D.U.P. NO. 81-7

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

EAST WINDSOR REGIONAL TEACHERS

AIDES & TEACHERS ASSISTANTS

ASSOCIATION,

Respondent,

-and-	Docket No. CE-78-19

EAST WINDSOR BOARD OF

EDUCATION,

Charging Party.

Appearances:

For the Respondent

Ruhlman & Butrym, attorneys

(Edward J. Butrym, of counsel)

For the Charging Party

Turp, Coates, Essl & Driggers

(Donald S. Driggers, of counsel)

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") by the East Windsor Regional Board of Education (the "Board") against the East Windsor Regional Teachers Aides & Teacher Assistants Association (the "Association") alleging that the Association 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 "Act"), specifically N.J.S.A. 34:13A-5.4(b)(2).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 an 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 the Commission's complaint issuance standards have not been met.

The Board charges that an Association memorandum, complaining of the use of some teachers aides for nursing duties, was improperly addressed to certain administrative employees of the Board. Instead, the Board contends that the memorandum should have been handled in accordance with the grievance procedure in the collective negotiations agreement (the "Agreement") between the parties, or, if not covered by the Agreement, the issue should have been raised in negotiations.

The charge brought by the Board is almost identical to a charge it filed against the Association on January 25, 1977. Conferences with a Commission staff member led to a settlement agreement between the parties on March 28, 1977 to "strictly abide by the grievance procedures set forth in the collective negotiations agreement . . ." The Board contends that this settlement agreement has been violated in the circulation of the instant memorandum.

As heretofore indicated, the issue placed before the undersigned is whether, pursuant to the Act, the Association has interfered with, restrained, or coerced the employer's selection of his representative for negotiations or for grievance adjustment. Assuming for the present purpose that the document submitted to a building principal, and circulated to other Board administrators, was a grievance presented for adjustment, or alternatively presented a request for negotiations, the undersigned cannot conclude, under the circumstances presented, that the Association interfered with, restrained, or coerced the Board in the selection of its representatives for negotiations or for the adjustment of grievances. The Board alleges that the memorandum was directed to the wrong Board agent.5/ Absent in the charge is any factual allegation that the Association insisted upon an official reply to the memorandum from a nondesignated Board official, or that it refused to negotiate with the representative designated by the Board, or that the Association's actions have in any other way interfered with, restrained, or coerced the Board in the selection of its representative for the purpose of negotiations or grievance adjustment.

The circulation of the memorandum to Board administrators complaining about duties assigned to the aides is a protected activity and has not been restricted by contractual agreement.6/ The conclusion by the Board that it has been bypassed inasmuch as the memorandum was presented to administrators is not supported. It is not alleged that the Association sought to prevent the administrators from fulfilling their responsibilities to direct any matter not within their authority to the appropriate channel.

Accordingly, for the above reasons the undersigned declines to issue a complaint.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	October 1, 1980

Trenton, New Jersey