P.E.R.C. No. 2024-59, Middlesex B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MIDDLESEX BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-143 MIDDLESEX EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Commission grants the Middlesex Education Association’s request for special permission to appeal from the Deputy Director of Unfair Practices’ dismissal of the first count of the Association’s two-count unfair practice charge against the Middlesex Board of Education. The first count alleges the Board violated the Act by refusing to negotiate over a proposed sidebar agreement to incorporate a newly enacted statutory sick leave benefit into the parties’ current CNA. The Commission finds the dismissal of the first count, before it was fully processed and in the absence of a more fully developed record, was premature. The Commission further finds the allegations of the first count satisfy the applicable pleading requirements and the complaint- issuance standard, and remands for processing of the Association’s entire charge. ¶

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 MIDDLESEX BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-143 MIDDLESEX EDUCATION ASSOCIATION, Charging Party ¶

AppearancesAppearances: ¶

For the Respondent, Busch Law Group, LLC, attorneys (Ari D. Schneider, of counsel) ¶

For the Charging Party, Oxfeld Cohen, P.C., attorneys (Sanford R. Oxfeld, of counsel) ¶

DECISION ¶

On April 11, 2024, the Middlesex Education Association (Association or MEA) filed a request for special permission to appeal from an April 10 decision by the Commission’s Deputy Director of Unfair Practices (Deputy Director), which dismissed the First Count of the Association’s two-count unfair practice charge1/ against the Middlesex Board of Education (Board). The Association filed a brief, a follow-up letter dated April 25, and an exhibit. The Board did not file a timely response.2/ We grant the Association’s request and remand for further processing of the Association’s entire charge, consistent with this decision. ¶

A charging party must satisfy the following pleading requirement, in pertinent part: ¶

(a) Such charge . . . shall contain the following: ¶

. . . ¶

3. A clear and concise statement of the facts constituting the alleged unfair practice. The statement must specify the date and place the alleged acts occurred, the names of the persons alleged to have committed such acts, the subsection(s) of the Act alleged to have been violated, and the relief sought. ¶

[N.J.A.C. 19:14-1.3.] ¶

Our standard for issuing a complaint on an unfair practice charge is as follows: ¶

After a charge has been processed, if it appears to the Director of Unfair Practices that the allegations of the charge, if true, may constitute unfair practices on the part of the respondent, and that formal proceedings should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues, the Director shall issue and serve a formal complaint including a notice of hearing before a hearing examiner at a stated time and place. ¶

[N.J.A.C. 19:14-2.1(a) (emphases added).] ¶

Thus, the processing of a charge ordinarily takes place prior to a determination of whether a complaint shall issue, and may include the following steps: ¶

(a) The Director of Unfair Practices will normally assign a charge to a staff member for processing. All parties will be notified of such assignment and will be requested to submit to the staff member: ¶

1. An executed copy of any current or recently expired collective negotiations agreement between the parties; and ¶

2. A written statement of position including an explanation as to why the allegations contained in the charge, if true, would or would not constitute unfair practices on the part of the respondent. ¶

(b) The assigned staff member may request the parties to submit briefs setting forth detailed arguments concerning all relevant legal issues. ¶

(c) The assigned staff member may hold an exploratory conference to clarify the issues, explore the possibility of settlement, or take stipulations of fact. The party or parties or an authorized representative shall attend such conference. ¶

[N.J.A.C. 19:14-1.6.] ¶

The Association’s charge was filed and docketed on March 18, 2024. The First Count alleges, in pertinent part: ¶

2. With the passage of the revisions in the Sick Leave statute applicable to school districts (NJSA 18A:30-1, et seq) in 2023, certain language in the CBA between the parties, by reason of preemption, because [sic] illegal and unenforceable. ¶

3. In order to make the language in the CBA consistent with the aforesaid statute, the MEA created a “Sidebar Agreement” which was limited to language in the CBA, at Article 18.1.3., et seq. This proposed Sidebar Agreement was sent to the attorney for the Board on or about February 2, 2024, with a request either that the Board agree upon the terms in the Sidebar, or that the parties sit down and agree upon other language. ¶

4. The Board has never replied to either substantively, to the terms of the Sidebar, nor even to the request to discuss same. ¶

Based on the above allegations, the Association charges that the Board “is guilty of refusing to negotiate concerning mandatorily negotiable terms and conditions of employment,” in violation of section 5.4a(1) and (5) the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act).3/ The Association requests as relief that PERC direct the Board to cease and desist from refusing to negotiate, and order it to execute the Sidebar Agreement. The record presented includes no details about specific Association proposals contained in the Sidebar Agreement referenced in the charge. ¶

On March 27, 2024, before the charge was assigned to a staff agent or an exploratory conference had occurred, the Deputy Director issued a “defect letter,” indicating he was inclined to dismiss the First Count, and gave the parties time to reply. They responded with position statements, the Association on April 2 and the Board on April 10. In his March 27 defect letter, in pertinent part, the Deputy Director explained his inclination to dismiss the First Count: ¶

Here, there is no allegation that the Board has repudiated, much less unilaterally changed, any aspect of the parties’ negotiated/existing contractual provisions; nor has there been any legal determination that any aspect of the parties’ negotiated/existing contractual provisions are preempted[.] . . . Moreover, the Association has not cited any legal authority for the proposition that the Board has an obligation to negotiate upon demand given the instant factual/legal circumstances particularly given that the Board has committed/agreed to negotiate regarding language pertaining to the new statutory sick leave provisions (N.J.S.A. 18A:30-1, et seq.) as part of successor contract negotiations which the Association indicates are scheduled to begin on/about March 28, 2024. ¶

The Association’s April 2 position statement in response and opposition to the above includes some five separate points of law, with citations to and discussion of the parties’ current collective negotiations agreement (CNA), as well as precedent from decisions of PERC and the National Labor Relations Board (NLRB), among others. The Board’s April 10 position statement in support of dismissal includes argument responsive to the Association’s position statement, also with citations to and discussion of relevant legal precedent. The Board added it has not refused to negotiate, but asked that such negotiations take place as part of negotiations for a successor to the parties’ present CNA, which expires June 30, 2024. ¶

Apart from acknowledging the parties’ positions, briefly characterized as simply “disagreeing” or “agreeing” with the Deputy Director, his April 10 letter dismissing the First Count is substantially similar to the March 27 defect letter. The dismissal letter adds, in conclusion (emphasis in original): ¶

[T]he Association has not cited any legal authority for the proposition that the Board has an obligation to negotiate upon demand given the instant factual/legal circumstances; nor has the Association disputed the Board’s representation that it has committed/agreed to negotiate language pertaining to the new statutory sick leave provisions . . . as part of successor contract negotiations which began on/about March 28, 2024. Finally, given that any new aspects of N.J.S.A. 18A:30-1, et seq., are effectively incorporated into the parties’ 2021-2024 CNA, the Association is within its rights to follow the parties’ grievance procedure (Article 3) and file a grievance/demand [for] binding arbitration if it believes the Board is in violation of any statutory/contractual provision. ¶

The Deputy Director’s dismissal of the First Count occurred while the Association’s charge, procedurally, was (and still is) in very early stages. The parties were asked for their positions on legal issues first raised by the Deputy Director, on no stipulated facts, before the count was assigned to a staff agent or an exploratory conference had occurred.4/ It is clear from their position statements that the parties dispute the factual and legal underpinnings of the issues raised by the Deputy Director. ¶

We find dismissal of the First Count under these conditions, in the absence of a more fully-developed record, was premature. Decisions relied upon by the Deputy Director involve cases where complaints were issued and assigned to hearing examiners, and all pertinent legal and factual issues were fully litigated by the parties involved. See, e.g., City of Union City, P.E.R.C. No. 2006-77, 32 NJPER 116 (¶55 2006)(upholding hearing examiner’s dismissal of complaint on motion after hearing); Ewing Tp., P.E.R.C. No. 83-165, 9 NJPER 400 (¶14182 1983)(upholding hearing examiner’s recommended decision). ¶

We further find the allegations of the First Count satisfy both the applicable pleading requirements and the complaint- issuance standard. As a pleading, the First Count contains a clear and concise statement of the facts constituting the alleged unfair practice, the subsections of the Act alleged to have been violated, and the relief sought. The First Count’s allegation that the Board refused to negotiate over allegedly mandatorily negotiable Association proposals contained in the Sidebar Agreement, if true, may constitute unfair practices on the part of the Board. ¶

As such, the parties should be afforded an opportunity to litigate the relevant legal and factual issues. The Association has the burden of proving the allegations of the complaint by a preponderance of the evidence, N.J.A.C. 19:14-6.8, including with respect to the legal and factual merits of the issues raised by the Deputy Director. ¶

OrderORDER ¶

Based on the foregoing, we remand to the Deputy Director for the issuance of a complaint and further proceedings on the First Count of the Association’s Charge. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: June 27, 2024 ¶

Trenton, New Jersey ¶

Note1/ In this decision we do not address the Second Count of the charge, which the Deputy Director did not dismiss, stating in his April 10 letter, “the Second Count has been assigned to a staff agent and will be processed.” The Second Count alleges the Board refused to negotiate with the Association by failing to execute a negotiated agreement on stipend payments to biology teachers, and by direct-dealing with affected members who received such payments in the absence of an executed agreement. ¶

2/ The Board did not file a response within the time allowed by N.J.A.C. 19:14-4.6(b). On June 17, 2024, with the Association’s consent, the Chair granted the Board’s June 13 request for an opportunity to file opposition, which it filed on June 18. As the Board’s opposition is substantively similar to its April 10 position statement filed with the Deputy Director (discussed infra), it did not alter our decision herein. ¶

3/ 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” ; and “(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.” ¶

4/ To date, no complaint has been issued on the charge, in whole or in part. An exploratory conference with a PERC staff agent, initially scheduled for April 23, 2024, was put on hold pending disposition of the Association’s request for special permission to appeal. ¶