D.U.P. No. 84-6

Synopsis:

The Director of Unfair Practices declines to issue a complaint with respect to an unfair practice charge filed by an individual concerning her discharge from employment by the Respondent. The alleged unfair practices occurred prior to the six month period immediately preceding the filing of the charge.

PERC Citation:

D.U.P. No. 84-6, 9 NJPER 554 (¶14229 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.13 71.226

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DUP 84-006.pdf
Appellate Division:
Supreme Court:

D.U.P. NO. 84-6 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of UNION CITY BOARD OF EDUCATION, Respondent, -and- Docket No. CI-83-53 ELLEN SWEENY, Charging Party. REFUSAL TO ISSUE COMPLAINT An Unfair Practice Charge was filed with the Public Employment Relations Commission ( A Commission @ ) on March 22, 1983, by Ellen Sweeny ( A Charging Party @ ) against the Union City Board of Education ( A Board @ ) alleging that the Board was engaging in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), specifically N.J.S.A. 34:13A-5.4(a)(1) and (3).1/ N.J.S.A. 34:13A-5.4(c) sets forth in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. This standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act.3/ The Commission = s rules provide that the undersigned may decline to issue a complaint.4/ For the reasons stated below the undersigned has determined that the Commission = s complaint issuance standards have not been met. Pursuant to N.J.S.A. 34:13A-5.4(c), the Commission is precluded from issuing a complaint where the unfair practice charge has not been filed within six months of the occurrence of the alleged unfair practice. More specifically, N.J.S.A. 34:13A- 5.4(c) provides: A . . . provided that no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the six months period shall be computed from the day he was no longer so prevented. @ Further, the Commission = s rules state that an unfair practice charge shall contain inter alia: A clear and concise statement of the facts constituting the alleged unfair practice, including, where known, the time and place of occurrence of the particular acts alleged and the names of respondent = s agents or other representative by whom committed and a statement of the portion or portions of the Act alleged to have been violated. (Emphasis added)5/ Accordingly, the undersigned has determined that it is incumbent upon the Charging Party to allege the occurrence of unfair practices, within the six month limitation requirement, and that in the absence of such allegations, the undersigned would decline to issue a complaint. See In re North Warren Regional Board of Education, D.U.P. No. 78-7, 4 NJPER 55 ( & 4026 1977). Subsequent to the filing of the instant Unfair Practice Charge, by letter dated March 24, 1983, the undersigned informed the Charging Party that the Charge could not be processed further unless it was amended, pursuant to N.J.A.C. 19:14-1.5, to include the time and place of occurrence of the particular acts alleged to constitute the unfair practice. The undersigned directed the Charging Party = s attention to the relevant six month limitation provision N.J.S.A. 34:13A-5.4(c) and advised that a complaint would not issue if the Charging Party failed to allege the occurrence of an unfair practice within the prescribed six month limitation period. The undersigned has not received a reply to the March 24, 1983 letter, nor has the Charge been amended, as requested.6/ Accordingly, as the Charging Party has not included in her Charge the time of occurrence of the conduct alleged to constitute the unfair practice within the six month statutory limitation period, the undersigned declines to issue a complaint. BY ORDER OF THE DIRECTOR OF UNFAIR PRACTICES /s/Carl Kurtzman, Director DATED: August 18, 1983 Trenton, New Jersey 1/ N.J.S.A. 34:13A-5.4(a) prohibits public employers, their representative or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. @ 2/ N.J.S.A. 34:13A-5.4(c) provides: A The commission shall have exclusive power as hereinafter provided to prevent anyone from engaging in any unfair practice . . . Whenever it is charged that anyone has engaged or is engaging in any such unfair practice, the commission, or any designated agent thereof, shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice and including a notice of hearing containing the date ad place of hearing before the commission or any designated agent thereof . . . @ 3/ N.J.A.C. 19:14-2.1. 4/ N.J.A.C. 19:14-2.3. 5/ N.J.A.C. 19:14-1.3. 6/ The charge relates to Charging Party = s discharge from employment in April, 1982 and her removal from the payroll in June 1982. ***** End of DUP 84-6 *****