H.E. NO. 91-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE UNIVERSITY,

Respondent,

-and-	Docket No. CI-H-90-7

ROBERT BRENNAN,

Charging Party.

SYNOPSIS

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Rutgers did not violate Sections 5.4(a)(3) or (5) of the New Jersey Employer-Employee Relations Act by the conduct of its representatives during the processing of Brennan's overtime grievance under the grievance procedure between November 9, 1988 and June 23, 1989. In dismissing the Section 5.4((a)(3) allegation of the Complaint, the Hearing Examiner applied Bridgewater, finding no hostility or animus. Also, as to the Section 5.4(a)(5) allegation, the Hearing Examiner based his dismissal upon New Jersey Tpk. Authority and Jeffrey Beall, P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980) since AFSCME had previously been exonerated of any breach of the duty of fair representation (see H.E. No. 90-47, 16 NJPER 333 (¶21138 1990) and there was no proof of collusion between AFSCME and Rutgers in the processing of Brennan's grievance.

A Hearing Examiner's decision to dismiss is not a final administrative determination of the Public Employment Relations Commission. The Charging Party has ten days from the date of the decision to request review by the Commission or else the case is closed.

H.E. NO. 91-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE UNIVERSITY,

Respondent,

-and-	Docket No. CI-H-90-7

ROBERT BRENNAN,

Charging Party.

Appearances:

For the Respondent, Rutgers

(Christine B. Mowry, of counsel)

For the Charging Party,

Purzycki & Gorney, Esqs.

(Edward W. Gorney, of counsel)

HEARING EXAMINER'S DECISION ON

RUTGERS' MOTION TO DISMISS

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on July 14, 1989, by Robert Brennan ("Charging Party" or "Brennan"") alleging that Rutgers, The State University ("Rutgers") 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 Brennan, a tenured employee who is also a Vietnam veteran, has been discriminated against by Rutgers because of his grievance, which was for the equalization of overtime in the HVE classification and, also, because of a prior grievance where he was discharged and then reinstated with a suspension of five weeks; that one Julian

Amkraut has circumvented the contract by not answering Brennan's grievance as filed; that Amkraut, in avoiding the HVE issue, claimed that there was no discrepancy in the "Electrician's Work Unit," which has nothing to do with the HVE classification; that Amkraut changed Brennan's title from HVE to Senior Electrician; that the HVE title was a promotional opportunity, for which Brennan bid in 1984 and was promoted; that since that date Rutgers has hired another HVE who is junior to Brennan in seniority; and that if Amkraut wished to eliminate a job classification it must be that of the junior employee according to the contract; all of which is alleged to in violation of N.J.S.A. 34:13A-5.4(a)(3) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Consolidated Complaint and Notice of Hearing was issued on December 11, 1989. Rutgers filed its Answer on January 3, 1990. The Notice of Hearing originally scheduled hearing dates for January 23, 26 and 27, 1990, but these dates were adjourned to February 23, 26 and 27, 1990. On February 14, 1990, counsel for Brennan requested a further adjournment since Brennan had been

1/	These subsections prohibit public employers, their representatives or agents from: "(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. (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."

assigned to jury duty, commencing February 22nd. The Hearing Examiner then adjourned the matter without date.

On March 2, 1990, AFSCME filed with the Commission a Motion for Summary Judgment, which was referred to the undersigned for disposition pursuant to N.J.A.C. 19:14-4.8. On May 1, 1990, this Motion was granted2/ and the Complaint against AFSCME was dismissed.

On May 18, 1990, Rutgers filed with the Commission a Motion to Dismiss, which was also referred to the undersigned for disposition, this time in accordance with N.J.A.C. 19:14-4.2(a). Pursuant to this referral, the Hearing Examiner now makes the following:

UNDISPUTED FINDINGS OF FACT3/

1.	Rutgers, The State University is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

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

3.	Brennan has been employed by Rutgers since July 1979. He has been a High Voltage Electrician (HVE) since 1986 and is presently assigned to the College Avenue Campus. Dennis Dowd is

2/	H.E. No. 90-47, 16 NJPER 333 (¶21138 1990).

3/	The following Undisputed Findings of Fact duplicate, in part, those found previously in H.E. No. 90-47, supra, paragraphs 9, 10, 11 and 12 in H.E. No. 90-47 have been omitted as irrelevant and extraneous to the issues raised herein.

also employed by Rutgers as an HVE and is presently assigned to the Kilmer Campus.

4.	The assignment of overtime for Brennan and Dowd is controlled by Rutgers' Utility Department at the Kilmer Campus. Brennan, who is senior to Dowd, contends that Dowd receives an unfair amount of overtime compared to Brennan.

5.	On November 9, 1988, Brennan filed a grievance requesting equalization of overtime between the HVE's. On November 18th, John Milotis, the Electrical Foreman, denied Brennan's grievance on the ground that he had no control over HVE overtime.

6.	Brennan's grievance was then taken to a STEP 2 grievance hearing and on January 31, 1989, Robert A. Bye, the Assistant Superintendent of Plant & Equipment, decided in writing that he could not resolve the grievance since Brennan was only performing the work of an Electrician/Maintenance Mechanic and not that of an HVE.

7.	The grievance proceeded next to a STEP 3 hearing, which was held on June 14, 1989, before Julian S. Amkraut, the Associate Director of the Office of Employee Relations. On June 23, 1989, Amkraut denied the grievance because there was no "...disparity between Mr. Brennan's overtime and others in his unit, and that he has worked many more hours than Mr. Dowd..." In support of his denial, Amkraut noted that that Brennan's distribution of overtime was equitable in relation to other employees in his work unit and that Brennan's overtime hours were twice that of Dowd. In

addition, Amkraut concluded that he had considered the positions of AFSCME and Brennan concerning Brennan's job title and "...as such, Mr. Brennan's job title is to be changed to Senior Electrician/Maintenance Mechanic..."

8.	On July 11, 1989, Richard Gollin, AFSCME's Associate Director, wrote to Brennan and advised him of AFSCME's decision that it would not process his grievance to arbitration.

STANDARD APPLICABLE TO A

MOTION TO DISMISS PRIOR TO HEARING

A motion to dismiss before hearing under N.J.A.C. 19:14-4.7 is similar to a motion to dismiss for failure to state a claim upon which relief can be granted under R.4:6-2(e). City of Margate, H.E. 89-23, 15 NJPER 166 (¶20070 1989). Alternatively, it is a motion for judgment on the pleadings, which raises solely issues of law and

admits all facts properly pleaded by the opposing party. Reider v. State of New Jersey Dept. of Transp., 221 N.J. Super 547 (App. Div. 1987).

In Reider v. State of New Jersey Dept. of Transp., 221 N.J. Super. 547 (App. Div. 1987), the court stated:

On a motion made pursuant to R. 4:6-2(e) "the inquiry is confined to a consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged claim." P. & J. Auto Body v. Miller, 72 N.J. Super 207, 211 (App. Div. 1962). The court may not consider anything other than whether the complaint states a cognizable cause of action. Ibid. For this purpose, "all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted." Smith v. City of Newark, 136 N.J. Super 107, 112 (App. Div. 1975). See also Heavner v. Uniroyal, Inc., 63 N.J. 130, 133

(1973); Polk v. Schwartz, 166 N.J. Super 292, 299 (App. Div. 1979). A complaint should not be dismissed under this rule where a cause of action is suggested by the facts and a theory of actionability may be articulated by way of

amendment. Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J. Super 79, 82-83 (App. Div. 1977). However, a dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted.

Reider, at 552.

In considering whether to grant a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, i.e., judgment on the pleadings, the allegations in the complaint must be taken as true and the benefit of all favorable inferences from the allegations must be afforded the Charging Party. Wuethrich v. Delia, 134 N.J. Super. 400 (Law Div. 1975), aff'd 155 N.J. Super. 324 (App. Div. 1978); Sayreville B/E, H.E. No. 78-26, 4 NJPER 117 (¶4056 1978).4/

ANALYSIS

As noted in the above statement of the law on a motion to dismiss before hearing, the motion must necessarily raise only issues of law with all of the facts properly pleaded deemed as admitted. And, as noted in Reider v. State, "...a dismissal is

4/	Compare New Jersey Turnpike, P.E.R.C. No. 79-81, 5 NJPER 197 (1979) where the Commission adopted the standard used by the New Jersey Supreme Court in Dolson v. Anastasia, 55 N.J. 2 (1959) for a motion to dismiss at the close of a charging party's case. That standard requires that the evidence (at least a scintilla) be viewed in a light most favorable to the party opposing the motion.

mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted..." (221 N.J. Super. at 552). The Hearing Examiner has concluded that the averments made by Brennan in his Unfair Practice Charge against Rutgers, when taken as true with all favorable inferences afforded Brennan, are, nevertheless, legally insufficient to support a finding that Rutgers has violated Sections 5.4(a)(3) and (5) of the Act as alleged. The reasons for this conclusion are as follows:

Re Section 5.4(a)(3) of the Act

In order to establish a violation of this subsection of the Act by Rutgers, Brennan must first make a sufficient showing to support an inference that his protected activity was a "substantial" or a "motivating" factor in Rutgers' decision to deny Brennan's grievance at Step 3 of the contractual grievance procedure on June 23, 1989. On that date Hearing Officer Amkraut found that there was no disparity between Brennan's overtime and that of others in his unit, Brennan having worked twice the number of hours of overtime as co-employee Dennis Dowd. Additionally, the Hearing Officer had concluded that Brennan's job title was to be changed from that of a High Voltage Electrician (HVE) to that of Senior Electrician/Maintenance Mechanic.

This initial burden upon Brennan derives from the decision of the Supreme Court of New Jersey in Bridgewater Tp. v. Bridgewater Public Works Ass'n, 95 N.J. 235 (1984). Assuming that this initial burden has been met by Brennan, Rutgers must then demonstrate that

the same action would have taken place even in the absence of Brennan's protected activity of having filed his overtime grievance (see 95 N.J. at 242).

In determining whether or not Brennan has met the Bridgewater test, the Hearing Examiner concludes, initially, that Brennan was engaged in protected activity in having filed his overtime grievance on November 9, 1988, and that Rutgers knew of this activity. However, Brennan has failed to establish that Rutgers by its conduct has manifested any hostility or anti-union animus toward Brennan in the course of his having had his grievance processed through the contractual grievance procedure (see 95 N.J. at 246). It is clear beyond peradventure of doubt that a close examination of the allegations in Brennan's unfair practice charge against Rutgers demonstrates that Rutgers' representatives in no way manifested hostility or anti-union animus toward Brennan. Therefore, Brennan's allegation that Rutgers violated Section 5.4(a)(3) of the Act must be dismissed.

Re Section 5.4(a)(5)

In an earlier case, involving Rutgers and AFSCME, 5/ allegations similar to those made by Brennan were heard by this Hearing Examiner. The allegation that Rutgers had violated Section 5.4(a)(5) was dismissed because Jennings, in that case, had failed

5/	Rutgers, The State University and AFSCME, Council 52, Local 888 and David L. Jennings, H.E No. 88-48, 14 NJPER 290 (¶19108 1988), adopted P.E.R.C. No. 88-130, 14 NJPER 414 (¶19166 1988).

to offer any evidence of a breach of the duty of fair representation by AFSCME or of collusion between Rutgers and AFSCME with respect to AFSCME's refusal to process his grievance to binding arbitration.

This Hearing Examiner has previously found that AFSCME did not violate the Act by breaching its duty of fair representation to Brennan when it refused to proceed to arbitration on his behalf [see H.E. No. 90-47, supra]. As in the case of Jennings, the Hearing Examiner cites the Commission's decision in New Jersey Tpk. Authority & Jeffrey Beall, P.E.R.C. No, 81-64, 6 NJPER 560 (¶11284 1980) where the union had refused to take Beall's case to arbitration on the ground that there appeared to be little likelihood of success. Beall alleged collusion between the employer and the union in the latter's refusal to take his case to arbitration. The Commission found no evidence of collusion, noting that Beall was attempting 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 also stated in Beall that under Section 5.3 of the Act only a majority representative may file an unfair practice charge, alleging a violation of Section of 5.4(a)(5), based upon a claimed breach of the collective agreement. Since Beall's 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..." (6 NJPER at 561).

Since Brennan's case under 5.4(a)(5) of the Act is no different than that of Jennings and Beall, Brennan's allegation that Rutgers violated Section 5.4(a)(5) of the Act must be dismissed.

* * * *

For all of the reasons above stated, the Hearing Examiner will grant the Motion to Dismiss filed by Rutgers in this proceeding and now makes the following:

CONCLUSIONS OF LAW

The Respondent Rutgers did not violate N.J.S.A. 34:13A-5.4(a)(3) or (5) by the conduct of its agents and representatives during the processing of Brennan's overtime grievance under the grievance procedure between November 9, 1988 through June 23, 1989.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint of Robert Brennan against Rutgers, The State University be and the same is hereby dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: August 2, 1990

Trenton, New Jersey