H.E. NO. 85-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW MILFORD EDUCATION ASSOCIATION,

Respondent,

-and-	Docket No. CI-84-63-147

DR. BERNARD FIDEL,

Charging Party.

Appearances:

For the Respondent

Ruhlman, Butrym and Friedman, Esqs., P.A.

(Richard A. Friedman, of Counsel)

For the Charging Party

Dr. Bernard Fidel (pro se)

HEARING EXAMINER'S DECISION AND ORDER

ON RESPONDENT'S MOTION TO DISMISS

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on February 9, 1984, and amended on March 1, 1984, by Dr. Bernard Fidel ("Charging Party") alleging that the New Milford Education Association ("Association") 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"). In particular, the Charging Party alleged that the representation fee in lieu of dues collected from him as a non-member should have been less than 85% of the full dues and was a violation of 34:13A-5.5(B); that he should have received a return of that portion of his representation fee used to support lobbying which was a violation of 34:13A-5.5(C); that the demand and return system was not implemented despite his requests to obtain a review of how the 85% was arrived at and how the money was utilized which was alleged to violate 34:13A-5.6; and, that the Association discriminated against him because of his non-member status by failing to provide him with information pertaining to his unit rights, and by ignoring the requests and needs of non-members all of which was alleged to violate 34:13A-5.7 of the Act.1/

It appearing that since at least some of the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 5, 1984 setting a hearing for July 11 and 12, 1984. However, pursuant to the Charging Party's request, and his unavailability during the summer, the hearing was rescheduled on June 18, 1984 for October 22 and 23, 1984.

Thereafter, by letter dated July 26, 1984, the Association moved to dismiss most of the unfair practice charge arguing that the PERC Appeal Board ("Appeal Board") created by N.J.S.A. 34:13A-5.6, and not this Commission, had jurisdiction over most of the charges advanced by the Charging Party. The Association relied upon the Commission's decision in In re Boonton Bd. Ed. and Boonton Ed. Assn. (Judith Kramer), P.E.R.C. No. 84-3, 9 NJPER 472 (¶14199 1983), appeal pending App. Div. Docket No. A-29-83T2, where the Commission set forth the parameters of its, and the Appeal Board's, jurisdiction over representation fee matters. On August 14, 1984, the Association advised the undersigned that it was relying upon its statement of position dated March 5, 1984, and its July 26 Motion, as its Answer to the Charge. In its letter of March 5, the Association specifically denied violating the Act.

The Charging Party responded to the Motion to Dismiss by letter dated September 6, 1984. He indicated that he was not challenging the constitutionality of the representation fee, but he alleged that he was discriminated against because of his non-
member status. He admitted that he was questioning the percentage of dues required to be paid by non-members, but he argued that it was necessary for him to pursue his allegations of overcharging in order to demonstrate discrimination.

This procedural history of this matter also shows that on February 7, 1983 the Charging Party filed a similar matter with the Appeal Board, Docket No. AB-83-5, which was transferred to the Office of Administrative Law ("OAL") on December 24, 1983 and assigned to Administrative Law Judge Stephen Weiss as OAL Docket No. PRB-10116-83. An Order of Inactivity was issued on March 14, 1984.

Analysis

Perhaps the first opportunity to consider the Appeal Board's jurisdiction took place in In re Twp. of Teaneck, D.U.P. No. 82-
16, 8 NJPER 5 (¶13002 1981), where the Commission's Director of Unfair Practices held that the Appeal Board, and not the Commission, had jurisdiction to resolve claims regarding the amount of the representation fee and allegations concerning member-only benefits.

The Commission essentially expanded upon Teaneck, supra, when it issued In re Boonton, supra, which further clarified the jurisdiction of the Commission and Appeal Board. The Commission therein held that the Appeal Board had jurisdiction to determine challenges concerning the amount of any representation fee; to review and determine the amount of any representation fee refund; and to review the fairness of any representation fee proceeding leading to a refund determination. Finally, the Commission held that the Appeal Board had jurisdiction over the relationship of particular union expenditures to terms and conditions of employment and the definition of member-only benefits.

The Commission in Boonton also indicated that it had jurisdiction to determine whether a demand and return system was established and was in place when representation fees were collected; whether notice was provided of rebate procedures and the demand and return system; whether the dues deduction was administered fairly; whether full membership in the union was available to all unit members; whether representation fee payers were discriminated against; and, whether the statutory and structural conditions for representation fees were in place.

Subsequent to Boonton, the Director again held that the appropriateness of any representation fee must be litigated before the Appeal Board. In re Toms River Ed. Assoc. (Peter Carrozza), D.U.P. No. 84-19, 10 NJPER 146 (¶15071 1984).

Consequently, pursuant to the above cases the jurisdiction of the Appeal Board and the Commission regarding representation fee matters has been clearly established. The Commission cannot hear matters concerning the amount of the representation fee or the amount of any refund, or for what activities the fee may be used.

By applying the above case law to the instant matter it is clear that the Charging Party's allegations of a violation of 34:13A-5.5(b) and (c) must be dismissed. The Charging Party's allegation that his representation fee should have been less than 85%; his demand for a return of part of his fee; his request to learn how the Association determined the representation fee; and, his demand as to how the dues was allocated is within the jurisdiction of the Appeal Board and is therefore dismissed from the instant Charge. The Charging Party may seek to pursue those issues in its Charge now before the Office of Administrative Law.

The undersigned, however, denies the motion to dismiss with respect to issues of discrimination and the existence of a demand and return system. Specifically, the Charging Party may proceed on his 5.6 allegation that the demand and return system had not been implemented at the time of the collection of the fee, or that no notice of its existence was provided, or that the Charging Party was prevented from utilizing such a system if it did exist; and, the Charging Party may proceed on his 5.7 allegation that he was discriminated against because he was a non-union member; and that the Association failed to provide him with information regarding his rights; and, that it ignored his requests.

ORDER

Accordingly, pursuant to the above discussion, it is hereby ORDERED that:

1.	The 5.5(b) and (c) allegations of the charge, and that part of the 5.6 allegation concerning the allocation of dues and the determination of the representation fee, are dismissed.2/

2.	The remaining 5.6 allegations, and the 5.7 allegations may proceed to hearing.

3.	The hearing shall commence on October 22, 1984.

/s/Arnold H. Zudick

Hearing Examiner

DATED:	September 24, 1984

Trenton, New Jersey