D.U.P. NO. 84-7

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

NEWARK BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CI-83-41

MICHAEL COOPER,

Charging Party.

REFUSAL TO ISSUE COMPLAINT

On January 28, 1983, an Unfair Practice Charge (Docket No. CI-83-41) was filed with the Public Employment Relations Commission ("Commission") alleging that the Newark Board of Education ("Board") had engaged in certain unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically subsections 5.4(a)(1), (2), (5) and (7).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/

The instant Charge relates to the Board's implementation of a new attendance improvement program ("AIP") affecting all unit members. The Charge alleges that the Board is trying to inject the AIP into the collective negotiations agreement covering Charging Party's title. Charging Party also alleges that the theory upon which the AIP is based, the sick policy and the number of holidays and personal days, is inapplicable to the Repair and Maintenance Department Trade Unions.

For the reasons stated below, it appears to the undersigned that the allegations contained in the charge do not provide a basis upon which a complaint may be issued.

The undersigned notes that Charging Party is an individual whose majority representative is the Newark Building Trades Council.

With respect to the § 5.4(a)(1) allegation, the statement of facts does not indicate that the implementation of the AIP was related to any protected activity which the Charging Party -- as an individual -- may have engaged in, nor is there any allegation that the AIP has had a direct adverse impact upon Charging Party's terms and conditions of employment as opposed to other unit members who are similarly affected. Therefore, there does not appear to be a basis for a claim under § 5.4(a)(1) that the Board has interfered with Cooper's exercise of protected rights under the Act.

With respect to the § 5.4(a)(2) claim, there is no allegation in the Charge to suggest that the Board has dominated or interfered with the formation, existence or administration of any employee organization. As to the § 5.4(a)(5) claim, an allegation that the Board refused to negotiate in good faith with a majority representative may be filed by the majority representative in a timely fashion. An individual member of the negotiations unit cannot stand in the shoes of the majority representative and demand negotiations rights that are exclusively owed by the employer to the majority representative.5/ The facts herein do not suggest that the Trades Council has improperly represented the interests of negotiations unit members. See In re State of New Jersey, D.U.P. No. 82-18, 8 NJPER 69 (¶13028 1981).6/

Finally, with respect to the § 5.4(a)(7) allegation, the Charging Party has not identified any rule or regulation established by the Commission which the Board allegedly violated. Neither do the alleged facts support a claim upon which an (a)(7) violation may be grounded. See In re Madison Tp. Bd. of Ed., E.D. No. 76-8 (1975).

Accordingly, for the above-stated reasons, the undersigned declines to issue a complaint.7/

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	August 22, 1983

Trenton, New Jersey