P.E.R.C. No. 2024-56, NJ/State

Notice to employeesNOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY (OFFICE OF EMPLOYEE RELATIONS), Respondent, -and- Docket No. CO-2023-119 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Commission grants, in part, and denies, in part, each party’s motion for summary judgment on unfair practice charges filed by the Communications Workers of America, AFL-CIO (CWA) against the State of New Jersey, Office of Employee Relations (State). The Commission grants the State’s motion as to certain paragraphs of the charge, and dismisses those allegations as untimely. The Commission grants CWA’s motion on its timely charges, finding the State violated the Act through its unexplained delays in assigning to CWA negotiations units newly hired State employees as to whom the State does not dispute are performing CWA negotiations unit work and are not otherwise exempt under the Act. The Commission dismisses, without prejudice, CWA’s charge that the State violated the Act by avoiding its obligations under the parties’ negotiated agreements. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY (OFFICE OF EMPLOYEE RELATIONS), Respondent, -and- Docket No. CO-2023-119 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Matthew J. Platkin, Attorney General (Eric A. Zimmerman, Deputy Attorney General, on the brief) ¶

For the Charging Party, Weissman & Mintz LLC, attorneys (Patricia A. Villanueva, of counsel) ¶

DECISION ¶

This matter returns to us by way of opposing motions for summary judgment (each filed February 6, 2024, respectively by the Communications Workers of America, AFL-CIO (CWA), and by the State of New Jersey, Office of Employee Relations (State)), on CWA’s unfair practice charge against the State, filed on January 19, 2023.1/ ¶

CWA’s charge alleges the State violated section 5.4a(1), (5) and (7)2/ of the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), by hiring employees that the State acknowledges are performing negotiations unit work into non-unit titles and employee-relations groups (ERGs or groups). The State filed briefs and exhibits. CWA filed briefs, exhibits, and the certification of its Senior Campaign Lead, William Bradley. ¶

Background ¶

As defined by the New Jersey Civil Service Commission (CSC), an ERG is “[a] category of titles that may or may not be represented by a majority representative (union).” 3/ The CSC refers to ERGs in its “Compensation Compendium,” published annually, which details the compensation program for executive- branch State employees and the currently-in-effect salary regulations in each fiscal year.4/ ¶

CWA is the majority representative of four collective negotiations units of State employees, in ERGs respectively designated A, P, R, and S (APRS). They are: the Administrative and Clerical Services Unit (A); the Professional Unit (P); the Primary Level Supervisors Unit (R); and the Higher Level Supervisors Unit (S). Employees in all four CWA units are covered by a single collective negotiations agreement (CNA) between CWA and the State.5/ ¶

CWA has not, historically, represented State employees in ERGs designated V, W, X, and Y (VWXY). These groups, otherwise bearing (in large part) the same respective descriptors as the APRS groups, are marked “exempt” in the CSC’s Compensation Compendium, meaning exempt from inclusion in a collective negotiations unit.6/ The “exempt” designation for VWXY titles derives from their status as either “confidential” or “managerial executive,” as defined by the Act.7/ ¶

In 2010, the State Legislature amended the Act to redefine “managerial executive” and “confidential employee.” 8/ The amendment narrowed these definitions, particularly as they apply to State employees. Thus, under the revised definitions, eligibility for inclusion in a collective negotiations unit was extended to some State employees who were exempt under the old definitions. ¶

In 2018, the Workplace Democracy Enhancement Act (WDEA) was enacted and became effective.9/ Among other things, it further expanded the parameters of eligibility for inclusion in a negotiations unit under our Act. The WDEA provides that all non- exempt regular full- and part-time public employees who perform negotiations unit work “shall be included in the negotiations unit represented by the exclusive representative employee organization[,] . . . without regard to job title, job classification or number of hours worked.” 10/ ¶

The Agreements ¶

The CNA ¶

In March of 2019, the parties ratified their 2019-2023 CNA. It is evident that in doing so, they were cognizant of the above- described legislative changes. For example, the “Recognition of Rights” clause of the 2019-2023 CNA required the State to provide CWA with the names and job titles of all VWXY State employees, all temporary employees and their hours worked, and all part-time employees performing unit work who were previously excluded from CWA units because they did not meet the hours threshold in the predecessor CNA. It also required the State to create and provide CWA with an “Exclusion List” of job titles, and “the basis for inclusion on [that] List.” It further provided that the parties would meet to discuss and resolve issues or disputes with respect to the inclusion of such employees in CWA units; and for the submission to PERC of any such disputes that the parties could not mutually resolve. ¶

The Memorandums ¶

On June 26, 2020, the parties executed a Memorandum of Agreement (MOA) regarding certain employees in the VWXY groups. This was the first of three such agreements (two MOAs and a Memorandum of Understanding (MOU)) that relate to the current dispute. Among other things, the parties agreed in this first MOA to establish a list, entitled “Schedule A,” of VWXY employees that “are represented by CWA,” effective with the MOA’s date of execution. The MOA further identified specific articles of the 2019-2023 CNA that covered certain employees identified on Schedule A. It also contemplated that the parties would continue to identify additional VWXY employees to be represented by CWA, and required that any employees so identified would be added to Schedule A. It further required the parties to engage in on- going mutual discussion to resolve remaining “disputes” over whether other VWXY employees (not identified on Schedule A) would be represented by CWA. ¶

On April 5, 2021, the parties executed the second MOA. Among other things, it extended coverage of the 2019-2023 CNA to all Schedule A employees. It also addressed various issues (regarding compensation, discipline, layoff/recall, temporary assignments, etc.) affecting certain Schedule A employees. The second MOA also required the State to provide CWA with specific information about all future VWXY hires and, within ten working days from the date of hire of such an employee, provide CWA with “the basis for their exclusion” from a CWA unit, if any. Like the first, the second MOA provides for mutual discussion over whether a VWXY hire should be in a CWA unit. The second MOA adds that “if there is a dispute,” CWA has a reserved right to submit it to PERC. The second MOA further requires that as the parties continue identifying employees on the “dispute list” who should be included in CWA units, such employees will be added to Schedule A. ¶

After CWA filed the instant unfair practice charge and a complaint was issued (see n.1, supra), the parties entered their third such agreement, the MOU, on October 1, 2023. Among other things, the MOU required State appointing authorities to certify to CSC, prior to obtaining its approval to hire someone into a VWXY title, that major job responsibilities to be assigned to the prospective employee are not currently being performed by a CWA unit title, and were not within the last three years. The MOU further permitted CWA to assert that an employee hired upon such a certification is performing unit work, and required CWA to provide the State with the basis for this belief. In such cases, the MOU provided that the employee in question would be designated as part of a CWA unit if the parties so agreed, or if PERC determined the employee was performing unit work. ¶

All three agreements (the two MOAs and the MOU) also contained provisions addressing how the parties would jointly seek to obtain the approval or cooperation of the CSC in making changes to an employee’s title or group, if necessary, once it is determined an employee is represented by CWA. ¶

CWA’s Charge and the State’s Answer ¶

CWA’s charge against the State includes a 47-paragraph, six- page Statement of Charge, with 245 pages of attached exhibits. The charge alleges that an employee’s placement in Schedule A “reflects an agreement between the parties that the employee is performing negotiations unit work and is appropriate for inclusion in a negotiations unit because (a) they are neither a confidential employee nor a managerial executive and (b) there is no supervisory conflict.” 11/ In its Answer, the State admits placement on Schedule A “reflects an agreement between the parties that an employee may be included in the CWA’s negotiations unit.” ¶

The charge includes allegations that on some 28 different occasions, between July 1, 2021 and December 6, 2022, the State provided CWA with email notifications advising that newly-hired VWXY employees would be added to Schedule A. Copies of these emails are attached as exhibits to the charge. The State’s answers to these allegations state that each such email “speaks for itself,” but that the State “lacked sufficient information to admit or deny if CWA received [such] an email.” The State’s Answer does not deny that such emails exist or were sent, nor does it dispute the information contained in them. ¶

The charge also alleges that on June 10, 2022, CWA communicated via email to the State (a copy is attached to the charge as an exhibit) that State “departments need to stop hiring into VWXY titles and hire into APRS titles.” As to this allegation, the State repeats its answer about the 28 emails allegedly sent from the State to CWA, including its statement that the email “speaks for itself.” The State’s response does not deny that this email exists or was sent. ¶

The charge further alleges, at paragraph 15 (emphasis added): ¶

As this process continued, the State continued hiring employees performing negotiations unit work into V, W, X, and Y titles that are not part of a CWA negotiations unit. After hire, however, the State would communicate to CWA that the employees are appropriate for inclusion in a CWA negotiations unit. The time frame between the date of hire and notification of inclusion varies. ¶

The State’s Answer denies the above allegations. As a consequence of this practice, the charge further alleges (and the State further denies), the State is “avoiding its obligations under the collective negotiations agreement that should govern the initial terms and conditions of employment of those employees.” ¶

As relief, the charge requests that PERC order the State to cease and desist from hiring employees performing CWA negotiations unit work into non-negotiations unit titles and ERGs; and to direct the State to determine, prior to hiring, that an employee that it seeks to place into a VWXY title is not performing CWA negotiations unit work. ¶

Material Facts Not in Dispute ¶

Unless otherwise noted, we derive the facts that we find are undisputed, and material to our decision, from the pleadings and the motion record presented. These include facts set forth or referenced in the parties’ motion briefs, and as found in the pleadings and documentary exhibits. On this record, we find as follows. ¶

Although VWXY titles, historically, are non-unit titles that have not been represented by CWA or covered by its CNAs, such titles and employees will now belong in a CWA unit in the absence of any dispute that: (1) they perform negotiations unit work; and (2) they are neither confidential employees nor managerial executives as those terms are defined by the 2010 legislation. Through a series of related agreements, the parties developed a procedure for resolving disagreements over whether VWXY employees meet these criteria. ¶

By its terms, this procedure requires the State to identify, within ten days from the date of hire, a basis for excluding an employee from a CWA unit, and for the parties to then engage in mutual discussion about the exclusion. If the parties could not agree, PERC’s involvement could be sought. If, through this negotiated dispute-resolution process, it is found there is no basis to exclude such VWXY hires from a CWA unit, they are added to Schedule A. Until that happens, CWA representation of such disputed employees, and the coverage of their terms and conditions of employment under the CNA, cannot begin. ¶

The State does not materially dispute CWA’s allegations that between July 1, 2021 and December 6, 2022, the State provided CWA with email notifications which show that newly-hired VWXY employees were added to Schedule A on a delayed basis (and without dispute that they should be added), or that on June 10, 2022, CWA objected to the State’s hiring practices via email. The State’s email notifications document a pattern of time periods (from date of hire) when VWXY employees who belonged in a CWA unit were unrepresented without the protections of the CNA. These periods of being unrepresented (the record includes at least 20 different examples) range from a few days to a year or more. The same email record includes numerous examples of the State notifying CWA that it did not dispute that other recently hired VWXY employees, with unspecified dates of hire, should be added to Schedule A. ¶

The Standard of Review ¶

Summary judgment will be granted if there are no material facts in dispute and the moving party is entitled to relief as a matter of law. Our regulation on summary judgment motions, N.J.A.C. 19:14-4.8(e), provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995) specifies the standard for determining whether a “genuine issue” of material fact precludes summary judgment. The factfinder must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” If that issue can be resolved in only one way, it is not a “genuine issue” of material fact. In other words, summary judgment should be granted “if the evidence is so one-sided that one party must prevail as a matter of law.” Ibid. “Although summary judgment serves the valid purpose in our judicial system of protecting against groundless claims and frivolous defenses, it is not a substitute for a full plenary trial” and “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DiMedio, 275 N.J. Super. 488, 495 (App. Div. 1995); see also, UMDNJ, P.E.R.C. No. 2006-51, 32 NJPER 12 (¶6 2006). ¶

Arguments of the Parties ¶

Both parties contend that summary judgment is appropriate because there are no genuine issues of material fact. ¶

In support of its motion for summary judgment, CWA argues that the State is ultimately responsible for the appropriate classification of its employees under the WDEA’s mandate that public employees “performing negotiations unit work shall be included in the negotiations unit represented by the exclusive representative employee organization.” CWA argues this inherently requires the State, prior to or at the time of hire, to make an initial determination as to whether an employee will be performing negotiations unit work. ¶

CWA further argues that even if the State did not know at the time of hire that employees at issue were performing unit work, the State at no time disputed the inclusion of those employees in a CWA negotiations unit. Thus, the State did not assert that they do not perform negotiations unit work, are confidential employees or managerial executives, or present a supervisory conflict. CWA argues that by repeatedly hiring such employees outside the terms and conditions of employment of the parties’ CNA, the State refused to negotiate in good faith with CWA, in violation of section 5.4(a)(5) and, derivatively, (a)(1) of the Act. ¶

In opposition to CWA’s motion, the State argues that PERC should reject CWA’s contention that the State agencies involved should have known the exact duties prospective employees were to perform upon hire. The State argues that VWXY employees are often hired into positions with undetermined job duties, and it takes time for the State to determine their exact duties. The State contends the parties’ MOA and 2023 MOU evidence CWA’s awareness of this fact, and that PERC should not subject the State to unfair practice liability in light of the parties’ three-year history of good faith negotiations, and their agreed- upon procedures for the post-hire review of historically non- aligned employees. ¶

The State argues, in support of its motion for summary judgment, that the complaint should be dismissed as untimely. Specifically, the State argues that paragraphs 23 through 45 of CWA’s charge reference employment actions (spanning July 1, 2021 through July 5, 2022) taken by the State more than six months prior to the filing of CWA’s charge on January 19, 2023, thus the allegations in those paragraphs should not be considered. ¶

The State also argues that CWA’s complaint is moot, based on the parties’ ongoing relationship and negotiated agreements; and that CWA is attempting with its charge to add a term to the 2021 MOA by asking PERC to direct the State to determine, prior to hiring, that employees it seeks to hire into VWXY titles are not performing CWA negotiations unit work. The State adds that the parties’ 2023 MOU addresses these concerns, and thus CWA’s charge only further undermines the Act’s intended purpose of promptly resolving labor disputes. ¶

The State further argues that CWA cannot meet its burden of proving that the State’s conduct violated the Act. The State argues it did not fail to negotiate in good faith, and CWA’s contention that it is avoiding its contractual obligations is also unsupported, as the State followed the parties’ negotiated agreements. The State also contends CWA does not allege it approached the State about this alleged unfair practice. ¶

In opposition to the State’s motion for summary judgment, CWA argues that the State relies on facts outside the pleadings, specifically the parties’ 2023 MOU, which was not executed until almost nine months after CWA filed its charge. CWA further argues that its charge is timely because other paragraphs of the charge cover conduct from August to December 2022, which occurred within six months of the charge’s filing on January 19, 2023. ¶

CWA further argues that the WDEA preempts negotiations over whether an employee performing negotiations unit work can or should be included in a negotiations unit; and that the parties’ 2021 MOA and 2023 MOU do not address whether under the WDEA the State can hire employees performing negotiations unit work into non-negotiations unit titles and ERGs. CWA adds that the charge is not moot because such continued hiring is likely to recur,12/ and it involves an issue of considerable public importance because it impacts the terms and conditions of public employees and deprives them of their right to representation and of the benefits of collective negotiations. ¶

Analysis ¶

Viewing the record evidence in a light most favorable to each non-moving party, we grant the State’s motion for summary judgment as to paragraphs 23, 24, and 26 through 45 of CWA’s charge, as we find those allegations untimely. We grant CWA’s motion for summary judgment as to the allegations in paragraphs 17 through 22 of its charge, as further set forth below. ¶

The Act provides that no unfair practice complaint “shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the six-month period shall be computed from the day he was no longer so prevented.” N.J.S.A. 34:13A-5.4(c). Here, July 19, 2022 is six months prior to the January 19, 2023 filing date of the charge. Paragraphs 23, 24, and 26 through 45 of CWA’s charge involve State actions occurring prior thereto, from July 1, 2021 through July 5, 2022. CWA does not assert it was prevented from filing a charge on those claims within six months of their occurrence. Therefore, the charge is untimely with respect to those claims and barred by N.J.S.A. 34:13A-5.4(c). ¶

We deny the State’s motion for summary judgment as to CWA’s allegations in paragraphs 17-22 of the charge. These paragraphs cover State conduct from August to December 2022, which occurred within six months of the charge’s filing. As to these timely claims, there are no genuine issues of material fact, and we find the evidence supports that a violation of the Act occurred. ¶

When the events detailed in paragraphs 17-22 of the charge occurred, the parties’ 2021 MOA was in effect. The subsequent MOU was not adopted until October 1, 2023. As such, our focus on undisputed facts material to our analysis of the timely charges will include those relating to the 2021 MOA. ¶

Under the Act, non-exempt public employees have the right to “form, join and assist any employee organization or to refrain from any such activity.” N.J.S.A. 34:13A-5.3.13/ Public employers may not: interfere with, restrain or coerce employees in the exercise of these rights; or “refuse to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit.” N.J.S.A. 34:13A-5.4(a)(1) and (5). ¶

As amended by the WDEA, the Act requires that “[a]ll regular full-time and part-time employees of the public employer who perform negotiations unit work shall be included in the negotiations unit represented by the exclusive representative employee organization[,] . . . without regard to job title, job classification or number of hours worked.” N.J.S.A. 34:13A-5.15(a) and (b) (emphasis added). ¶

The timely charges involve State employees as to whom the record reflects there was no dispute that they performed CWA negotiations unit work, and were not otherwise exempt. Such employees had rights under the Act that, until they were placed in a CWA unit or (through placement on Schedule A) were covered by its CNA, they could not exercise. ¶

Given the State’s size and operational complexity as an employer, a minor administrative delay in assigning such employees to a CWA unit may not be unreasonable. The State, in its brief, contends that employees are often hired into positions with undetermined job duties, and it takes time for the State to determine the exact job duties of VWXY new hires. However, the State provides no specific facts in that regard to explain any of the documented and undisputed delays in this matter. ¶

Particularly lengthy delays are seen in paragraph 17 of the charge, which states: ¶

On December 6, 2022, CWA received an email advising it that the Department of State hired a Government Representative 2 on February 2, 2021, and a Communications Manager on June 6, 2022, and that they will be added to Schedule A. ¶

As noted supra, the record contains no evidence that the State ever disputed that these employees are appropriate for inclusion in a CWA unit. If the State did have reason to dispute it, the parties’ 2021 MOA required the State to provide CWA with the basis for that belief within ten days from the date of hire. Again, the record contains no such information. ¶

Nor does it contain any explanation, on the State’s part, as to why, as detailed in paragraph 17 of the charge, the employee hired into the Government Representative 2 title was not able to exercise their rights under the Act for one year and 10 months, from February 2, 2021 until December 6, 2022; or why the Communications Manager was not able to exercise their rights under the Act for seven months, from June 6 until December 6, 2022. The delays documented in the other timely charges are: three months (paragraph 20); nine days (paragraph 21); and 20 and 21 days (paragraph 22). Paragraphs 18 and 19 detail the State’s notifications of placement on Schedule A of employees as to whom the emails do not specify a hire date. ¶

In the absence of a substantive factual explanation by the State for these delays, we find that the State interfered with the exercise of the affected employees’ rights under the Act, in violation of N.J.S.A. 34:13A-5.4(a)(1). ¶

The WDEA does not prohibit public employers from continuing to hire employees into historically non-aligned titles or groups, even if (as here) some of these employees now perform negotiations unit work. The WDEA’s requirements are “without regard” to “job title” or “job classification.” But it also does not prohibit public employers from agreeing not to do so. The latest MOU requires the State to certify in advance that major job responsibilities of future VWXY hires are not being performed by a CWA unit title. It appears designed to achieve the relief sought by CWA in its charge: that the State cease and desist from hiring employees performing CWA negotiations unit work into non- negotiations unit titles and ERGs; and that the State determine, prior to hiring, that an employee that it seeks to place into a VWXY title is not performing CWA negotiations unit work. In light of this latest agreement, we will dismiss without prejudice CWA’s charge that the State is “avoiding its obligations” under its agreements, in violation of section 5.4(a)(5) of the Act. ¶

We credit the parties’ mutual and extensive efforts in negotiating parameters for determining an employee’s eligibility for inclusion in a CWA negotiations unit.14/ However, CWA’s charge is not rendered moot by these efforts. Galloway Township Bd. of Ed. v. Galloway Township Education Ass’n, 78 N.J. 25, 46- 47 (1978) (charge not mooted by board’s voluntary participation in negotiations that settled specific claims where “there was a sufficient potential for recurrence of the Board’s conduct” ). We find the State’s conduct at issue is capable of repetition, notwithstanding the existence of the various agreements. ¶

In conclusion, we find that public employers may not unreasonably delay placing newly-hired employees who are performing negotiations unit work into an appropriate unit, in the absence of an actual dispute over such inclusion. Even in cases of formal disputes that come before PERC “over the inclusion of employees performing negotiations unit work in the appropriate negotiations unit,” the WDEA requires that they be resolved on an expedited basis, within 60 days. N.J.S.A. 34:13A-5.15(e); N.J.A.C. 19:11-1.5(e). The State has provided no factual basis by which we may conclude that the delays experienced by the employees detailed in the timely charges were not unreasonable or did not interfere with their exercise of the rights guaranteed them by the Act. We order the State to cease and desist from that activity. ¶

Based on the foregoing, we grant, in part, and deny, in part, each party’s motion for summary judgment. We find the State violated N.J.S.A. 34:13A-5.4(a)(1) through its unexplained delays in assigning to CWA negotiations units (or to Schedule A) newly hired State employees as to whom the State does not dispute are performing CWA negotiations unit work and are not otherwise exempt under the Act. We otherwise dismiss, without prejudice, CWA’s charge that the State violated the Act by avoiding its obligations under the parties’ negotiated agreements. ¶

OrderORDER ¶

The State of New Jersey, Office of Employee Relations, is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by unreasonably delaying placement into an appropriate CWA negotiations unit newly hired employees in VWXY titles as to whom the State does not dispute are performing CWA negotiations unit work and are not otherwise exempt under the Act. ¶

B. Take the following action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this ORDER. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Higgins, and Papero approved this decision. None opposed. Commissioners Eaton and Kushnir recused themselves. ¶

ISSUED: May 30, 2024 ¶

Trenton, New Jersey ¶

Notice to employeesWE SHALL cease and desist from: interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by unreasonably delaying placement into an appropriate CWA negotiations unit newly hired employees in VWXY titles as to whom we do not dispute are performing CWA negotiations unit work and are not otherwise exempt under the Act. ¶

Note1/ A complaint on CWA’s charge was issued on July 24, 2023, pursuant to our decision of June 29, 2023, P.E.R.C. No. 2023-57, 50 NJPER 37 (¶12 2023), reversing the Director of Unfair Practices’ prior letter decision declining to issue a complaint. The State filed an Answer on September 5, 2023. ¶

2/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act” ; “(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative” ; and “(7) Violating any of the rules and regulations established by the commission.” ¶

In its brief opposing the State’s summary judgment motion, CWA states it “withdraws its 5.4a(7) charge.” (CWA’s 2/16/24 Br., p. 13.) As such, we do not consider that charge in this decision. ¶

3/ https://nj.gov/csc/about/about/terminology/definitions.html . ¶

4/ https://www.nj.gov/csc/authorities/forms/publications/ . ¶

5/ As the parties cite to their CNA in effect from July 1, 2019 through June 30, 2023, we will refer to that CNA in this decision. We note that with its adoption, the parties agreed to “use a single contract book” incorporating the provisions of four previously-separate CNAs. (2019-2023 CNA, Preamble.) We further note that as the signature page of that CNA is undated, we take administrative notice that a tentative agreement was reached on March 7, 2019, and was ratified by CWA’s membership on March 20, 2019. See: ¶

https://www.nj.gov/governor/news/news/562019/20190307a.shtml https://www.insidernj.com/press-release/cwa-statement-ratify ing-executive-branch-contract-state-new-jersey/ ¶

We also take administrative notice that the parties have since adopted a successor agreement, with effective dates from July 1, 2023 through June 30, 2027. ¶

6/ For example, the “A” and “W” ERGs correspond to the Administrative and Clerical Services Unit, with the latter bearing an additional descriptor, “Exempt,” in the Compensation Compendium’s ERG list. ¶

7/ The Act states, in pertinent part, that the right “to form, join and assist any employee organization or to refrain from any such activity” does not extend to managerial executives or confidential employees. N.J.S.A. 34:13A-5.3. ¶

8/ P.L. 2009, c. 314, § 1, eff. Jan. 18, 2010. ¶

9/ P.L. 2018, c. 15, § 5, eff. May 18, 2018; N.J.S.A. 34:13A-5.11 through -5.15. ¶

10/ N.J.S.A. 34:13A-5.15 (a) and (b). ¶

11/ According to the charge, the parties to date “have agreed to the inclusion of approximately 1,044 VWXY employees in a CWA negotiations unit” as identified on Schedule A. The charge further alleges the parties have additionally “agreed to the inclusion of 45 VWXY titles “in a CWA negotiations unit,” as to whom the Civil Service Commission has begun converting their VWXY titles into APRS titles. In its Answer, the State neither admits nor denies these allegations. ¶

12/ CWA relies on Bradley’s certification and attached exhibits for examples of continued recurrence of the State’s allegedly unfair hiring practices since the charge was filed on January 19, 2023. Paragraphs 5 through 18 of Bradley’s certification describe further email notifications from the State covering a period from January 25, 2023 through December 21, 2023, about additional VWXY hires who should be added to Schedule A. The hire dates of some 18 employees are specified in these emails, three of which (covering six employees, Bradley Cert., ¶ ¶16-18) were sent after the parties adopted their October 1, 2023 MOU. The post-MOU emails document delays between dates of hire and placement on Schedule A of 11 days (3 employees, id., ¶17), 19 days (one employee, id., ¶18), 25 days (one employee, id., ¶16), and 39 days (one employee, id., ¶16). On average, the post- MOU delay is approximately 19 days. The pre-MOU emails (covering 12 employees) document delays ranging from as short as two days (two employees, id., ¶ ¶7, 15) to as long as 102 days (one employee, id., ¶12). On average, the pre- MOU delay is 38 days. Bradley further certifies that CWA received no communications from the State identifying a basis for exclusion of these employees or of those mentioned in paragraphs 17 through 45 of its charge, a brief description of their job duties, or an organizational chart, as required by the parties’ MOA. (Id., ¶ ¶3, 19.) The State did not have an opportunity to respond to the allegations in Bradley’s certification since it was filed with CWA’s opposition brief. ¶

13/ The right does “not extend to elected officials, members of boards and commissions, managerial executives, or confidential employees.” N.J.S.A. 34:13A-5.3; N.J.S.A. 34:13A-5.15(b). ¶

14/ The WDEA did not alter the Act’s policy of encouraging voluntary and prompt settlement of public-sector labor disputes. N.J.S.A. 34:13A-2. ¶

Notice to employeesDocket No. CO-2023-119 State of New Jersey (Office of Employee Relations) (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 292-9830 APPENDIX “A” ¶