D.U.P. No. 79-10

Synopsis:

The Director of Unfair Practices declines to issue a complaint with respect to an Unfair Practice charge alleging that the employer has violated N.J.S.A. 34:13A-5.4(a)(1), (3) and (5). The Commission is precluded from issuing complaints where the unfair practices alleged have not occurred within six months of the filing of the Unfair Practice Charge. The Charging Party has failed to amend its Charge to allege events within the six month limitation.

PERC Citation:

D.U.P. No. 79-10, 5 NJPER 177 (¶10094 1978)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.13

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DUP 79-010.pdf
Appellate Division:
Supreme Court:

D.U.P. NO. 79-10 1. D.U.P. NO. 79-10 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of ATLANTIC COUNTY WELFARE BOARD, Respondent, -and- Docket No. CO-79-67 AMERICAN FEDERATION OF STATE, COUNTY, MUNICIPAL EMPLOYEES, COUNCIL #71 - LOCAL 2302, Charging Party. REFUSAL TO ISSUE COMPLAINT An Unfair Practice Charge was filed with the Public Employment Relations Commission (the A Commission @ ) on September 21, 1978 by the American Federation of State, County, Municipal Employees, Council #71 - Local 2302 (the A Charging Party @ ) against the Atlantic County Welfare Board (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., as amended (the A Act @ ), specifically N.J.S.A. 34:13A-5.4(a)(1), (3) 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 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 time and place of occurrence of the particular acts alleged and the names of respondent = s agents or other representatives by whom committed and a statement of the portion or portions of the Act alleged to have been violated. @ (Emphasis added)5/ Accordingly, the undersigned has determined that it is incumbent upon the Charging Party to allege the occurrence of unfair practices, within the six month limitation requirement, and that in the absence of such allegations, the undersigned would decline to issue a complaint. See In re North Warren Regional Board of Education, D.U.P. No. 78-7, 4 NJPER 55 ( & 4026 1977). Subsequent to the filing of the instant Unfair Practice Charge, by letter dated September 28, 1978, 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 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 September 28, 1978 letter, nor has the Charge been amended, as requested. Accordingly, as the Charging Party has not included in its Charge 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 DATED: November 16, 1978 /s/Carl Kurtzman, Director Trenton, New Jersey 1/ These subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (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 tot hem by 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. @ 2/ 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 named designated agent thereof... @ 3/ N.J.A.C. 19:14-2.1. 4/ N.J.A.C. 19:14-2.3. 5/ N.J.A.C. 19:14-1.3. ***** End of DUP 79-10 *****