D.U.P. NO. 84-11

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

STATE OF NEW JERSEY, DEPARTMENT

OF HUMAN SERVICES,

Respondent,

-and-	Docket No. CO-84-15

COMMUNICATIONS WORKERS OF

AMERICA, AFL-CIO,

Charging Party.

Appearances:

For the Respondent

Irwin Kimmelman, Attorney General

(Michael Diller, Deputy Attorney General)

For the Charging Party

Robert W. Pursell, Representative

REFUSAL TO ISSUE COMPLAINT

On July 22, 1983, an Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission"), as amended on September 6, 1983, by the Communications Workers of America, AFL-CIO ("CWA"), alleging that the State of New Jersey, Department of Human Services ("State") had 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)(1), (3) and (5).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 it appears to the undersigned that the Commission's complaint issuance standards have not been met.

CWA represents a negotiations unit consisting of all State professional employees. This unit includes unclassified civil service employees, including certain physicians employed by the State at various State hospitals. CWA alleges that one of these physicians, Dr. Ruben Reyes, was terminated by the State on July 5, 1983 from his position at Ancora Psychiatric Hospital in violation of Article 5 Section L of the parties' collective negotiations agreement.5/ CWA alleges that the State committed unfair practices when it denied Dr. Reyes an internal hearing as provided for under certain circumstances in Article 5 Section L of the agreement. It contends that Dr. Reyes was terminated for misconduct,6/ that the denial of CWA's and Reyes' request for a hearing constitutes a refusal to process a grievance, and finally, that the State's failure to list the specific reasons for discharge was a change in contractually guaranteed terms and conditions of employment.

The State responded to the original and amended charge and seeks its dismissal. Among its arguments the State avers that its termination of Dr. Reyes by letter of June 2, 1983 was in accordance with the collective agreement since its right not to list a reason for termination of an unclassified employee is contractually protected in the last paragraph of subsection 2. The State submits that if reasons for dismissal are not cited in a letter of dismissal, the requirement for a hearing is inapplicable.

It appears to the undersigned that the charge herein raises a dispute which is purely contractual in nature relating to Article 5 Section L Subsection 2 of the agreement. The instant dispute has as its gravamen the different interpretation that the parties ascribe to the subsection's last two paragraphs, and the rights and obligations described therein. The State does not contest the legality of the contractual language nor does it contend that it has repudiated the agreement. To the contrary, it asserts the contract as an affirmative defense to the charge. In sum, the parties merely interpret the clause differently. There is no allegation of facts describing the parties' prior experience in administering this clause of their agreement which would establish that the State's action with respect to Dr. Reyes constitutes a change. Accordingly, the charge does not set forth a basis for a claim that the State has set out to change the agreement or terms and conditions of employment.

Moreover, the alleged failure to process the grievance is also related to the State's denial of a departmental hearing pursuant to the clause in question. However, the facts presented by the Charging Party demonstrate that the grievance was processed. The department's designee determined that a hearing right was not afforded under the contract.7/

Based upon the above analysis, and since there is no allegation that Dr. Reyes was terminated because of the exercise of protected activity, the undersigned declines to issue a complaint with respect to the instant charge.8/

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	October 28, 1983

Trenton, New Jersey