by the majority representative, can use the unfair practice forum to litigate an alleged breach of a collective negotiations agreement unrelated to union activity.

7/	The Hearing Examiner in Beall, in recommending dismissal of the Complaint, found that the union did not violate its duty of fair representation by refusing to take the case to arbitration and, additionally, that there was no collusion proven between the employer and the union in the decision not to pursue the grievance to arbitration: H.E. No 81-7, 6 NJPER 473, 476 (¶11241 1980).

The violation of the duty to negotiate terms and conditions of employment implied by such an allegation is more appropriately asserted by the majority representative. It is not an unfair practice for a public employer to refuse to negotiate with an individual employee or even a group of employees if they do not constitute the exclusive majority representative. Therefore, while the breach of a contract may violate certain rights of an individual employee, they are not normally vindicated in the unfair practice forum provided by this Act. (6 NJPER at 561).

The Commission's ultimate decision, in dismissing Beall's Complaint, was based upon the fact that the union had not breached its duty of fair representation and that there had been no proof of collusion by the employer in the decision of the union not to take Beall's termination to arbitration under the agreement.8/

The Hearing Examiner is fully satisfied that Elder has alleged no facts, nor has New Jersey Transit made any admissions, which would support the conclusion that there had been any collusion between New Jersey Transit and ATU in the matter of ATU's refusal to process Elder's grievance to binding arbitration under the collective negotiations agreement. This conclusion is reached, notwithstanding that there has been no adjudication by this Hearing Examiner as to whether or not the ATU breached its duty of fair representation as to Elder when, in the course of processing his grievance, ATU refused to submit it to binding arbitration. Here

8/	The Commission also concluded that Beall had failed to prove an independent violation of §5.4(a)(1) of the Act since an individual public employee has no absolute statutory right to process a grievance to arbitration when the union has refused to exercise that right for the employee.

the Hearing Examiner quotes from the Commission's decision in N.J. Turnpike Authority, supra, where it was stated that:

...The employer cannot be charged with having violated its duty under N.J.S.A. 34:13A-5.4(a)(5) when that employer had in good faith participated in the grievance procedure negotiated with that representative for the resolution of disputes arising under the agreement. (6 NJPER at 561).

The above Interim Findings of Fact indicate only that New Jersey Transit fulfilled its contractual obligation with ATU by having participated in the contractual grievance procedure, following Elder's discharge on February 9, 1988. It is noted once again that under the collective agreement, New Jersey Transit had no discretion or control over the decision of ATU to grieve Elder's discharge to arbitration under the grievance procedure.

Accordingly, the Hearing Examiner perceives no reason to delay his decision on New Jersey Transit's Motion for Summary Judgment regarding the alleged violation by it of §5.4(a)(5) of the Act merely because there has as yet been no adjudication of Elder's charge against ATU that it breached its duty of fair representation as to him. It is here again noted that the Commission in N.J. Turnpike Authority stated quite clearly that "...while the breach of a contract may violate certain rights of an individual employee, they are not normally rights vindicated in the unfair practice forum provided by this Act..." (6 NJPER at 561, supra).

IV

Sections 5.4(a)(6) & (7) of the Act --

These two subsections of the Act pertain respectively to the refusal of a public employer to reduce a negotiated agreement to writing and sign it; or to a public employer having violated any of the rules or regulations established by the Commission. Clearly Elder has no standing to allege a refusal by New Jersey Transit to reduce a negotiated agreement to writing and sign it since §5.4(a)(6) by its terms applies only to a public employee representative which had negotiated a collective negotiations agreement with a public employer. Finally, there is nothing in Elder's allegations which remotely involve a violation by New Jersey Transit of the rules and regulations established by the Commission.

*	*	* *

The Hearing Examiner has carefully considered and applied the Interim Findings of Fact to the six subsections of the Act allegedly violated by New Jersey Transit. It is clear beyond peradventure of doubt that New Jersey Transit did not engage in any conduct, which could constitute a violation of the Act as alleged.

Therefore, based upon the foregoing, and upon the record papers filed in this case by Elder and New Jersey Transit, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent New Jersey Transit did not violate N.J.S.A. 34:13A-5.4(a)(1), (3) through (7) by its conduct herein.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Motion to Dismiss and/or for Summary Judgment by the Respondent New Jersey Transit be granted and that the Complaint as to it be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: March 6, 1989

Trenton, New Jersey