D.U.P. NO. 84-27

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

NEWARK BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-83-349

SERVICE EMPLOYEES INTERNATIONAL

UNION, LOCAL 617,

Charging Party.

Appearances:

For the Respondent

Shirley Waters Cato, Associate Counsel

For the Charging Party

Rothbard, Harris & Oxfeld, attorneys

(Arnold S. Cohen, of counsel)

REFUSAL TO ISSUE COMPLAINT

On June 29, 1983, Service Employees International Union Local 617 ("Local 617") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the Newark Board of Education ("Board") has engaged 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 §§ 5.4(a)(1), (3) and (4).1/

The Charge alleges that the Board retaliated against Delma Green ("Green"), a clerk typist employed in the Division of Design and Construction, because she sought and received a "grievance meeting" with the Board regarding her treatment by her superiors. Among the various acts of retaliation alleged by Local 617, Green received a ten-day suspension. Local 617, on behalf of Green, appealed this suspension to the Civil Service Commission. The matter was heard by an Administrative Law Judge and a recommended decision issued on September 2, 1983. Upon review of the Administrative Law Judge's recommended decision, the Civil Service Commission rendered its final administrative action in the matter on November 10, 1983.2/

The undersigned has reviewed all the materials submitted including the Administrative Law Judge's decision and the Civil Service Commission's final administrative action, and finds that further formal proceedings before this Commission are not warranted with respect to the allegations of this unfair practice charge. See N.J.A.C. 19:14-2.1(a) and N.J.S.A. 34:13A-5.4(c).

Further litigation would be inconsistent with spirit and the holding of Hackensack v. Winner, 82 N.J. 1 (1980). This case involved actions filed before both the Civil Service Commission and PERC relating to an employer's promotional decision. Although protected activity claims were not the sole, major or dominating issues placed before the Civil Service Commission, the factual circumstances relating to the protected activity claims were raised in the proceedings before an Administrative Law Judge. The Court noted that the redress sought by the claimants based upon the assertion of improper employer motivation would have been possible through the exercise of the broad remedial powers of the Civil Service Commission. ". . . [t]here was a substantial likelihood that the entire controversy could have been heard fairly and fully by the Civil Service Commission in a single proceeding with sufficient expertise and competence to account for all genuine concerns, including those occasioned by the unfair labor practice charge." Id. at 35.

In the judgment of the undersigned the instant matter satisfies the criteria considered by the Court in Hackensack v. Winner in determining whether absentation is appropriate.3/ Here the matter has been litigated before an Administrative Law Judge who considered all arguments made by Local 617 with respect to both the unfair practice allegations and the Civil Service questions of law. In his recommended decision, the Administrative Law Judge specifically refers to the Charging Party's allegation that ". . . most of the documentation about her behavior was written after she asked for and received a meeting with Labor Relations people." Thus, it would appear that the issues before the Commission has already been raised and litigated before the Civil Service Commission. Additionally, the undersigned is satisfied that the decision reached in the Civil Service proceeding was essentially achieved through the proper balancing of considerations outlined by the Supreme Court in In re Tp. of Bridgewater and Bridgewater Public Works Assn., 95 N.J. ___ (February 2, 1984).

For the foregoing reasons, the undersigned declines to issue a complaint with respect to the unfair practice charge herein.

BY ORDER OF THE ADMINISTRATOR

OF UNFAIR PRACTICE PROCEEDINGS

/s/Joel G. Scharff, Administrator

DATED:	April 5, 1984

Trenton, New Jersey