H.E. NO. 93-25

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY TRANSIT BUS OPERATIONS, INC.,

Respondent,

-and-	Docket No. CO-H-93-51

AMALGAMATED TRANSIT UNION, DIVISION 824,

Charging Party.

Appearances:

For the Respondent,

Robert J. Del Tufo, Attorney General

(Laurie S. Szubin, Deputy Attorney General)

For the Charging Party,

Balk, Oxfeld, Mandell & Cohen, attorneys

(Arnold S. Cohen, of counsel)

HEARING EXAMINER'S DECISION

ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on August 5, 1992, by Amalgamated Transit Union, Division 824 ("Charging Party" or "824") alleging that the New Jersey Transit Bus Operations, Inc. ("Respondent" or "NJT") has 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. ("Act"), in that NJT and 824 are parties to a collective agreement, effective July 1, 1990 to June 30, 1993, which provides for a First Step in the grievance procedure between the employee and an 824 representative; 824 represents

employees at the Howell Garage; a First Step grievance hearing was scheduled for July 23, 1992 at 2:05 p.m., regarding an unreported accident by one James B. Lynch; an 824 shop steward, Stephen J. Dorsey, was designated to represent Lynch and present testimony but an NJT representative, Carl Pulaski, refused to permit Dorsey to do so, claiming that he, Pulaski, did not have sufficient time to fill Dorsey's bus run; NJT representative Pulaski next stated that 824's President, Paul Smisek, could handle the grievance on behalf of Lynch, which Smisek did but, as a result, Lynch was disciplined; all of which is alleged to be in violation of N.J.S.A. 34:13A-5.4(a)(1), (2) and (5) of the Act.1/

A Complaint and Notice of Hearing was issued on November 13, 1992. A hearing was scheduled for February 9, 1993 in Trenton, New Jersey. The Respondent filed its Answer on December 17, 1992, in which it reserved the right to raise defenses by motion at the time of the hearing or before the hearing in this matter. On February 3, 1993, counsel for NJT filed a Motion for Summary Judgment with the Chairman, which was referred to me on February 4th. On February 8th, I held a telephone conference call with

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. (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."

counsel for the parties, in which I advised them that the hearing for February 9th would be adjourned, pending my disposition of the Respondent's Motion for Summary Judgment. On the same date, counsel for 824 submitted a letter Memorandum in Opposition to the Respondent's Motion for Summary Judgment, which, by agreement, was supplemented on March 1, 1993. Thereafter, the Respondent filed its opposition to the submissions of the Charging Party under date of March 26, 1993 and there the matter stands for disposition.

* * * *

The Respondent, in its initial Motion for Summary Judgment, attached two letters but no affidavits. However, whether or not the Respondent, as the moving party on a Motion for Summary Judgment, has attached affidavits is irrelevant since our rule [N.J.A.C. 19:14-4.8(b)] provides that a motion for summary judgment may proceed with or without affidavits.

Based upon the moving and opposing papers, I make the following:

INTERIM FINDINGS OF FACT

1. New Jersey Transit Bus Operations, Inc. is a public employer within the meaning of the Act, as amended, and the Amalgamated Transit Union, Division 824 is a public employee representative within the meaning of the same Act.

2. Section 1, Article A, of the parties' collective negotiations agreement, effective July 1, 1990 through June 30, 1993, provides that:

First: Such dispute or grievance is to be taken up between the employee and the Union representative and the supervisor, foreman, or department head...(p. 2).

The parties' agreement then provides for a "self-executing" grievance procedure, beginning with the Second Step, which provides for a waiver of that Step and on to the Third Step, based upon the availability of NJT representatives. Following a like waiver of the Third Step, either party is permitted to refer the dispute to final and binding arbitration upon request.

3. 824 represents employees at the Howell Garage where the Garage supervisor is Carl Pulaski. At 2:05 p.m., on July 23, 1992, a First Step grievance hearing was scheduled regarding the allegation that unit member, James B. Lynch, had failed to report an accident. Specifically, he had been charged with four violations in connection with an unreported accident on the morning of July 8, 1992. These four violations were subsequently been reduced to a single offense, that of a "chargeable accident."

4. Lynch had previously been directed to complete a written "Occurrence Report" in connection with the above incident and, both orally and in writing, he denied having been involved in an accident.

5. In support of Lynch, Stephen J. Dorsey, the 824 shop steward, claimed that he had been present on the bus with Lynch on July 8, 1992 and that he had not witnessed any accident. Dorsey completed an "Employee's Witness and Information Report" confirming his oral statements that he had no knowledge of any alleged accident.

6. Dorsey had been designated to represent Lynch at the First Step hearing. Dorsey also intended to present testimony on behalf of Lynch at the hearing, in accordance with past practice, but he was refused to do so by Pulaski. This refusal was based upon Pulaski's decision, after seeking a replacement for Dorsey, that he lacked sufficient time to fill Dorsey's run, which was scheduled to depart at 2:27 p.m.

7. Pulaski stated that Paul Smisek, 824's President, could handle the grievance on behalf of Lynch. Smisek did so. 824 failed to raise the denial of representation by Dorsey or his testimony as an issue at the subsequent 2nd or 3rd Step hearings. Lynch received an eight-day suspension as a result of the grievance hearing.2/

8. Lynch's grievance was pursued through the grievance procedure with 824 seeking arbitration of Lynch's grievance as of August 4, 1992 and January 29, 1993.

* * * *

ANALYSIS

Standard Applicable to a

Motion For Summary Judgment

The standard which the Commission utilizes in deciding whether or not to grant a motion for summary judgment is governed by N.J.A.C. 19:14-4.8(d), namely, "...If it appears from the pleadings, together with the briefs...and other documents filed, that there

2/	NJT, in its initial submission of February 2, 1993, and in its final submission of March 26, 1993, appears to concur with the facts as found above.

exists no genuine issue of material fact and the movant ... is entitled to its requested relief as a matter of law..." (emphasis supplied), then summary judgment may be granted and the requested relief ordered.

The Commission has, in many cases, followed the applicable New Jersey Civil Practice Rule (R.4:46-2) and a leading decision of the New Jersey Supreme Court, 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 Rule and Judson apply the same standard.

"Material facts" are those which tend to establish the existence or non-existence of an element of the charge or of a defense that is derived from controlling substantive law. See Lilly, Introduction to the Law of Evidence [West Publishing Co., 2d ed. (1978) at p. 18] and McCormick on Evidence [West Publishing Co., 2d. ed. (1978) at p. 434].

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 hearing: 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); and Essex Cty. Ed. Services Comm'n., 9 NJPER 19 (¶14009 1982).

Given The Fact Of A Self-Executing

Grievance Procedure In The Parties'

Collective Negotiations Agreement,

The Motion Of NJT For Summary Judgment

Must Be Granted

I am left with no alternative but to grant NJT's Motion for Summary Judgment. This is based upon the critical fact that the contract between the parties clearly provides for a self-executing grievance procedure, culminating in binding arbitration. The proof that the grievance procedure is self-executing lies first in the Second Step which provides for a waiver of that Step if it is not consummated in a timely fashion. Likewise, a waiver provision appears in the Third Step, following which either party may proceed to final binding arbitration upon request. Plainly, this contractual grievance procedure contains all of the elements of the self-executing grievance procedures found in many decisions of the Commission.

For example, in New Jersey Transit Bus Operations, Inc., D.U.P. No. 87-14, 13 NJPER 383 (¶18154 1987), the same employer involved herein, the Director found that a nearly identical grievance procedure was self-executing and ended in binding arbitration. He restated the rule that: "...it is not an unfair practice for the employer to fail to act at an intermediate step of the grievance procedure. City of Trenton, D.U.P. No. 87-7, 13 NJPER 99 (¶18044 1986), Township of Rockaway, D.U.P. No. 83-5, 8 NJPER 644 (¶13309 1982); Rutgers University, D.U.P. No. 82-28, 8 NJPER 237 (¶13101 1982); Essex County Voc. School Board of Education, D.U.P.

No. 77-2, 2 NJPER 372 (1976); Englewood Board of Education, E.D. No. 76-34, 2 NJPER 175 (1975)..." [13 NJPER at 384].

The most recent decision on the subject is that of Wayne Board of Education, D.U.P. No. 92-9, 18 NJPER 105 (¶23050 1992) where the Director repeated that an employer's refusal to respond to a grievance, "...or its improper treatment of a grievance at an intermediate step... in and of itself, is not an unfair practice, when the contract provides for a self-executing grievance procedure which culminates in binding arbitration..." [citing the various prior decisions above]. In Wayne, the contractual grievance procedure permitted the Association, if not satisfied with the results at any step of the grievance procedure, to simply proceed to the next step, which the Association did when it filed for binding arbitration [18 NJPER at 105, 106].

I do not see the relevance of Kearny PBA v. Town of Kearny, 81 N.J. 208 (1979) to the case at bar. We are not concerned here with the various "interpretative devices" that have been used to discover the intent of parties in interpreting their contracts. This case involves the question of whether or not a self-executing grievance procedure exists, i.e., whether a claimed violation at one step can be remedied by moving to the next step as matter of right and so on to final binding arbitration.

Similarly, the Commission's decision in Human Services has no application here since we are not concerned with when and where a breach of contract claim might have resulted in a finding of a

violation of Section 5.4(a)(5) of the Act by NJT [P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984)].

Finally, the remaining cases cited by 824, namely, City of Newark, P.E.R.C. No. 90-83, 16 NJPER 182 (¶21078 1990) and New Jersey Transit Bus Operations, Inc., P.E.R.C. No. 89-29, 14 NJPER 638 (¶19267 1988) are not pertinent to the matter before me. Neither case is relevant since each case arose from employer conduct which constituted a "blanket refusal" to process grievances under the grievance procedure. Thus, the conduct in these cases warranted a finding that the employer violated its obligation of "good faith" under Section 5.4(a)(5) of the Act.

The instant case concerns solely what occurred at the First Step of the parties' grievance procedure on July 23, 1992. Any complaints by 824, regarding the conduct of NJT could have been raised and possibly cured at succeeding steps, culminating in binding arbitration. Therefore, NJT did not violate the Act.

* * * *

Based upon the interim Findings of Fact previously found, and the entire record in this case, I make the following:

CONCLUSION OF LAW

The Respondent NJT did not violate N.J.S.A. 34:13A-5.4(a)(1), (2) or (5) by its conduct at the First Step of the parties' grievance procedure on July 23, 1992 since the grievance procedure was self-executing.

RECOMMENDED ORDER

I recommend that the Commission ORDER that Respondent NJT's Motion for Summary Judgment be granted and that the Complaint be dismissed.

Alan R. Howe

Hearing Examiner

Dated: May 20, 1993

Trenton, New Jersey