H.E. NO. 98-4 1.
H.E. NO. 98-4
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
PASSAIC COUNTY COMMUNITY COLLEGE
ADMINISTRATORS' ASSOCIATION, OPEIU, LOCAL 153,
Respondent,
-and- Docket No. CI-H-92-28
RUTH B. WASILEWSKI,
Charging Party.
Appearances:
For the Respondent,
Schneider, Goldberger, Cohen, Finn, Solomon, Leder, Montalbano, attorneys
(Bruce D. Leder, of counsel)
For the Charging Party,
Ruth B. Wasilewski, pro se
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On November 7, 1991, Ruth B. Wasilewski ("Wasilewski" or "Charging Party") filed an unfair practice charge with the Public Employment Relations ("Commission") against the Passaic County Community College Administrators' Association, OPEIU, Local 153 ("Local 153" or "Respondent"). Wasilewski alleged that Local 153 failed to represent her when she was directed to vacate her office, threatened with termination and appealed her termination. On January 6, 1992, Wasilewski filed an amended unfair practice charge against Local 153 setting forth a chronology of events. On May 27,
1992, Wasilewski filed a second unfair practice charge naming the Passaic County Community College ("College") as a respondent (Docket No. CI-92-34). In that charge Wasilewski alleged that the College violated the collective agreement by failing to follow the grievance procedure, denying her personal leave days and committing other contractual infractions. On July 14, 1992, Wasilewski filed an amendment to unfair practice charges CI-92-28 and CI-92-34. Wasilewski again alleged that the respondents failed to adhere to the terms of the collective agreement and Local 153 failed to appeal her termination. In her unfair practice charge and amendments against Local 153 (CI-92-28), Wasilewski alleged that Local 153 violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq . ("Act"), specifically, sections 5.4(b)(1), (2), (3), and (5).1/ In her unfair practice charge against the College
1/ 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. (2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of negotiations or the adjustment of grievances. (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit. (5) Violating any of the rules and regulations established by the commission."
(CI-92-34), Wasilewski alleged that the College violated subsections 5.4(a)(1), (2), (3), (4), (5) and (7) of the Act. 2/
On August 19, 1992, the Director of Unfair Practices refused to issue a complaint in both charges. D.U.P. No. 93-6, 18 NJPER 453 (& 23205 1992). He found that Wasilewski did not have standing to allege a refusal to negotiate, and that her allegations against the College did not rise to the level of an unfair practice; did not involve reprisals for activity protected by our Act; were not timely; and did not allege facts indicating a violation. The Director also found that Wasilewski's allegations against Local 153 did not rise to the level of an unfair practice because the union's determination not to pursue an appeal of her discipline did not breach its duty of fair representation. In P.E.R.C. No. 93-51, 19 NJPER 53 (& 24024 1992), the Commission affirmed the Director's decision refusing to issue a complaint in CI-92-34, and reversed and remanded his decision as to Local 153 in CI-92-28.
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 interfering with the formation, existence or administration of any employee organization. (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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under 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. (7) Violating any of the rules and regulations established by the commission."
On January 8, 1993, the Director of Unfair Practices issued a Complaint and Notice of Hearing (C-1) in Docket No. CI-H-92-28. 3/ On January 13, 1993, Local 153 filed its answer (C-2) generally denying the allegations contained in the unfair practice charge and amendments. Hearings were conducted on April 2, 1992, April 15, 1993, June 19, August 8, and September 4, 1996, at the Commission's offices in Newark, New Jersey. The parties had the opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally.
Initially, this matter was assigned to Hearing Examiner Alan R. Howe. On April 15, 1993, the second scheduled hearing date, Respondent moved to dismiss this matter and no testimony was taken. In H.E. No. 94-3, 19 NJPER 526 (& 24245 1993), Hearing Examiner Howe granted Respondent's motion to dismiss finding, as a matter of law, that Respondent did not breach its duty of fair representation. In P.E.R.C. No. 94-53, 19 NJPER 589 (& 24283 1993), the Commission denied Local 153's motion to dismiss and remanded the matter to the hearing examiner. On December 23, 1993, upon Wasilewski's request due to illness, Hearing Examiner Howe adjourned the scheduled hearing dates and held the matter in abeyance. On November 29,
3/ Exhibits received in evidence marked as "C" refer to the Commission's exhibits, those marked "CP" refer to the charging party's exhibits and those marked "R" refer to the respondent's exhibits. The transcript citation 1T1 refers to the transcript developed on April 2, 1992, at page 1. Transcript citations 2T, 3T, 4T and 5T refer to the transcripts developed on April 15, 1993, June 19, August 8 and September 4, 1996, respectively.
1994, due to Hearing Examiner Howe's retirement, this matter was reassigned to me. N.J.A.C . 19:14-6.4(a). On April 12, 1995, Wasilewski requested that the matter be adjourned until the fall of that year or later. Respondent agreed to the adjournment request.
On December 14, 1995, Wasilewski requested an additional adjournment of the hearing scheduled for December 21, 1995, on the grounds that she had not yet retained an attorney to represent her in this matter. Wasilewski asked that the matter be continued until March or April 1996. Over Respondent's objection, I granted Wasilewski's adjournment request and rescheduled the matter for February 16, 1996. I advised Wasilewski that I would not be inclined to grant further continuances without good cause and indicated that failure to retain counsel might not constitute good cause (C-3).
On January 5, 1996, Respondent requested the adjournment of the scheduled February 16, 1996 hearing date due to the unavailability of a witness. The hearing was adjourned with Wasilewski's consent and rescheduled to March 21, 1996. The March 21 date was adjourned, with Wasilewski's consent, due to Respondent's counsel's unavailability. The hearing was rescheduled to June 19, 1996.
At the conclusion of the hearing, the parties waived oral argument and established a briefing schedule. The schedule called for briefs to be submitted on February 28, 1997. On February 26, 1997, Wasilewski requested an extension to file her brief no later
than March 5, 1997. I granted her extension request. Briefs were filed by March 4, 1997. In correspondence dated February 24, 1997, Wasilewski made a motion to admit 13 documents into evidence. On February 28, 1997, Local 153 objected to the admission of the documents on numerous grounds. In correspondence dated March 4, 1997, I denied Wasilewski's motion for admission of the additional documents.
Upon the entire record, I make the following:
FINDINGS OF FACT
1. The parties stipulated that Local 153 was a public employee representative and Wasilewski was a public employee within the meaning of the Act during all times relevant to this charge (1T9).
2. Wasilewski began working for the College in December 1987, as Supervisor of Accounts Receivable (1T16; 1T18). Initially, Wasilewski reported to Dean Westerfield, who was subsequently replaced by Dean Michael Yosifon (1T17). Beginning around June 30, 1990, Wasilewski reported to Yosifon through the Bursar, Martin Malloy (1T18-1T19).
3. On May 21, 1991, Yosifon sent Wasilewski a memorandum advising her that he was recommending her termination (CP-4). Wasilewski immediately gave copies of CP-4 to Local 153 officials Thomas Conn and Walter Mack. Wasilewski also showed CP-4 to Local
153's Business Representative John Heffernan (1T114-1T115). Wasilewski asked that a grievance meeting be arranged among her, the Local and Yosifon (1T117). On June 12, 1991, in response to CP-4, Heffernan sent Yosifon a letter asking for copies of all memoranda, letters, records of discipline and any other documents Yosifon relied upon in support of his termination recommendation (CP-7; 4T106; 4T156-4T157). Wasilewski asked Heffernan, Conn and Mack to follow up on CP-7 (1T117). The College never responded to Heffernan's discovery request (4T150; 5T10). Heffernan took no further action to obtain the materials sought in CP-7 because he believed the College's failure to respond best suited Local 153's purpose to pursue an appeal on Wasilewski's behalf. Heffernan believed the College's failure to respond would allow Local 153 to argue that the Employer ignored the Union's request for information (5T26). Although Wasilewski wanted Local 153 to arrange for a grievance meeting with Yosifon, such meeting never took place since the College took no action against Wasilewski as a result of CP-4 (1T117; 5T10). Local 153 did not take further steps to obtain the documents it sought from the College in CP-7.
4. On April 30, 1991, Wasilewski sent a memorandum to College President Collins requesting a meeting to discuss problems she was having with Yosifon (CP-5). Although Wasilewski met Collins in the hallway numerous times after April 30, and although Collins told her that he would meet with her at any time, such meeting did not occur until September 11, 1991, subsequent to Wasilewski's
termination (3T69; 3T77-3T78). On May 28, 1991, Yosifon issued a memorandum to all supervisors regarding private meetings with the College President (CP-25). Yosifon's memorandum states in relevant part the following:
President Collins recently informed his Executive Group that far too many employees seek private meetings with him to express a host of concerns, problems and issues.
In order to curtail such visits, President Collins will require employees who insist on such visitations, to be accompanied by their area Dean. It is naturally anticipated that the area Dean will make every effort to remedy the problem at hand and only after a failed effort will a joint meeting be scheduled with the President. [CP-25]
CP-25 contained a distribution list naming the supervisors to receive the memorandum. Wasilewski's name was not contained on that list (4T74; CP-25). Pursuant to CP-25, Wasilewski scheduled a meeting with Yosifon to arrange a meeting with Collins. Mack accompanied Wasilewski to the Yosifon meeting (4T75). Yosifon yelled at Mack and did not allow him into the meeting (4T76).
5. Periodically, the College denied Wasilewski the use of accrued sick, vacation and personal days. On or about August 5, 1991, the College denied Wasilewski's request to use a personal day to attend a factfinding meeting conducted by the New Jersey Division on Civil Rights (1T111). On August 12, 1991, Wasilewski requested release time in order to keep an appointment with her doctor. The College denied her request (3T26). On August 13, 1991, Wasilewski submitted a vacation request form seeking the use of vacation time
from August 20 through August 23, inclusive (CP-19). On that same day, Robert Puri, Wasilewski's supervisor, sent Wasilewski a memorandum stating the following:
Regrettably, I cannot approve your vacation request. The in-person registration process, as you know, begins August 24. I anticipate that this will require considerable preparation. Since this will be my first registration, your experience and assistance in setting up the program is essential. [CP-19]
6. Wasilewski informed Local 153 of the above-enumerated leave time denials at the time the College denied her request, however, the College did not rescind its denial of her use of leave time on any of those occasions (3T36). On September 6, 1991, Local 153 President Conn sent Yosifon a memorandum stating the following:
It has come to my attention recently that Ms. Ruth Wasinlenski (sic) from the accounts payable department has been unable to take vacation time at the times she requested. It further seems to be the case that other members in the same department were granted extended periods of vacation even during some of our busy registration periods. Such a situation as I described placed one of our unit members in a position where she had to work long periods of time in an office which was short staffed with little or no relief. Such a situation is unfair and does not meet the expressed purposes of granting employees vacation time.
The Association understands management rights in the planning of vacation time but clearly this is a case where our unit member's basic rights have been abused. I hope to work with you closely to avoid any further abuses and I ask that because of these past circumstances that she be extended certain leeway in being allowed to take vacation time when requested. [CP-18]
7. When Wasilewski was terminated in September 1991, she still carried accrued vacation, sick and personal leave days. Among others, Wasilewski called Heffernan to enlist his assistance to receive the dollar value of her accrued leave time (4T62). Wasilewski raised only vacation and overtime with Heffernan; she did not tell Heffernan that he should also investigate compensation for any accrued sick time balance (4T118-4T119). Heffernan told Wasilewski that he would obtain the cash value of all of the accrued leave time to which she was entitled (5T61). Heffernan met with the College's Director of Human Resources, Walter Lysaught, and reviewed the College's records of Wasilewski's leave time use against Wasilewski's claim for leave time owed (5T64). Wasilewski's and the College's records differed (5T61). The College demonstrated to Heffernan that their records were accurate and showed that Wasilewski was entitled to compensation for less time than she claimed was due her (5T62; 5T65). On October 11, 1991, Heffernan sent Lysaught a letter confirming their conversation regarding the amount of compensation Wasilewski was due to receive from the College (CP-29; 5T60). Wasilewski was sent a copy of CP-29 (5T83). While Wasilewski was dissatisfied with the amount of money she received, in light of what she believed the College owed her for accrued leave time and overtime, she never responded to Heffernan regarding CP-29 (4T62; 4T118-4T119; 5T83). The collective agreement provides for employees to be compensated for unused vacation time but not for unused personal days (4T118).
8. On September 9, 1991, Wasilewski was assigned to assist with the student registration that was being conducted in the College's gymnasium (1T119). Students were required to enroll in the College's insurance plan unless they could satisfactorily prove that they maintained coverage through another insurance carrier. Students maintaining their own health insurance coverage filed a student health insurance waiver form which showed the name of the insurance carrier, the policy and group numbers and certain other information (CP-13). Wasilewski was directed by her supervisor to fill out an insurance waiver form on a student who could not provide adequate proof that he was covered by a private insurance plan. The student did not have an insurance card in his possession nor did the student know the policy or group numbers (1T118; 3T22). Notwithstanding the lack of this information, Wasilewski was directed to fill out the insurance waiver form, and fabricate any information which was not available regarding the student (3T23-3T24). Wasilewski refused (1T18; 3T22). She was directed to leave the gymnasium immediately (1T119).
9. On September 11, 1991, Lysaught sent Wasilewski a letter terminating her employment with the College (CP-8). 4/ CP-8 indicated that Wasilewski had been repeatedly cautioned concerning
4/ On September 16, 1991, Lysaught sent Wasilewski another letter which was exactly the same as CP-8 except that it requested that Wasilewski advise the College President in writing if she wanted to appear before the Board of Trustees to appeal her termination (R-1).
her inability to interact with superiors and subordinates, thereby placing her employment relationship with the College in jeopardy. The letter stated that Wasilewski refused to acknowledge the fact that her performance, especially in the area of personal contact, was unacceptable and that she demonstrated an insubordinate attitude in her compliance with supervisors' directives. Wasilewski acknowledged receiving, reading and understanding CP-8 and R-1, however, she disagreed with the assertions contained therein (3T67; 4T30). Wasilewski never submitted a written response to CP-8 and R-1 (3T68). CP-8 and R-1 indicated that the matter of Wasilewski's termination would be raised to the Board of Trustees during their meeting on September 23, 1991, and invited her to attend along with counsel, if she so desired.
10. On September 18, 1991, Wasilewski sent a letter to Local 153 representative Conn requesting assistance with her termination. Wasilewski asked that a Local 153 representative attend the September 23, 1991, Board of Trustees meeting along with a union attorney and Business Representative Heffernan (CP-9). Also on September 18, Wasilewski sent a letter to College President Elliott Collins advising him that she would appear with her attorney or advisor and a Local 153 representative at the September 23 Board of Trustees meeting (CP-10).
11. Wasilewski wanted to meet with Local 153's grievance committee. She asked grievance committee member Cindy Bink to arrange the meeting (1T132). On September 20, 1991, Wasilewski met
with Local 153's grievance committee. At the conclusion of the meeting, the Committee told Wasilewski that there was insufficient time between the date of that meeting and her September 23 Board of Trustees meeting for them to assist her, however, they would ask Local 153's president to help her (1T133). On September 23, 1991, the grievance committee sent Mack the following memorandum:
On September 20, 1991 the grievances committee met with Ruth Wasilenski (sic) regarding her termination of employment. Based on the materials supplied to us by Ms. Wasilenski (sic) and the extended time period in which it covers, it is difficult to cite specific cases in which the contract has been violated.
However, the committee recommends that Ruth Wasilenski (sic) receives full legal representation entitled to her as a union member by our Local 153. The committee agrees to abide by the decision in accordance with the union representative. [CP-11]
12. On September 23, 1991, Mack called Heffernan and asked him to attend a Board of Trustees meeting that evening which would be considering Wasilewski's termination (4T107; 4T145). Heffernan attended the meeting, however, since he had no advance notice concerning Wasilewski's termination and the Board of Trustees meeting, he did not have the opportunity to prepare for his presentation to the Board (4T148). Before the Board of Trustees meeting started, Heffernan discussed the College's allegations with Wasilewski (4T108). Mack was also present before, during and after the Board meeting with Heffernan and Wasilewski (1T140; 4T108; 4T112).
13. Wasilewski brought a law student, Sister Marie McSorley, as her own personal representative to appear before the Board of Trustees (4T33; 4T38; 4T83). Before the Board meeting began, Heffernan and McSorley conferred regarding Wasilewski's discharge (4T145). McSorley prepared a written statement which she read to the Board (4T39; R-3). On McSorley's advice, Wasilewski did not make her own oral presentation (4T39-4T40). Neither Heffernan nor Mack told Wasilewski that she should not address the Board (4T41). Heffernan spoke to the Board on Wasilewski's behalf for approximately 5 minutes (4T109). Heffernan discussed the chronology of events which related to Wasilewski's treatment by supervisors and subordinates, the actions of her supervisors that interfered with her ability to function, the manner in which her superiors embarrassed her in front of her subordinates which resulted in the undermining of Wasilewski's authority, and in July 1990, the way she was mistreated by having to vacate her office upon the arrival of the newly hired bursar, without advance notice (4T109-4T110). Heffernan noted that the Board of Trustees was paying little attention to the arguments that he was making on Wasilewski's behalf. The Board were talking among themselves and laughing. At one point, Heffernan stopped his presentation and asked for the Board's attention (4T110). Heffernan argued that in light of how Wasilewski was treated over time, she should not be terminated (4T110). Heffernan asked the Board the following question: If the Board throws Wasilewski out on the street at her age, what will
become of her? (1T139). Wasilewski did not feel that Heffernan argued the rights that she had to the job (1T139). Heffernan concluded his remarks by asking the Board to review and investigate the validity of his comments and postpone its decision to terminate Wasilewski (4T130). Mack did not make an oral presentation (4T111).
14. After the oral presentations, Mack, Heffernan, McSorley and Wasilewski left the meeting. They discussed what happened in the meeting. Wasilewski did not indicate that she was dissatisfied with Heffernan's presentation (4T112). Later that evening, Mack and Heffernan told Wasilewski that the Board decided to terminate her employment (1T140; 4T41). Subsequently, Wasilewski asked the Board if she could return at a later time to make further argument. The Board agreed to allow Wasilewski to have a second opportunity (1T97). Mack told Wasilewski that the union would appeal her termination and provide her with an attorney to represent her upon her return to the Board of Trustees (1T140). On September 26, 1991, Mack sent a letter to Mary Kowal, Board of Trustees Chairperson, advising her that Ruth Wasilewski would exercise her right to appeal her termination at a subsequent Board meeting and that Local 153's attorney would contact her to schedule a mutually convenient date for the appeal (CP-12).
15. After the September 23 Board of Trustees meeting, Heffernan wrote to Local 153's attorney, Bruce Leder, asking that he review the collective agreement and documents pertaining to Wasilewski's termination and advise regarding other actions Local
153 might take to appeal the College's action against Wasilewski (4T113-4T114). While Heffernan never told Wasilewski that Local 153 would supply an attorney to represent her in an appeal of her termination, he did indicate that he would ask an attorney to advise regarding what steps could be taken to appeal the College's termination decision (4T130-4T131; 4T139). On September 30, 1991, Leder responded to Heffernan indicating that the collective agreement did not provide for terminations for cause, as was Wasilewski's case, to be appealed through the grievance arbitration provision. The attorney concluded as follows:
Assuming that the College sustains the decision to terminate, there is no other avenue to appeal unless some non-contractual grounds exist. This might include a cause of action under the Whistle Blowers Statute or under Discrimination Law. If none of these statutory grounds exist, there is no appeal under the contract. On the other hand, the College may reverse the decision and therefore, resolve the dispute. [R-9]
16. On October 3, 1991, Heffernan sent a copy of R-9 to Mack. In his cover letter, Heffernan states:
Enclosed is the opinion of attorney Bruce Leder, re: Ruth Wasilewski's termination and recourse thereof. As you will note, Bruce states that since matters of termination are excluded from the grievance and arbitration procedure, the ability to challenge any termination is limited to an appeal hearing. This essentially was done on September 23, 1991 and his opinion is that any further hearing before the same Board of Trustees would not result in a change in their decision. However, he does indicate that she may have other rights of appeal for due process under Discrimination Law. [R-10]
17. Since 1988, Wasilewski had a copy of the collective agreement covering the period July 1, 1988 through June 30, 1991 (R-2). The successor agreement covering the period July 1, 1991 through June 30, 1994, had not been signed at the time of her termination, however, it contained identical Grievance Procedure and Separation articles (4T8).
18. Article XXI of the collective agreement in effect at the time of Wasilewski's termination sets forth the grievance procedure (J-1). Relevant parts of the grievance procedure are set forth below:
21.2 The following procedure, which may be initiated by the administrator covered by this agreement or the association acting as the administrator's representative shall be the sole and exclusive means of seeking adjusting and settling grievances.
21.3 Definition of a grievance
A grievance is an allegation by the administrator or the association that there has been:
21.3.1 A breach, misinterpretation or improper application of terms of this agreement; or
21.3.2 An arbitrary or discriminatory application of the policies of the Board of Trustees, related to terms and conditions of employment.
21.4 Informal procedure
An administrator may orally present and discuss a grievance with the administrator's supervisor on an informal basis. At the administrator's option, the administrator may request the presence of an association representative.
* * *
Should an informal discussion not produce a satisfactory settlement, the grievant may, within three working days, move the grievance to the first formal step.
21.5 Formal steps
21.5.1 Step One
A grievant shall initiate the administrator's grievance in writing and present it formally to the administrator's dean, and such dean, or his designee thereof, shall meet with the grievant and a representative of the association for the purpose of discussing the grievance.
21.5.2 Step Two
If the grievant is not satisfied with the decision rendered at step one, the administrator may submit the administrator's grievance to the college president.
* * *
21.5.3 Step Three
If the grievant is not satisfied with the disposition of the grievance at step two, the administrator may appeal to the Board of Trustees on the record.
* * *
21.5.4 Step Four
If the aggrieved administrator is not satisfied with the disposition of the grievance at step three, the association, as representative of the administrator, shall file a notice, within ten (10) working days of the receipt of the decision of the Board of Trustees, requesting submission to arbitration. 5/
* * *
5/ Arbitration is advisory unless the parties agree otherwise in writing prior to the arbitration hearing (J-1; R-2).
21.6.3 Should an administrator be dissatisfied with the decision or should no decision be forthcoming in the prescribed time, the administrator may submit the administrator's grievance to the next step, within seven (7) calendar days to step two and within ten (10) calendar days to step three.
* * *
21.7 Nothing in this Article shall be construed as compelling the Association to submit a grievance to arbitration.
19. Article VIII of J-1 pertains to separation. Relevant portions of Article VIII are set forth below:
8.1 Separation is caused by resignation, non-reappointment, termination for cause, lay-off or death of a unit member.
8.4 Termination for cause:
Administrative decision to separate an administrator due to unsatisfactory job performance, serious misconduct, or as a result of the commission of a serious crime.
8.9 Matters of administrators separation shall be within the sole discretion of the Board and shall not be subject to the grievance arbitration provisions of this agreement. However, upon request, the Board shall provide the administrator with a statement of reason(s) for its action to non-reappoint, terminate for cause, layoff, and shall afford an opportunity to the administrator to appeal before the Board or a committee of the Board concerning the separation.
Thus, separation appeals filed by unit employees with the Board of Trustees are not grievances within the meaning of Article XXI of the collective agreement (1T70; 1T94). Employees appealing their termination have the option of choosing whether or not they wish to be represented (1T95). The Association has never assigned an
attorney to represent any employee appealing a termination to the Board of Trustees (1T99).
20. After the September 23, 1991 Board of Trustees meeting, Wasilewski requested another opportunity to appear before the Board to appeal her termination (4T41-4T42). The College scheduled October 14, 1991, as the date for Wasilewski's second termination appeal (1T140-1T141). On October 11, 1991, Wasilewski received a letter from the College advising her she could appear before the Board on October 14 (3T57; 4T42). Wasilewski attempted to postpone the appeal date, however, the College would not agree (4T42-4T44). On October 14, Wasilewski contacted Mack to ascertain the status of the assignment of a Local 153 attorney to present her appeal. Mack told Wasilewski that although she was previously told that Local 153 would represent her in her termination appeal, the Local's attorney determined not to proceed (1T141; 3T57; 4T42; CP-28). The record is unclear regarding whether Wasilewski appeared before the Board of Trustees on October 14, 1991. Mack did not tell Wasilewski not to attend the October 14 meeting (4T42). Neither Mack nor Wasilewski asked Heffernan to appear on October 14, and Heffernan was not aware that Wasilewski's second appeal was scheduled for that date (4T116; 4T137).
21. On numerous occasions, extending more than one year before the filing of her unfair practice charge, Wasilewski sought Local 153's assistance in filing various grievances (1T42-1T43; 3T13-3T14; 4T68-4T69; 4T73; CP-20). Wasilewski thought that the
contractual mechanism to appeal her termination was through the grievance procedure (1T134). Wasilewski never filed a grievance concerning any issue on her own (4T163; 5T12-5T13; 5T43). Heffernan's standard practice was to advise employees to file grievances if they believe that the employer is not handling a matter properly (5T45). Since the collective agreement clearly excluded appeals of termination for cause from the grievance procedure, Heffernan never filed a grievance or sought arbitration of Wasilewski's termination (4T112-4T113; 4T117).
22. Wasilewski stated several different reasons as the College's underlying motivation for her termination. Wasilewski stated that the College set forth its reasons for her termination in CP-8 and R-1 (3T64). She stated that the reasons contained in CP-8 and R-1 were untrue and merely constituted a pretext for the College's real reason for her termination (3T67; 4T30). Wasilewski believed that the true reason for her termination was that the College had insufficient money in its budget for both her position as supervisor of accounts receivable and the newly hired bursar's position (4T31; 4T35-4T37). During the first two days of the hearing in this matter, Wasilewski was represented by counsel, however, she never told her attorney that the reason for her discharge was that there was insufficient money in the budget to support the two supervisory positions (4T59-4T60). Similarly, Wasilewski did not tell McSorley that the reason for her termination was the lack of funds for the supervisory positions (4T55).
Wasilewski merely told McSorley that she thought that she was being replaced by the bursar (4T83).
23. Wasilewski also indicated that she was terminated because of her age, gender and in retaliation for filing a complaint with the New Jersey Division on Civil Rights (4T50-4T51; 4T65). When Heffernan met with Wasilewski on September 23, 1991, in preparation for the Board of Trustees meeting, she did not tell him that her discharge was because of age, gender, reprisal for filing a civil rights complaint or the lack of money in the budget to support two supervisory position (4T108).
24. On June 10, 1991, Wasilewski filed a complaint with the Division on Civil Rights alleging that the College was engaging in a pattern of differential treatment because of her age (R-4). On October 10, 1991, Wasilewski filed an amended complaint alleging that the College terminated her because of her age, gender, and in retaliation for having filed the initial complaint (R-5). Before filing the complaint with the Division on Civil Rights, Wasilewski tried to file a complaint with the Passaic County affirmative action officer (4T45). Mack convinced Wasilewski's daughter, an attorney, to urge Wasilewski to file the civil rights action (3T96; 4T45-4T46). On October 18, 1993, the Division on Civil Rights issued an Agency Determination finding that no probable cause existed to credit the allegations that Wasilewski was discriminated against on the basis of gender or age. The determination found that probable cause existed regarding allegations that Wasilewski was
retaliated against for having filed a complaint (R-6). On December 8, 1995, Wasilewski entered into a general release regarding the civil rights matter with Passaic County, the College and the Board of Trustees of the College with respect to all claims she had against them (R-7).
25. Wasilewski testified regarding a number of disputes that she had with the College and her supervisors for which she sought Local 153's assistance in filing grievances. These matters occurred more than six months before the filing of this unfair practice charge.
26. On October 26, 1993, Wasilewski filed an application for disability insurance benefits with the Social Security Administration. The Administrative Law Judge for the Social Security Administration found that Wasilewski had been disabled since September 11, 1991. In part, he found that:
the claimant does not have the residual functional capacity for even sedentary work because of exertional and non-exertional limitations. The range of sedentary work which the claimant could perform is significantly compromised...[and concluded] that a finding of disability is appropriate. [R-8; 4T96]
ANALYSIS
N.J.S.A . 34:13A-5.3 provides in part:
A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible
for representing the interest of all such employees without discrimination and without regard to employee organization membership.
A majority representative does not have an obligation to file every grievance which a unit member asks it to submit. Camden Cty. College (Porreca), P.E.R.C. No. 88-28, 13 NJPER 755 (& 10285 1987); Trenton Bd. of Ed. , P.E.R.C. No. 86-146, 12 NJPER 528 ( & 17198 1986). However, the majority representative has an obligation to investigate the claimed contract violation to determine if it has merit. In OPEIU Local 153, P.E.R.C. No. 84-60, 10 NJPER 12, 13 ( & 15007 1983), the Commission stated:
In a specific context of a challenge to a union's representation in processing a grievance, the United State Supreme Court has held:
A breach of the statutory duty of fair representation occurs only when a union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 191 (1967).
The Courts and this Commission have consistently embraced the standards of Vaca in adjudicating such unfair representation claims. See, e.g., Saginario v. Attorney General, 87 N.J. 480 (1981); [ Mackaronis and Middlesex County and NJCSA], P.E.R.C. No. 81-62, 6 NJPER 555 (& 11282 1980), [aff'd NJPER Supp .2d 113 (& 94 App. Div. 1982), certif. den. 91 N.J . 242 (1982)] ("Middlesex County"); New Jersey Turnpike Employees Union Local 194, P.E.R.C. No. 80-38, 5 NJPER 412 (& 10215 1979) ("Local 194"); In re AFSCME Council #1, P.E.R.C. No. 79-28, 5 NJPER 21 ( & 10013 1978).
We have also stated that a union should attempt to exercise reasonably care and diligence in investigating, processing, and presenting grievances; it should exercise good faith 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. Middlesex Cty.; Local 194 . All the circumstances of a particular case, however, must be considered before a determination can be made concerning whether a majority representative has acted in bad faith, discriminatorily, or arbitrarily under the Vaca standards.6/
The Commission recently addressed a matter similar to this case. In Carteret Education Association, P.E.R.C. No. 97-146, 23 NJPER (& 1997), Charging Party Saad Radwan alleged that the Association had deprived him of access to the grievance procedure. In September and October 1994, Radwan asked the Association to file grievances over three incidents. The collective agreement allowed unit employees to file grievances without going through the Association. The Association president told Radwan that he did not think that the incidents involved contract violations. Regarding the second and third incidents, the Association president told Radwan that the Association was not interested in filing nuance grievances and that Radwan could do as he pleased. The hearing examiner found that the Association president's decision not to press non-meritorious grievances was not arbitrary, discriminatory or taken in bad faith. Consequently, the hearing examiner found
6/ The National Labor Relations Board has interpreted Vaca to mean that proof of mere negligence, standing alone does not suffice to prove a breach of the duty of fair representation. See Printing and Graphic Communication, Local 4 , 249 NLRB 23, 104 LRRM 1040 (1980). The Commission may look to private sector precedent for guidance. Lullo v. International Association of Firefighters, Local 1066, 55 N.J. 409 (1970).
that the Association president's decision did not breach its duty of fair representation. The Commission affirmed. However, the hearing examiner found that the Association breached its duty of fair representation and violated of the Act when it failed to affirmatively inform Radwan that he could file a grievance on his own. The Commission reversed the hearing examiner's finding that the Association had an affirmative duty to inform Radwan that he could individually file a grievance. The Commission found that the Act does not require a majority representative to affirmatively notify an employee that s/he can individually file a grievance. The Commission found that since the Association did not mislead Radwan or otherwise impede his right to file a grievance on his own, and since the Association provided Radwan with a copy of the collective agreement when it became available and that agreement specified the employees' right to present their own grievances, no violation of the Act occurred.
In the instant matter, Wasilewski had a copy of the collective agreement since 1988. The agreement indicates that unit employees could present and process a grievance up to the Board of Trustees level on their own. Thus, Wasilewski was never misled by the Association or prevented from filing grievances on her own, if she so desired.
Although Local 153 may not have acted to Wasilewski's satisfaction, there are numerous examples of it acting on her behalf. In May 1991, Yosifon threatened to terminate Wasilewski.
Heffernan sought discovery but the College never responded. Heffernan took no further action to obtain the materials he sought in discovery because the College took no action to actually terminate Wasilewski, and he believed that if it became necessary, it would serve the Union's purpose to be able to later argue that the Employer ignored the Union's request for information. Thus, Heffernan's decision not to further pursue obtaining the materials sought in discovery was not done arbitrarily or in bad faith, rather it was strategic in nature.
Local 153 was responsive to Wasilewski's complaint that the College denied her requests for use of accrued paid leave time. Conn sent a memorandum to Yosifon arguing that Wasilewski was being treated differently than other employees and requested she be granted special consideration with regard to future leave requests. Subsequent to Wasilewski's termination, Heffernan met with Lysaught to review the College's records to ensure that Wasilewski received pay for all accrued time to which she was entitled. Local 153 assisted Wasilewski in her efforts to meet with President Collins. Mack attempted to accompany her in a meeting with Yosifon which was a prerequisite to her meeting with the college president. Local 153 was instrumental in directing Wasilewski to the New Jersey Division on Civil Rights regarding her claims of discrimination. Again, while none of these incidents may have been handled by Local 153 to Wasilewski's satisfaction, they, nonetheless, show a union representing its membership in a reasonable and good faith manner.
Unions are permitted a wide range of reasonableness in representing their membership. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); PBA Local 119 , P.E.R.C. No. 84-76, 10 NJPER 41 ( & 15023 1983). See also New Jersey Transit and ATU, D.U.P. No. 95-23, 21 NJPER 54 ( & 26038 1995); Jersey City Board of Education, D.U.P. No. 93-7, 18 NJPER 455 ( & 23206 1992); Essex-Union Joint Meeting and Automatic Sales, Servicemen and Allied Workers, Local 175 , D.U.P. No. 91-26, 17 NJPER 242 ( & 22108 1991). Wasilewski argues that Local 153 breached its duty of fair representation when it failed to file a grievance appealing her termination. That argument lacks merit. Wasilewski's termination was not appealable through the grievance procedure but, rather, through the separation article contained in the collective agreement. Mack and Heffernan represented Wasilewski at the level provided for in the separation article by accompanying her to the September 1991, Board of Trustees meeting, and Heffernan spoke on her behalf.
Wasilewski also argues that Local 153 breached its duty of fair representation when it failed to represent her during the October 1991, Board of Trustees meeting and refused to assign an attorney as promised. While the Local did not notify Wasilewski that it would not represent her during the October Board of Trustees meeting, such late notice appears to have been caused more by inadvertance than by bad faith or arbitrariness. After the Board sustained Wasilewski's termination in September, Heffernan sought advice concerning additional action which Local 153 could take on
Wasilewski's behalf. Leder's response to Heffernan's inquiry was dated September 30, 1991. On October 3, 1991, Heffernan forwarded Leder's response to Mack. Mack did not advise Wasilewski that Local 153 would not appear on her behalf until October 14, the date of the Board of Trustees meeting. Clearly, Local 153 should have advised Wasilewski prior to October 14, 1991, that it would not represent her in the Board of Trustees meeting. However, Local 153 is entitled to a wide range of reasonableness and mere negligence on the part of Local 153 does not constitute a breach of the duty of fair representation. Pemberton Tp. Bd. of Ed., D.U.P. No. 97-26, 23 NJPER 70 ( & 28042 1996); PBA Local 119 . Local 153's decision not to again appear before the Board of Trustees, a proceeding in which the Board had the sole discretion to sustain or reverse Wasilewski's termination, was not arbitrary since it was based upon its attorney's review of the facts and his legal conclusions. Wasilewski was always free to proceed before the Board on her own. Moreover, Local 153 had never supplied an attorney to represent any employee appealing his/her termination before the Board of Trustees, and treated Wasilewski no differently. Employee organizations are not required to provide employees with legal counsel. Bergen Community College, P.E.R.C. No. 84-117, 10 NJPER 262 ( & 15127 1984). See also Carteret Education Association (Radwan), D.U.P. No. 95-31, 21 NJPER 189 (& 26122 1995); Camden County College , D.U.P. No. 89-11, 15 NJPER 171 ( & 20072 1989).
I find no evidence that Local 153 was hostile towards Wasilewski nor that it failed to investigate her complaints. See Ford Motor Co . There is evidence that on numerous occasions Local 153 represented Wasilewski in an effort to resolve her complaints against the College. Local 153 never impeded Wasilewski from filing a grievance or misled her with respect to the exercise of any of her other rights.
I find no facts in support of Wasilewski's contention that Local 153 interfered with, restrained or coerced her in the selection of her representative for purposes of negotiations or the adjustment of grievances, refused to negotiate in good faith with a public employer concerning terms and conditions of employment of employees in that unit, or violated any of the rules and regulations established by the Commission.
Accordingly, based upon the entire record and the analysis, I make the following:
CONCLUSIONS OF LAW
1. Local 153 did not breach its duty of fair representation owed to Ruth Wasilewski and, consequently, did not violate sections 5.4(b)(1) of the Act.
2. Local 153 did not violate sections 5.4(b)(2), (3) or (5) of the Act.
RECOMMENDATION I recommend that the Commission ORDER that the complaint be dismissed.
Stuart Reichman
Hearing Examiner
Dated: July 24, 1997
Trenton, New Jersey***** End of HE 98-4 ***** |