D.U.P. NO. 84-17

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

UNION CITY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-83-240

UNION CITY EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Herbert Klitzner, attorney

For the Charging Party

Katzenbach, Gildea & Rudner, attorneys

(Arnold M. Mellk, of counsel)

REFUSAL TO ISSUE COMPLAINT

On March 10, 1983, and amended on May 17, 1983, the Union City Education Association ("Association") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") against the Union City Board of Education ("Board") alleging that the Board was engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically §§ 5.4(a)(1) and (5).1/

N.J.S.A. 34:13A-5.4(c) sets forth in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. This standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

For the reasons stated below, the undersigned has determined that a complaint shall not issue.

The dispute in this matter relates to the Association's claim that certain unit members have obtained post-graduate education credits but that the Board has declined their requests to be placed on higher salary scales contained in the parties collective negotiations agreement. On December 12, 1980, Keith Bachman, a teaching staff member, requested that the Board place him at a higher salary guide (BA+15) pursuant to Article 29(E)(4) of the collective negotiations agreement between the Board and the Association because he had completed a number of law school credits.5/ At some unspecified time thereafter the Board rejected Bachman's request.

Subsequently, a grievance over the issue was filed and, on November 16, 1982, an advisory arbitration hearing was held. On December 14, 1982, the arbitrator issued his award in favor of the Association and grievant.6/ However, on December 29, 1982, the Board rejected the award. The instant charge followed, and was amended on May 17, 1983, to allege that a second teacher had been entitled to placement on a BA+30 salary guide since September 1, 1981.

By letter dated August 22, 1983, the Director of Unfair Practices advised the parties that it appeared that the operative event giving rise to the unfair practice charge occurred when the Board allegedly failed to place the two affected unit members on an appropriate step of the BA+ salary guides in September 1981. Since this event took place well before the six months preceding the filing of the charge, and since there was no allegation that the Association was in any way prevented from filing a timely charge, the Director afforded the parties the opportunity to address, by way of briefs, the Association's contention that the asserted unfair practices are of a continuing nature and are therefore actionable notwithstanding the limitations set forth in N.J.S.A. 34:13A-5.4(c).

On August 31, 1983, the Association submitted a brief in which it cited inter alia, North Plainfield Ed. Ass'n. v. Bd. of Ed. of the Borough of North Plainfield, App. Div. Docket No. A-
4583-81T3 (6/20/82), an unpublished Appellate Court decision dealing with an alleged violation of an individual's statutory rights, which the court determined was of a continuing nature such that the applicable statutory limitation period was not applicable.

However, the decision here need not be based on timeliness or the concept of a continuing violation.7/ In In re State of New Jersey, Dept. of Human Services, D.U.P. No. 84-11, 9 NJPER ___ (¶_____ 1983), a matter recently decided, the Director of Unfair Practices refused to issue a complaint with respect to an unfair practice charge alleging a violation N.J.S.A. 34:13A-
5.4(a)(5) since the essence of the dispute involved the parties disagreement over the interpretation of contract provisions. It appears to the undersigned that the Association's charge raises a dispute which is purely contractual in nature concerning the different interpretation given Article 29(E)(4) by each party. The Association's charge, and the Board's defenses, are contractually rooted. Accordingly, the appropriate procedures for resolving the instant dispute are those that are traditionally utilized for seeking contract enforcement, not through unfair practice proceedings.

Based on the above analysis, and for the reasons more fully set forth in Human Services, supra, the undersigned declines to issue a complaint with respect to the instant charge.8/

BY ORDER OF THE ADMINISTRATOR

OF UNFAIR PRACTICE PROCEEDINGS

/s/Joel G. Scharff, Administrator

DATED:	January 3, 1984

Trenton, New Jersey