D.U.P. NO. 84-32

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

COUNTY OF CAMDEN

(HIGHWAY DEPARTMENT),

Respondent,

-and-	Docket No. CI-84-40

JOHN T. BALLANCE,

Charging Party.

REFUSAL TO ISSUE COMPLAINT

On November 10, 1983, an Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") by John T. Ballance ("Charging Party") against the County of Camden (Highway Department) ("County") alleging that the County has 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 §§ 5.4(a)(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 practices, 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 and that formal proceedings in respect thereto should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues.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.

The Charging Party alleges that during the week of September 12, 1983, the County denied his request to be reassigned to drive his former truck. On September 29, 1983, he filed a grievance concerning the denial of this requested reassignment. The grievance was rejected by the Assistant Superintendent of Roads on the grounds that it was not filed in a timely fashion. Charging Party did not pursue the grievance through additional steps of the contractual grievance procedure, but rather, filed the instant unfair practice charge. In the charge, he states that the County assigned a less senior employee to the preferred truck; he claims that he had superior rights to this truck based on his seniority. The County's actions allegedly violate the preamble and Articles XI (E) and XVIII (A) of the collective negotiations agreement covering Charging Party's employment.

Although the Charging Party has alleged violations of §§ 5.4(a)(3), his statement of facts does not indicate that the County was motivated in its assignment decision to discriminate against him due to his exercise of protected activities under the Act, such as union activities or grievance filing.

As to the claim under §§ 5.4(a)(5), it is the exclusive province of the majority representative to assert that the employer, through violation of a contract agreement, has altered terms and conditions of employment without prior negotiations. An individual employee may not stand in the shoes of the majority representative unless there are extenuating circumstances as outlined below.5/

Accordingly, for the above reasons, the undersigned declines to issue a complaint.

BY ORDER OF THE ADMINISTRATOR OF

UNFAIR PRACTICE PROCEEDINGS

/s/Joel G. Scharff, Administrator

DATED:	June 15, 1984

Trenton, New Jersey