D.U.P. NO. 91-30

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF UNFAIR PRACTICES

In the Matter of

MIDDLETOWN TOWNSHIP BOARD

OF EDUCATION,

Respondent,

-and-	Docket No. CO-91-299

MIDDLETOWN TOWNSHIP

EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent,

Richard B. Holzman, Superintendent

For the Charging Party,

Balk, Oxfeld, Mandell & Cohen, attorneys

(Arnold S. Cohen, of counsel)

REFUSAL TO ISSUE COMPLAINT

On May 9, 1991, the Middletown Township Education Association filed an unfair practice charge alleging that the Middletown Township Board of Education violated N.J.S.A. 34:13A-5.1, specifically 5.4(a)(1) and (5). It was alleged that the Board and the Association are parties to a collective negotiations agreement. That agreement limits the number of duty assignments a teacher may be assigned in one day. It is alleged that the contract is being complied with at four of the five schools in the district. At one school however, the Thomas Middle School, the contract has not been complied with. The charging party alleges that the contract is

being repudiated and therefore, the employer has committed an unfair practice.

In State of New Jersey (Department of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984), the Commission held that:

a mere breach of contract claim does not state a cause of action under subsection 5.4(a)(5) which may be litigated through unfair practice proceedings and instead parties must attempt to resolve such contract disputes through their negotiated grievance procedures.

In that case, the Commission set forth some examples of situations where a breach of contract claim bears a sufficient relationship to an alleged violation of the Act so as to warrant the processing of a charge and the possible issuance of a complaint: (1) The employer repudiates an established term or condition of employment. (2) The employer decides to abrogate a contract clause based on its belief that the clause is outside the scope of negotiations. (3) The contract clause is so clear that an inference of bad faith arises from a refusal to honor it. (4) Factual allegations indicate that the employer changed the parties' past and consistent practice in administering the disputed clause. (5) Specific allegations of bad faith over and above mere breach of the collective negotiations agreement are present. (6) Breach of the agreement places the policies of the Act at stake.

Where a breach of contract claim is asserted in an unfair practice charge, we examine the allegations to determine whether there is a sufficient connection between the duty to negotiate in

good faith and the alleged contractual violation in order to determine whether to issue a complaint.

Here, the employer is complying with the contract at four other schools. The inconsistent application of a contract provision is not a repudiation within the meaning of Human Services. The charge is dismissed.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

Edmund G. Gerber, Director

DATED:	June 18, 1991

Trenton, New Jersey