P.E.R.C. No. 2024-58, Atlantic City B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of ATLANTIC CITY BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2023-086 ATLANTIC CITY EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Atlantic City Board of Education’s motion for summary judgment on an unfair practice charge filed by the Atlantic City Education Association. The charge alleges that the Board violated the Act when: (1) it refused to provide information regarding the hiring of a non-unit employee as the high school basketball coach; (2) did not reappoint a unit employee to his assistant basketball coach position as a result of a negative performance evaluation crafted in retaliation for filing this charge; and (3) unilaterally implemented a new evaluation scheme that permitted the non-unit Head Coach to complete the Assistant Coach’s evaluation instead of the Athletic Director. The Commission finds there are numerous disputed material facts that require an evidentiary hearing, including disputed facts concerning the Board’s alleged retaliatory motive for negatively evaluating the Assistant Coach and his subsequent non-reappointment versus the Board’s claimed legitimate, non-retaliatory reasons. ¶

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 ATLANTIC CITY BOARD OF EDUCATION, RESPONDENT, -and- Docket No. CO-2023-086 ATLANTIC CITY EDUCATION ASSOCIATION, CHARGING PARTY. ¶

AppearancesAppearances: ¶

For the Respondent, Riley & Riley, (Tracey L. Riley, Esq., of counsel and on brief) ¶

For the Charging Party, Selikoff & Cohen, PA, (Steven R. Cohen, of counsel, Daniel R. Dowdy, on brief) ¶

DECISION ¶

This case comes to us by way of a motion for summary judgment. On November 18, 2022 and June 20, 2023, the Atlantic City Education Association (Association) filed an unfair practice charge (UPC) and amendment against the Atlantic City Board of Education (Board). The UPC alleges that the Board violated section 5.4a(1), (3) and (5)1/ of the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), when: (1) it refused to provide information regarding the hiring of a non-unit employee as the high school basketball coach; (2) did not reappoint a unit employee to his assistant basketball coach position as a result of a negative performance evaluation crafted in retaliation for filing this charge; and (3) unilaterally implemented a new evaluation scheme that permitted the non-unit Head Coach to complete the Assistant Coach’s evaluation instead of the Athletic Director. ¶

On March 21, 2023, the Director of Unfair Practices issued a Complaint and Notice of Pre-Hearing. On April 1, 2024, the Board filed a motion for summary judgment, together with a supporting brief and exhibits. On April 24, 2024, the Association filed a brief in opposition. Neither party filed certifications in support of their respective briefs. ¶

Summary of Undisputed Facts ¶

The Association is the exclusive majority representative of a negotiations unit consisting of professionally certified teaching personnel, among others, employed by the Board. The Board and the Association are parties to a collective negotiations agreement (CNA) with a term of July 1, 2022 to June 30, 2025. ¶

In June 2022, the Board posted a vacancy for a head high school basketball coach, which is a bargaining unit stipend position covered by the CNA. This posting states, in pertinent part: ¶

Priority will be given to NJ Certified Teacher applicants. In the event there is no qualified and certified applicant, the holder of a county substitute certificate may be considered for the position in the district in which he or she is employed for the designated sports season as indicated in N.J.A.C. 6:11-3.24. ¶

By resolution dated July 19, 2022, the Board hired a non- bargaining unit employee (the new Head Coach) who had not previously been employed by the Board to fill the new head high school basketball coach position. The new Head Coach was hired over the Assistant Coach, who is a certified teacher and bargaining unit member with many years of head coaching and assistant coaching experience. ¶

On July 21, 2022, the Assistant Coach emailed the Superintendent, asking for information about the selection process for the high school basketball head coach position. On August 26, after the Assistant Coach received no information regarding the head coach’s selection process, the Association President sent an email to the Superintendent requesting the following information: ¶

As you are aware the District recently hired a new High School Head Basketball Coach. The position of High School Head Basketball Coach is one of the extra pay positions contained in the Labor Contract between the Atlantic City Education Association. Accordingly, the ACEA is obligated to negotiate for and represent the terms and conditions of employment for the extra pay positions. Since it appears that the district has hired an individual not employed as a regular member of the ACEA bargaining unit, I am required to secure answers to some important questions. While the District’s action has raised numerous organizational and legal questions, I will limit the number at this time to the following: ¶

1. What were the circumstances that necessitated the hiring of an individual who is not a member of the ACEA bargaining unit. ¶

2. What were the criteria and procedures used to select the new High School Basketball Coach? ¶

3. Why was a qualified bargaining unit candidate not hired as the High School Head Basketball Coach? Please provide the application, evaluation and interview data for any bargaining unit candidate rejected. ¶

4. What are the terms and conditions of employment for the individual hired as the High School Basketball Coach? Please provide me with copies of any employment contracts signed between the new Head Basketball Coach and the ACBOE. ¶

As indicated, this situation has produced both organizational and legal questions. Therefore, I ask that you provide me with the requested information no later than Friday 9/2/22. Thank you for your prompt attention. ¶

The Board asserts that the Superintendent never responded to the Association President because the Assistant Coach’s original request was not considered a formal grievance and the Association had waived the grievance procedure by exceeding the timelines set forth in the CNA. On September 23, the Board counsel sent a letter to the Association refusing to provide the requested information, stating in pertinent part: ¶

The questions posed by [the Association President] are strictly based on one individual position - the hiring of a new basketball coach. The Atlantic City Board of Education's [sic] hired a new basketball coach for Atlantic City High School by resolution on July 19, 2022. If the ACEA bargaining member had believed that he suffered harm by the interpretation, application, or violation of policies, agreements or administrative decisions affecting him/her, a grievance should have been filed. The questions now being posed should not be made purely as an attempt to circumvent the terms of the bargaining agreement. The time to file the grievance has expired. Therefore, no response by the Superintendent will be forthcoming. ¶

Although the Assistant Coach was not selected for the head coach position, he served as the assistant coach for 2022-2023 season. ¶

Summary of Disputed Material Facts ¶

The Association asserts that the Athletic Director is required to conduct evaluations of coaches, including assistant coaches, in accordance with past practice and the CNA. Article 8.9.1 of the CNA provides, “[a]ll monitoring or observation of the work of coaches and other extracurricular activity advisors shall be done by persons holding the appropriate supervisory or administrative certification.” The Association asserts that during the pendency of this charge, on March 29, 2023, the Assistant Coach received a negative evaluation that was completed by the new Head Coach rather than the Athletic Director. The Association asserts that the negative evaluation was improper and not based in fact, resulting in the Board declining to reappoint the Assistant Coach for the following year. The Association alleged these actions were retaliation for the filing of the instant charge. As evidence for the Board’s retaliatory intent, the Association proffers that the Athletic Director’s notes from the evaluation meeting reference the charge and the evaluation contains repeated critiques of the Assistant Coach’s loyalty to the new Head Coach. ¶

The Board disputes the Association’s factual assertions as follows. The Board disputes that the new Head Coach completed the Assistant Coach’s evaluation. Rather, the Athletic Director signed and completed the evaluation with the new Head Coach’s input, in accordance with the parties’ past practice. Thus, the Board denies that it unilaterally implemented a new evaluation process. Further, the Board disputes that the negative evaluation was improper and not based in fact. The Board cites several instances where the Assistant Coach did not appear at games and left his freshman team unsupervised. Thus, the Board denies that it had retaliatory intent for the negative evaluation, and resulting denial of reappointment, but rather, it was based on a legitimate evaluative rationale. The Association challenges the Board’s factual allegations regarding the Assistant Coach’s ineffectiveness and that the negative evaluation was based on non-retaliatory, evaluative reasons. The Board asserts that the Assistant Coach expressed lack of interest in his interview for head coach, which was a factor in his non- selection. The Association disputes this assertion. Lastly, the Board asserts that it has provided all information sought by the Association in response to the information requests through the discovery process. The Association disputes this assertion, alleging that the Board has not provided several requested documents, including the prior coach evaluation forms. ¶

The Standard of Review ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). 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. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we 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 fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). Summary judgment “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DeMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

Arguments of the Parties ¶

The Board argues its motion for summary judgment should be granted because it has produced all of the information requested by the Association, thereby, removing the basis for Count One of the charge. The Board argues for dismissal of Counts Two and Three because the Association has not established that the Assistant Coach’s negative evaluation and subsequent non- reappointment was in retaliation for his filing of the charge. Rather, the Board asserts the evaluation was completed by the Athletic Director with input from the new Head Coach, who properly rated the Assistant Coach as ineffective for legitimate reasons. ¶

The Association argues that the Board’s motion for summary judgment should be denied because there are numerous disputes of material facts that the Association details in its brief. The Association further asserts the Board has not produced all of the requested information, and, even if it had produced all of the requested information, such production during discovery in an unfair practice proceeding, particularly one filed to compel production of the information, does not cure or moot the charge. ¶

Analysis ¶

Viewing the record evidence in a light most favorable to the non-moving party, we deny the Board’s motion for summary judgment. We do not find the evidence to be so one-sided that the Board must prevail as a matter of law. As detailed above, we find there are numerous disputed material facts that require an evidentiary hearing. Central to the issues here are the disputed facts concerning the Board’s alleged retaliatory motive for negatively evaluating the Assistant Coach and his subsequent non- reappointment versus the Board’s claimed legitimate, non- retaliatory reasons. Summary judgment is not appropriate for 5.4a(3) allegations of retaliation based on hostility to protected union activity when there is a disputed material fact concerning the subjective issue of the employer’s motivation. State of N.J. (Judiciary), P.E.R.C. No. 2014-84, 41 NJPER 43 (¶11 2014) (although employer proved contractual right to implement Team Leader removals, summary judgment denied on 5.4a(3) allegation of retaliation for protected activity); State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (¶109 2005) (whether protected activity was a substantial motivating factor in the adverse action, and whether it would have occurred anyway based on performance, “are factual questions that are generally not appropriate for summary judgment” ). ¶

Additionally, a majority representative has a statutory right to information in a public employer’s possession which is relevant to its representational duties. Mt. Holly Bd. of Ed. et al., P.E.R.C. No. 2019-6, 45 NJPER 103, 104 (¶27 2018). “Relevance” includes a broad range of information that “. . . should be disclosed to majority representatives for the purpose of effectuating their duties.” Ibid. The majority representative’s right to relevant information, however, is not absolute. Ibid. An employer “...is not required to produce information clearly irrelevant, confidential, or which it does not control or possess.” Ibid. Barring these limited exceptions, an employer’s refusal to provide a majority representative with information it needs to represent its members is a violation of N.J.S.A. 34:13A-5.4(a)(5). Ibid. ¶

Here, there is a genuine dispute of fact as to whether all of the Association’s requested information was provided by the Board, and if not, whether the Board had legitimate reasons for not providing the requested information. That the Board may have provided the requested information through the discovery process of this matter does not obviate or moot the charge. See City of East Orange, P.E.R.C. No. 2020-36, 46 NJPER 318 (¶78 2020)(finding that “the provision of information through discovery during unfair practice litigation neither qualifies as a ‘late response’ nor renders an order requiring compliance with our act ‘unnecessary and redundant’ .” ); see also State of New Jersey (Dept. of Human Services), H.E. No. 2003-6, 28 NJPER 429 (¶33157 2002), adopted, P.E.R.C. No. 2003-56, 29 NJPER 93 (¶26 2003)( “The [requested] information was not provided as of the filing of the charge. The fact that it was later provided does not make the State’s earlier conduct moot. The State offered no reason for not providing the information and no reason for believing that its conduct would not recur.” ) We further reject the Board’s argument that it was not obligated to produce the requested information prior to the filing of the charge. The Board’s duty to provide requested information under the Act is independent from any obligations it may have to produce requested information as part of the contractual grievance process or the CNA. See Mt. Holly, supra. ¶

For the foregoing reasons, we deny the Board’s motion for summary judgment. This matter presents numerous issues of disputed material facts that require credibility determinations by a hearing examiner. The parties are left to their proofs and affirmative defenses at a hearing. ¶

OrderORDER ¶

The Atlantic City Board of Education’s motion for summary judgment is denied. The case shall be set for hearing. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Ford, Higgins, Kushnir, and Papero voted in favor of this decision. None opposed. ¶

ISSUED: May 30, 2024 ¶

Trenton, New Jersey ¶

Note1/ 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” ; “(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage 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.” ¶