P.E.R.C. No. 2025-21, Eastampton Tp EA

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 negotiations unit that: ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of James MacCarthy, Charging Party, -and- Docket No. CI-2023-027 Eastampton Township Education Association, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part and denies in part the Eastampton Education Association’s and James MacCarthy’s cross motions for summary judgment on MacCarthy’s unfair practice charge alleging the Association breached its duty of fair representation. Specifically, the charge alleges that the Association violated the Act when it (1) did not provide a union representative during a disciplinary investigation to MacCarthy, (2) allegedly filed a sexual harassment complaint against MacCarthy, and (3) prohibited MacCarthy from seeking union elected office because he filed the instant unfair practice charge. The Commission grants the Association’s motion and dismisses the charge on the first two allegations, because the Association did not act arbitrarily, discriminatorily or in bad faith when viewing the allegations in the light most favorable to MacCarthy. The Commission grants MacCarthy’s motion as to the third allegation, because it is arbitrary for a union to take an adverse action against a member for filing an unfair practice charge with the Commission. ¶

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 James MacCarthy, Charging Party, -and- Docket No. CI-2023-027 Eastampton Township Education Association, Respondent. ¶

AppearancesAppearances: ¶

For the Charging Party, James MacCarthy, pro se ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Steven R. Cohen, of counsel; Hop T. Wechsler, on the brief) ¶

DECISION ¶

On September 30, 2024, James MacCarthy (Charging Party) filed a motion for summary judgment on his second amended unfair practice charge filed against the Eastampton Township Education Association (ETEA or Respondent). The second amended charge, filed on June 15, 2023, alleges the ETEA violated N.J.S.A. 34:13A-5.4(b)(1) when it allegedly (1) declined to provide an Association representative during disciplinary investigative interviews, (2) reported violations of District Sexual Harassment Policies to the employer, and (3) refused to allow MacCarthy to appear on the ballot for an upcoming election for Association co- president in retaliation for filing an unfair practice charge against the Association. On September 30, 2024, the Association filed a cross-motion for summary judgment, seeking dismissal of the charge. ¶

Following the filing of the charge, the Director of Unfair Practices issued a Complaint on November 2, 2023. The Association filed an Answer on November 13, 2023, denying the allegations. After the conclusion of discovery, MacCarthy filed the instant motion for summary judgment, together with briefs, exhibits and certifications. The Association’s cross-motion for summary judgment was filed with briefs, exhibits and certifications. The following undisputed facts appear. ¶

UNDISPUTED MATERIAL FACTS ¶

1. The ETEA is an employee representative within the meaning of the Act and MacCarthy is a member of the ETEA. ¶

2. The ETEA represents certain certified and non-certified employees of the Eastampton Township Board of Education (Board), including classroom teachers. ¶

4. MacCarthy has been employed by the Board as a classroom teacher since 2007 and has been a member in good standing of the Association for the duration of his employment. ¶

5. From September 2022 through the Spring of 2023, the Board received six complaints against MacCarthy for allegedly violating the Board’s sexual harassment policy. ¶

6. After the first complaint in September 2022, the Superintendent and MacCarthy met to discuss the issue. Because the complainant had chosen to remain anonymous, the Superintendent took no action against MacCarthy. ¶

7. On October 17, 2022, a second complaint was filed against MacCarthy and an investigatory interview was expected to occur. ¶

8. Dan Wythoff, ETEA Co-President, informed MacCarthy via text message that the complaint had been filed and urged MacCarthy to ensure an ETEA representative was present at the investigatory interview. The relevant portions of the text message exchange stated: ¶

Mac, my first break isn’t until 11:32 but I want to reach out. Paperwork was submitted to the district affirmative action officer (Robinson) today regarding the situation we discussed a few weeks ago. ¶

Not sure what he’ll do with it today, but if you get called down for a preliminary meeting/discussion, grab a rep to attend with you who will take detailed notes. Doesn’t have to be me, you can pick whomever, just make sure they only take notes and do not speak on your behalf at this point. ¶

9. In the same text message exchange, Wythoff also informed MacCarthy that an attorney provided by the New Jersey Education Association (NJEA) would be contacting him as well: ¶

...I’m already in talks with [the Uniserv Representative] and he is assigning you an attorney. Once the lawyer is involved, they’ll drive the bus. ¶

10. While MacCarthy had originally believed that Michael Martino, an ETEA official, would represent him, MacCarthy was informed by Wythoff that Martino was already representing the anonymous complainant and that he would need a different representative. ¶

11. On October 21, 2022, the investigatory interview occurred. MacCarthy was represented by an attorney appointed by the NJEA. Believing that he could not receive impartial representation from the ETEA, no ETEA representative was present on MacCarthy’s behalf.1/ ¶

12. On November 30, 2022, MacCarthy was informed of an additional complaint made against him. MacCarthy certifies that the ETEA brought this complaint to the attention of the Board and that the Board would not be taking an action against him. The ETEA denies that it brought the complaint. ¶

13. On February 21, 2023, the Superintendent informed MacCarthy that a fourth complaint, by the same staff member, was made against him. MacCarthy certifies that during this conversation he learned the identity of the complainant in order to refrain from any further contact. ¶

14. The Board required that, during spring break, MacCarthy would move to a different classroom so that his work location would be further from the complainant. ¶

15. On March 2, 2023, MacCarthy filed an unfair practice charge against the ETEA with the Commission. ¶

15. On March 9, 2023, MacCarthy amended his unfair practice charge. ¶

16. In May 2023, an additional complaint was made against MacCarthy by the same complainant for revealing information from the complaints, including by informing another union official. ¶

17. On May 4, 2023, Wythoff emailed the ETEA membership regarding the upcoming election for Co-President of the ETEA. ¶

18. On May 8, 2023, MacCarthy submitted a letter to the ETEA nominating himself, along with proof that the nomination was seconded. ¶

19. On May 18, 2023, the ETEA held an emergency meeting to decide whether Mr. MacCarthy could hold the position of Co- President even though he had filed an unfair practice charge with the Commission. ¶

20. At the conclusion of the meeting, the Executive Committee voted to send MacCarthy the following correspondence the next day: ¶

We acknowledge the filing on March 9, 2023 of a DFR with PERC against the ETEA and Daniel Wythoff, in particular. Additionally, we acknowledge receipt of your nomination as candidate for co-president of ETEA for a two- year term. ¶

Our ETEA leadership team, made up of Executive Committee members...[and] Association Representatives...met on May 18, 2023. The purpose of this meeting was to discuss a conflict of interest that has been brought to the attention of Michael Martino and Lisa Wood by UniServ. ¶

The conflict of interest arises now that you have submitted your nomination as a candidate for ETEA co-president. Should you win the election, you would be in the position of guiding your own case as the charging party AND the association in defense of the charge. After discussion at this meeting, the Executive Committee members and the [Association Representatives] voted, due to this conflict of interest, to present you with two options: ¶

1. Drop the DFR against ETEA and Daniel Wythoff, at which point your name will be placed on the ballot. ¶

2. Continue with the DFR against ETEA and Daniel Wythoff, at which point your name will not be placed on the ballot. ¶

As you are aware, nominations must be finalized by the end of business today due to the recently-passed amendment to the ETEA constitution. Candidates for office will be announced to our members on Monday, May 22, 2023. Please let us know your decision by the end of business, 5:00 p.m., today. ¶

21. On May 21, 2023, MacCarthy declined to make a choice in response to the letter via email. ¶

22. At the June 6, 2023 General Membership meeting where the election for Co-President would take place, MacCarthy’s name was not on the ballot. ¶

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 ¶

In support of his motion, MacCarthy argues that the ETEA violated its duty of fair representation when it did not provide him with a union representative during several disciplinary investigations into his conduct. Additionally, MacCarthy alleges that the ETEA, through its officials Martino and Wythoff, violated the duty of fair representation when, according to MacCarthy, they reported sexual harassment allegations to the Board. Further, MacCarthy alleges that the ETEA violated the Act when it prohibited him from simultaneously seeking Union-elected office while an unfair practice charge was pending against the ETEA. ¶

In opposition and in support of its own motion for summary judgment, the Association contends that the uncontested facts show that the Association did not breach its duty to fairly represent MacCarthy. Specifically, the Association argues that MacCarthy admitted that the ETEA’s conduct was merely negligent and that, irrespective of that admission, the facts do not support a finding that the ETEA violated the Act. According to the Association, the ETEA never filed an affirmative action complaint against MacCarthy and never denied him an ETEA representative (and assisted in procuring an attorney). The Association also avers that any claims MacCarthy has against the Conflict Resolution Committee do not involve MacCarthy, and that the Commission does not have jurisdiction to resolve allegations that the election for Co-President was conducted unfairly. ¶

ANALYSIS ¶

The Commission grants in part and denies in part each party’s motion for summary judgment. Specifically, the Commission dismisses the Complaint against the ETEA on the allegation that it breached its duty to fairly represent MacCarthy during investigatory interviews. The Commission further dismisses the allegation that the ETEA breached its duty of fair representation when it is alleged to have filed complaints of sexual harassment against MacCarthy. The Commission, however, does find that the ETEA violated the Act when it prohibited MacCarthy from running for Co-President for the sole reason that he had an active unfair practice charge filed against the union. ¶

N.J.S.A. 34:13A-5.4b(1) prohibits an employee organization from “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by the Act.” An employee organization violates this proscription when its action tends to interfere with protected rights and lacks a legitimate and substantial organizational justification. FOP, Lodge No. 12 (Colisanti), P.E.R.C. No. 90-65, 16 NJPER 126 (¶21049 1990). ¶

Section 5.3 of the Act empowers a union to negotiate collectively and administer the collective negotiations agreement on behalf of all unit employees. With that exclusive authority comes the duty to fairly represent all unit employees in negotiations and contract administration. A breach of the duty of fair representation occurs when a union’s conduct towards a member of the negotiations unit is arbitrary, discriminatory or in bad faith. Lullo v. IAFF, 55 N.J. 409 (1970); D’ Arrigo v. New Jersey State Bd. of Mediation, 119 N.J. 74, 76 (1990); Belen v. Woodbridge Tp. Bd. of Ed., 142 N.J. Super. 486 (App. Div. 1976); see also Vaca v. Sipes, 386 U.S. 171 (1967). “The complete satisfaction of all who are represented is hardly to be expected” and “[a] wide range of reasonableness must be allowed a statutory bargaining representative in servicing the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” PBA Local 187, P.E.R.C. No. 2005-78, 31 NJPER 173 (¶70 2005) (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 337-338 (1953)). A breach of the duty of fair representation violates subsection 5.4b(1) of the Act. ¶

Claim that ETEA Breached the Duty of Fair Representation by not Providing an ETEA Representative During the Investigatory Interviews ¶

The Commission finds that the ETEA did not breach its duty of fair representation during the disciplinary processes against MacCarthy because it is undisputed that the ETEA offered to provide MacCarthy with an ETEA representative of his choosing with the exception of those who had a conflict of interest. Additionally, it is undisputed that the ETEA sought legal assistance from the NJEA who did in fact provide MacCarthy with legal counsel during the disciplinary process. Even assuming that an NJEA attorney was not an agent of the ETEA under these circumstances, the fact that the ETEA told MacCarthy to “grab a rep to attend with you who will take notes. Doesn’t have to be [Wythoff], you can pick whomever, just make sure they only take notes and do not speak on your behalf at this point,” (MacCarthy Cert., Ex. “F.” ), shows that the ETEA did allow and encourage MacCarthy to have union representation at the October 21, 2022 meeting. Thus, the ETEA did not act arbitrarily, discriminatorily or in bad faith in assigning an ETEA representative to MacCarthy and this aspect of the complaint is dismissed. ¶

Claim that the ETEA Breached the Duty of Fair Representation by Filing a Sexual Harassment Complaint Against MacCarthy ¶

While there is a factual dispute as to whether ETEA officials filed a complaint of sexual harassment against MacCarthy, resolution of that dispute is not necessary to resolve the unfair practice charge. The Commission finds that even if MacCarthy’s version of events is true, in that ETEA officials filed a sexual harassment complaint against him, it cannot be a breach of the duty of fair representation especially where the complaint was on behalf of another member and there is no evidence that the complaint was made in bad faith. Employee organizations owe a duty of fair representation to every member while at the same time are called upon to balance the needs of the membership as a whole. Where a member seeks assistance or protection from their employee organization with respect to employment discrimination or sexual harassment, the organization must treat all involved members fairly. See, e.g., Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002) (holding, in the private sector, “[w]hen the employer investigates a sexual harassment claim by one union member against another, the union has a statutory duty to fairly represent both in their disciplinary dealings with the employer.” ) This could include assisting one member in filing a complaint, or filing it on that member’s behalf, while also ensuring the accused member was provided with due process. Any action taken in handling a delicate member vs. member issue is deemed part of the “wide range of reasonableness...allowed [to] a statutory bargaining representative” so long as it is not arbitrary, discriminatory or in bad faith. PBA Local 187, 31 NJPER 173 (¶70 2005). ¶

MacCarthy does not allege any facts showing ETEA acted arbitrarily, discriminatorily or in bad faith even if the organization filed an affirmative action complaint against him on behalf of another member. Instead, his allegations merely assert that it is a per se breach of the duty of fair representation for the Association to file a complaint of sexual harassment against one of their own members. This is not the case, especially in light of the strong public policy against workplace discrimination.2/ Therefore, this claim is dismissed. ¶

Claim that ETEA Violated the Act When It Prohibited MacCarthy from Appearing on the ETEA Ballot for Co-President Because He Filed an Unfair Practice Charge Against the ETEA ¶

The Commission finds that the Association violated the Act when it prohibited MacCarthy from appearing on the ballot for Co- President of the ETEA for filing an unfair practice charge with the Commission. The Appellate Division has held that “N.J.S.A. 34:13A-5.4(b)(1) prohibits interference with a right guaranteed by the Employer-Employee Relations Act, and the Act explicitly protects the right to ‘assist’ in a labor organization, N.J.S.A. 34:13A-5.3.” PBA Local 334 (Mendoza), P.E.R.C. No. 2025-3, 51 NJPER 105 (¶25 2024), citing In re Probation Ass’n (Tortoreto), 442 N.J. Super. 185, 195 (App. Div. 2015). While this is true, “the Commission will not intercede in intra-union disputes unless they are connected to allegations that an unfair practice has been committed.” PBA Local 334 (Mendoza), citing NJ State PBA & PBA Local 199 (Rinaldo), P.E.R.C. No. 2011-83, 38 NJPER 56 (¶8 2011); City of Jersey City, P.E.R.C. No. 83-32, 8 NJPER 563, 565- 566 (¶13260 1982). ¶

The question of whether a union may take an adverse action against a member for filing an unfair practice charge against the union has been answered before in PBA Local 152 (Smith), P.E.R.C. No. 99-18, 24 NJPER 450 (¶29208 1998). In that case, the PBA filed internal charges seeking to suspend a member who had filed an unfair practice charge against the Association, along with other reasons. The Commission held that the fact that the PBA had referenced the unfair practice as part of a basis for filing internal charges against a member “tended to interfere with his protected rights and lacked a legitimate and substantial organizational justification.” Id. ¶

The ETEA’s May 19, 2023 letter to MacCarthy cites the first amended unfair practice charge in this proceeding as the basis to exclude MacCarthy from the ballot for Co-President where the ETEA admits his nomination was otherwise proper. While the ETEA determined that MacCarthy’s placement on the ballot would be a conflict of interest should he become Co-President, this organizational justification does not outweigh MacCarthy’s right to file the unfair practice charge with this Commission.3/ The ETEA’s action was arbitrary and thus breached MacCarthy’s duty of fair representation. ¶

Based on the foregoing, we conclude the charging party is entitled to relief as a matter of law as to this aspect of his charge that the Association violated 5.4b(1) of the Act when it removed his name from the ballot for Co-President for filing an unfair practice charge with the Commission. ¶

OrderORDER ¶

The Eastampton Township Education Association is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing negotiations unit members in the exercise of the rights guaranteed to them by the Act, including by disallowing James MacCarthy or other members from seeking union elected office for filing an unfair practice charge against the ETEA. ¶

B. Take the following actions: ¶

1. Post in all places where notices to members are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent 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: December 12, 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, including by disallowing James MacCarthy or other members from seeking union elected office for filing an unfair practice charge against the ETEA. ¶

Note1/ The outcome of this complaint is in dispute. MacCarthy certifies that it was unfounded and no action was taken against him. Documentation provided by the Association shows that the Board determined the Complaint was founded and that “appropriate action” was taken against MacCarthy. ¶

2/ “The [NJ Law Against Discrimination] plays a uniquely important role in fulfilling the public imperative of eradicating discrimination. One searches in vain to find another New Jersey enactment having an equivalently powerful legislative statement of purpose...” Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 347 (2016). ¶

3/ We also note that the organizational justification is speculative in two ways: (1) it assumes MacCarthy would win the election and (2) assumes that he would not recuse himself from the matter or seek withdrawal of the unfair practice charge after he became Co-President. ¶

Notice to employeesDocket No. CI-2023-027 Eastampton Tp Education Association (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” ¶