D.U.P. NO. 83-4

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RUTGERS UNIVERSITY,

Respondent,

-and-	Docket Nos. CI-82-37

CI-82-38

INTERNATIONAL UNION OF OPERATING	CI-82-39

ENGINEERS, AFL-CIO, LOCAL UNION	CI-82-40

STATIONARY LOCALS 68-68A,

Respondent,

-and-

VELBER HODGE,

Charging Party.

REFUSAL TO ISSUE COMPLAINT

On February 10, 1982, four unfair practice charges were filed with the Public Employment Relations Commission (the "Commission") against Rutgers, the State University ("Rutgers") by Velber Hodge (the "Charging Party") alleging that Rutgers was engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), specifically N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (4), (5), (6) and (7).1/

The charges alleged that certain agreements between Rutgers and the International Union of Operating Engineers, AFL-CIO, Local Union Stationary Locals 68-68A (the "Union") were violated by Rutgers. Further, the Charging Party claimed that he was wrongfully terminated from employment by Rutgers on July 21, 1981. In this latter regard the Charging Party also asserted that Rutgers violated the grievance procedure set forth in the collective negotiations agreement between Rutgers and the Union when only one arbitrator, instead of a three member panel, heard the "fact finding" proceeding relating to his discharge.

Although the Charging Party did not initially assert a claim against his majority representative, he subsequently amended the charge relating to the allegedly improper fact finding procedure, Docket No. CI-82-37, alleging that the Union violated its representational responsibilities, and thus N.J.S.A. 34:13A-
5.4(b)(1),2/ by not enforcing the contractual requirement of a tripartite fact finding panel.

The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. This standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

For the reasons stated below, it would appear to the undersigned that the Commission's complaint issuance standard has not been met with respect to the instant charge.

Initially, the undersigned notes that the issuance of a complaint with respect to events occurring prior to a six month period immediately preceding the filing of a charge is statutorily prohibited.5/ Inasmuch as three of the instant charges were not filed until February 10, 1982, and relate to events outside the 6 month limitations period, the undersigned may not issue complaints with respect to CI-82-38, 39 and 40.6/ Moreover, as these charges allege contract violations by Rutgers, but do not allege misconduct by the Union in failing to protect contractual rights, the undersigned will not issue a complaint.7/

In contrast to the above charges, CI-82-37 deals with the procedural aspects of a "fact-finding" proceeding conducted on December 11, 1981 and alleges, as well, that the Union violated its representational responsibilities to the Charging Party when it permitted one individual, instead of a three person panel, to preside in the fact-finding, allegedly in violation of the contract between the Union and Rutgers. Thus, CI-82-37 is a timely filed charge, and inasmuch as it includes, along with the charge against Rutgers, a claim of unfair representation against the Union, the elements of the charge require full consideration. Such examination must bear in mind that under the holding of the Turnpike decision, P.E.R.C. No. 81-64, cited in full below at note 7, an employer may not be found to have violated §5.4(a)(5) vis a vis an individual charging party, unless it is first found that the individual's majority representative has violated its obligation to provide fair representation to a unit member owed under §5.4(b)(1). The undersigned must therefore first consider whether the Union has violated the standards of fair representation, i.e. that its actions not be arbitrary, discriminatory, or in bad faith. See In re AFSCME, Council No. 1, P.E.R.C. No. 79-28, 5 NJPER 21 (¶10013 1978); also see In re N.J. Turnpike (Kaczmarek), P.E.R.C. No. 80-38, 5 NJPER 412 (¶10215 1979).

On August 17, 1982, the undersigned advised the Charging Party that the factual allegations did not appear to make out a claim of unfair representation.

The undersigned advised that the charge appeared to be limited to the legal claim that the failure of the majority representative to insist upon having a three member panel review his grievance an render an advisory opinion constituted an act of unfair representation. The facts alleged in the Charge, however, indicated that Rutgers and the Union mutually waived the opportunity to have their designated representatives participate in the fact-finding and agreed to have the matter proceed before the single, jointly designated and neutral arbitrator. Such a waiver, as it modifies existing contractual provisions, appears to be permitted under case law upholding the validity of contract modifications. See Hayden v. RCA Global Communications, Inc., 433 F.Supp. 396, 98 LRRM 2028 (1978); Turner et al. v. Teamsters Local 302, 604 F.2d 1219, 102 LRRM 2548 (1979).

Based upon the above, the undersigned further advised the Charging Party that the modification of the contract by Rutgers and the Union appeared to be in and of itself a valid action by Rutgers and the Union, and not actionable unless there were facts which indicated that the Union's agreement to the designation of a single fact-finder was arbitrary, discriminatory or in bad faith. The Charging Party was provided an additional opportunity to submit a factual claim supportive of an assertion that the Union's actions were arbitrary, discriminatory, or in bad faith. Although additional material has been provided by the Charging Party, there is no factual allegation therein supportive of any claim which might be raised under the fair representation standard.

Accordingly, for the above reasons, the undersigned declines to issue a complaint.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	October 7, 1982

Trenton, New Jersey