H.E. NO. 86-45

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

JERSEY CITY MEDICAL CENTER and

AFSCME, COUNCIL 52, LOCAL 2254, AFL-CIO,

Respondent,

-and-	Docket No. CI-86-8-74

JOSEPH SHINE,

Charging Party.

Appearances:

For the Respondent, Grotta, Glassman & Hoffman, Esqs.

(M. Joan Foster, Esq.)

For the Respondent, Oxfeld, Cohen & Blunda, Esqs.

(Sanford R. Oxfeld, Esq.)

For the Charging Party,

(Mark E. Gold, Esq.)

HEARING EXAMINER'S RECOMMENDED REPORT AND DECISION

ON MOTION FOR SUMMARY JUDGMENT

On August 23, 1985, Joseph Shine filed an unfair practice charge against the Jersey City Medical Center ("Center") and AFSCME, Council 52, Local 2254, AFL-CIO ("Local 2254") alleging that the Center violated sections 5.4(a)(1), (5) and (7)1/ and Local 2254

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

Footnote Continued on Next Page

sections 5.4(b)(1) and (5)2/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act").

The charge, as amended on October 21, 1985, alleges that the Center discharged Shine without just cause; failed to afford him his proper civil service status; failed to investigate the incidents for which he was discharged; failed to consider his employment record; and terminated him because his supervisor did not like him.

Shine alleges that Local 2254 failed to grieve his discharge, despite his request to do so; failed to investigate the charges lodged by the Center against him; failed to protect his civil service status; failed to notify him of its decision not to file a grievance; and generally treated his discharge perfunctorily.

On October 8, 1985, a Commission staff agent conducted an exploratory conference. On October 11, 1985 and again on October 22, 1985, Local 2254 filed legal memoranda urging the Commission to dismiss the unfair practice charge because it failed to state an actionable offense.

1/	Footnote Continued From Previous Page

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."

2/	These subsections 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; (5) Violating any of the rules and regulations established by the commission."

On October 21, 1985, Shine amended his charge and submitted a positional statement asserting that Local 2254's conduct violated its duty to fairly represent him.

On November 21, 1985, the Director of Representation issued a Complaint and a Notice of Hearing scheduling hearing dates for January 25, 29 and 30, 1986.

Answers were filed by Local 2254 on November 27, 1985 and the Center on December 2, 1985.

Motions for Summary Judgment were filed by Local 2254 on January 13, 1986 and the Center on January 31, 1986. On February 4, 1986, the Chairman referred the motions and a request to stay the hearing to me. On February 6, 1986, I granted the request to stay. Shine was granted an extension and filed a brief and affadavits opposing the motions on February 24, 1986.

Shine was hired by the Center as a per diem Emergency Medical Technician ("EMT") in July, 1982. He became a full-time professional employee on October 9, 1982. Although Shine was not aware of the fact, he remained a provisional employee until his employment with the Center was terminated on March 14, 1984.

On or about February 22, 1984, Shine met with Local 2254 President Debby Mason and Personnel Director John J. Doyle. Doyle told Shine that the Director of Emergency Medical Services had concluded that Shine should be removed from his EMT position. The Director apparently concluded that Shine was not fit for the EMT position based, in part, on two incidents: one where Shine

allegedly failed to recognize a life threating situation (cardiac arrest and diabetic coma); and one were Shine allegedly caused an accident that seriously damaged an ambulance and prevented him from completing a call. Shine vigorously disagrees that he is unfit to hold an EMT position and cites as an example of his competence a commendation he received for his handling of a cardiopulmonary arrest patient in August, 1983.

As a result of the meeting, Shine was removed from the EMT position and transferred to the stockroom. The transfer was apparently the result of an agreement reached by the parties at the meeting.

On March 14, 1984, Shine again met with Mason and Doyle. He told them that he didn't like working in the stockroom. Doyle advised Shine that his only alternative was termination. Shine chose termination and demanded a hearing on his removal from the EMT position. Doyle told him that he was not entitled to a hearing because he was a provisional employee.

Shine asserts that, after several unsuccessful attempts to contact Mason by phone, he wrote her a letter on April 9, 1984. The letter states that, "...as of today, I feel I was terminated as an Emergency Medical Technician employee unjustly. With this letter, I am requesting that a grievance be filed, and an investigation into this matter be conducted..."

The contract between the Center and Local 2254 provides that:

17.1 [Grievance and Arbitration Procedure]

Any grievance or dispute which may arise between the parties, including the application, meaning or interpretation of this Agreement, and which is presented to the Employer within ten (10) working days of its occurrence or discovery shall be settled in the following manner..."

Shine's April 9, 1984 letter was addressed to Mason, care of the Center, and the return receipt, dated April 11, 1984, was signed by somebody named "Williams."

Assuming that Mason received the letter, Shine's request to file a grievance and conduct an investigation was made beyond the contractual time limit set forth in Article 17.1. No grievance was filed.

On September 14, 1984, Shine filed a complaint in Superior Court. On July 18, 1985, the parties signed a Consent Order transferring the case to the Commission. Shine filed his original charge on August 23, 1985. For purposes of this ruling, I consider the charge timely.

Pursuant to N.J.A.C. 19:14-4.8(d), summary judgment may be granted: "[i]f it appears from the pleadings, together with the briefs, affidavits and other documents filed, 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..."

A motion for summary judgment will be granted with extreme caution. The moving papers are to be considered in the light most favorable to the party opposing the motion and all doubts are to be resolved against the movant. The summary judgment procedure is not to

be used as a substitute for plenary trial. Baer v. Sorbello, 177 N.J. Super. 182, 185 (App. Div. 1981). In light of these principles, the Commission has been reluctant to grant summary judgments. See, Essex County Educational Services Commission, P.E.R.C. No. 83-65, 9 NJPER 19, 20 (¶14009 1982).

I conclude that both motions should be granted.

The thrust of Shine's charge is that he was dismissed without just cause and that, despite his request, Local 2254 failed to grieve or investigate his dismissal. He does not allege that his removal from the EMT position, his transfer to the stockroom or his dismissal were forms of retaliation for his exercise of protected activity. Thus, the Center cannot be held liable for exercising its managerial prerogative of transfer or dismissal. Teaneck Bd. of Education v. Teaneck Teacher's Assn., 94 NJ 916 (1983); In re IFPTE, Local 195, 88 NJ 393 (1982). The Center cannot be found in violation of the Act for failing to process a grievance because neither Local 2254 nor Shine filed one. The fact that the Center (or Local 2254) did not apprise Shine of his civil service status does not invoke the jurisdiction of the Public Employment Relations Commission. Shine alleges no facts showing that the Center (or Local 2254) violated any Commission rules or regulations. Shine lacks standing to bring a 5.4(a)(5) action against the employer because he has failed to establish that Local 2254 violated its duty to fairly represent him in refusing to process his grievance. In re N.J. Turnpike Authority, P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980) aff'd App. Div. No. A-1263-80T3 (10/30/81); Middlesex County, P.E.R.C. No. 81-62, 6 NJPER 555 (¶11282 1980).

The undisputed facts are that Shine and a union representative, Mason, met with the Personnel Director, Doyle, on or about February 22, 1985. As a result of that meeting, an arrangement was made by which Shine would be transferred to the stockroom. He worked in the stockroom for a couple of weeks and did not like it. He met again with Mason and Doyle on March 14, 1984. Shine wanted his EMT job back. Doyle didn't think he was qualified. Shine refused to stay in the stockroom and decided to quit. He thought he was entitled to a hearing. Doyle refused because Shine was a provisional. Shine does not allege that, when he was dismissed on March 14, 1984, he asked Mason (who was there with him) to file a grievance or begin an investigation. He did not make that request until he wrote his letter on April 9, 1984, which stated that, "as of today, I feel I was terminated...unjustly [and]...I am requesting that a grievance be filed, and an investigation...be conducted." When Shine wrote the letter, it was already too late to file the grievance by more than two weeks (see Article 17.1 quoted on page 5 supra.).

I hold, as a matter of law, that a union does not violate its duty to fairly represent a union member when it refuses the member's request to process a grievance if that request is not made until well after the grievance can be timely filed and where there are no facts showing that the union otherwise acted arbitrarily, discriminantly, or in bad faith. cf. In re John E. Runnells Hospital, P.E.R.C. No. 85-91, 11 NJPER 16064 (1985), affirming H.E. No. 85-22, 11 NJPER 16005 (1984).

Based on the pleadings and all of the parties submissions in this case, and resolving all inferences in favor of Shine, I conclude that no material issues exist that would be more appropriately resolved at a hearing and that the Center and Local 2254 are entitled, as a matter of law, to the relief they seek.

Accordingly, I recommend that the Commission dismiss the complaint in its entirety.

Richard C. Gwin

Hearing Examiner

DATED: March 20, 1986

Trenton, New Jersey