P.E.R.C. No. 2025-17, Newark

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 CITY OF NEWARK, RESPONDENT, -and- Docket No. CO-2024-058 NEWARK POLICE SUPERIOR OFFICERS ASSOCIATION, CHARGING PARTY. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the SOA’s motion for summary judgment and denies the City’s cross motion for summary judgment on the SOA’s unfair practice charge. The charge alleges that the City violated the Act when it refused to negotiate in good faith over a successor collective negotiations agreement (CNA). The Commission finds neither party strictly complied with the statutory and regulatory requirements regarding negotiations before contract expiration. However, the Commission finds the City’s noncompliance more concerning because it did not respond to follow-up attempts by the SOA to schedule negotiations sessions and/or was not prepared for negotiations sessions that were scheduled. The Commission concludes that the City’s lack of responsiveness and preparedness to the SOA’s negotiations attempts rise to the level of a violation of N.J.S.A. 34:13A- 16(a)(1) and N.J.A.C. 19:16-2.1 (a). The Commission does not award monetary damages pursuant to N.J.A.C. 19:16-5.2(b) for the City’s violation because the SOA did not strictly comply with the requirement to initiate negotiations no later than 120 days prior to the expiration of the CNA. ¶

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 CITY OF NEWARK, RESPONDENT, -and- Docket No. CO-2024-058 NEWARK POLICE SUPERIOR OFFICERS ASSOCIATION, CHARGING PARTY. ¶

AppearancesAppearances: ¶

For the Respondent, Kenyatta K. Stewart, Corporation Counsel, (Kaitlyn P. Chesney-Morris, Esq., Assistant Corporation Counsel, on the brief) ¶

For the Charging Party, John J. Chrystal, III, Association President, on the brief ¶

DECISION ¶

On September 19, 2024, the Newark Police Superior Officers’ Association (SOA) filed a motion for summary judgment on its unfair practice charge (UPC) filed on November 2, 2023, and later amended on November 17, against the City of Newark (City). The charge alleges that the City violated sections 5.4(a)(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4 et seq. (Act), when it refused to negotiate in good faith over a successor collective negotiations agreement (CNA). On September 27, the City filed an opposition brief and cross- motion for summary judgment. On October 8, the Chair referred the motion to the full Commission. N.J.A.C. 19:14-4.8. In support of its summary judgment motion, the SOA filed the instant motion for summary judgment, together with a brief, exhibits, and the certification of its President. The City subsequently filed its cross-motion for summary judgment, along with a brief. On July 22, 2024, the SOA filed a reply to the City’s cross-motion. The following facts appear. ¶

SUMMARY OF MATERIAL FACTS ¶

The City and the SOA are, respectively, a public employer and employee representative within the meaning of the Act. The SOA represents superior police officers employed by the City for purposes of collective negotiations. The term of the parties’ most recent CNA existed from January 1, 2013 through December 31, 2015. This agreement was extended, with some modification, through December 31, 2017 via a memorandum of agreement (MOA). The parties operated under this MOA through February 17, 2023, when a new MOA was ratified by the parties, retroactive from January 1, 2018 through December 31, 2023.2/ ¶

The SOA President certifies that, on September 20, 2023, the SOA First Vice President sent an email to the City’s Business Administrator requesting to negotiate a successor agreement. The SOA’s request to negotiate was made 102 days prior to the CNA’s expiration. The City replied on September 21 that it would also like to begin negotiations. The President further certifies that the SOA sent follow-up emails on September 27 and November 1 to which the City did not respond. ¶

The President also certifies that at an exploratory conference on December 5, 2023, following the filing of the instant UPC, the City agreed to a negotiation date of January 18, 2024. The President certifies that the City was told by the Staff Agent to be ready to negotiate on that date. The SOA President further certifies that, on January 17, the SOA called to confirm the January 18 meeting and was told by the Business Administrator’s office that meeting was not on the calendar and needed to be rescheduled. The SOA President certifies that, on February 22, the parties met to negotiate, but the City had no proposals. The meeting lasted approximately three to five minutes. The SOA President certifies that, on March 7 and April 2, the parties exchanged proposals without reaching a successor agreement. On April 25, the parties met and the City’s Mayor instructed the Business Administrator to schedule a negotiations meeting. The SOA President further certifies that, following that meeting, the SOA requested to meet numerous times, by email, but the City did not respond. On August 26, the City filed for interest arbitration (Docket No. IA-2025-007). The interest arbitration petition was held in abeyance on September 12, pending special mediation. ¶

The City does not dispute the time line of negotiations set forth by the SOA’s president. (See City Brief’s Statement of Facts).3/ However, the City adds that the parties have an established past practice of negotiating well beyond a CNA’s expiration. ¶

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. The summary judgment procedure is not to be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183 (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 ¶

The SOA argues that, pursuant to N.J.S.A. 34:14A-16, it requested to negotiate a successor agreement within 120 days of the expiration of the parties’ CNA, and the City refused to negotiate and attend the three required meetings during that statutorily required negotiations period. Consequently, the SOA claims the City has violated the Act by refusing to negotiate in good faith for a successor agreement, and thus, its motion for summary judgment should be granted. ¶

The City responds that the SOA’s summary judgment motion should be denied because the SOA’s UPC is moot as the parties have conducted several negotiation sessions and have exchanged proposals. The City asserts that there is no actual controversy and the SOA’s requested relief to compel the City to negotiate in good faith has already been satisfied. The City further argues that the SOA also failed to comply with N.J.S.A. 34:14A-16 because its first formal request to negotiate was made only 102 days prior to the expiration of the parties CNA. Lastly, the City asserts that summary judgment is improper because there is genuine dispute of fact over the parties’ customary time frames for negotiations given the parties’ established past practice of negotiating well beyond the expiration of the CNA. ¶

ANALYSIS ¶

N.J.S.A. 34:13A-16(a)(1) provides: ¶

Negotiations between a public fire or police department and an exclusive representative concerning the terms and conditions of employment shall begin at least 120 days prior to the day on which their collective negotiation agreement is to expire. The parties shall meet at least three times during that 120-day period. The first of those three meetings shall take place no later than the 90th day prior to the day on which their collective negotiation agreement is to expire. By mutual consent, the parties may agree to extend the period during which the second and third meetings are required to take place beyond the day on which their collective negotiation agreement is to expire. A violation of this paragraph shall constitute an unfair practice and the violator shall be subject to the penalties prescribed by the commission pursuant to rule and regulation. ¶

Prior to the expiration of their collective negotiation agreement, either party may file an unfair practice charge with the commission alleging that the other party is refusing to negotiate in good faith. The charge shall be filed in the manner, form and time specified by the commission in rule and regulation. If the charge is sustained, the commission shall order that the respondent be assessed for all legal and administrative costs associated with the filing and resolution of the charge; if the charge is dismissed, the commission shall order that the charging party be assessed for all legal and administrative costs associated with the filing and resolution of the charge. The filing and resolution of the unfair practice charge shall not delay or impair the impasse resolution process. ¶

[Emphasis added.] ¶

The Commission promulgated rules to effectuate the above statute at N.J.A.C. 19:16-2.1, which provides: ¶

(a) The parties shall commence negotiations for a new or successor agreement, or in the case of an agreed reopener provision, shall commence negotiations pursuant to such reopener provision, at least 120 days prior to the day on which their collective negotiations agreement is to expire. The following provisions shall not preclude the parties from agreeing to the automatic renewal of a collective negotiations agreement unless either party shall have notified the other party of its intention to terminate or modify the agreement. ¶

1. The parties shall meet at least three times during that 120-day period. The first of those three meetings shall take place no later than the 90th day prior to the day on which their collective negotiations agreement is to expire. ¶

2. By mutual consent, the parties may agree to extend the period during which the second and third meetings are required to take place beyond the date on which their collective negotiations agreement is to expire. ¶

3. A violation of these requirements shall constitute an unfair practice and the violator shall be subject to penalties prescribed by law and by the Commission pursuant to rule and regulation. ¶

(b) The party initiating negotiations shall, no later than 15 days prior to the commencement date of negotiations required by this subchapter, notify the other party in writing of its intention to commence negotiations on such date, and shall simultaneously file with the Commission a copy of such notification. Forms for filing such petitions may be downloaded from the Commission's web site at: http://www.state.nj.us/perc/NJ_PERC_Notificat ion_of_Intent_to_Commence_Negotiations_-_Form .pdf or will be supplied upon request addressed to: Public Employment Relations Commission, PO Box 429, Trenton, NJ 08625-0429. ¶

[Emphasis added.] ¶

N.J.A.C. 19:16-5.2(b) further provides: ¶

(b) Prior to the expiration of their collective negotiations agreement, either party may file an unfair practice charge with the Commission alleging that the other party is refusing to negotiate in good faith because the other party has refused to schedule or attend a negotiations session within the time periods set forth in N.J.S.A. 34:13A-16a(1). The charge shall be filed and served in the manner and form specified by N.J.A.C. 19:14-1.3. ¶

1. If the charge is sustained, the Commission shall order that the respondent be assessed for all legal and administrative costs associated with the filing and resolution of the charge. ¶

2. If the charge is dismissed, the Commission shall order that the charging party be assessed for all legal and administrative costs associated with the filing and resolution of the charge. ¶

[Emphasis added.] ¶

Neither party strictly complied with the above statutory and regulatory requirements regarding negotiations before contract expiration. The SOA did not initiate the 120-day negotiating period by filing the required notification with the City and the Commission no later than 15 days prior to the commencement date of negotiations. N.J.A.C. 19:16-2.1(b). It is undisputed that the SOA’s first request to negotiate was sent on September 20, 2023 - 102 days prior to the expiration of the parties’ CNA. However, the City’s noncompliance is more concerning. While it accepted the SOA’s initial request to negotiate, it did not respond to follow-up attempts by the SOA to schedule negotiations sessions and/or was not prepared for negotiations sessions that were scheduled. The City’s actions obstructed the negotiations process, which is entered into with the goal of avoiding interest arbitration. Nonetheless, after hindering negotiations, the City went ahead and filed for interest arbitration.4/ ¶

We find that the City’s lack of responsiveness and preparedness to the SOA’s negotiations attempts rise to the level of a violation of N.J.S.A. 34:13A-16(a)(1) and N.J.A.C. 19:16-2.1 (a). However, because the SOA did not strictly comply with the requirement to initiate negotiations no later than 120 days prior to the expiration of the CNA, we will not award monetary damages pursuant to N.J.A.C. 5.2(b)2. This decision underscores the importance of parties’ compliance with the statutory and regulatory requirements for negotiations prior to CNA expiration. The SOA’s motion for summary judgment is granted and the City’s cross-motion for summary judgment is denied. ¶

OrderORDER ¶

A. The Newark Police Superior Officers Association’s motion for summary judgment is granted. ¶

B. The City of Newark’s cross-motion for summary judgment is denied. ¶

C. The City of Newark shall: ¶

1. Cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act and from refusing to negotiate in good faith with the majority representative of employees in the appropriate unit concerning terms and conditions of employment in that unit, particularly by refusing to negotiate in good faith over a successor collective negotiations agreement. ¶

2. Take the following affirmative action: ¶

a. Negotiate in good faith for a successor collective negotiations agreement pursuant to the procedures set forth in N.J.S.A. 34:13A-16(a)(1) and N.J.A.C. 19:16-2.1. ¶

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

c. Within twenty days of receipt of this decision, notify the Chair of the steps it has taken to comply with this Order. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: November 26, 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 and from refusing to negotiate in good faith with the majority representative of employees in the appropriate unit concerning terms and conditions of employment in that unit, particularly by refusing to negotiate in good faith over a successor collective negotiations agreement. WE SHALL negotiate in good faith for a successor collective negotiations agreement pursuant to the procedures set forth in N.J.S.A. 34:13A-16(a)(1) and N.J.A.C. 19:16-2.1. ¶

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” ; (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. ¶

2/ September 2, 2023 was 120 days before December 31, 2023. See N.J.A.C. 19:16-2.1. ¶

3/ The City Brief’s Statement of Facts is unsupported by any certification. ¶

4/ As stated earlier in this decision, the City’s interest arbitration petition is being held in abeyance after the parties were referred to special mediation by this agency. ¶

Notice to employeesDocket No. CO-2024-058 City of Newark (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” ¶