NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3426-19
ANGELICA VARGAS, ZAHEER AZIZ, CHANNING COUCH, KELLIE DOBSON, SAMUEL WATKINS, SCOTT ZELINKSI, and CHARLES BELL,
Plaintiffs-Appellants,
v.
INDEPENDENT SERVICE WORKERS OF AMERICA, DERIK BECKETT, and FRED PARSONS,
Defendants-Respondents. __________________________
Submitted May 10, 2021 – Decided June 15, 2021
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000103-19. Feintuch, Porwich & Feintuch, attorneys for appellants (Donald R. Moran, on the brief).
Cohen, Leder, Montalbano & Connaughton, LLC, attorneys for respondents (Matthew G. Connaughton, on the brief).
PER CURIAM
This appeal from the Chancery Division's grant of a motion for summary
judgment implicates the primary jurisdiction of the Public Employment
Relations Commission ("PERC"). After considering the allegations and claims,
we conclude PERC was the proper venue to present, in the first instance, all or
at least many of the disputes in this matter. Accordingly, we affirm the grant of
summary judgment, albeit partly for different reasons.
Appellants Angelica Vargas and Zaheer Aziz, two of the seven named
plaintiffs in this case, were members of the Independent Service Workers of
America ("ISWA"), a labor union. ISWA is the sole representative of blue and
white collar personnel employed by the Jersey City Housing Authority
("JCHA"), a public entity, for purposes of collective negotiations related to
employment conditions and related matters.
On February 28, 2019, Vargas, the former Recording Secretary of the
ISWA Executive Board, was charged by the ISWA with four violations of the
union constitution and bylaws under "article 12, Section 1." After hiring
A-3426-19 2 independent counsel and seeking an adjournment and further discovery, Vargas
was not allowed to have her counsel present at the internal union trial.
Consequently, Vargas declined to participate in that trial because she was denied
such outside representation.
On April 9, 2019, Vargas received a letter from ISWA stating that she was
found guilty on all four charges, discharging her as Recording Secretary and
expelling her from the union. The validity of her expulsion apparently has not
yet been brought before PERC.
While Vargas's proceedings were developing, on March 20, 2019, Aziz
filed an Unfair Practice Charge with PERC. Aziz, a Senior Maintenance
Repairer with the JCHA and union member, alleged among other things that the
executive officers of ISWA: had "not processed grievances"; were "continually
working in harmony with management to the detriment of union members";
failed to provide members with copies of the constitution and bylaws; and, for
various reasons, had not been legally elected to, and compensated for their
positions. Aziz requested PERC to compel ISWA officials to: "provide minutes
of all meetings"; "provide evidence that officers have been lawfully elected";
and "provide minutes of meetings or vote tallies showing lawful elections." The
A-3426-19 3 charges filed by Aziz with PERC contained no reference to the expulsion of
Vargas from her position or membership.
Five days later, on March 25, 2019, Aziz received a response from PERC.
In essence, the PERC letter preliminarily declined to accept jurisdiction over
Aziz's charge, due to a lack of "enough specificity to implicate [PERC's]
jurisdiction." The letter further explained that, pursuant to N.J.A.C. 19:14-1.3,
the allegations made by Aziz were required to include dates and information
alleging that the unfair practices occurred within six months from the date of the
filed charge. The letter notably stated, with respect to PERC's jurisdiction:
[PERC] is without jurisdiction to enforce union constitutions and bylaws, resolve procedural irregularities in union disciplinary proceedings, require the union to supply information to members, or referee or resolve internal union disputes [provided the claims are] unconnected to allegations that the union, for arbitrary, discriminatory, invidious, capricious, or bad faith reasons, violated its duty to represent its members fairly in contract negotiations and grievance processing or excluded, expelled, suspended, or otherwise prevented a member from seeking to participate in union affairs affecting his or her employment conditions.
[(Emphasis added).]
The letter gave Aziz until April 1, 2019 to amend his charge to include sufficient
specificity to implicate the jurisdiction of PERC. The letter further instructed
A-3426-19 4 that, pursuant to N.J.A.C. 19:14-1.5(e), if no amended charge was filed by the
specified date, the matter would be dismissed and "the charge may only be
reopened upon written, timely motion and upon good cause." (Emphasis added).
According to the briefs on appeal, Aziz has not filed such an amended charge
with PERC.
On May 30, 2019, Vargas and Aziz, along with five other union members
as co-plaintiffs, filed a two-count complaint in the Chancery Division,
essentially combining the claims made in Aziz's Unfair Practice Charge with
allegations concerning Vargas's ISWA expulsion. Count one alleged similar
facts to those in Aziz's Unfair Practice Charge. That count sought as a remedy
an order directing ISWA and its executives to provide bank statements and
financial reports, "a certified copy of the constitution" with evidence of its
adoption, and salary information for the officers. Count two presented
allegations concerning the propriety of Vargas's expulsion, and sought as
remedy the appointment of a receiver until the matter was resolved. 1
1 In a motion for leave to amend the complaint, plaintiffs sought to include more specific allegations and an additional count. The Chancery judge denied that application deeming it "an entirely new complaint, rather than an amendment," and thus would unreasonably delay discovery and "substantial[ly] prejudice" existing and proposed new defendants. Plaintiffs do not challenge this particular ruling on appeal.
A-3426-19 5 After the close of discovery, defendants moved for summary judgment on
the papers, and both parties submitted briefs. In an oral opinion, the Chancery
judge granted defendants' motion. In doing so, he ruled that the requested
documents had been produced in discovery and that plaintiffs' counter-statement
of undisputed material facts contained "only seven pages of admission and
denials without any meaningful citation," which "deprive[d]" the court of a basis
to determine whether there were "any genuine issues of any material fact for
trial."
The judge further noted that the claims alleging that Vargas was unfairly
expelled from her ISWA membership and position should have been brought
before PERC. The judge reasoned that, under N.J.S.A. 34:13A-5.2, -5.3, and -
5.4, PERC is the "exclusive administrative remedy . . . to resolve [the] issues"
brought by plaintiffs in count two of their complaint.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3426-19
ANGELICA VARGAS, ZAHEER AZIZ, CHANNING COUCH, KELLIE DOBSON, SAMUEL WATKINS, SCOTT ZELINKSI, and CHARLES BELL,
Plaintiffs-Appellants,
v.
INDEPENDENT SERVICE WORKERS OF AMERICA, DERIK BECKETT, and FRED PARSONS,
Defendants-Respondents. __________________________
Submitted May 10, 2021 – Decided June 15, 2021
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000103-19. Feintuch, Porwich & Feintuch, attorneys for appellants (Donald R. Moran, on the brief).
Cohen, Leder, Montalbano & Connaughton, LLC, attorneys for respondents (Matthew G. Connaughton, on the brief).
PER CURIAM
This appeal from the Chancery Division's grant of a motion for summary
judgment implicates the primary jurisdiction of the Public Employment
Relations Commission ("PERC"). After considering the allegations and claims,
we conclude PERC was the proper venue to present, in the first instance, all or
at least many of the disputes in this matter. Accordingly, we affirm the grant of
summary judgment, albeit partly for different reasons.
Appellants Angelica Vargas and Zaheer Aziz, two of the seven named
plaintiffs in this case, were members of the Independent Service Workers of
America ("ISWA"), a labor union. ISWA is the sole representative of blue and
white collar personnel employed by the Jersey City Housing Authority
("JCHA"), a public entity, for purposes of collective negotiations related to
employment conditions and related matters.
On February 28, 2019, Vargas, the former Recording Secretary of the
ISWA Executive Board, was charged by the ISWA with four violations of the
union constitution and bylaws under "article 12, Section 1." After hiring
A-3426-19 2 independent counsel and seeking an adjournment and further discovery, Vargas
was not allowed to have her counsel present at the internal union trial.
Consequently, Vargas declined to participate in that trial because she was denied
such outside representation.
On April 9, 2019, Vargas received a letter from ISWA stating that she was
found guilty on all four charges, discharging her as Recording Secretary and
expelling her from the union. The validity of her expulsion apparently has not
yet been brought before PERC.
While Vargas's proceedings were developing, on March 20, 2019, Aziz
filed an Unfair Practice Charge with PERC. Aziz, a Senior Maintenance
Repairer with the JCHA and union member, alleged among other things that the
executive officers of ISWA: had "not processed grievances"; were "continually
working in harmony with management to the detriment of union members";
failed to provide members with copies of the constitution and bylaws; and, for
various reasons, had not been legally elected to, and compensated for their
positions. Aziz requested PERC to compel ISWA officials to: "provide minutes
of all meetings"; "provide evidence that officers have been lawfully elected";
and "provide minutes of meetings or vote tallies showing lawful elections." The
A-3426-19 3 charges filed by Aziz with PERC contained no reference to the expulsion of
Vargas from her position or membership.
Five days later, on March 25, 2019, Aziz received a response from PERC.
In essence, the PERC letter preliminarily declined to accept jurisdiction over
Aziz's charge, due to a lack of "enough specificity to implicate [PERC's]
jurisdiction." The letter further explained that, pursuant to N.J.A.C. 19:14-1.3,
the allegations made by Aziz were required to include dates and information
alleging that the unfair practices occurred within six months from the date of the
filed charge. The letter notably stated, with respect to PERC's jurisdiction:
[PERC] is without jurisdiction to enforce union constitutions and bylaws, resolve procedural irregularities in union disciplinary proceedings, require the union to supply information to members, or referee or resolve internal union disputes [provided the claims are] unconnected to allegations that the union, for arbitrary, discriminatory, invidious, capricious, or bad faith reasons, violated its duty to represent its members fairly in contract negotiations and grievance processing or excluded, expelled, suspended, or otherwise prevented a member from seeking to participate in union affairs affecting his or her employment conditions.
[(Emphasis added).]
The letter gave Aziz until April 1, 2019 to amend his charge to include sufficient
specificity to implicate the jurisdiction of PERC. The letter further instructed
A-3426-19 4 that, pursuant to N.J.A.C. 19:14-1.5(e), if no amended charge was filed by the
specified date, the matter would be dismissed and "the charge may only be
reopened upon written, timely motion and upon good cause." (Emphasis added).
According to the briefs on appeal, Aziz has not filed such an amended charge
with PERC.
On May 30, 2019, Vargas and Aziz, along with five other union members
as co-plaintiffs, filed a two-count complaint in the Chancery Division,
essentially combining the claims made in Aziz's Unfair Practice Charge with
allegations concerning Vargas's ISWA expulsion. Count one alleged similar
facts to those in Aziz's Unfair Practice Charge. That count sought as a remedy
an order directing ISWA and its executives to provide bank statements and
financial reports, "a certified copy of the constitution" with evidence of its
adoption, and salary information for the officers. Count two presented
allegations concerning the propriety of Vargas's expulsion, and sought as
remedy the appointment of a receiver until the matter was resolved. 1
1 In a motion for leave to amend the complaint, plaintiffs sought to include more specific allegations and an additional count. The Chancery judge denied that application deeming it "an entirely new complaint, rather than an amendment," and thus would unreasonably delay discovery and "substantial[ly] prejudice" existing and proposed new defendants. Plaintiffs do not challenge this particular ruling on appeal.
A-3426-19 5 After the close of discovery, defendants moved for summary judgment on
the papers, and both parties submitted briefs. In an oral opinion, the Chancery
judge granted defendants' motion. In doing so, he ruled that the requested
documents had been produced in discovery and that plaintiffs' counter-statement
of undisputed material facts contained "only seven pages of admission and
denials without any meaningful citation," which "deprive[d]" the court of a basis
to determine whether there were "any genuine issues of any material fact for
trial."
The judge further noted that the claims alleging that Vargas was unfairly
expelled from her ISWA membership and position should have been brought
before PERC. The judge reasoned that, under N.J.S.A. 34:13A-5.2, -5.3, and -
5.4, PERC is the "exclusive administrative remedy . . . to resolve [the] issues"
brought by plaintiffs in count two of their complaint.
In its implementing order dated April 9, 2020, the trial court dismissed
plaintiffs' claims with prejudice but "subject to any filing of any claims before
PERC." The court declined to appoint a receiver, stating in its oral opinion that
there was no evidence substantiating "either malfeasance or non-feasance on the
part of the [u]nion leadership . . . ."
A-3426-19 6 On appeal, plaintiffs seek to have summary judgment overturned, arguing
among other things that there are genuine issues of material fact whether the
union constitution was properly ratified by union membership. According to
plaintiffs, defendants relied upon the allegedly unratified constitution as a
justification for the failure to hold proper meetings and elections, and to validate
Vargas's expulsion. They further argue that this case was properly before the
Chancery Division, rather than PERC, because PERC "declined jurisdiction" in
the letter sent to Aziz. Plaintiffs further assert the remainder of the issues are
within the purview of the Chancery Division.
Having considered these contentions, we agree with the Chancery judge
that PERC had apparent jurisdiction over Vargas's allegedly wrongful expulsion
asserted in count two. We affirm its order in this respect. We also affirm the
grant of summary judgment as to count one, albeit for slightly different reasons.
As a preliminary matter, we note that on a motion for summary judgment
the reviewing court will apply the same standard as the trial court, viewing the
evidence in the light most favorable to the non-moving party. Estate of Narleski
v. Gomes, 244 N.J. 199, 205 (2020) (citing Harz v. Borough of Spring Lake,
234 N.J. 317, 329 (2018)); R. 4:46-2(c). We must "consider whether the
competent evidential materials presented . . . are sufficient to permit a rational
A-3426-19 7 factfinder to resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Therefore, we owe no special deference to the trial judge's assessment of the
documentary record, as the decision amounts to a ruling on a question of law.
Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J.
366, 378 (1995).
The present case fundamentally concerns the primary jurisdiction of
PERC, a State agency. In Magic Petroleum Corp v. Exxon Mobil Corp., 218
N.J. 390, 405-06 (2014), the Supreme Court explained that the "doctrine of
primary jurisdiction is applicable when a case is properly filed in the Superior
Court but the court declines original jurisdiction, referring specific issues to the
appropriate administrative body." Ibid. (citing Daalman v. Elizabethtown Gas
Co., 77 N.J. 267, 269 n. 1 (1978)). Accordingly, the "court gives deference to
the administrative body's interpretation of its own regulations and findings of
fact on particular issues that are within the special competence of the agency
pursuant to applicable statutes." Ibid. The court essentially "retains jurisdiction
but defers action until the agency has reviewed the case and employed its
expertise." Ibid. (citing Campione v. Adamar, Inc., 155 N.J. 245, 264 (1998))
(emphasis added).
A-3426-19 8 The primary jurisdiction doctrine serves two purposes: (1) it allows
administrative agencies to apply expertise in interpreting their own regulations,
and (2) preserves uniformity in interpretation of those regulations. Curzi v.
Raub, 415 N.J. Super. 1, 20 (App. Div. 2010). A court should defer to an
agency's primary jurisdiction if denying the agency's power to resolve the
contested issues "would be inconsistent with the statutory scheme which vested
the agency with the authority to regulate [the] industry" in the first place. Ibid.
(quoting Borough of Haledon, 358 N.J. Super at 302) (internal quotations
omitted).
In determining whether primary jurisdiction applies, our courts generally
consider a four-prong test:
(1) Whether the matter at issue is within the conventional experience of judges;
(2) Whether the matter is peculiarly within the agency's discretion, or requires agency expertise;
(3) Whether inconsistent rulings might pose the danger of disrupting the expertise; and
(4) Whether prior application has been made to the agency.
[Ibid. (internal citations omitted).]
A-3426-19 9 In In re PANJ, 442 N.J. Super. 185, 187-88 (App. Div. 2015), this court
concluded that PERC jurisdiction was appropriate, pursuant to N.J.S.A. 34:13A-
5.4b(1), where unfair practice charges concerning internal union disputes,
disciplinary charges, elections, and misappropriation of union dues were
involved. We explained the settled legal principle—which was recognized in
PERC's letter to Aziz—that the purview of PERC does not extend to merely
intra-union disputes "unconnected to allegations and proof that an unfair
practice has been committed." Id. at 191 (emphasis added). However, the
Employer-Employee Relations Act "prohibits interference with a . . . [public
employee's] right to 'assist' in a labor organization." Id. at 195 (citing N.J.S.A.
34:13A-5.3, -5.4b(1)).
We determined in PANJ that where the plaintiffs were suspended, they
were also "barred from participating in any union activities for a significant
period of time . . . [during] which they may have otherwise 'assist[ed]'" in union
affairs affecting their employment conditions. As a result, PERC jurisdiction
was appropriate under N.J.S.A. 34:13A-5.3. Id. at 195. Thus, the interference
contemplated by N.J.S.A. 34:13A-5.4b(1) includes the expulsion and suspension
of union members for "arbitrary, capricious or invidious" reasons. Id. at 194.
A-3426-19 10 Applying these principles to the present case, the claims brought under
count two of the complaint, alleging impropriety in Vargas's expulsion, are
suitable to be considered before PERC. Although issues concerning the
interpretation of the terms of a union constitution may at times properly be
within the ambit of the Superior Court, see Sheet Metal Workers' Intern. Ass'n
Local Union 22 v. Kavanagh, 443 N.J. Super. 39, 42-44 (App. Div. 2015), the
issues presented here implicate PERC's expertise to insure uniform
interpretation of the Employer-Employee Relations Act.
Vargas was an ISWA member and executive board member who was
expelled after declining to attend her own internal trial because she was denied
the opportunity to have outside counsel present based upon apparent union
bylaws. She argues that the decision to deny her outside counsel in the internal
trial was arbitrary because the constitution contained "[n]o such language."
We considered a similar issue in Sheet Metal Workers, but that case
differed in that the union member alleging the violations had resigned his
membership prior to the internal trial which found him guilty of various char ges
and imposed a steep fine. Id. at 42-44. That is, the issue there was the fine
imposed, not the member's expulsion. Moreover, we applied contract principles
to the interpretation of the union constitution.
A-3426-19 11 This case differs from Sheet Metal Workers, and implicates the tenets of
N.J.S.A. 34:13A-5.3 and -5.4b(1) as to whether an executive board member of
a union is entitled to outside counsel at an internal hearing, and whether her
expulsion is a violation of her right to "assist" in an employee organ ization as
explained in PANJ. Inconsistent rulings by courts on this matter may lead to
inconsistent interpretations of the Employer-Employee Relations Act.
Therefore, the primary jurisdiction as to that issue is with PERC. We further
note that her allegations were not included within the Unfair Practice Charges
filed by Aziz, and therefore have not yet been considered by the agency.
The Chancery judge was therefore correct in determining that jurisdiction
was properly before PERC concerning count two.
As to count one, regarding the allegations originally brought by Aziz in
the Unfair Practice Charges, we must remain cognizant that on appeal our role
is to review judgments and orders, not trial court opinions. Bandler v. Melillo,
443 N.J. Super. 203, 210 (App. Div. 2015). "[A] party may challenge only the
propriety of the judgment entered by the trial court, not the reasoning underlying
the court's decision." Ibid. (citing Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001)). "It is a commonplace of appellate review that if the order of
the lower tribunal is valid, the fact that it is predicated upon an incorrect basis
A-3426-19 12 will not stand in the way of its affirmance." Isko v. Planning Bd. of Livingston,
51 N.J. 162, 175 (1968), abrogated on other grounds by, Commercial Realty &
Res. Corp. v. First Atl. Props. Co., 122 N.J. 546 (1991).
The issues in count one tentatively appear to be likewise within the
purview of PERC. The letter from PERC did not decline jurisdiction over Aziz's
claims. Instead, it invited Aziz to amend his allegations with more specificity
so that PERC could determine whether jurisdiction was appropriate. Aziz
alleged, among other things, that ISWA executives had "not processed
grievances" and were "continually working in harmony with management to the
detriment of union members," "failed to process grievances," and that "officers
have failed and refused to give members cop[ies] of [the] constitution and by -
laws." By PERC's own letter, the issue regarding grievance processing may well
be within the scope of its jurisdiction on its own. However, Aziz filed no
amended charges by the April 1, 2019 deadline to appropriately invoke the
jurisdiction of PERC.2
2 We express no opinion as to whether Aziz is now barred from reinstating his complaint pursuant to N.J.A.C. 19:14-1.5(e). That regulation requires that a written motion to reinstate a dismissed charge be made "fifteen days after the date a charge has been dismissed" and upon a "showing of extraordinary circumstances or to prevent injustice." PERC must evaluate that timeliness exception in the first instance, in light of plaintiffs' decision to attempt to bring
A-3426-19 13 In sum, the grant of summary judgment by the Chancery Division is
affirmed, subject to the filing and consideration of claims before PERC.
If, hypothetically, PERC declines jurisdiction, one or more plaintiffs may
seek a timely appeal before this court pursuant to Rule 2:2-3(a)(2). Conversely,
if PERC exercises jurisdiction and renders a decision on the merits, any
aggrieved party can appeal that disposition under the same rule. We do agree
with the trial court that the appointment of a receiver was not warranted in this
case, but that can be revisited should plaintiffs pursue a remedy before PERC
and with consideration of more recent developments in ISWA's management as
may at that time apply. In any event, the present appeal is concluded, and we
do not retain jurisdiction.
Affirmed.
their claims in the Chancery Division and the ensuing passage of time. In any event, Aziz's own failure to amend his charge has no impact on the ability of Vargas and other plaintiffs to seek relief before PERC and invoke its primary jurisdiction.
A-3426-19 14