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. (5) Refusing to

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The Township denies violating the Act asserting that Local 1161 has a self-executing grievance procedure in its contract giving it the right to move grievances to arbitration regardless of the employer's conduct. Additionally, the Township asserts that the charge is not timely filed because the grievances in it involve events occurring as far back as 15 years ago.

On November 25, 1996, Local 1161 filed a second charge against the Township (CO-97-170) alleging 5.4(a)(1), (2), (5) and (7) violations of the Act. ^2/ Again, the Local alleges that the

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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."

2/ 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

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Local 1161 and the Township are parties to an agreement whose duration is from January 1, 1996 - December 31, 1998. Article II, entitled "Grievance Procedure", in pertinent part provides:

Any grievance or dispute which may arise between the parties, involving the application, meaning, interpretation or alleged violations of the terms and conditions of this Agreement, shall be settled in the following manner:

Step 1: The Union Steward, with the aggrieved employee, shall take up the grievance or dispute with the employee's immediate supervisor, within seven (7) working days of the date of the occurrence of the grievance. The supervisor shall attempt to adjust the matter and shall respond to the Steward within seven (7) working


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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. (7) Violating any of the rules and regulations established by the commission."

3/ On February 21, 1997, I wrote to the parties indicating my intention to make the following findings and giving them an opportunity to challenge their factual accuracy. Neither party responded.

Local 1161 alleges in CO-97-100 that it had filed grievances on November 21, 1994, June 1995, September 7, 1995, October 16, 1995, February 26, 1996 and August 1, 1996. However, the first four grievances were actually filed by the Laborers. The fifth grievance, filed on February 26, 1996, was filed by Local 1161 before it was certified as the majority representative and before the Laborers had disclaimed interest in the unit. The final grievance was filed on August 1, 1996, after Local 1161 became the certified majority representative.

The Township provided written responses denying each grievance to either the Laborers or Local 1161. The denials were supported by thorough explanations relying on the employer's interpretation of the applicable contracts in place at the time of the grievances.

Local 1161 alleges that the Township has refused to meet about grievances with the Union as required in Article II, Step 2

4/ The Laborers' contract ran from December 4, 1992 through December 4, 1995.

Additionally, Local 1161 filed another grievance on November 27, 1996, protesting the employer's right to attorney representation at a meeting scheduled on November 20, 1996, which was to discuss an earlier filed grievance. The Township asserted its right to have its attorney at the grievance meeting. This grievance is the subject of CO-97-170. The parties met to discuss this grievance on December 10, 1996, but the grievance was not settled.

We have repeatedly held that where the parties' contract provides for a self-executing grievance procedure ending in binding arbitration, it is not an unfair practice for the employer to fail to act at an intermediate step of the grievance procedure. See State of New Jersey, D.U.P. No. 88-9, 14 NJPER 146 ( & 19058 1988); New Jersey Transit Bus Opers., Inc., P.E.R.C. No. 86-129, 12 NJPER 442 (& 17164 1986); City of Trenton , D.U.P. No. 87-7, 13 NJPER 99 ( & 18044 1986); Boro. of Mountainside , D.U.P. No. 85-17, 11 NJPER 6 ( & 16003 1984); Tp. 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 Cty. Voc. Schl. Bd. of Ed., D.U.P. No. 77-2, 2

NJPER 372 (1976); Englewood Bd. of Ed., E.D. No. 76-34, 2 NJPER 175 (1975).

However, repudiation of a grievance procedure is an unfair practice. State of New Jersey (Hum. Serv.), P.E.R.C. No. 84-148, 10 NJPER 419 (& 15191 1984); New Jersey Transit Bus Opers ., P.E.R.C. No. 89-29, 14 NJPER 638 ( & 19267 1988). In New Jersey Transit , the Commission found that when the employer adopted a blanket policy refusing to meet at second or third step hearings if the grievant was not present, it had committed an unfair practice. This "blanket policy", as opposed to a case-by-case determination based on the circumstances of each grievance, was found to be a repudiation of the negotiated grievance procedure and a violation of the duty to process grievances due to the employer's behavior pattern.

Additionally, N.J.S.A . 34:13A-5.4(c) establishes a six-month statute of limitations period for the filing of unfair practice charges. The statute provides in pertinent part:

...that no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such a charge in which event the 6 months period shall be computed from the day he was no longer so prevented.

Five out of the six grievances described in the unfair practice charge CO-97-100 involve events which occurred more than six months prior to the filing of the charge. They were also grievances filed before Local 1161 was the certified majority

The only allegation raised by Local 1161 in CO-97-170 challenges the Township's right to have an attorney present at a grievance meeting scheduled on November 20, 1996. Local 1161 claims this is against any union procedures, past practice and the contract. I do not find, however, the Township's desire to be represented by an attorney to be an unfair practice.

Neither the employer nor the majority representative may interfere with each other's choice of representatives for negotiations and grievance processing or insist upon negotiating over the identity of those representatives. Matawan Reg. Bd. of

5/ The November 21, 1994 grievance involves the actual date of hire established for an employee over 15 years ago.

6/ Charges which allege a mere interpretation of a contract, as this one grievance may, do not rise to the level of an unfair labor practice and are dismissable. See State of New Jersey (Hum. Serv.).

N.J.S.A 34:13A-5.4(b)(2) expressly prohibits an employee organization from interfering with, restraining, or coercing a public employer's selection of its representatives for negotiations or grievance adjustments while N.J.S.A . 34:13A-5.4(a)(1) and (5) implicitly prohibit a public employer from interfering with, restraining, or coercing an employee organization's selection of its representatives. See, e.g., Bogota Bd. of Ed., P.E.R.C. No. 91-105, 17 NJPER 304 (& 22134 1991); Bergen Pines Cty. Hosp ., P.E.R.C. No. 91-98, 17 NJPER 254 ( & 22117 1991); Salem Cty ., P.E.R.C. No. 87-122, 13 NJPER 294 ( & 18124 1987). Contrast Downe Tp. Bd. of Ed., P.E.R.C.

No. 86-66, 12 NJPER 3 ( & 17002 1985) (union did not interfere with board's right to select its negotiations representatives by opining that employer should not be represented by supervisor and principal who evaluated teachers on union's negotiations team; no coercion or refusal to negotiate shown). The Commission restrained arbitration of grievances contesting the number and identity of the Board representatives at grievance hearings. Middletown Tp. Bd. of Ed., P.E.R.C. No. 96-46, 22 NJPER 35 ( & 27017 1995).

Local 1161 cannot insist that the Township's past choice to not have an attorney at grievances precludes it from being represented by an attorney in grievances now. Local 1161 cannot determine who the Township representative will be. ^7/

Accordingly, I find that the Commission's complaint issuance standard has not been met and I will not issue complaints on the allegations of these charges. ^8/ The charges are dismissed.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES




Edmund G. Gerber, Director


DATED: March 14, 1997
Trenton, New Jersey


7/ The Township has not filed an unfair practice charge against Local 1161 alleging 5.4(b)(2) violations.

8/ N.J.A.C. 19:14-2.3.