H.E. NO. 85-11

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY, DEPARTMENT

OF HUMAN SERVICES, DIVISION OF

YOUTH AND FAMILY SERVICES,

Respondent,

-and-	Docket No. CO-84-220-127

COMMUNICATIONS WORKERS OF

AMERICA, AFL-CIO,

Charging Party.

Appearances:

For the Respondent

Hon. Irving I. Kimmelman, Attorney General

(Michael L. Diller, D.A.G.)

For the Charging Party

Kathleen King, Staff Representative, CWA

HEARING EXAMINER'S DECISION AND ORDER

This is a decision on the Respondent's motion to dismiss the unfair practice charge in its entirety.

On March 6, 1984, the Communications Workers of America, AFL-CIO ("CWA") filed an unfair practice charge against the State of New Jersey, Department of Human Services ("State"). The charge alleges that the State violated subsections 5.4(a)(1), (2) and (3)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). CWA alleges specifically that the State discriminantly reprimanded a CWA Shop Steward on November 1, 1983 for his alleged breach of working rules.

On April 11, 1984, the Administrator of Unfair Practice Proceedings issued a Complaint and Notice of Hearing pursuant to N.J.A.C. 19:14-2.1.2/ The Respondent filed its Answer on April 26, 1984 in which it denies that the official reprimand was issued on November 1, 1983, and asserts that, in fact, it was served on the employee August 25, 1983. Among its several defenses, the State maintains that the charge is untimely since N.J.S.A. 34:13A-5.4(c) requires that a charging party file its charge within six (6) months of the occurrence and therefore the complaint must be dismissed.

Subsequent to a prehearing conference held on May 10, 1984, the State filed its Motion to Dismiss accompanied by supporting documentation and a letter brief on June 20, 1984. This documentation includes 1) a notice of official reprimand dated August 17, 1983 and statements indicating its service on August 25, 1983; 2) a notice of "Appeal of Minor Disciplinary Action" signed September 7, 1983 by the reprimanded employee and the attached Departmental decision issued by Peter Yull, Hearing Officer, on November 1, 1983; 3) a letter from the Civil Service Commission dated January 25, 1984 denying the reprimanded employee's appeal; and 4) a certification that the documents submitted are true copies of personnel documents.

On July 2, 1984, CWA filed its Answer to the State's Motion to Dismiss. In it, CWA asserts that, as a matter of record, the official reprimand at issue was received by the employee on August 25, 1983. However, CWA argues, the six-month filing period under the Act should run from the date on which the State Department of Human Services officially upheld the steward's discipline, that is from November 1, 1983.

On July 16, 1984, the Hearings in this matter were continued pending a decision on the State's Motion to Dismiss.

II

The issue in this matter is: Must the unfair practice charge be dismissed because it is untimely filed - beyond the six-month limitation of subsection 5.4(c) of the Act?

III

On August 25, 1984, the State served a written reprimand on a CWA shop steward. This reprimand was appealed by the employee to the Department of Human Services and to the Civil Service Commission. Both appeals were denied; November 1, 1983 and January 25, 1984 respectively. Subsequently, on March 6, 1984, CWA filed the instant unfair practice charge alleging that its shop steward was discriminatorily reprimanded on November 1, 1983.

However, in its Answer to the State's motion, CWA acknowledged that as a matter of record the steward received notice of the official reprimand on August 25, 1983. That reprimand, now in question, was grieved and that grievance was subsequently denied by the State, on November 1, 1983.

In Borough of Bogota, P.E.R.C. No. 76-22, 2 NJPER 70, 71 (1976), the Commission upheld a Hearing Examiner's determination that an attorney's statement on the record "may be construed as a judicial admission." See also, Winn v. Wiggin, 47 N.J. Super. 215 (App. Div. 1957), Muller Fuel Oil v. Insurance Co. of North America, 95 N.J. Super. 564 (App. Div. 1967).

In light of the foregoing facts and since the propriety of the reprimand itself is at issue in this charge, I find that the operative date of the alleged unfair practice is August 25, 1983, the date on which the steward received notice of his reprimand.

Subsection 5.4(c) of the Act provides:

...that no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the 6 months period shall be computed from the day he was no longer so prevented.

The Commission has repeatedly held that the filing of a grievance concerning the unfair practice does not toll the Act's six-month filing requirement. In re State of New Jersey (Department of Corrections), D.U.P. No. 84-31, 10 NJPER 387 (¶15178 1984); In re State of New Jersey (Stockton State College) ("Stockton"), P.E.R.C. No. 77-14. 2 NJPER 308 (1976), aff'd 153 N.J. Super. 91 (App. Div. 1977), pet. for certif. den. 78 N.J. 326 (1978).

CWA does not allege facts to substantiate any viable claim that it was prevented from filing a timely charge. It alleges only that it filed a timely grievance and that the six-month time limit should start from the date that grievance was denied. The Commission has determined that it is not necessary to exhaust the internal grievance procedure before filing a statutory claim. Stockton.

In this case CWA could have filed a timely charge as late as February 26, 1984. Clearly, CWA could have preserved its unfair practice claims while pursuing its grievance. See, Stockton. However, in fact, the instant charge was not filed until March 6, 1984, nine days beyond the six-month statutory limit.

I have fully examined the parties' pleadings in this matter and based on the foregoing facts and law, I conclude that the unfair practice charge was not timely filed.

V

The Hearing Examiner finds that the State did not violate N.J.S.A. 34:13A-5.4(a)(1), (2) and (3) since CWA failed to file a timely charge pursuant to N.J.S.A. 34:13A-5.4(c).

ORDER

It is hereby ordered that the Complaint be dismissed in its entirety.

/s/Judith E. Mollinger

Hearing Examiner

DATED:	September 10, 1984

Trenton, New Jersey