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Grasso v. Fraternal Order of Police


September 4, 2008


On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-709-06.

Per curiam.


Submitted August 20, 2008

Before Judges Miniman and Lihotz.

Plaintiff Joseph Grasso is a retired member of the Glassboro Police Department (GPD). Plaintiff appeals from summary judgment granted to defendant Fraternal Order of Police, Glassboro Lodge No. 108 (FOP).

The FOP is the exclusive collective bargaining agent for Glassboro police officers. Plaintiff argues that despite his retired status, the FOP was required to fairly represent him in a dispute with the Borough of Glassboro (Glassboro) regarding reimbursement of Medicare insurance costs. The trial judge determined plaintiff, as a retired officer, could not avail himself of the grievance procedure, which applied to employees because the FOP had no duty to provide fair representation on plaintiff's behalf. We affirm.

The 1992-93 collective bargaining agreement (1993 CBA) negotiated by the FOP with Glassboro for the benefit of the GPD required:

[u]pon retirement, the EMPLOYEE shall enjoy the same medical benefits set forth as though he/she were still actively employed.

There shall be no decrease in medical benefits and shall be upgraded equally as though still employed. These benefits shall continue until the death of the retiree.

Plaintiff, a former FOP member, retired from the GPD on March 26, 1993. In 2003, upon reaching age 65, plaintiff became eligible for social security benefits and began receiving bills from the Social Security Administration for Medicare Part B premiums. Plaintiff requested Glassboro to reimburse these costs. Glassboro denied his request.

Plaintiff sought assistance from the FOP to collect the insurance costs from Glassboro. The FOP sent a letter to Glassboro supporting plaintiff's position. The FOP declined to take further action.

Plaintiff filed suit against Glassboro and successfully obtained a judgment requiring Glassboro to reimburse Medicare Part B premium costs to retirees. In that action, the court denied plaintiff's request for attorney's fees.

Plaintiff initiated this matter against the FOP seeking damages equal to the attorney's fees and costs of suit he incurred in his successful action against Glassboro. Plaintiff argued the FOP owed him a duty of fair dealing and representation to assure compliance with the 1993 CBA it had negotiated. Plaintiff suggested his retired status does not impact the FOP's duty to enforce the claim for benefits because he remained a beneficiary under the 1993 CBA.

The trial court granted the FOP's summary judgment request and dismissed plaintiff's action concluding that because plaintiff was not an employee, as defined in the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -39, the FOP had no duty to act on his behalf.

On appeal, plaintiff argues the FOP was obligated to provide representation to retirees in respect of the enforcement of negotiated benefits. We examine whether the FOP has a duty to plaintiff to provide representation pursuant to the 1993 CBA.

We use the same standard as the trial court when reviewing a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

"A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Belen v. Woodbridge Twp. Bd. of Educ., 142 N.J. Super. 486, 491 (App. Div. 1976). The question of whether a duty exists is a matter of law. Siddons v. Cook, 382 N.J. Super. 1, 8 (App. Div. 2005). Although we owe no special deference to a trial court's legal conclusion, Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.), certif. denied, 187 N.J. 82 (2006), we are in agreement with Judge McMaster's analysis.

The relationship between the FOP and those it represents is governed by the Act. The Act encourages the "voluntary mediation of such public and private employer-employee disputes under the guidance and supervision of a governmental agency . . . to promote permanent, public and private employer-employee peace and the health, welfare, comfort and safety of the people of the State." N.J.S.A. 34:13A-2. In this context, the Act defined public employees to include any "person holding a position, by appointment or contract, or employment in the service of a public employer . . . ." N.J.S.A. 34:13A-3(d). Thus, the statute is directed to those who are working.

Additionally, in the labor relations context, courts have consistently distinguished between employees and retirees. See Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172, 92 S.Ct. 383, 393, 30 L.Ed. 2d 341, 353 (1971) (in addition to holding that pensioners are not "employees" within the meaning of the collective-bargaining obligations of the National Labor Relations Act, the Court held that retirees were not and could not be "employees" included in the bargaining unit); Tanzillo v. Local Union 617, 769 F.2d 140, 148 (3rd Cir. 1985) (a union may voluntarily enforce a contract it negotiated that affects retirees, but it has no duty to do so); Thompson v. Sheet Metal Workers Local Union No. 13, 132 N.J. Super. 348, 357 (Ch. Div. 1975) (defendant union "had no duty to bargain with the employers' association on behalf of the retired members of the union"); In the Matter of Jersey City Police Superior Officers Assoc., 19 N.J.P.E.R. 480 (1991) (retired officers no longer employees under the contract or under the Act).

To support his position, plaintiff recites several United States Supreme Court decisions that address a union's pension fund administrator's obligation regarding enforcement of pension rights of its retirees or the obligation of union fiduciaries to administer retirees' pension benefits. Clearly, these opinions are inapposite to this matter because no on-going fiduciary exists. Accordingly, we conclude the FOP had no duty to represent plaintiff, a retired police office, in his suit.



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