D.U.P. NO. 96-9 1.
D.U.P. NO. 96-9
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF UNFAIR PRACTICES
In the Matter of
FAIR LAWN BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-96-90
FAIR LAWN SCHOOLS CUSTODIANS ASSOCIATION,
Charging Party.
Appearances:
For the Charging Party,
Waters, McPherson, McNeill, attorneys
(Michael A. Sirgado, of counsel)
REFUSAL TO ISSUE COMPLAINT
An unfair practice charge was filed with the Public Employment Relations Commission on September 29, 1995, by the Fair Lawn Schools Custodians Association against the Fair Lawn Board of Education alleging that the City engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act); specifically N.J.S.A . 34:13A-5.4(a)(5).1/
1/ This subsection prohibits public employers, their representatives or agents from: "(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."
The Commission has authority to issue complaints if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act and that final proceedings in respect thereto should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues. N.J.A.C . 19:14-2.1. The Commission's rules provide that I may decline to issue a complaint. N.J.A.C. 19:14-2.3.
For the reasons stated below, the Commission's complaint issuance standard has not been met.
The Association alleged that the Board violated the Act when it refused to process Frank Osterhoudt's grievance to arbitration, the final step of their grievance procedure.
However, the refusal of an employer to respond to a grievance, or to deny the grievance at any step of the grievance procedure, is not in and of itself an unfair practice where the employee representative can automatically proceed to a higher level of the grievance procedure, including binding arbitration.... N.J. Transit Bus Operations, Inc., P.E.R.C. No. 86-129, 12 NJPER 442 (& 17164 1986); State of New Jersey , P.E.R.C. No. 89-39, 14 NJPER 656 ( & 19277 1988); Tp. of Rockaway , D.U.P. No. 83-8, 8 NJPER 644 ( & 13309 1982); State of New Jersey , D.U.P. No. 77-3, 2 NJPER 373 (1976); City of Pleasantville , D.U.P. No. 77-2, 2 NJPER 372 (1976).
Article III of the parties' contract contains a grievance procedure that permits an Association to take a grievance to arbitration without the consent of the Board. Accordingly, the
Association has not alleged an unfair practice within the meaning of the Act.
Therefore, the complaint issuance standard has not been met, and I decline to issue a complaint.
BY ORDER OF THE DIRECTOR
OF UNFAIR PRACTICES
Edmund G. Gerber, Director
DATED: October 19, 1995
Trenton, New Jersey ***** End of DUP 96-9 ***** |