H.E. NO. 78-26

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SAYREVILLE BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-78-27-56

SAYREVILLE EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Sayreville Board of Education

Casper P. Boehm, Jr., Esq.

For the Sayreville Education Association

Rothbard, Harris & Oxfeld

(Sanford R. Oxfeld, Esq.)

HEARING EXAMINER'S DECISION AND ORDER

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on August 5, 1977, by the Sayreville Education Association (hereinafter the "Association" or the "Charging Party") alleging that the Sayreville Board of Education (hereinafter the "Board" or the "Respondent") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent on August 3, 1977, discriminatorily removed the Chairman of the Foreign Language Department, Kitty Ludlow, which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2) and (3).1/

It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 3, 1978.

Prior to the scheduled hearing the Respondent filed with the Commission a Motion to Dismiss the complaint and charge of unfair practices on February 21, 1978. The Commission on February 22, 1978, referred the said Motion to Dismiss to the Hearing Examiner for disposition. The Charging Party filed a response to the Motion to Dismiss on February 24, 1978.

It is the position of the Respondent, as set forth in its Motion to Dismiss, that the Commissioner of Education is vested with exclusive jurisdiction of the matter since the Respondent, in abolishing the position of Chairman of the Foreign Language Department, did so pursuant to the provisions of N.J.S.A.

18A:28-9.

The Charging Party responds that Kitty Ludlow lost her position as Chairman of the Foreign Language Department solely because of her activity on behalf of the Charging Party in violation of the aforementioned sections of the Act. The Charging Party refers to §5.4(c) of the Act which vests in the Commission the exclusive power to prevent persons from engaging in unfair practices under the Act and to provide remedies therefor.

Neither party has cited any administrative or judicial precedent for its position.

The Hearing Examiner first notes that under established authority, in disposing of a motion to dismiss, the allegations in the complaint and charge of unfair practices properly pleaded must be taken as true. The complaint and charge of unfair practices clearly allege, if taken as true, a violation of the Act since the allegation is clear that Kitty Ludlow was removed as Chairman of the Foreign Language Department because of her activities on behalf of the Charging Party.

Given the foregoing, and the provisions of §5.4(c) of the Act, supra, it is clear to the Hearing Examiner that the Commission has primary and exclusive jurisdiction to remedy the alleged unfair practices. In the absence of precedent to the contrary indicating that jurisdiction lies exclusively with the Commissioner of Education, it is the opinion of the Hearing Examiner that the Motion to Dismiss must be denied.

ORDER

Based on consideration of the aforesaid Motion to Dismiss and the response of the Charging Party thereto, it is hereby ORDERED that the Motion to Dismiss is denied.

/s/Alan R. Howe

Hearing Examiner

DATED:	February 27, 1978

Trenton, New Jersey