On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3273-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad and Gilroy.
Defendant Communications Workers of America, AFL-CIO appeals from the September 23, 2005, order of the Law Division granting plaintiff Passaic County Board of Social Services' complaint for a declaratory judgment, prohibiting defendant from representing Jose Maldonado at a hearing before the Office of Administrative Law (OAL). Defendant also appeals from the December 16, 2005, order extending the scope of the September 23, 2005, order prohibiting the law firm of Weissman & Mintz, LLC (the Law Firm), from representing Maldonado pro bono before the OAL. We affirm in part and reverse in part.
On October 7, 2003, plaintiff served Maldonado, a probationary social service aide, with a Preliminary Notice of Disciplinary Action, charging him with failing "to successfully complete [his] 90-day working test period." A departmental hearing was conducted on October 23, 2003. On November 5, 2003, plaintiff served Maldonado with a Final Notice of Disciplinary Action, terminating his employment, effective October 6, 2003.
On November 8, 2003, defendant filed an appeal on behalf of Maldonado with the New Jersey Department of Personnel, Merit System Board. The Merit System Board transmitted the matter to the OAL for a hearing. On September 17, 2004, Alan Kaufman, an authorized representative of defendant, submitted a Notice of Appearance Application requesting leave to represent Maldonado at the hearing. At the June 6, 2005, hearing, plaintiff objected to Kaufman's appearance, contending that the parties' Collective Bargaining Agreement (CBA) prohibited defendant from providing representation to employees who have not been employed for at least ninety-two calendar days. Article I, Section E., of the CBA provides in pertinent part:
E. Notwithstanding the above, new employees shall not be represented by the Union until the 92nd calendar day of employment, said period constituting a probationary period. It is recognized, however, that such probationary employee may be incidentally benefited as a consequence of representation of non-probationary employees.
1. In the event of disciplinary action or non-performance charge against a probationary employee, such employee shall be advised of the charges on non-performance specifics and entitled to a hearing before the Personnel Officer or Employer's designee and an appeal to the Director for review on the record of such hearing only. The Director shall have the discretion to require additional information but shall not be obligated to do so. Such appeal must be requested in writing within five (5) calendar days of a decision by the Personnel Officer or Employer's designee.
2. Such probationary employee shall be entitled to submit a written presentation which will be submitted to the Personnel Committee together with the Director's recommendation, provided that said presentation is submitted to the Director no later than five (5) working days after the Director has rendered a decision on the appeal.
3. Initiation of a disciplinary action or non-performance charge during the probationary period shall preclude Union representation on such action until the initiated action is concluded, including determination on appeal.
4. Probationary employees shall have no rights of hearing and appeal and are given no rights under this Agreement except as specified above.
5. The Union shall be notified of any disciplinary action . . . against a probationary employee and the results thereof. Such notification will not imply representation of such employees.
Kaufman argued that he was appearing at the hearing under the provisions of the New Jersey Uniform Administrative Procedural Rules, N.J.A.C. 1:1-1.1 to -21.6, not the CBA. Kaufman maintained that the CBA's prohibition against representation was not intended to apply to proceedings before the OAL. The Administrative Law Judge (ALJ) denied plaintiff's motion without prejudice, determining that the propriety of Kaufman's representation under the CBA was outside the scope of the hearing and beyond her jurisdiction:
There may be a contractual issue between the CWA and the Passaic Board as to whether or not this individual should be here or should not be here, but that seems to me to be a contractual issue, not within the [purview] of the OAL proceeding today . . . . I don't know of any research that would give me jurisdiction to look at a contractual issue under a ...