ANGELICA VARGAS VS. INDEPENDENT SERVICE WORKERS OF AMERICA (C-000103-19, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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

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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

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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.

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 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 . . . ."

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 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

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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).

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 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).]

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 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.

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 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.

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 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

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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

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 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.

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