D.U.P. NO. 83-2

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

EMPLOYEES ASSOCIATION OF WILLINGBORO

SCHOOLS,

Respondent,

-and-	Docket No. CE-82-4

WILLINGBORO BOARD OF EDUCATION,

Charging Party.

REFUSAL TO ISSUE COMPLAINT

On October 2, 1981, the Willingboro Board of Education (the "Board") filed an Unfair Practice Charge with the Public Employment Relations Commission (the "Commission") against the Employees Association of Willingboro Schools (the "Association").1/ The charge alleges that the Association is 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, the Board alleges that the Association violated N.J.S.A. 34:13A-5.4(b)(2), (3) and (5)2/ when it refused to comply with the grievance mechanism contained in the collective negotiations agreement between the parties.

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.3/ 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.4/ The Commission's rules provide that the undersigned may decline to issue a complaint.5/

Having reviewed the Charge, the undersigned determines that the Commission's complaint issuance standards have not been met.

The grievance procedure is described in Article XX of the collective negotiations agreement between the Board and the Association. Section 5(a) of the grievance procedure requires the grievant to discuss informally his/her grievance with his/her immediate supervisor. If the grievance remains unresolved, Section 5(b) provides for the grievant to make a formal presentation of the grievance. The relevant portion of Section 5(b) states:

The presentation of the grievance shall indicate the nature of the complaint and the specific facts that the grievant considers to be relevant to its resolution.

It is this section of the grievance procedure which is implicated in the Board's Unfair Practice Charge.

In its Charge, the Board alleges that the Association has engaged in a course of conduct whereby it introduces at the arbitration step factual evidence which it fails to produce during the early stages of the grievance procedure.6/ Further, the Board alleges that the Association has consciously chosen to refuse to disclose such information until the arbitration hearing. The Board contends that this course of conduct, which violates the contract and the past practice of the parties, results in surprise and puts it at a disadvantage during an arbitration hearing. The Board contends that it has incurred increased costs as a result of the Association's actions due to its inability to settle grievances at the earlier stages of the grievance process.

It is well-settled that the arbitral process is a less formal procedure than litigation and is not intended to duplicate practice and procedure in the courts.

The advantage inherent in arbitration from the viewpoint of the parties, is that it allows for 'the final disposition, in a speedy, inexpensive, expeditious, and perhaps less formal manner, of the controversial differences between [them]'. (citations omitted)7/

By arguing that the Association is precluded from introducing new facts and/or arguments during an arbitration hearing, the Board is attempting to impose the more formal practice of the courts on the grievance process.8/ The undersigned is unaware of any statutory or regulatory mandate which imposes a burden upon a grievant to marshal all factual and legal argument at a particular level of the grievance procedure. Thus, it appears to the undersigned that the Association's conduct, assuming the truth of the allegations, would not of itself constitute an unfair practice.

Moreover, assuming for the instant purposes that the Association is in violation of its contract with the Board,9/ this violation of contract does not automatically translate into a violation of the Act. The Commission has found that contract violations by employers constitute a violation of the duty to negotiate in good faith because the attendant consequences of a contract breach by an employer almost always entail a violation of the statutory proscription preventing an employer from modifying existing rules governing working conditions without prior negotiations with the majority representative. N.J.S.A. 34:13A-5.3. See In re Borough of Palisades Park, D.U.P. No. 78-
1, 3 NJPER 238 (1977). There is no statutory corollary governing unilateral changes in working conditions by majority representatives, if this is indeed possible. Accordingly, the undersigned fails to see a violation of §§5.4(b)(3).

For the above reasons, and for the reasons that follow, the undersigned concludes that the protections and remedies available to the employer under this type of claim must be contractual in nature.

The heart of the Board's Charge is that the Association has failed to comply with the terms of the negotiated grievance procedure. The Board may thus argue that the presentation of all specific facts relevant to a resolution of the dispute was a condition precedent to any duty to arbitrate. Issues of "procedural arbitrability" are decided by an arbitrator as a predicate to deciding the merits of the dispute. John Wiley & Sons v. Livingston, 376 U.S. 543 (1964). Thus, the Board is free to present any alleged violation of the grievance procedure by the Association to the arbitrator as a defense.

The Board has also alleged that the Association's refusal to reveal all the specific facts in a particular grievance results in surprise and puts the Board at a disadvantage in the arbitration hearing. However, the Board again has the means to protect itself. The Board may request an adjournment to enable it to respond to any new evidence which is introduced:

It should be emphasized that whatever element of unfairness may be involved in the use of new evidence, it is largely mitigated or eliminated by the fact that arbitrators who accept newly submitted evidence will take any reasonable steps necessary to insure the opposite party adequate opportunity to respond thereto, regardless of whether the evidence had been withheld in good or bad faith.10/

Thus, where new evidence has been introduced, the arbitrator may return the case to the parties for further consideration, or the arbitrator may adjourn the hearing to give the surprised party opportunity to respond to the new evidence.11/

The Board has also alleged that the Association has violated N.J.S.A. 34:13A-5.4(b)(2) and (5). However, the Board has not alleged facts indicating that the Association has interfered with the Board's selection of its representatives for purposes of negotiation or the adjustment of grievances. In addition, the Board has not cited any Commission rules or regulations which the Association has allegedly violated. In re Madison Tp. Bd. of Ed., E.D. No. 76-8.

The undersigned has completed his review of all allegations contained in the instant amended charge. It does not appear that these allegations, even if true, may constitute any unfair practice within the meaning of the Act. Accordingly, the undersigned declines to issue a complaint.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	August 20, 1982

Trenton, New Jersey