D.U.P. NO. 84-29

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL #269,

Respondent,

-and-	Docket No. CI-84-66

JAMES M. PALMIERI,

Charging Party.

Appearances:

For the Respondent

Pellettieri, Rabstein & Altman

(Ira C. Miller, of Counsel)

For the Charging Party

James M. Palmieri, Pro se

REFUSAL TO ISSUE COMPLAINT

On March 7, 1984, an Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") by James Palmieri ("Charging Party"), alleging that the International Brotherhood of Electrical Workers, Local #269 ("Local") had 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 N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (4), (5), (6), (7) and 5.4(b)(1), (2), (3), (4) 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 practices, 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 and that formal proceedings in respect thereto should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

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

The Charging Party alleges that Local 269 has discriminated against him in denying him job referrals through Local 269's hiring hall arrangements, because he filed certain unfair labor practice charges with the National Labor Relations Board. The Charging Party alleges as well that Local 269 has discriminated against him as a non-member because it failed to send him written notice of special union meetings, elections, and referendums. He further alleges that Local 269 is both a "public contracting employer agency" and a public employee representative in that it refers electrical workers to employment with several public entities and it represents those employees as well.

Local 269 responded to the charge and seeks its dismissal. It argues that the Charging Party is not a public employee in that he works in the private sector as an independent contractor or as an employee of private electrical contractors. It further argues that Local 269 is not a public employee representative within the meaning of the Act and is not subject to its provisions. It claims that Local 269 does not maintain a contract with any public employer although its members are employed by several public entitles under a contract between those entities and the Mercer County Building Trades Council.

Finally, Local 269 argues that the Charging Party has filed identical charges with the National Labor Relations Board and that these charges were recently dismissed by the N.L.R.B. as being without merit or foundation.5/

The undersigned need not address the jurisdictional claims relevant to the unfair practice filing. It appears that the charges and allegations raised herein raise the same issues as those recently placed before the N.L.R.B. The Commission's complaint issuance standards provide for formal proceedings in order to afford the parties an opportunity to litigate legal and factual issues. In those cases where the unfair practice charges do not involve circumstances appropriate for litigation and where the individual circumstances of a charge do not call for an examination of the facts, the undersigned may appropriately refuse to issue a complaint.

In this matter, the Charging Party has already filed nearly identical charges with the N.L.R.B. and has been afforded every opportunity to support the charges. The N.L.R.B. Regional Director has issued two well reasoned expositions of the factual and legal issues implicated in this matter. The public interest nor the interest of the parties is served by providing the Charging Party yet another forum for litigation. There is no distinction in the public sector and private sector law to warrant an examination of the issues raised by the Charging Party.6/

Accordingly, for the foregoing reasons, the undersigned determines that the Commission's complaint issuance standards are not met herein. The undersigned declines to issue a complaint with respect to the instant charge.

BY ORDER OF THE ADMINISTRATOR

OF UNFAIR PRACTICES

/s/Joel G. Scharff, Administrator

DATED:	May 10, 1984

Trenton, New Jersey