D.U.P. No. 82-13

Synopsis:

The Director of Unfair Practices declines to issue a complaint with respect to an Unfair Practice Charge since the Charging Party did not assert that any of the claimed unfair practices occurred within the six months of the filing of the Unfair Practice Charge. Further, the Charging Party failed to designate those portions of the Act claimed to be violated by the Respondent.

PERC Citation:

D.U.P. No. 82-13, 7 NJPER 572 (¶12256 1981)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.226

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DUP 82-013.pdf
Appellate Division:
Supreme Court:

D.U.P. NO. 82-13 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of CITY OF EAST ORANGE, Respondent, -and- Docket No. CI-82-9 HORACE POWELL, REFUSAL TO ISSUE COMPLAINT An Unfair Practice Charge was filed with the Public Employment Relations Commission (the A Commission @ ) on August 5, 1981, by Horace Powell (the A Charging Party @ ) against the City of East Orange (the A Respondent @ ) alleging that the Respondent 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. (the A Act @ ). 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.1/ 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.2/ The Commission = s rules provide that the undersigned may decline to issue a complaint.3/ For the reasons stated below, the undersigned has determined that the Commission = s complaint issuance standards have not been met. Pursuant to N.J.S.A. 34:13A-5.4(c), the Commission is precluded from issuing a complaint where the unfair practice charge has not been filed within six months of the occurrence of the alleged unfair practice. More specifically, N.J.S.A. 34:13A- 5.4(c) provides: A . . . provided 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. @ Further, the Commission = s rules state that an unfair practice charge shall contain inter alia: A clear and concise statement of the facts constituting the alleged unfair practice, including, where known, the particular acts alleged and the names of respondent = s agents or other representatives by whom committed and a statement of the portions or portions of the Act alleged to have been violated. (Emphasis added)4/ Accordingly, it is incumbent upon the Charging Party to allege the occurrence of unfair practices within the six month limitation requirement and to allege the specific subsection(s) of N.J.S.A. 34:13A-5.4(a) and/or (b) which form the basis of the alleged statutory violation. The undersigned has determined that in the absence of such allegations, a complaint may not issue.5/ Subsequent to the filing of the instant Unfair Practice Charge, by letter dated August 6, 1981, the undersigned informed the Charging Party that the Charge could not be processed further unless it was amended, pursuant to N.J.A.C. 19:14-1.5, to include the specific subsection(s) alleged and the time and place of occurrence of the particular acts alleged to constitute the unfair practice. The undersigned directed the Charging Party = s attention to the relevant six month limitation provision of N.J.S.A. 34:13A-5.4(c) and advised that a complaint would not issue if the Charging Party failed to allege the occurrence of an unfair practice within the prescribed six month limitation period. The undersigned has not received a reply to the August 6, 1981 letter, nor has the Charge been amended, as requested. Accordingly, as the Charging Party has not included in the Charge the specific subsections alleged and the time of occurrence of the conduct alleged to constitute the unfair practice within the six month statutory limitation period, the undersigned declines to issue a complaint. BY ORDER OF THE DIRECTOR OF UNFAIR PRACTICES /s/Carl Kurtzman, Director DATED: September 17, 1981 Trenton, New Jersey 1/ N.J.S.A. 34:13A-5.4(c) provides: A The commission shall have exclusive power as hereinafter provided to prevent anyone from engaging in any unfair practice . . . Whenever it is charged that anyone has engaged or is engaging in any such unfair practice, the commission, or any designated agent thereof, shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice and including a notice of hearing containing the date and place of hearing before the commission or any designated agent thereof . . . @ 2/ N.J.A.C. 19:14-2.1. 3/ N.J.A.C. 19:14-2.3. 4/ N.J.A.C. 19:14-1.3. 5/ See In re Union County Welfare Board, D.U.P. No. 80-8, 5 NJPER 473 ( & 10238 1979); and In re North Warren Regional Board of Education, D.U.P. No. 78-7, 4 NJPER 55 ( & 4026 1977). ***** End of DUP 82-13 *****