P.E.R.C. No. 2025-19, NJ/State

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of State of New Jersey, Respondent, -and- Docket No. CI-2025-005 LaTasha E. Kearney, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the refusal of the Director of Unfair Practices to issue a complaint on an unfair practice charge filed by Kearney against the State. The charge alleges that the State violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq., by denying Kearney’s leave requests in November 2023 and issuing her disciplinary notices in November-December 2023 resulting in her termination. The Commission finds that the Director properly dismissed the charge as untimely because it was filed beyond the Act’s six month statute of limitations. N.J.S.A. 34:13A-5.4c. Furthermore, even if timely filed, the Commission finds that the 5.4a(1) and (3) claims would be dismissed because the allegations do not implicate protected union activity and the State had a legitimate and substantial business reason for terminating Kearney based on her alleged workplace misconduct. The Commission finds that Kearney’s disciplinary disputes must be resolved in accordance with the parties’ negotiated procedures, while her disability discrimination claims are not within the Commission’s jurisdiction. ¶

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, Respondent, -and- Docket No. CI-2025-005 LaTasha E. Kearney, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Matthew J. Platkin, Attorney General (Gina M. Labrecque, Deputy Attorney General, on the brief) ¶

For the Charging Party, LaTasha E. Kearney, pro se ¶

DECISION ¶

The Charging Party (Kearney) appeals from the Director of Unfair Practice’s (Director) October 10, 2024 letter dismissing her unfair practice charge (UPC). On August 22, August 27, September 11, and October 4, 2024, Kearney filed a UPC and amended charges against the State of New Jersey (State). The charges allege that the State violated subsections 5.4a(1), (2), (3), (4), (5), (6), and (7)1/ of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., by: not allowing her to utilize sick leave on November 14, 2023; issuing two PNDAs (Preliminary Notice of Disciplinary Action) against her, stopping her salary, and cancelling her health benefits on November 17, 2023; not submitting her SLI (sick leave injury) request on November 17, 2023; denying her vacation leave requests on November 20, 2023; filing PNDAs against her on November 23, 2023 and December 4, 2023; recoding approved leave time on November 28, 2023; issuing her a PNDA on November 29, 2023 for “Resignation Not in Good Standing” ; charging her with “Conduct Unbecoming a State Worker, Neglect of Duty, and Other Sufficient Cause - Falsification” on December 4, 2023; and denying her the opportunity to return to work on December 4, 2023. As a remedy, Kearney seeks to be returned to her title of Attorney Assistant with her salary and benefits restored, and to report her various workplace complaints against her alleged “abusers” at work. ¶

On August 23, 2024, the Director issued a defect letter notifying Kearney that her initial charge did not meet all of the filing requirements of N.J.A.C. 19:14-1.3 and giving her an opportunity to file an amended charge. After Kearney’s e-mail response, the Director issued another defect letter on August 26 specifically outlining the deficiencies in her charge and requesting that she file a new amended charge. The Director’s August 26 letter also dismissed the 5.4a(5) violation, noting that only majority representatives, not individual employees, have standing to file such a claim against a public employer. After Kearney submitted additional amended charges, the Director issued additional defect letters on August 30 and September 4. ¶

On September 13, 2024, the Director issued a defect letter dismissing the 5.4a(2), (5), and (6) claims for lack of standing; dismissing the 5.4a(4) claim for failing to indicate any discrimination against her by her employer for any testimony, complaint/petition, or information provided pursuant to the Act in a Commission proceeding; and dismissing the 5.4a(7) claim for failing to cite any Commission rule or regulation that was violated. The letter also noted deficiencies with the 5.4a(1) and (3) claims including that they appeared to be untimely. The letter gave Kearney until September 20, 2024 to correct those deficiencies and provide additional facts that should be considered regarding the timeliness issue. ¶

On September 24, 2024, after not receiving a response from Kearney by September 20 to amend her charge to correct deficiencies and provide any additional facts, the Director dismissed the charge in its entirety. The letter stated that any appeal of that action should be filed pursuant to N.J.A.C. 19:14- 1.5(e), which provides for a motion to reopen before the Director within 15 days of a dismissal. On October 4, Kearney submitted an appeal to the Director, along with an amended charge that appeared to be identical to her previous amended charge and did not contain additional facts or otherwise correct the deficiencies outlined in the Director’s September 13 defect letter. On October 9, the Commission notified Kearney that the Commission was in receipt of her filing and it was being processed. On October 10, the Director reiterated his dismissal of the 5.4a(1) and (3) charges for being untimely. The Director’s October 10 dismissal was pursuant to N.J.A.C. 19:14- 2.3(a) and noted that any appeal to the Commission should be filed within 10 days pursuant to N.J.A.C. 19:14-2.3(b). ¶

On October 17, 2024, the Commission’s General Counsel notified the parties that the Commission would be treating Kearney’s October 4 appeal as an appeal to the Commission from the Director’s refusal to issue a complaint (N.J.A.C. 19:14- 2.3(b)).2/3/ The respondents were given until October 28 to file a response to the appeal. On October 28, the State submitted a letter in response to the appeal. ¶

The record includes a PNDA dated December 5, 2023 issued by the State to Kearney alleging the following charges: N.J.A.C. 4A:2-2.3(a)(6) “Conduct unbecoming a public employee” ; N.J.A.C. 4A:2-2.3(a)(7) “Neglect of duty” ; and N.J.A.C. 4A:2-2.3(a)(12) “Other sufficient cause - Falsification.” The PNDA provides that the disciplinary action of “Removal” may be taken. The PNDA states that Kearney was an Attorney Assistant with the Office of Law Guardian (OLG) Appellate section for the Office of Public Defender (OPD). The PNDA alleges, in general, that “over the course of the past year [Kearney has] consistently neglected [her] duties as an Attorney Assistant, behaved in an unprofessional manner, made false and misleading statements, and generally conducted [herself] in a manner unbecoming that of a public employee.” The PNDA provides specific examples and dates of the alleged misconduct. The PNDA notes that Kearney was considered to have abandoned her job based on certain actions and was initially served a PNDA on November 29, 2023 that resigned her “not in good standing.” The December 5, 2023 PNDA concludes by stating that “the culmination of [Kearney’s] failings and actions have led to the service of this disciplinary action for removal, supplementing the previous resignation not in good standing Preliminary Notice of Disciplinary Action.” The record also includes statements from many of Kearney’s colleagues and supervisors concerning the allegations against her. ¶

Kearney’s majority representative, CWA Local 1033, appealed her PNDA in December 2023. Kearney’s charge references a first level department hearing occurring on May 29 and 31, 2024. ¶

The Commission has authority to issue a complaint where it appears that a charging party’s allegations, if true, may constitute an unfair practice within the meaning of the Act. N.J.S.A. 34:13A-5.4(c); N.J.A.C. 19:14-2.1. Where the complaint issuance standard has not been met, the issuance of a complaint may be declined. N.J.A.C. 19:14-2.3; CWA Local 1040, D.U.P. No. 2011-9, 38 NJPER 93 (¶20 2011), aff’d, P.E.R.C. No. 2012-55, 38 NJPER 356 (¶120 2012). After careful review of the parties’ submissions and arguments, we sustain the Director’s decision not to issue a complaint and dismiss the Charging Party’s UPC. ¶

First, we concur with the Director’s determination that Kearney lacks standing to assert a 5.4a(5) violation of the Act. Individual employees normally do not have standing to assert a 5.4a(5) violation because the employer’s duty to negotiate in good faith only runs to the majority representative. New Jersey Tpk. Auth. v. Beall (App. Div. 1981), aff’ g P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980); Sussex Cty. Sheriff’s Office, P.E.R.C. No. 2021-49, 47 NJPER 527 (¶123 2021); and Essex Cty. (Miller), P.E.R.C. No. 2019-16, 45 NJPER 195 (¶50 2018). An individual employee may only pursue a 5.4a(5) claim against the employer where the employee has also asserted a viable 5.4b(1) claim of a breach of the duty of fair representation against their majority representative. Id. There is no such claim in this case. Accordingly, Kearney’s 5.4a(5) allegation must be dismissed. ¶

Similarly, Kearney’s 5.4a(6) claim must be dismissed. The duty to reduce a negotiated agreement to writing and sign such an agreement is an obligation the employer owes to an employee’s majority representative, not to the employee. N.J. Transit (Warfield), P.E.R.C. No. 2008-52, 34 NJPER 70 (¶28 2008). ¶

We also dismiss Kearney’s 5.4a(7) claim because Kearney’s charge does not refer to any Commission rule or regulation that the State allegedly violated. See Sussex Cty. Sheriff’s Office, supra; N.J. Transit (Warfield), supra. ¶

We next concur with the Director’s determination that Kearney’s 5.4a(4) claim must be dismissed because she has not alleged that the State discriminated against her for signing or filing an “affidavit, petition or complaint or given any information or testimony under this act.” As Kearney’s allegations do not concern retaliation for any action she has taken pertaining to a Commission proceeding, her 5.4a(4) claim must be dismissed. Randolph Educ. Ass’n v. Randolph Twp. Bd. of Educ. (App. Div. 1983), aff’ g P.E.R.C. No. 82-119, 8 NJPER 365 (¶13167 1982); Woodstown- Pilesgrove Bd. of Ed., P.E.R.C. No. 2023-18, 49 NJPER 273 (¶63 2022). ¶

Next, we find that the Director correctly dismissed the remaining claims as untimely. N.J.S.A. 34:13A-5.4c states: ¶

[N]o complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the 6 month period shall be computed from the day he was no longer so prevented. ¶

Here, the allegations in Kearney’s charge primarily concern the period of November-December 2023 culminating with the December 5, 2023 PNDA for her removal from employment with the State. As her UPC was initially filed on August 22, 2024, more than six months following these November-December events, her 5.4a(1) and 5.4a(3) claims are dismissed as untimely. Furthermore, no facts indicate that she was prevented from filing her charge within six months of the date of her removal PNDA. See, e.g., Kaczmarek v. New Jersey Turnpike Auth., 77 N.J. 329 (1978). ¶

Even if Kearney’s UPC were considered timely filed, it does not substantively set forth the basis of a 5.4a(3) claim of retaliation for protected activity under the Act. Protected activity is conduct in connection with collective negotiations, grievance processing, contract interpretation or administration, or other related activity on behalf of a union or individual. North Brunswick Bd. of Educ. v. North Brunswick Educ. Sec’ ys Ass’n (App. Div. 1979), aff’ g P.E.R.C. No. 79-14, 4 NJPER 451 (¶4205 1978). Protected activity may include individual conduct related to enforcing a collective negotiations agreement or preserving or protesting working conditions of employees in a recognized or certified unit. N.J. Turnpike Auth., P.E.R.C. No. 2022-38, 48 NJPER 393 (¶90 2022); Bridgewater-Raritan Bd. of Ed., P.E.R.C. No. 2010-43, 35 NJPER 455 (¶150 2009); State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (¶109 2005). However, mere “personal griping” does not constitute protected concerted activity. 31 NJPER at 279. ¶

Here, Kearney’s charge challenges the State’s application of its leave policies to her and the veracity of the alleged misconduct surrounding those leave disputes during November and December 2023 which led to her December 5, 2023 PNDA for removal. Her allegations are not related to enforcing the CNA or preserving or protesting the working conditions of CWA Local 1033 unit employees. Rather, her allegations concern disciplinary disputes that must be resolved in accordance with the parties’ negotiated procedures. The record shows that Kearney appealed the PNDA and her charge indicates she pursued her appeal at a department hearing. Without establishment of protected union activity and demonstration of a sufficient nexus between that activity and a disciplinary action, the Commission does not have jurisdiction over disciplinary disputes. Woodstown-Pilesgrove Bd. of Ed., P.E.R.C. No. 2023-18, supra; N.J. Transit (Warfield), P.E.R.C. No. 2008-52, supra. ¶

Similarly, Kearney’s charge does not set forth the basis for a 5.4a(1) claim. A public employer violates section 5.4a(1) of the Act if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); NJ Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (~10285 1979). The charge does not explain how the State’s disciplinary charges against Kearney interfered with her right to engage in protected union activity. Moreover, the record demonstrates the State’s legitimate and substantial business justification for its removal of Kearney based on her alleged workplace misconduct. That discipline was subject to review through the parties’ negotiated disciplinary procedures. ¶

Finally, Kearney’s charge also alleges discrimination against her by the State, refers to her “ADA disability,” and includes exhibits indicating she has filed charges with the New Jersey Division on Civil Rights (DCR) and the U.S. Equal Employment Opportunity Commission (EEOC). The Commission does not have jurisdiction over civil rights claims based on alleged disability discrimination. Woodstown-Pilesgrove Bd. of Ed., P.E.R.C. No. 2023-18, supra; N.J. Transit (Warfield), P.E.R.C. No. 2017-23, 43 NJPER 175 (¶53 2016). Claims of anti-union discrimination cannot be based on alleged violations of laws other than the Act, particularly where those laws provide a forum for review of an employer’s actions. N.J. Turnpike Authority, P.E.R.C. No. 2022-38, 48 NJPER 393 (¶90 2022); Elizabeth Housing Auth. (Looney), P.E.R.C. No. 90-84, 16 NJPER 211 (¶21084 1990). The record indicates Kearney has filed her disability-related civil rights claims with the DCR and EEOC. ¶

OrderORDER ¶

The Director’s refusal to issue a complaint is sustained and Kearney’s unfair practice charge is dismissed. ¶

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 ¶

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. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under 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. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. [and] (7) Violating any of the rules and regulations established by the commission.” ¶

2/ Initially, on October 16, 2024, a letter was issued to Kearney from a staff member of the Legal Division affirming the Director’s dismissal of her charge for the reasons set forth in his September 13 and October 10 letters. That letter was rescinded the same day and the parties were advised that further correspondence would be forthcoming. ¶

3/ Following the General Counsel’s October 17 letter, Kearney repetitively filed additional UPCs nearly identical to her previous filings. ¶