D.U.P. NO. 77-2

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CITY OF PLEASANTVILLE,

Respondent,

-and-	Docket No. CO-77-68

MAINLAND LOCAL NO. 77, NEW JERSEY STATE

POLICEMEN'S BENEVOLENT ASSOCIATION,

Charging Party.

Appearances:

For the City of Pleasantville, Mr. Irving A. Lilienfeld, City Solicitor

For Mainland P.B.A. Local 77, Mr. Robert L. Hudson, President

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on September 20, 1976 by Mainland Local No. 77, New Jersey State Policemen's Benevolent Association ("Local No. 77") against the City of Pleasantville (the "City") alleging that the City engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a) by refusing to process a particular grievance presented by Local No. 77. The Unfair Practice Charge was amended on October 6, 1976 to allege particular subsections of the above statutory provision, particularly subsections (1), (5) and (7).1/ The amended Charge substantively reiterates the allegations contained in the Charge filed on September 20, 1976.2/

In a previous decision issued by the Executive Director of the Commission, who at that time was the Commission's named designee for matters related to the issuance of Complaints, the Executive Director refused to issue a Complaint in unfair practice charges of similar issue, i.e. an alleged failure to process grievances to arbitration pursuant to grievance and arbitration provisions in negotiated agreements. In re Englewood Board of Education, E.D. No. 76-34, 2 NJPER 175 (1976). The Executive Director stated that as a matter of law a public employer's failure to participate in contractual arbitration proceedings does not, on the facts alleged in most instances, constitute a refusal to process grievances within the meaning of N.J.S.A. 34:13A-5.4(a)(5). The underlying theory in refusing to issue a Complaint in such instances is that absent an affirmative step by the public employer to restrain the arbitration proceeding, the failure of the public employer to participate in the arbitration proceeding will not prevent the arbitration provisions of the grievance procedure from proceeding on a self-
executing basis to arbitration. Thus, the employee organization is not precluded from pursuing the arbitration to conclusion ex parte and the grievance will be "processed" to arbitration pursuant to the parties' contract notwithstanding the public employer's failure to take part in that process.

The undersigned finds that the reasoning of the Englewood case is applicable as well to the earlier stages of the grievance procedure. A public employer's failure to respond to a grievance at a given level is presumed to be a rejection of the grievance. Normally, the next level of the grievance procedure may be invoked unilaterally by the aggrieved party inasmuch as the grievance has not been resolved to the aggrieved party's satisfaction. The grievance will thus be "processed" through the given levels until it proceeds to arbitration. This appears to be the case at hand, insofar as Local No. 77 sets forth in detail in its charge allegations of fact that indicate that Local No. 77 has not been prevented from moving its grievance to arbitration.

We are thus presented with no allegation that the employer's actions will have the effect of precluding the ex parte processing of the dispute pursuant to a contractual grievance and arbitration clause. Absent an allegation that the contractual procedures may not proceed in the absence of the employer's participation, i.e. that the procedures are not self-enforcing, the charge fails to allege facts which, if true, may constitute an unfair practice. See Englewood, supra, at footnote 7.

Therefore, for the reasons set forth above the undersigned concludes that absent extraordinary circumstances not present herein, the failure of the public employer to participate at a given level of a contractual grievance proceeding does not constitute "refusing to process grievances" within the meaning of N.J.S.A. 34:13A-5.4(a)(5). Similarly, the allegation alleging violations of N.J.S.A. 34:13A-5.4(a)(1) must fall. The allegation of a violation of N.J.S.A. 34:13A-5.4(a)(7) falls inasmuch as the Charging Party has failed to set forth a rule or regulation of the Commission in support of its claim. See In re Madison Township Board of Education, E.D. No. 76-8 (1975). Accordingly, the undersigned hereby refuses to issue a Complaint thereon and the instant case is hereby closed.

BY ORDER OF THE DIRECTOR OF

UNFAIR PRACTICE PROCEEDINGS

/s/Carl Kurtzman, Director

DATED:	December 14, 1976

Trenton, New Jersey