H.E. NO. 92-37

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEWARK BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CI-H-90-20

EARL J. KU,

Charging Party.

Appearances:

For the Respondent, Marvin L. Comick, General Counsel

For the Charging Party, Earl J. Ku, pro se

HEARING EXAMINER'S RECOMMENDED REPORT AND DECISION

A Charge of Unfair Practices was filed with the Public Employment Relations Commission ("Commission") on August 25, 1989, by Earl J. Ku ("Ku"), alleging that he was terminated by the Newark Board of Education ("Board") On August 17, 1989, in violation of N.J.S.A. 34:13A-5.4(a)(3), (4) and (5) of the Act,1/ particularly,

1/	These subsections prohibit public employers, their representatives or agents from: "(3) discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

that one Ramanand Durga, a supervisor, harassed Ku in his work assignments over many years, especially between February 4, 1987 and August 24, 1988, all of which resulted in disciplinary actions against Ku between May 1987 and August 1989.

It appearing that 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 8, 1990. Pursuant to the Complaint and Notice of Hearing, a hearing was scheduled for July 30 and July 31, 1990. However, these hearing dates were cancelled by the Hearing Examiner without new dates, based upon advice from the Board that the Ku matter was then being heard before the Office of Administrative Law ("OAL").

The Hearing Examiner heard nothing further until April 7, 1992, when he received from counsel for the Board a copy of the final adjudication of an Administrative Law Judge ("ALJ") of the OAL. The ALJ's decision had been rendered on February 21, 1991,2/ and was filed with the Merit System Board and mailed to the parties on February 27th.

The Hearing Examiner then sent a letter to Ku on April 23, 1992, advising him that the decision of the ALJ had recently been brought to his attention and, that he had reviewed it. The Hearing Examiner observed that the ALJ had upheld Ku's termination by the Board on September 15, 1989. The Hearing Examiner next stated that

2/	A copy of this decision by ALJ Joseph F. Martone is annexed hereto as Exhibit "A."

he was not inclined to hold a hearing on Ku's Unfair Practice Charge since it was evident that the entire matter had been fully adjudicated by the ALJ, who had conducted a plenary hearing on January 31, 1991. However, the Hearing Examiner decided to request a specific written statement from Ku as to why a hearing should be conducted by the Hearing Examiner on the issue of his termination as an Unfair Practice Charge under our Act.

Ku submitted a detailed response on May 1, 1992, in which he set forth nine paragraphs of reasons for a hearing. The first two paragraphs allege violations of the collective negotiations agreement, which governed Ku's employment relationship with the Board. In the third paragraph Ku claims that the Board made changes in the dates of his fourth disciplinary hearing on three occasions between July 13 and August 17, 1989, causing him distress and frustration. The fourth paragraph alleges that a third disciplinary action of January 11, 1989, was imposed upon Ku in retaliation for his attorney having filed a complaint in the Superior Court on December 1, 1988. In paragraph five Ku claims that because he filed the instant Unfair Practice Charge on or about August 22, 1989, he was terminated by the Board on September 1, 1989.

In paragraphs eight and nine of Ku's response of May 1st, supra, he suggested that he had not received notification from the OAL of the final decision of the ALJ, supra. The Hearing Examiner immediately brought this matter to Ku's attention on May 5, 1992, and requested prompt clarification. On May 8th, Ku advised the

Hearing Examiner that a typographical error in paragraph nine had created the confusion, i.e., Ku had in fact been notified of the decision of the ALJ. He had received a copy on March 3, 1991. Nevertheless, Ku insisted that the ALJ had failed to address the provisions of our Act, as alleged in his Unfair Practice Charge.

The Board provided its statement of position on May 6, 1992, stating that each issue identified by Ku in his letter of May 1st, had been heard and addressed by the ALJ and that Ku was merely restating what had already been litigated. Thus, Ku should not be allowed to relitigate the same subject matter before the Commission.

ANALYSIS

1.	A careful reading of the decision of the ALJ discloses that it "tracks" very closely the allegations made by Ku in his Unfair Practice Charge. The ALJ held a plenary hearing on the matter of his termination on January 31, 1991, and the ALJ's decision states that both Ku and the Board were represented by counsel. Ku appeared and testified on his own behalf while Durga and Jan Azumi appeared and testified for the Board.

2.	Paragraph nine of Ku's Unfair Practice Charge contains eight separate allegations of discrimination, all of which are time-barred under the six-month limitation in Section 5.4(c) of our Act, the most recent occurrence having been August 24, 1988, a year and a day before Ku filed his Charge on August 25, 1989.

3.	The ALJ made extensive factual findings in his decision of February 21, 1991 [see pp. 2-9 attached] and in those findings he dealt with each and every allegation made by Ku in the Unfair Practice Charge, pending before the Hearing Examiner.

4.	The allegation in Ku's Unfair Practice Charge that the Board retaliated against him "...after he filed a grievance with Superior Court of New Jersey on November 30, 1988..." was fully litigated before the ALJ. His Factual Discussion at page 7 states that Ku "...testified that on one occasion, he filed a complaint against Dr. Durga in the Superior Court, Dr. Durga filed a disciplinary action against him and immediately thereafter (sic) ..." The Hearing Examiner notes that Ku made a similar statement in the fourth paragraph of his letter of May 1, 1992, to the Hearing Examiner that a third disciplinary action was initiated against him on January 11, 1989. This is consistent with the Factual Discussion of the ALJ, supra, and also appears in paragraph 10(D) of Ku's Unfair Practice Charge.

5.	Finally, a reading of paragraphs 2-4 of this decision, supra, leaves no doubt but that the critical allegations contained in Ku's Unfair Practice Charge with respect to lack of union representation, the Board's alleged discrimination against Ku betwen February 1987 and August 1988, and its alleged retaliation because of Ku's Superior Court grievance filing of November 30, 1988, are either time-barred or were fully litigated in the hearing before the ALJ. Relitigating these matters in a hearing before this Hearing

Examiner would be inconsistent with the mandate of the New Jersey Supreme Court in Hackensack v. Winner, 82 N.J. 1 (1980) where the Court stated that administrative agencies are governed by such doctrines as res judicata, collateral estoppel and the single-controversy doctrine. These doctrines hold that the "...principles of comity and deference to sibling agencies are part of the fundamental responsibility of administrative tribunals..." [82 N.J. at 32]. Thus, a collision between two agencies is to be avoided. [82 N.J. at 33]. If the Hearing Examiner should now undertake the relitigation of Ku's termination by the Board in September 1989 then he would be hearing again the same dispute previously decided by the ALJ and would thereby be acting in derogation of the Court's mandate in Hackensack v. Winner, supra.

6.	Further, Ku has failed to show that he engaged in any timely activities protected by the Act or that the Board had any knowledge thereof as required by Section 5.4(a)(3). Finally, even if the foregoing requisites were assumed, Ku has failed to establish that the Board manifested any hostility or anti-union animus toward him as required by Bridgewater Tp. v. Bridgewater Public Wks. Assn., 95 N.J. 235 (1984).

7.	Ku's allegation that the Board violated Section 5.4(a)(4) of the Act fails for the same reason as his allegation that the Board violated Section 5.4(a)(3) since the Commission uses the Bridgewater test in adjudicating alleged violations of Section 5.4(a)(4): Downe Tp. Bd. of Ed., P.E.R.C. No. 87-154, 13 NJPER 577 (fn. 3)[¶18211 1987].

8.	In disposing of Ku's final allegation that the Board violated Section 5.4(a)(5) of the Act, it is well settled that an individual public employee has no standing to bring such a charge; Camden County Highway Dept., D.U.P. No. 84-32, 10 NJPER 399 (¶15185 1984) and Tp. of Cherry Hill, D.U.P. No. 81-18, 7 NJPER 286 (¶12128 1981).

RECOMMENDED ORDER

For the reasons above stated, it is RECOMMENDED that the Commission ORDER that the Unfair Practice Charge of Earl J. Ku be dismissed with prejudice.

Alan R. Howe

Hearing Examiner

Dated: June 1, 1992

Trenton, New Jersey