P.E.R.C. No. 2025-13, NJ/State

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 Public Employment Relations Commission denies the Communications Workers of America’s (CWA) motion for reconsideration and clarification of P.E.R.C. No. 2024-56. CWA requested reconsideration over the Commission’s earlier decision finding a violation of the Act when the State “unreasonably delayed” placing workers into the correct negotiations unit. The Commission finds that no exceptional circumstance existed to modify its earlier final decision which allowed only for “justifiable delays.” CWA also requested clarification as to why its 5.4a(5) claim, asserting that the State was avoiding its obligations under the CNA, was dismissed without prejudice. The Commission finds that its earlier decision was clear, but added that purposes of that Act would not be effectuated by processing the charge where it had already received relief following collective negotiations. ¶

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 ¶

On July 15, 2024, the Communications Workers of America, AFL-CIO, (CWA) moved for reconsideration and clarification of P.E.R.C. No 2024-56, 51 NJPER 31 (¶9 2024). In that decision, the Commission granted in part and denied in part both the CWA’s and the State of New Jersey Office of Employee Relations’ (State) respective motions for summary judgment regarding two unfair practice charges filed by the CWA. Specifically, the Commission determined that the State violated section 5.4a(1)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act or EERA), when it improperly delayed placing newly- hired employees into employee relations groups not represented by the CWA, even though it was undisputed that those employees performed negotiations unit work. We found that this charge, which alleged that the State was “avoiding its obligations” under several negotiated agreements to include certain new hires into negotiations units, should be dismissed without prejudice because the CWA had already received the relief it sought through collective negotiations. The Commission denied the CWA’s motion for summary judgment and granted the State’s cross-motion as to the claim that the State violated section 5.4a(5)2/ of the Act and dismissed that component without prejudice. The State filed opposition on August 12. ¶

Motions for reconsideration “shall specify the extraordinary circumstances warranting reconsideration and the pages of the record it relies on.” N.J.A.C. 19:14-8.4. ¶

The CWA asserts that the Commission erred when it held “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.” Specifically, the CWA urges the Commission to reconsider its qualification that “excusable delays” are acceptable because it believes that any excusable delay is unsupported by the record. It contends that since the State is a Civil Service jurisdiction, the State’s claim that it may not know whether a new hire will be performing negotiations unit work is contrary to its legal obligation to post job announcements with a description of duties. The CWA additionally moves for clarification as to why its 5.4a(5) claim was dismissed without prejudice and reiterates its argument that the State violated the Workplace Democracy Enhancement Act’s amendments to the EERA. ¶

In opposition, the State argues that the standard for reconsideration is not met because the Commission’s discussion regarding excusable delay was merely tangential to its finding of a violation of the Act and that the facts of this particular case, as determined by the Commission, were that the State was unable to provide any basis for delay, whether excusable or not. The State also objects to clarification of the Commission’s decision because it argues that the decision provided an explanation of its reasoning and that CWA essentially asks for another decision on the merits. ¶

The Commission finds that the CWA’s motion for reconsideration fails to cite any extraordinary circumstances warranting alteration of the original decision. The Commission already determined that the State was unable to provide any reason for the delays in placing new hires performing negotiations unit work into the CWA unit. The decision additionally makes clear that delays without justification are unacceptable and violate the Act. We decline to speculate as to what specific instances of delay will or will not be justifiable. ¶

Moving to the CWA’s motion for clarification on its claim that the State violated section 5.4a(5) of the Act, the Commission finds that its May 30, 2024 decision provides a specific basis for its decision to dismiss that charge without prejudice. The decision explicitly stated: ¶

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 briefly add that continued litigation, where the sought- after remedy has already been achieved through collective negotiations, would not effectuate the purposes of the Act. The Commission’s initial decision specifically allows the CWA to refile its unfair practice charge should it believe that the State is evading its obligations under the CNA. ¶

OrderORDER ¶

The Communications Workers of America’s Motion for Reconsideration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: October 24, 2024 ¶

Trenton, New Jersey ¶

Note1/ This provision prohibits 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.” ¶

2/ This provision prohibits public employers, their representatives or agents from: “(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.” ¶