PBA 105 GUIDE TO BEING A SHOP STEWARD

PBA 105 GUIDE TO BEING A SHOP STEWARD 42 WEST LAFAYETTE STREET, TRENTON NJ 08608 LANCE P. LOPEZ, SR. PRESIDENT Robert A. Fagella, Esq. Zazzali, Fagella, Nowak, Kleinbaum & Friedman One Riverfront Plaza, Suite 320, Newark, NJ 07102 www.zazzali-­‐law.com I. RELATIONSHIP OF PBA 105 WITH THE STATE OF NEW JERSEY 1. PBA 105 is the elected representative of all corrections
officers of DOC, JJC & Parole;
2.  Its main responsibility is to enforce the contract and
represent the bargaining unit members – even if not dues
paying members of the PBA;
3.  On all matters involving bargaining unit members, the
State and the DOC, JJC & Parole must deal only with the
PBA representative – not the FOP or the individual
employee.
1 II. TO CARRY OUT THESE RESPONSIBILITIES, REPRESENTATIVES MUST KNOW THE CONTRACT 1.  Know difference between contractual and noncontractual grievances;
3.  Know provisions in the Appendix and what that means;
3. Know difference between minor vs. major discipline.
2 III. THE GRIEVANCE PROCESS 1. Contained in Article XI of the contract;
2. Watch your timeframes for pursuing a claim;
3. Document! Document! Document! Everything you do,
or say, or what is said to you;
4. Make copies of everything you send or receive to/from
the DOC, JJC and Parole;
5. Make it clear to the employee what are your
responsibilities and those of the member;
6. Only the PBA can pursue a grievance to arbitration –
whether to file is at PBA, not employee, discretion.
3 IV. DISCIPLINARY APPEALS 1. Controlled by both Civil Service rules and contract
provisions;
2. More than 5 day discipline – appeal goes to Civil
Service;
3. Less than 5 day discipline – appeal goes to JUMP Panel;
4. Civil Service has specific forms for termination appeals.
4 V.
DEPARTMENTAL HEARINGS 1. Guaranteed by contract and Civil Service law;
2. These are informal proceedings which should be held
within 20 days of charges;
3. Contract requires discovery to be provided at least 72
hours prior to the hearing. Demand it. Try to get it
earlier;
4. Bring something different to the table to convince the
DOC, JJC and Parole Hearing Examiner of your
position;
5. Appeals must be taken to Civil Service within 20 days of
receipt of the decision.
5 VI. LAUDERMILL HEARINGS 1. Even more informal and accelerated than departmental
hearings;
2. Law permits immediate suspension without pay if there
is reason to believe that the charges, if true, involve a
crime or other threat to public safety or the orderly
operation of the institution;
3. Laudermill hearings will not involve complete
presentation of evidence. Little likelihood of success
here.
6 VII. WEINGARTEN RIGHTS 1.  Right to a union representative is not automatic –
generally a request must be made by the employee;
2.  Witness v. Target – “Targets” are entitled to union
representation; “witnesses” are not.
3.  How to decide? If the employee has a “reasonable fear”
of possible discipline, he/she is entitled to representation;
4.  Garrity rights – Cannot be compelled to write report, or
give a statement, which could lead to criminal
prosecution.
7 VIII. OAL PROCEEDINGS 1. The Office of Administrative Law (OAL) hears
“contested” cases, meaning cases that are appealed.
Administrative law judges (ALJ) serve as hearing
officers and make “initial decisions”;
2. Appeals filed with Civil Service are referred to an ALJ to
conduct a hearing, make findings of fact, and issue
recommended decisions to Civil Service;
3. Most appeals will involve discipline (suspensions or
fines). Sometimes appeals involve interpretation and
application of Civil Service rules to your contract;
4. Some examples of recent cases we handled.
8 IX. APPEARING AT OAL 1.
2.
3.
Most cases at OAL are presented by attorneys. Union
representatives are one of the few exceptions. Must know the
OAL court rules;
In discipline cases, the DOC, JJC or Parole goes first. Be
prepared!
(a) Prepare an opening statement
(b) Determine what you want to prove and how you will do it
(c) Are the facts contested? Is the case just about the penalty?
Witnesses and documents;
(a) Go over testimony in advance (A MUST!)
(b) Agree on exhibits you will use and make sure witnesses
are familiar with them
(c) “Leading questions” not permitted on direct examination –
only on cross examination
9 X.
THE 45-­‐DAY RULE 1. Time limit for issuance of Discipline Notice is contained
in statutes (N.J.S.A.:14-147), Regulations and often in
the contract itself.
2. The 45-Day Rule is both misunderstood and often
applied improperly.
(a) Generally not considered jurisdictional;
(b) Numerous exceptions issued by the Civil Service;
(c) Raising the 45-Day Rule as a defense is appropriate,
but counting on it for dismissal of charges is unwise..
10 XI. THE 180-­‐DAY RULE 1.
2.
3.
4.
5.
6.
7.
This law applies to both Civil Service and non-Civil Service
Officers;
The law contains detailed timeframes for appeals, scheduling
of hearings and issuing decisions;
Applies only to terminations, not suspensions;
Requires that officers must receive a final decision on their
termination within 180 days of removal from payroll;
Exceptions to statute include criminal charges and
adjournments sought by officer;
If no final decision in 180 days, then officer goes on payroll
until conclusion of Civil Service appeal (in Civil Service
jurisdiction) or arbitration decision in non-Civil Service
jurisdiction;
If officer returns to payroll after 180 days but the termination
is ultimately upheld, the employee must repay the monies
received.
11 XII. CALCULATING BACK PAY AND OTHER REMEDIES 1. If you win a case, back pay calculations involve
“mitigation.” This means deducting other income
earned during a wrongful suspension;
2. To get back pay, employee must prove an effort to
mitigate was made;
3. In the absence of proof of actual or attempted mitigation,
no back pay is awarded.
12 XIII. WHAT DOES THE PUBLIC EMPLOYMENT RELATIONS COMMISSION (“PERC”) DO? 1. Supplies arbitrator lists for both grievance and public
sector unions;
2. Decides “scope of negotiations” petitions;
3. Decides unfair labor practice changes;
4. Conduct elections;
5. Decides appeals of interest arbitration awards;
6. Maintains statistics on interest arbitration awards.
13 XIV. “SCOPE OF NEGOTIATIONS PETITIONS” WITH PERC 1.
2.
3.
4.
Not all contractual disputes are subject to arbitration – even if
your contract says they are!
Employment conditions involving “managerial prerogatives”
cannot be arbitrated. Nor can you arbitrate issues which are
“set” by a statute;
PERC decides if a matter is “non-negotiable.” If a matter is
“non-negotiable” it cannot be subject to arbitration;
Public employers will often file a “scope of negotiations”
petition with PERC. If PERC rules in favor of the employer’s
“scope” petition, the matter cannot proceed to arbitration –
even if the contractual provisions was violated by the
employer.
14 XV. EXAMPLES OF UNFAIR LABOR PRACTICE CHARGE (“ULP”) 1. Failing to negotiate in good faith;
2. Unilaterally changing terms contained in the Bargaining
Agreement;
3. Discriminating or retaliating against an employee
because of union activity;
4. Union discrimination against members;
5.  Not all (or even most) “unfair” actions by an employer
are unfair labor practices.
6.  Stay focus, you will do great.
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