D.U.P. NO. 81-26

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TRENTON BOARD OF EDUCATION AND

TRENTON ADMINISTRATORS & SUPERVISORS

ASSOCIATION,

Respondents,

-and-	Docket No. CI-81-40

HARRY DEARDEN,

Charging Party.

NEW JERSEY STATE COMMISSIONER OF

EDUCATION AND NEW JERSEY STATE BOARD

OF EDUCATION AND NEW JERSEY STATE

MONITORING TEAM,

Respondents,

-and-	Docket No. CI-81-54

HARRY DEARDEN,

Charging Party.

Appearances:

For the Respondent Board of Education

Merlino, Rottkamp & Flacks, attorneys

(Robert Rottkamp, of counsel)

For the Respondent Association

Sterns, Herbert & Weinroth, attorneys

(Mark Schorr, of counsel)

For the Charging Party

Kivler & Halper, attorneys

(Richard Angelini, of counsel)

REFUSAL TO ISSUE COMPLAINT

Two unfair practice charges have been filed with the Public Employment Relations Commission (the "Commission") by Harry Dearden (the "Charging Party"). In Docket No. CI-81-40, filed against the Trenton Board of Education (the "Board") and the Trenton Administrators and Supervisors Association (the "Association") on December 5, 1980 and amended on December 22, 1980, Charging Party alleges the Board is engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., (the "Act"), specifically, N.J.S.A. 34:13A-5.4(a)(3),1/ and that the Association is engaged in unfair practices under N.J.S.A. 34:13A-
5.4(b)(3).2/ In Docket No. CI-81-54, Charging Party alleged that the New Jersey State Commissioner of Education, the New Jersey Board of Education, and the New Jersey Monitoring Team (hereinafter the "State Board") are engaging in unfair practices under N.J.S.A. 34:13A-5.4(a)(2).3/

The first charge (CI-81-40) alleges that the Association discriminatorily downgraded the Charging Party's position and deprived him of a pay increase by creating a new column for him, at a salary range below another employee of the same title. The charge further alleges that the Board accepted and approved the Association contract containing the allegedly discriminatory salary column.

The second charge (CI-81-54) alleges that Monitor General, Dr. Catrambone, an agent of the State Board, denied a salary adjustment that had been awarded to the Charging Party by the Trenton Board of Education.

The Commission has delegated authority to the undersigned to issue complaints with respect to unfair practice charges and has established a standard for complaint issuance. This standard provides that a complaint shall issue where the charge, if true, may constitute unfair practices under the Act. The undersigned may decline to issue a complaint where the above standard has not been met. See N.J.A.C. 19:14-2.1 and 2.3.

For the reasons stated below, it appears to the undersigned that the Commission's complaint issuance standard has not been met with respect to the instant Charges.

With respect to the first charge, the Charging Party alleges that the Association violated §5.4(b)(3) of the Act. Normally, an individual employee may not assert a violation of §5.4(b)(3) of the Act. Ordinarily, only the public employer may file and process a §5.4(b)(3) charge, since the duty owed by a majority representative to negotiate in good faith flows to a public employer, not to individual employees.4/

In addition, the undersigned notes that the Charging Party has not alleged that through its actions, the Association has interfered with, restrained or coerced him in the exercise of his rights guaranteed by the Act, nor has he alleged that the Association has failed in its duty of fair representation.

The Charging Party also claims that the Board has violated §5.4(a)(3) of the Act. To warrant the issue of a complaint thereunder, a Charging Party must allege facts indicating that the employer discriminated against him in regard to a term or condition of employment in order to encourage or discourage him in the exercise of rights under the Act guarantees. Here, the Charging Party has not alleged facts indicating discriminatory treatment against him as a result of his exercise of activities protected by the Act. See, In re Tp. of Springfield, D.U.P. No. 79-13, 5 NJPER 15 (¶10008 1978).

With respect to the second charge, the Charging Party alleges that the State Board violated §5.4(b)(3) of the Act. However, the State Board is not an employee organization within the meaning of the Act and cannot be in violation of §5.4(b)(3).

The Charging Party also alleged that the State Board, through the Monitor General, violated §5.4(a)(2) of the Act. That section prohibits public employers from dominating or interfering with employee organizations. A review of the charge, however, shows that the Charging Party has not alleged facts which would establish that the State Board interfered with the Association or any other labor organization. If the Charging Party had intended to allege an (a)(3) violation rather than a §(a)(2) violation, the charge still does not allege facts that the State Board discriminated against him in order to encourage or discourage him in the exercise of the rights guaranteed to him by the Act.

Subsequent to the filing of the instant Unfair Practice Charges, by letter dated April 15, 1981, the undersigned informed the Charging Party that in the absence of a withdrawal request or amended Charges which would meet the Commission's complaint issuance standards, the undersigned would issue a decision declining to issue a complaint. The undersigned has not received a reply to the April 15 letter, nor have the Charges been amended as requested.

Accordingly, the undersigned declines to issue a complaint.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	June 30, 1981

Trenton, New Jersey