H.E. NO. 86-18

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

N.J. TRANSIT BUS OPERATIONS, INC.,

Respondent,

-and-	Docket No. CO-85-158-170

LOCAL 824, AMALGAMATED TRANSIT

UNION,

Charging Party.

Appearances:

For the Respondent

Irwin I. Kimmelman, Attorney General

(Jeffrey Burstein, D.A.G.)

For the Charging Party

Oxfeld, Cohen & Blunda, Esqs.

(Arnold S. Cohen, Esq.)

HEARING EXAMINER'S DECISION AND ORDER

ON RESPONDENT'S MOTION TO DISMISS

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 20, 1984, and amended on June 26, 1985, by Local 824, Amalgamated Transit Union (hereinafter the "Charging Party" or the "Union" or "824") alleging that N.J. Transit Bus Operations, Inc. (hereinafter the "Respondent" or "NJT") 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. (hereinafter

the "Act"), in that NJT forced 824 into court and arbitration proceedings over the transfer of certain members of 824 from one facility to another (¶3); and that NJT forced 824 into arbitration in nine cases for the purpose of undermining 824 (¶'s 4-6, 8, 10, 13, 15, 22, 23); that NJT sought to reduce the membership of 824 in two instances (¶'s 7, 18); that NJT violated the contract with 824 either by denying grievances or delaying their processing (¶'s 9, 11, 12, 14, 17, 19-21, 24-29, 33-39, 41, 43-48, 56); and that NJT sought to break or undermine 824 (¶'s 30, 31, 50-55); all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1)-(5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued

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; (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."

on June 20, 1985. Pursuant to the Complaint and Notice of Hearing, after initial adjournment, hearings were held on October 1, 2 and 4, 1985 in Newark, New Jersey, at which time the Charging Party was given an opportunity to examine its sole witness, James B. Lynch, and present relevant evidence. At the conclusion of the Charging Party's case, the Respondent made a Motion to Dismiss on the record on October 4, 1985 and the Hearing Examiner, after hearing oral argument by both parties, reserved decision and stated that a written decision would issue on the motion.

Upon the record made by the Charging Party only, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	New Jersey Transit Bus Operations, Inc. is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Local 824, Amalgamated Transit Union is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	At the time of the instant hearing there were 305 members of the Charging Party. This membership may be broken down as follows: 200 bus operators in the Old Bridge and Lakewood garages; 15 bus operators in the Allentown, Pa., garage; 75 mechanical personnel in the Old Bridge and Lakewood garages; and the balance are field salaried personnel.

4.	There are seven other locals of the Amalgamated Transit Union in New Jersey which, together with locals of the Transport Workers Union and the United Transportation Union constitute all of the representatives of the Respondent. The Charging Party's membership constitutes 10% of the represented employees of the Respondent.

5.	The monthly union dues are presently $35, having been $20 in April 1983 when James B. Lynch, the President and Business Agent of the Union, assumed office.

6.	The Hearing Examiner excluded testimony as to ¶'s 1 and 2 of the Complaint on the ground that, at the hearing, the Charging Party amended the dates in each paragraph to January 1982 and March 1982, which were deemed dates too remote in time and irrelevant to the gravamen of the Unfair Practice Charge, as amended.

7.	Complaint ¶3: It is alleged that the Respondent transferred five drivers from the Fairview garage to the Old Bridge garage and sought to dovetail their seniority rather than endtail seniority as the Union contends should have happened. Lynch acknowledged that these five drivers, who had been members of the Transport Workers Union, became members of his union but nevertheless filed suit in court. An arbitration proceeding ultimately became moot when, as a result of the court proceedings, the Respondent agreed to endtail the seniority of the former Fairview drivers. The expense to the Union was approximately $7,000.

Allegations Involving Arbitration Awards2/

8.	Complaint ¶4: In an arbitration award dated February 27, 1984, Arbitrator James A. Healy denied a grievance on the five-day suspension of Allen Thomas (J-3). Lynch insisted that before testimony was taken at the arbitration hearing, the arbitrator ordered the Respondent to pay sick pay to Thomas but there is no evidence of this in the arbitration award.

9.	Complaint ¶5: On October 22, 1984, Arbitrator Martin F. Scheinman rendered an award that the Respondent violated the agreement when it failed to pay worker's compensation to Harry Maskell for June 2 and 3, 1983 (J-4). This is alleged to have been an attempt to undermine the Union, notwithstanding that there is no reference to this fact in the arbitration award.

10.	Complaint ¶6: On March 21, 1984, Arbitrator Irvine Kerrison rendered an arbitration award, in which he found that Aurelio J. Festa was not suspended for proper cause and that his suspension of 30 days should be reduced to a three-day suspension (J-5). Lynch conceded that there was nothing in the arbitration award indicating that the Respondent "fabricated a story regarding Mr. Festa" as alleged in the Complaint.

11.	Complaint ¶8: On December 29, 1984, Arbitrator Paul J. Krebs rendered an award that the Respondent should refrain from transferring certain repairmen in violation of the agreement but

2/	The Union contends, as part of its charge of unfair practices, that the Respondent has forced it to arbitration in nine instances between March 1984 and December 1984 for the purpose of undermining the Union by compelling it to expend monies from its treasury.

held that the Respondent did not violate other provisions of the agreement, including the management rights provision, when it determined the effective dates for the transfer of certain employees (J-6). The Union complained in the Complaint that it was required to deplete its treasury to bring this matter to arbitration.

12.	Complaint ¶10: On November 8, 1984, Arbitrator Robert S. Weaver rendered an award that James Moran was not entitled to a full day's regular pay for December 9, 1983 (J-7). The Union had alleged only that Moran was not paid for a job-related accident in violation of the agreement.

13.	Complaint ¶13: On August 22, 1984, Arbitrator James P. McCabe rendered an award wherein he held that the discharge of Anthony Cifelli was not for cause and that he should be reinstated without backpay (J-8). The Union alleged that the sole basis for the action of the Respondent was that Cifelli was a member of the Union, notwithstanding that there is no provision in the arbitration award so indicating.

14.	Complaint ¶15: Three arbitration awards were rendered with respect to this allegation -- on January 17, 1985, Arbitrator Martin C. Seham rendered award, concurred in by all parties, that the six-day suspension of Pompolio Egidi be set aside and that the grievant be made whole (J-10), but there was nothing in the award indicating that Egidi had been suspended due to his Union membership; -- on February 21, 1985, Arbitrator Joel Douglas rendered an award denying the grievance of Peter Wagner, who had

been charged with missing an assignment (J-9), but there was no indication that this was due to his Union membership; -- on February 28, 1985, Arbitrator Homer C. LaRue sustained the grievance of Carmine DeStefano, who had been suspended for two days, and the grievant was ordered to be made whole (J-11), but the arbitration award did not indicate that DeStefano had been suspended due to his Union membership.

15.	Complaint ¶22: On August 27, 1984, Arbitrator Anton J. Hollendonner rendered an arbitration award that Robert Carver had been improperly warned and that the warning should be removed from his peronnel records (J-12), there being no backpay involved as alleged in the Complaint.

16.	Complaint ¶23: On December 3, 1984, Arbitrator Irvine Kerrison rendered an arbitration award in which he held, after noting that the Respondent abandoned the charge of insubordination, that Karen Tonks was improperly suspended for five days and that the suspension shall be reduced to a written warning (J-13). Thus, the allegation that Tonks was improperly suspended for insubordination is not factually correct.

Allegations Regarding Conduct Of The Respondent To

Break Or Undermine The Union Or Reduce Its Membership

17.	Complaint ¶7: The Union alleged and Lynch testified that the Respondent sold its Route 9-Wall Street route to a private carrier in an attempt to reduce the membership of the Union, six members having been displaced and dispersed as a result of the

sale. This occurred in June 1983 at a time when the Union had 315 active members whereas on the date of the instant hearing the Union had 305 active members.

18.	Complaint ¶18: It is alleged and Lynch testified that in May 1984 the Respondent sold two of its routes to Suburban Bus Co., as a result of which two members of the Union were displaced and that this was done in order to sap the strength of the Union.

19.	Complaint ¶30: In July 1984 Charles Bresnahan, the garage supervisor at Old Bridge, said to Lynch that, "the Union can't afford to take all of these cases to arbitration, we'll break you." Bresnahan also stated that the Respondent would not "entertain" first-step grievances and on a later occasion said, "What do you guys want now?" Lynch conceded that any actions by Bresnahan did not cause the Union to incur any expense. Finally, Lynch conceded that any delay by Bresnahan in bringing three cases to arbitration was due to Bresnahan's unavailability on a vacation in Ireland in June 1984.

20.	Complaint ¶31: It is alleged and Lynch testified that Everett Cunningham, the second-step hearing officer under the agreement, has stated that he would not rule in favor of the Union, which is part of a plan by the Respondent to undermine the Union. This, according to the Union, was illustrated by Cunningham taking the position at the second step that eleven suspensions of drivers would have to be taken to the third step or arbitration.

21.	Complaint ¶50: It is alleged and Lynch testified that in the Spring of 1985 the Respondent delayed a second-step grievance hearing for Sherry Polo, a cleaner in the Old Bridge garage, who had been suspended for one day. When a convenient second-step hearing could not be scheduled for Polo she said to Lynch, "Fuck it."

22.	Complaint ¶51: In April 1985 it is alleged and Lynch testified that there was a dispute as to the location where a third-step grievance hearing should be held for Larry Irving, the stated reason being that the ensuing delay was to undermine the effectiveness of the Union. The step-3 meeting was scheduled, as of course, in Maplewood and Irving, who was unable to appear, stated to Lynch, "You're a bunch of assholes."

23.	Complaint ¶52: It is alleged and Lynch testified that in May 1985 the Respondent delayed proceeding to a third-step hearing on the grievance of Percy Hunter for the purpose of undermining the effectiveness of the Union. Lynch on April 18, 1985 requested a third-step hearing for Hunter (R-7) and on May 1, 1985 a third-step hearing was held, a delay of only eight days from Lynch's request (R-8).

24.	Complaint ¶53: It is alleged and Lynch testified that early in 1985 the Respondent, for the purpose of undermining the Union, delayed in reimbursing Earl Orcult, who had privately engaged an attorney in a work-related accident. The Respondent ultimately paid the contractual $100 following a delay of six weeks.

25.	Complaint ¶54: It is alleged and Lynch testified that Richard Smith, in August 1984, was not paid sick pay for the purpose

of undermining the Union. The Respondent's position was that no payment was made because no doctor's certificate had been provided by Smith. No grievance was ever filed nor was the matter submitted to arbitration.

26.	Complaint ¶55: It is alleged and Lynch testified that Lee Phillips, a bus operator from the Old Bridge garage, was told by Ben Larson, the regional supervisor of the Port Authority, that "Every dog has its day, I'll get your ass." And that this statement was made because Phillips was a member of the Union.

The Conduct Of The Respondent With Respect To

Contract Violations, Denials Of Benefits And Delay

27.	Complaint ¶'s 9, 11 & 12: These allegations, as to events having occurred in January and September 1984, involve the denial of sick pay to Gary Baulmin and Louis Ardise, who were not paid until the Union intervened on their behalf and the failure to pay holiday pay to three employees who were only paid after the Union intervened -- payment was delayed by three weeks.

28.	Complaint ¶'s 17, 20 & 25: These allegations and Lynch's testimony involve Larry Irving's loss of six months' seniority, which was restored after a grievance was filed; the improper suspension of Joseph Telazaro for five days in June 1984, which was rescinded with backpay after six to eight weeks; and the requiring of certain drivers from Lakewood and Old Bridge to work out of Lakewood on weekends in the Spring and Summer of 1984, which resulted in the filing of a grievance for harassment that was not processed through arbitration.

29.	Complaint ¶'s 26 & 27: These allegations and Lynch's testimony involve Major Finklin, who in June 1984, was improperly taken off of the Union work roster, as a result of which he was denied work, and a grievance was filed and processed through the third step; and in June 1984, certain drivers were not paid overtime for charter runs and, after the filing of a grievance on behalf of four of the drivers, one was paid on November 19, 1984 by an agreed upon arbitration award (R-4).

30.	Complaint ¶'s 28, 33, 37 & 38: In June 1984, Nick Altomoro worked 16 hours but was not paid an additional eight hours pay and a grievance was dropped at the first step; in October 1984, John Callaghan was not excused for a third step hearing to be held some 40 miles away but it was acknowledged that there was nothing in the agreement dictating a contrary result; in November 1984 Donald Marks was sick on the day before Thanksgiving and never received holiday pay and a grievance is pending at step four; and in December 1984 John Weymeyer had a problem with a dental claim which was resolved after a first-step hearing.

31.	Complaint ¶'s 41, 43, 45-48 & 56: In February or March 1985, David Packard was denied an attorney for a work-related accident but he received no reprimand, contrary to the allegation in the Complaint; in March 1985, the Respondent warned Armunt Rungturapanich for wearing his uniform back and forth to work and the warning has remained in his file; sometime between April and June 1985, Patrick Malloy was suspended for six days for falsification of delay time and the matter is going to arbitration;

in June or July 1985, Major Finklin was disciplined for leaving his garage without a "defect card" (R-6) but on cross-examination the Union acknowledged that there had been no discipline involved; in the Spring of 1985, Kenneth Monroe, an Allentown driver, was accused of leaving late and being insubordinate -- this case is going to arbitration in December 1985; in June or July 1984, Robert Buggelli was out sick two days and it took until November 1984 to obtain payment of a doctor's bill; and in May 1985, William Schwartzman, a driver from Old Bridge, worked one day during his vacation and should have been paid an extra 40 hours pay, which was eventually paid.

32.	Complaint ¶'s 14, 21 & 29: These paragraphs of the Complaint pertain to subcontracting or transfers, the grievances for which have been the subject of scope petitions by the Respondent and the issuance by the Commission of restraints of arbitration. The grievances arise between March and July of 1984.

33.	Complaint ¶19: It is alleged and Lynch testified that in May 1984, there was an agreement between the Union and Bresnahan on behalf of the Respondent to honor the Union's by-laws regarding the picking of runs and seniority but the Respondent reneged in July 1984 on the "pick" of John Callaghan, following which a grievance was filed but no arbitration was sought.

34.	Complaint ¶24: It is alleged that in July 1984 a long-term "sick person" (never identified by name) was given a "pick" in violation of the Union's by-laws and the agreement,

another person having thereby been denied his proper pay and the dispute has not been resolved.

35.	Complaint ¶44: In April or May 1985, Karen Carragher, a field salaried garage clerk, was out sick and a foreman, William Giese, performed her work for two weeks, which Lynch testified is a violation of the agreement, notwithstanding that there is no provision in the agreement preventing supervision from performing bargaining unit work.

36.	Complaint ¶'s 34-36 & 39: These allegations cover the period from June 1984 through December 1984 and involve four instances where Lynch acknowledged that the grievance procedure worked to the Union's satisfaction in matters such as a violation of seniority, improper checkoff, failure to pay proper vacation pay and failure to provide the Union with certain seniority records.

37.	During the course of the hearing the Union withdrew five paragraphs of the Complaint, which were not litigated, namely, ¶'s 16, 32, 40, 42 & 49.

38.	The by-laws of the Union (CP-1), which were revised in September 1983, provide only with respect to seniority that: "Members of the Union who incur the loss of their license and who assume an alternative position within the company shall not suffer any loss of bidding seniority until after one year at which time loss of seniority accrues day for day" and that: "Members of the Union who are granted or extended a leave of absence shall not suffer the loss of any seniority." (Art. 3, Sec. 2 & 3).

DISCUSSION AND ANALYSIS

The Applicable Standard On A Motion To Dismiss

The Commission in N.J. Turnpike Authority, P.E.R.C. No. 79-81, 5 NJPER 197 (1979) restated the standard that it utilizes on a motion to dismiss at the conclusion of the charging party's case, namely, the same standard used by the New Jersey Supreme Court: Dolson v. Anastasia, 55 N.J. 2 (1969). The Commission noted that the courts are not concerned with the worth, nature or extent, beyond a scintilla, of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. While the process does not involve the actual weighing of the evidence, some consideration of the worth of the evidence presented may be necessary. Thus, if evidence "beyond a scintilla" exists in the proofs adduced by the charging party, the motion to dismiss must be denied.

The Allegations In ¶'s 3-6, 8-15, 17, 19-29, 33-39, 41, 43-48 & 56 Are Dismissed Under "Human Services."

The Hearing Examiner assumes that the allegations in the paragraphs of the Complaint previously cited allege apparent violations of §(a)(1) and (5) of the Act, namely, an alleged refusal of the Respondent to negotiate in good faith with 824 concerning terms and conditions of employment or the refusal of the Respondent to process grievances presented by 824.

The Commission in State of N.J., Dept. of Human Services, P.E.R.C. No. 84-148, 10 NJPER 419 (1984) sought to limit the scope

of alleged violations of the Act which arise, basically, from breaches of contract. The Commission concluded that, "...a mere breach of contract claim does not state a cause of action under §5.4(a)(5) which may be litigated through unfair practice proceedings and instead parties must attempt to resolve such contract disputes through their negotiated grievance procedures..." (10 NJPER at 421). The Commission based its conclusion on its interpretation of the Act and the legislative policy expressed therein favoring the use of negotiated grievance procedures for handling contractual disputes. Thus, the Commission proceeded to observe that negotiated grievance procedures for the resolution of disputes should be utilized and the parties should not be entitled "...to substitute this Commission for a grievance procedure..." which the parties had agreed upon (10 NJPER at 422).

However, the Commission set out certain examples in Human Services, supra, wherein a §5.4(a)(5) violation might be litigated. Thus, a specific claim that an employer has repudiated an established term and condition of employment might be litigated in an unfair practice proceeding (10 NJPER at 422). Such repudiation might be found in an employer's decision to abrogate a contractual clause based on its belief that the clause is outside of the scope of negotiations or by abrogating a contract clause that is so clear that an inference of bad faith arises from a refusal to honor it. Also, if a charging party alleges facts indicating that the employer has changed the parties' past and consistent practice in administering a disputed clause a complaint may issue. (10 NJPER at

422, 423). Finally the Commission noted that it would entertain an unfair practice charge in which specific indicia of bad faith over and above a mere breach of contract are alleged or in cases where the policies of the Act may be at stake. (10 NJPER at 423).

It is clear to the Hearing Examiner that the allegations by the Union in ¶'s 3-6, 8-15, 17, 19-29, 33-39, 41, 43-48 and 56, as a group, fall within the category of allegations proscribed from resolution as unfair practices under the Commission's decision in Human Services, supra. These allegations are plainly alleged violations of the agreement between the parties whether they involve denials of contractual benefits or the delay in remedying them under the grievance procedure. Further, nine of the paragraphs (¶'s 4-6, 8, 10, 13, 15, 22 & 23) pertain to arbitration awards, which were rendered by impartial arbitrators in accordance with the grievance procedure in the agreement. The remaining paragraphs in the Complaint, referred to above, all pertain to contract violations, denials and delays. These, in the aggregate, involve breaches of contract, which the Commission has stated in Human Services do not state a cause of action under §5.4(a)(5) of the Act.

There is not even a scintilla of evidence, as required by New Jersey Turnpike Authority, supra, that the Respondent herein has repudiated an established term and condition of employment, which might be litigated in an unfair practice proceeding, nor is there a scintilla of evidence indicating bad faith on the part of Respondent over and above a mere breach of contract as alleged. Finally, the

conduct of the Respondent herein does not indicate that the policies of the Act might be at stake.

Thus, the Hearing Examiner finds and concludes that as to the allegations of the Complaint, referred to several times above, there is not a scintilla of evidence that §(a)(1) and (5) of the Act have been violated and, therefore, these enumerated allegations are recommended for dismissal.

The Alleged Violations Of ¶'s 50-55 In The Complaint Are Dismissed.

The Hearing Examiner finds and concludes that the allegations in ¶'s 50-55 of the Complaint lack even a scintilla of evidence of a violation of any of the provisions of §§5.4(a)(1)-(5) of the Act. These six paragraphs of the Complaint deal, inter alia, with the problems of the Union in arranging for its grieving members to attend second and third step hearings under the grievance procedure or, who were allegedly prejudiced by delay in the resolution of a grievance. As a group, these allegations allege that the Respondent was seeking to undermine the effectiveness of the Union by its conduct. Even if the allegations were credited on their face, any alleged violations of the Act would, in the opinion of the Hearing Examiner, be de minimis and would not arise to a substantive violation of the Act, as to which a remedy would be warranted. Thus, the Hearing Examiner recommends dismissal of these allegations.

The Allegations In ¶'s 7, 18, 30 & 31 Are Not Dismissed And Will Be The Subject Of A Plenary Hearing.

Basically, ¶'s 7, 18, 30 & 31 of the Complaint allege that the Respondent sought by the sale of certain routes to reduce the membership of the Union, that a supervisor stated that the Respondent would break the Union by forcing it to arbitration and that another supervisor stated that the Respondent would seek to undermine the Union by not ruling in its favor at the second step of the grievance procedure. These allegations are sufficient to require a plenary hearing on the issues raised, in that there at least a scintilla of evidence, viewed most favorably to the Union, that a violation of §(a)(1), (2) and (3) of the Act may have occurred. See Bridgewater Twp. v. Bridgewater Public Works Ass'n, 95 N.J. 235 (1984).

For the foregoing reasons, the allegations of ¶'s 7, 18, 30 & 31 are not dismissed and a plenary hearing will be held.

* * * *

Upon the testimony of James B. Lynch, and the documentary evidence adduced in this proceeding to date, the Hearing Examiner makes the following:

ORDER

1.	The Respondent's Motion to Dismiss paragraphs 3-6, 8-15, 17, 19-29, 33-39, 41, 43-48, 50-56 of the Complaint is granted.

2.	The Respondent's Motion to Dismiss paragraphs 7, 18, 30 and 31 of the Complaint is denied and a plenary hearing will be scheduled forthwith to resolve these allegations in the Complaint.

Alan R. Howe

Hearing Examiner

Dated: October 25, 1985

Trenton, New Jersey