D.U.P. NO. 85-10

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF UNION BEACH (DEPARTMENT

OF PUBLIC WORKS) and INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, LOCAL 641,

Respondent,

-and-	Docket No. CI-84-74

SALVATORE DeFRANZA,

Charging Party.

Appearances:

For the Respondent Public Employer

Hurley & Thaler, attorneys

(Robert B. Thaler, of counsel)

For the Respondent Employee Organization

Schneider, Cohen & Solomon, attorneys

(J. Sheldon Cohen, of counsel)

For the Charging Party

Healy, Falk & Maloney, attorneys

(David J. Hango, of counsel)

REFUSAL TO ISSUE COMPLAINT

On April 23, 1984, an Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") by Salvatore DeFranza ("Charging Party") against the Borough of Union Beach, Department of Public Works ("Borough") and Local 641, IBT ("Local 641"). The charge alleges that Respondents were engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). Specifically, Charging Party alleges that the Borough violated §§ 5.4(a)(1), (4) and (5)1/ by arbitrarily discharging him on August 20, 1983; he also alleges that Local 641 violated § 5.4(b)(1) when it failed to file a timely "appeal"2/ of the discharge on behalf of the Charging Party. The Charging Party alleges that the Borough did not timely notify Local 641 of Charging Party's termination, but that Charging Party individually provided Local 641 with a copy of his notice of termination.

In his charge, the Charging Party also alleges that he individually appealed his termination on September 19, 1983 with the Civil Service Commission. This appeal was denied, as well as a request for reconsideration.

During the processing of the charge, the Commission was advised that subsequent to the above determinations, the Charging Party filed an action in Superior Court, Law Division, against the Borough, for its alleged arbitrary, unreasonable, and capricious activity in discharging Charging Party, as well as against Local 641, for its alleged breach of the duty of fair representation in not promptly acting upon the "appeal".

On June 1, 1984, the Defendants Motions for Summary Judgment were granted, "The Court finding that Plaintiff has failed to present a prima facie case that Local 641 has breached its duty of fair representation to Plaintiff on the basis of the uncontested facts and applicable precedent," and, as to the Borough, on the basis of the New Jersey Tort Claims Act.

N.J.S.A. 34:13A-5.4(a) 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, and that formal proceeding in respect thereto should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues.4/ The Commission's rules provide that the undersigned may decline to issue a complaint.5/

For the reasons stated below, it appears to the undersigned that the Commission's complaint issuance standards have not been met.

The Respondents assert that a complaint should not be issued due to the application of either collateral estoppel, or res judicata arising from the litigation of the Superior Court action.

The Commission adheres to the Supreme Court's promulgation of a single or entire controversy rule, which is applied under circumstances where two or more administrative agencies are called upon to review the same subject matter over which concurrent jurisdiction is possessed. City of Hackensack v. Winner, P.E.R.C. No. 77-49, 82 N.J. 1 (1980). The single controversy rule precludes litigation of the same issues before two administrative forums. Under the principles of Hackensack, the Commission should also not proceed where the unfair practice issue has already been aired before a Court asserting jurisdiction over the issues.

Under In re N.J. Turnpike Authority (Beall), P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980), aff'd App. Div. No. A-1263-80T3 (10/30/81) an individual Charging Party must first establish that the majority representative has breached its duty of fair representation before it can proceed to assert a claim against employer under §5.4(a)(5) alleging that the employer unilaterally altered terms and conditions of employment by discharging the grievant in derogation of contractual rights. In this matter, the Court granted Local 641's Motion for Summary Judgment on the breach of the duty of fair representation claim after reviewing the merits. Salvatore DeFranza v. Mayor and Borough Council of the Borough of Union Beach and International Brotherhood of Teamsters Local 641, (slip opinion, Docket No. L-002926-84 (1/27/84)).

Upon review of the above, the undersigned is convinced that Hackensack considerations prevent further litigation of Charging Party's allegations against the Borough and Local 641. Accordingly, the undersigned declines to issue a complaint.

BY ORDER OF THE ADMINISTRATOR

OF UNFAIR PRACTICE PROCEEDINGS

/s/Joel G. Scharff, Administrator

DATED:	October 9, 1984

Trenton, New Jersey