P.E.R.C. No. 2025-11, Middletown Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MIDDLETOWN TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2024-037 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 11 Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Middletown Township Board of Education’s scope of negotiations petition to restrain binding arbitration of a grievance filed by the International Brotherhood of Teamsters, Local 1l, alleging the Board violated the parties’ collective negotiations agreement (CNA) when it denied the grievant a promotion to the position of Chief Groundskeeper. In restraining arbitration, the Commission finds: (1) the grievance seeks to enforce the CNA’s non- discrimination clause for a personnel action that directly involves the Board’s non-negotiable managerial right to fill vacancies and make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs; and (2) to the extent that Local 11 seeks to pursue a discrimination claim, it must do so in another forum. ¶

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 MIDDLETOWN TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2024-037 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 11 Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Bruce W. Padula, of counsel; Nicholas DelGaudio, of counsel) ¶

For the Respondent, Jameson, Esq., LLC, attorneys (Curtiss T. Jameson, of counsel) ¶

DECISION ¶

On May 15, 2024, the Middletown Township Board of Education (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the International Brotherhood of Teamsters, Local 11 (Local 11). The grievance asserts that the Board violated Article 2 and Article 8 of the parties’ collective negotiations agreement (CNA) when it denied the grievant a promotion to the position of Chief Groundskeeper. ¶

The Board filed briefs, exhibits and the certification of its Assistant Superintendent, Patrick Rinella. Local 11 filed a brief.1/ These facts appear. ¶

Local 11 represents all full-time facilities workers, stock clerks, and all part-time facilities workers... “excluding all clerical employees, professional employees, confidential employees, including supervisors and foremen... and all other employees excluded by law.” The Board and Local 11 are parties to a CNA in effect from July 1, 2022 through June 30, 2025. The grievance procedure ends in binding arbitration. ¶

Article 2 of the CNA, entitled “Employee Rights,” states the parties’ agreement that employees’ rights to join, organize and support a union for purposes of collective negotiations are protected by the New Jersey Employer-Employee Relations Act (Act), and that the employer may not deprive, discourage or coerce employees in their exercise of such rights. Article 8 of the parties’ CNA, entitled “Non-Discrimination,” states the parties’ agreement to abide by the New Jersey Law Against Discrimination, which bars discrimination against employees based on race, color, creed, religion, nationality, and other protected categories. Article 8 further states the parties’ agreement that employees may not be discriminated against by reason of membership in a union. ¶

The Assistant Superintendent certifies to the following facts. On April 24, 2024, Local 11 filed a Step 1 grievance challenging the Board’s decision not to promote the grievant to the position of Chief Groundskeeper. The grievance asserts the grievant’s “rights are being violated under the New Jersey Employer-Employee Relations Act” (EERA), and that the grievant was “denied a promotion due to an unwarranted and additional punishment for a past infraction.” The grievant seeks, as adjustment, the “promotion promised and deserved.” ¶

In its uncertified brief, Local 11 contends that the grievant’s promotion to the position of Chief Groundskeeper was supported by his department director and supervisors. But when the promotion was formally submitted to the Board for approval, Local 11 contends, the Board rejected the grievant for the position because the grievant had sought the “protection and assistance” of his union in challenging discipline over an attendance violation approximately seven years prior. ¶

At an unspecified date, the Board’s Director of Facilities denied the grievance at Step 1 and wrote the following: ¶

Please accept this correspondence in reply to Grievance B49544. The Public Employment Relations Commission has made it clear that promotional decisions are managerial prerogative and not subject to grievance procedures/arbitration. As such, the grievance should be considered denied. ¶

Also at an unspecified date, Local 11 filed a Step 2 grievance. On May 2, 2024, a meeting was held. On May 8, 2024, the Assistant Superintendent denied the grievance at Step 2. On May 14, 2024, Local 11 filed a Request for Submission of a Panel of Arbitrators. This petition ensued. ¶

In a scope of negotiations determination, the Commission’s jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978) states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer’s alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the contractual merits of the grievance or any contractual defenses the employer may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405]. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The Board argues that, as well-established in PERC case law, grievance arbitration would interfere with the Board’s non- negotiable managerial prerogatives to assign employees and fill vacancies, to meet the governmental policy goal of matching the best qualified employees to particular jobs. ¶

Local 11 argues that issues of employee rights and discrimination in the workplace are mandatorily negotiable. Promotions or the lack thereof, Local 11 contends, are not privileged, managerial prerogatives when obtained through violations of EERA and/or any other civil rights laws such as New Jersey’s Law Against Discrimination (LAD). Local 11 argues that the grievant should be able to arbitrate his grievance where the Board’s actions in denying him a promotion, in whole or in part, are related to the grievant’s union activities. Local 11 further argues that because the Board does not “explain or support” its claim to a managerial prerogative, and the grievance invokes specific contract clauses of employee rights and non- discrimination, an arbitrator could be ordered to hear the facts and follow managerial prerogative regarding promotions if a violation of EERA and/or other civil rights laws are not proven. ¶

In reply, the Board argues that Local 11’s brief fails to raise any factual or legal issues which would make the managerial prerogative at issue here arbitrable. Because the grievance is entirely based on the failure to promote the employee, the Board reiterates, its subject matter is outside the scope of collective negotiations and is non-arbitrable. The Board further argues that PERC case law cited by Local 11 actually supports the Board’s argument. ¶

It is well-settled that public employers have a non- negotiable right to fill vacancies and make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs. See, e.g., Local 195, IFPTE v. State, 88 N.J. 393 (1982); Ridgefield Park, supra. Generally, promotional criteria are not mandatorily negotiable while promotional procedures (not at issue here) are. State v. State Supervisory Employees Assn., 78 N.J. 54 (1970); State v. State Troopers NCO Assn, 179 N.J. Super. 80 (App. Div. 1981). ¶

We further find our decision in Township of Neptune, P.E.R.C. No. 2022-42, 48 NJPER 426 (¶97 2022), a case relied upon by both parties, to be controlling here. In that decision we held that “a grievance alleging a violation of a non- discrimination clause may not be arbitrated if the grievance is challenging a personnel action that involves a non-negotiable managerial prerogative.” Id., (citing, Teaneck Tp. Bd. of Ed. v. Teaneck Teachers’ Ass’n, 94 N.J. 9 (1983)). ¶

Here, Local 11’s grievance seeks to enforce the CNA’s non- discrimination clause for a personnel action that directly involves a non-negotiable managerial prerogative: the Board’s right to fill vacancies and make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs. To the extent that Local 11 seeks to pursue a discrimination claim, it must do so in another forum. We also note that no related unfair practice charge has been filed in this matter. ¶

OrderORDER ¶

The Middletown Township Board of Education’s request for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ Local 11 did not submit a certification. N.J.A.C. 19:13- 3.6(f) requires that all pertinent facts be supported by certification(s) based upon personal knowledge. ¶