D.U.P. NO. 83-5

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF ROCKAWAY,

Respondent,

-and-	Docket No. CO-83-37

FRATERNAL ORDER OF POLICE,

LODGE NO. 31,

Charging Party.

Appearances:

For the Respondent

Wiley, Malehorn and Sirota

(Frederic J. Sirota, of counsel)

For the Charging Party

Neal A. McCarthy, Secretary

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on August 20, 1982, by the Fraternal Order of Police, Lodge No. 31 (the "Charging Party") against the Township of Rockaway (the "Township") alleging that the Township 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(a)(3).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.

The Charging Party has filed the instant charge on behalf of a unit member who, assertedly, was injured in the line of duty and, as a result, has been unable to return to work. A grievance was generated alleging that the unit member was not accorded paid injury leave, in violation of the collective negotiations agreement between the PBA and the Township. The PBA claims that the Township failed to respond to the grievance at two levels, and has not responded to requests to designate an arbitrator under the binding arbitration mechanism of the Agreement.

The factual issues presented herein are similar to those presented in several previous matters wherein it has been claimed that an employer's failure to respond to a grievance at a particular level and/or failure to participate in the selection of an arbitrator is conduct violative of the duty to process grievances, and proscribed by N.J.S.A. 34:13A-5.4(a)(5). In such cases the undersigned has declined to issue a complaint since the self-effectuating nature of most contractual grievance/arbitration mechanisms provides for ex parte processing of grievances through arbitration notwithstanding the employer's non-participation. See In re State of New Jersey, D.U.P. No. 77-
3, 2 NJPER 373 (1976) (employer's refusal to agree to submission of a particular issue to arbitration); In re City of Pleasantville, D.U.P. No. 78-2, 2 NJPER 372 (1976) (employer's failure to respond to grievance at various steps of grievance procedure); and In re Englewood Board of Education, E.D. No. 76-
34, 2 NJPER 175 (1976) (employer's failure to participate in contractual arbitration proceedings).5/

Although the charging party has not alleged a violation of §5.4(a)(5) herein, its claim is that such conduct is violative of §5.4(a)(3). However, the charging party does not assert facts alleging that the grievant was discriminated against in retaliation for any activities on behalf of an employee organization or because he filed the grievance, or for the exercise of other activity protected by the Act. See N.J.S.A. 34:13A-5.3. Accordingly, the unfair practice charge is devoid of factual allegations which would support the maintenance of a §5.4(a)(3) action or of a §5.4(a)(5) allegation, if raised, and a complaint may not issue.

For the reasons stated above, it appears to the undersigned that the Commission's complaint issuance standard has not been met. Accordingly, the undersigned declines to issue a complaint herein.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	October 29, 1982

Trenton, New Jersey