D.U.P. NO. 85-13

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TEAMSTERS LOCAL 97 OF NEW JERSEY,

Respondent,

-and-	Docket No. CI-84-72

SAMUEL HOLMES,

Charging Party.

Appearances:

For the Respondent

Patrick Nardolilli, Representative

For the Charging Party

Samuel Holmes, pro se

REFUSAL TO ISSUE COMPLAINT

On April 16, 1984, an Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") by Samuel Holmes ("Charging Party") against Teamsters Local 97 of New Jersey ("Respondent") alleging that Respondent was engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). Specifically, Charging Party alleges that Respondent violated N.J.S.A. 34:13A-5.4(b)(1), (2), (3), (4) and (5).1/

N.J.S.A. 34:13A-5.4(c) sets forth in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. The standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act and that formal proceedings in respect thereto should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

For the reasons stated below it appears that the Commission's complaint issuance standards have not been met.

The charge as written is lengthy, and touches upon many issues; however, at an exploratory conference convened on July 30, 1984, Charging Party indicated that despite the written charge, only two issues formed the basis of his charge: (1) Respondent refused to honor his written request to have dues deductions stopped as of March 9, 1982, the date of his request, and continuing through June 22, 1983, the date of the termination of his employment; and (2) Respondent refused to process two grievances to arbitration on his behalf -- one involving an alleged improper rate of pay and the second dealing with his ultimate discharge.

With regard to the allegation of the improper processing of grievances, Charging Party alleges that Respondent refused to submit his grievances to arbitration because it would not agree to present the grievances in the precise manner that he wished them to be presented. Respondent had processed Charging Party's discharge grievance through the various steps of the grievance procedure and an arbitration was scheduled. However, Charging Party sought to have the arbitration stopped so that his allegation of improper rate of pay could first be arbitrated. Respondent disagreed with Charging Party's demands as to the order of arbitration, and the instant charge arose. The undersigned does not believe Respondent's conduct constitutes an unfair practice within the meaning of the Act. The Commission has determined that a majority representative violates its duty to provide fair representation to unit members when it acts in an arbitrary, discriminatory or bad faith manner. In re Council No. 1, AFSCME, P.E.R.C. No. 79-28, 5 NJPER 21 (¶10013 1978). In In re N.J. Turnpike Employees Union, Local 194, IFPTE, AFL-CIO, P.E.R.C. No. 80-38, 5 NJPER 412 (¶10215 1979), the Commission stated:

In considering a union's duty of fair representation, certain principles can be identified. The union must exercise reasonable care and diligence in investigating, processing and presenting grievances; it must make a good faith judgment in determining the merits of the grievance; and it must treat individuals equally by granting equal access to the grievance procedure and arbitration for similar grievances of equal merit. (footnote omitted).

In the undersigned's judgment, the factual allegations of the charge do not support the conclusion that Local 97 engaged in conduct violative of its responsibilities. Local 97 is not required to pursue arbitration in accordance with a grievant's precise instruction, and such refusal does not, per se, constitute arbitrary, discriminatory, or bad faith conduct.

With regard to the second allegation, the undersigned notes that on July 31, 1984, pursuant to an agreement reached between Charging Party and the Local 97 representative at the July 30 exploratory conference in this matter, Respondent tendered to Charging Party an amount representing the total dues paid during the period March 9, 1982, through June 22, 1983, less the permissible agency shop fee.5/ Thus, this claim appears to be resolved.

Accordingly, based on the above, the undersigned declines to issue a complaint.

BY ORDER OF THE ADMINISTRATOR

OF UNFAIR PRACTICE PROCEEDINGS

/s/Joel G. Scharff, Administrator

DATED:	October 18, 1984

Trenton, New Jersey