H.E. NO. 80-51

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matters of

WILLINGBORO BOARD OF EDUCATION and

WILLINGBORO EDUCATION ASSOCIATION,

Respondents,

-and-	Docket No. CI-79-53-60

ERNEST E. GILBERT,

Charging Party.

_______________________________________

WILLINGBORO EDUCATION ASSOCIATION,

Respondent,

-and-	Docket No. CI-79-56-61

ERNEST E. GILBERT,

Charging Party.

Appearances:

For the Willingboro Board of Education

Barbour & Costa, Esqs.

(John T. Barbour, Esq.)

For the Willingboro Education Association

Selikoff & Cohen, Esqs., P.A.

(Joel S. Selikoff, Esq.)

For the Charging Party

Ernest E. Gilbert, Pro Se

HEARING EXAMINER'S DECISION ON MOTION TO DISMISS

BY THE WILLINGBORO EDUCATION ASSOCIATION AND ORDER1/

PROCEDURAL HISTORY

On May 14, 1979, the Charging Party, Ernest E. Gilbert (hereinafter the "Charging Party" or "Gilbert"), filed a second amended Unfair Practice Charge, which was docketed as No. CI-79-
53-602/ against the Association alleging that it had 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. (hereinafter the "Act"), the content of which will not be repeated herein, but is set forth fully in H.E. No. 80-45, 6 NJPER 284 (May 9, 1980). The Order in H.E. No. 80-45 provided, in part, that the Charging Party was granted leave to amend with regard to alleged violations by the Association of N.J.S.A. 34:13A-5.4(b)(1) with the proviso that said amendment must be "...only with respect to specific instances of failure by the Association's representatives or agents since November 7, 1978 to support his grievances, cognizable under the collective negotiations agreement, because of the Charging Party having crossed the picket line in November 1977 and/or because of the Charging Party's race."

On May 27, 1980, the Charging Party filed a timely amendment, which was docketed under CI-79-56-60, and which alleged that the Association had engaged in unfair practices within the meaning of the Act, inter alia: (1) that the Association "...began to demonstrate it (sic) animus to the Charging Party by building hostilities within the student body...," (2) that teacher/supervisors wrote defamatory "memorandums" against the Charging Party to "set-me-up for discharge," alleging that Constance Smith and Rita Butchko were "both agent/representatives" of the Board and the Association; (3) that on April 9, 1980 the Charging Party "demanded assistance" of the Association "...in this matter and other matters relative to my employment situation...," which demand for assistance was refused; and (4) that the Association by virtue of a conflict of interest cannot possibly negotiate in good faith with the Board on behalf of employees, such as the Charging Party, who did not support the "illegal strike" in November 1977. All of the foregoing is alleged to be a violation of N.J.S.A. 34:13A-5.4(b)(1) and (3) of the Act.3/

In addition to the foregoing, the Charging Party on May 27, 1980 filed an amended Unfair Practice Charge against the Board and the Association, which was docketed under Nos. CI-79-53-60 and CI-79-56-61, which alleged, as to the Association, that its members, officers, agents, and representatives have (1) initiated a "secondary strike" against the Charging Party which operates to perpetuate past practices of "discrimination" with respect to "upward mobility and promotion-denial" and (2) made the Charging Party's continued employment status untenable and set him up for discharge and that the Charging Party was on April 28, 1980 suspended without pay, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(b)(1, (3), (4) and (5) of the Act.4/

On June 6, 1980, the Association filed an Answer to the aforesaid amendments to charges of unfair practices and on the same date the Association filed the instant Motion to Dismiss and a supporting Memorandum of Law. The Charging Party filed a response in opposition on June 13, 1980. Thus, the instant matter is now properly before the Hearing Examiner for disposition.

THE ISSUE

Viewing the allegations contained in the amended Unfair Practice Charges filed against the Association herein most favorably to the Charging Party can violations of Subsections (b)(1), (3), (4) and (5) of the Act be sustained?

DISCUSSION AND ANALYSIS

The Charging Party Does Not Have

Standing To Allege Violations Of

Subsections (b)(3) And (4) Of The

Act And Has Failed To Allege A

Specific Rule Of The Commission

That The Association Has Violated

Which Would Constitute A Violation

Of (b)(5) Of The Act

The Hearing Examiner finds and concludes that the Charging Party lacks standing to allege violations of Subsections (b)(3) and (4) of the Act for the reasons previously set forth in the Hearing Examiner's prior decision on the Association's Motion to Dismiss in H.E. No. 80-45, 6 NJPER 284 (1980). Additionally, the Hearing Examiner cites as to an alleged Subsection (b)(3) violation, the case of State of New York and Robinson, et al., 13 PERB 4527 (1980) wherein the Director held that an individual employee lacks standing to allege a violation of his union's bargaining obligation vis-a-vis the employer.

The Hearing Examiner also finds and concludes, as he did in the prior decision, supra, that the Charging Party has failed to allege a specific rule of the Commission that the Association has allegedly violated and, that, the Charging Party has failed to satisfy the requirements as to Subsection (b)(5) of the Act. The Hearing Examiner notes again that the Charging Party is required to cite a specific rule or regulation that the Association has allegedly violated in order to satisfy this aspect of the amended charge. Once again, the Hearing Examiner notes that a review of the amended charge, together with the Charging Party's response to the Motion to Dismiss, compels the Hearing Examiner to conclude that he cannot discern a Commission rule which could possibly be related to the subject matter of the Unfair Practice Charges, as amended.

Thus, the amended charge of unfair practices, which allege a violation of Subsections (b)(3), (4) and (5) of the Act are dismissed.

The Charging Party Has Failed To Allege

Legally Sufficient Facts, Which, If

Proven, Would Constitute A Violation Of

Subsection (b)(1) Of The Act

As noted above, the Hearing Examiner in his prior decision in H.E. No. 80-45 granted the Charging Party leave to amend as to a possible Subsection (b)(1) violation with the proviso that said amendment must be "...only with respect to specific instances of failure by the Association's representatives or agents since November 7, 1978 to support his grievances, cognizable under the collective negotiations agreement, because of the Charging Party having crossed the picket line in November 1977 and/or because of the Charging Party's race." Even a most sympathetic reading of the Charging Party's amended Unfair Practice Charges allows of no conclusion other than that he has failed to meet the conditions of the proviso with respect to amendment in all respects. There is nothing in the amended charges of unfair practices which even remotely indicates a specific instance of a failure by the Association's representatives or agents since November 7, 1978 to support the Charging Party's grievances under the collective negotiations agreement because of the Charging Party having crossed the picket line in November 1977 and/or because of the Charging Party's race. The Charging Party merely sets forth again and again conclusory generalities, this time making reference to the building of hostilities within the student body, the writing of defamatory "memorandums" which allegedly set him up for discharge and that the Association refused to grant the Charging Party "assistance...in this matter and other matters relative to my employment situation..." Additionally, the Charging Party alleges that the Association initiated a "secondary strike" against the Charging Party, which operates to perpetuate past practices of "discrimination" with respect to "upward mobility and promotion-denial" and that this has made the Charging Party's continued employment status untenable and set him up for discharge, the Charging Party noting his standing as a suspended employee without pay as to April 28, 1980.

It is noted that nothing in the allegations of the amended Unfair Practice Charges even closely approximates allegations which could constitute a breach by the Association of its duty of fair representation, which was covered thoroughly in the prior decision of the Hearing Examiner on the Association's Motion to Dismiss, supra. The Hearing Examiner is convinced that he granted the Charging Party a full and fair opportunity to amend his charges of unfair practices under the conditions set forth in the proviso in the foregoing Order, supra. The Charging Party having failed to amend as required by the Hearing Examiner, the Hearing Examiner is left with no alternative but to dismiss without further leave to amend.

* * *

Based upon the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

The Charging Party lacks standing to allege a violation of N.J.S.A. 34:13A-5.4(b)(3) and (4) since standing to allege such violations is reserved exclusively to a public employer.

The Charging Party, having standing to allege violations, has failed to allege a violation of N.J.S.A. 34:13A-5.4(b)(1) and (5) in that the Charging Party has failed to allege legally sufficient facts which would constitute a breach by the Association of its duty of fair representation and, further, has failed to allege a specific rule of the Commission that the Association has violated.

ORDER

It is hereby ORDERED that the Complaint be dismissed in its entirety as to alleged violations by the Association of N.J.S.A. 34:13A-5.4(b)(1), (3), (4) and (5).

/s/Alan R. Howe

Hearing Examiner

DATED:	June 18, 1980

Trenton, New Jersey