P.E.R.C. No. 2025-28, Englewood

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ENGLEWOOD, Respondent, -and- Docket No. CO-2025-081 UNITED BROTHERHOOD OF PUBLIC WORKERS, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the United Brotherhood of Public Workers(UBPW)’s motion for reconsideration of the Director of Unfair Practice’s dismissal of the UBPW’s interim relief application. The Commission finds that the Director’s dismissal was well supported, and that there are no extraordinary circumstances warranting reconsideration nor is this a case of exceptional importance. ¶

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 ENGLEWOOD, Respondent, -and- Docket No. CO-2025-081 UNITED BROTHERHOOD OF PUBLIC WORKERS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Ruderman and Roth, LLC, attorneys (Jeffrey J. Berezny, Esq., of counsel and on brief) ¶

For the Charging Party, Michael A. Bukosky and Associates, LLC., attorneys (Michael A. Bukosky, Esq., of counsel and on brief) ¶

DECISION ¶

On November 27, 2024, the United Brotherhood of Public Workers (UBPW) moved for reconsideration of the Director of Unfair Practices’ November 26, 2024 decision to deny the UBPW’s interim relief application. The UBPW filed its request for interim relief in conjunction with its unfair practice charge (UPC or charge) against the City of Englewood (City) on November 14, 2024. The UBPW amended its charge on November 22. The UPC alleges that the City violated the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., specifically subsections 5.4a(1), (2), (3), and (5)1/, by repudiating a contractual overtime provision and assigning work to non-union members as a direct act of retaliation. Specifically, the UBPW claims that a particular duty, referred to as the “basket route,” which is generally assigned as overtime on the weekends, was the subject of safety complaints by the UBPW. In response to the safety complaints, the UBPW alleges that the Director of Public Works stated that the basket route would no longer be assigned to unit members because the route was allegedly unsafe. Then, when overtime opportunities arose in November 2024, the Director of Public Works did not notice or contact the UBPW, and instead, assigned the overtime to a non unit member, thereby repudiating the contract and stripping the UBPW’s contractual role in assigning overtime. ¶

N.J.A.C. 19:14-9.6 ( “Motions for reconsideration of interim relief decisions” ) provides, in pertinent part: ¶

After an interim relief decision has been issued, a party may move for reconsideration before the Commission. Any motion pursuant to this section shall be filed within 15 days of service of the interim relief decision, together with proof of service of a copy on all other parties. Reconsideration will only be granted based on a demonstration of extraordinary circumstances and exceptional importance. The movant shall specify and bear the burden of establishing the grounds warranting reconsideration. ¶

[Emphasis added.] ¶

In City of Passaic, P.E.R.C. No. 2004-50, 30 NJPER 67 (¶21 2004), we explained that we will grant reconsideration of a Commission Designee’s interim relief decision only in cases of “exceptional importance” : ¶

In rare circumstances, a designee might have misunderstood the facts presented or a party’s argument. That situation might warrant the designee’s granting a motion for reconsideration of his or her own decision. However, only in cases of exceptional importance will we intrude into the regular interim relief process by granting a motion for reconsideration by the full Commission. A designee’s interim relief decision should rarely be a springboard for continued interim relief litigation. ¶

N.J.A.C. 19:14-9.2(f)(2) provides: ¶

An order to show cause shall not include any temporary restraints unless: ¶

2. It appears from the specific facts shown by affidavit or other verified pleading that the charging party or petitioner has a substantial likelihood of success on the merits and that the charging party or petitioner will probably suffer immediate and irreparable harm before notice can be given and a hearing on the application can be held. ¶

[Emphasis added.] ¶

Thus, to obtain interim relief, the moving party must demonstrate both that it has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975). Applying these standards here, we find that the UBPW has not established extraordinary circumstances and that this is not a case of exceptional importance warranting reconsideration of the Designee’s decision. ¶

The Director’s November 26, 2024 decision to “decline to issue a [Order to Show Cause] on the [UBPW’s] application for interim relief” applied the above standards, stating in pertinent part: ¶

Interim relief is an extraordinary remedy that should not be granted in advance of a hearing or more fully developed record “except in the most clear and compelling circumstances.” Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 38 (1975). As the New Jersey Supreme Court and Commission explained in recent decisions, all of the Crowe factors for deciding an OTSC must be supported by “clear and convincing evidence” and the OTSC must be based on a “settled law” or “legal right.” Garden State Equality v. Dow, 216 N.J. 314, 320 (2013); Rutgers University, P.E.R.C. No. 2023-23, 49 NJPER 309 (¶73 2023). The Commission has also recognized that a movant has a “heavy burden of proof” in establishing a “substantial likelihood of success” at the interim relief stage of processing an unfair practice charge, and that questions concerning the factual basis for granting interim relief justifies denial of interim relief. Rutgers; see also County of Burlington, P.E.R.C. No. 2010-33, 35 NJPER 428 (¶139 2009); Essex County, I.R. No. 2023-8, 49 NJPER 314 (¶74 2022). ¶

Here, the parties' submissions raise material issues of fact, including but not limited to: ¶

(1) whether the employer is refusing to engage in good faith collective negotiations; (2) whether the overtime allocation procedure was, in fact, changed by the employer; and (3) what irreparable harm under the New Jersey Employer-Employee Relations Act (Act) occurred here. The application also does not present "clear and convincing evidence" to support the elements of an interim relief claim. Id. Given these issues, a more fully developed record is necessary to resolve these important questions. Little Egg Harbor Tp, Rutgers University, 49 NJPER 309. ¶

Thus, the Director found that the UBPW did not meet the standard required for interim relief under Crowe because there are facts in dispute that prevented a finding that the UPBW had demonstrated a substantial likelihood of prevailing on the merits of its UPC. We agree. ¶

In its motion for reconsideration, the UBPW argues that the Director’s “declination” letter was not an interim relief decision pursuant to our rules, and thus, it should be rescinded for “a meaningful and substantive review of the interim relief petition in accordance with the applicable Rules.” N.J.A.C. 19:14-9.5(b)( “Decision; enforcement” ) provides: ¶

(b) An interim relief decision dismissing an application may be made by: ¶

1. An order of dismissal in cases covered by N.J.A.C. 19:14-9.2 (c) 2/; ¶

2. An order, issued at the end of the proceedings on the return date, containing a brief statement of reasons for denying the application; or ¶

3. A written decision including findings of fact and conclusions of law. ¶

We find that the Director’s November 26, 2024 letter denying the interim relief application is consistent with N.J.A.C. 19:14-9.5(b)(1). The Director declined to further process the interim relief application after the parties briefed their positions. The Director set forth the reasons why UBPW’s interim relief application did not meet the requisite legal standards, namely that there are material factual disputes that prevent UPBW from establishing both a substantial likelihood of success and irreparable harm. The Commission has denied interim relief under this rule. ¶

The UBPW further argues that the Director’s decision erred in denying interim relief because the City’s opposition to the interim relief was not “evidentiarily competent” and was not supported by any affidavits or certification. The record shows that the City was directed by a Commission Staff Agent on Friday, November 22, 2024 to submit “a very brief response (email or letter is sufficient) before screening to determine whether or not to issue an Order to Show Cause (with or without temporary restraints) by close of business on Monday, November 25.” (See Exhibit 1 to City’s Opposition to the Motion for Reconsideration.) The City complied with that request, stating in pertinent part: ¶

First, the Union filed a PEOSH [Public Employees Occupational Safety and Health] claim asserting that it was unsafe to operate the basket vehicles with two (2) employees. PEOSH did a check and did not issue an order against the City for not having two (2) people on the basket truck, but rather just a number of procedural violations. The Union was reluctant to do the work without two (2) people even though it has been done for years with just one (1) person. ¶

Two weekends ago, the Director of Public Works contacted the Union (the Union runs the overtime list) to provide an employee to do basket overtime on Saturday, November 16, 2024. The Union did not provide anyone. The Director then contacted him a second time and asked if they had to provide someone. They again failed to do so. Having to fulfill a need, the Employer then assigned non-union personnel having not received any volunteers to perform the work. ¶

* * * ¶

Applying the Crowe standards, since everyone got overtime this past weekend and the next weekend, there is no irreparable harm provided to the bargaining unit since everyone is working the overtime. Secondly, if, in fact, PERC found that the City committed an unfair labor practice and decided to provide interim relief, there is an easy financial remedy for such action. There are numerous PERC cases that have held financial loss can be remedied through the unfair practice process; and therefore, especially interim relief with restraints, is not necessary. Given the above factual scenario, there is no substantial likelihood of success on the merits for the unfair practice charge. Therefore, none of the three tenets for interim relief, especially interim relief with temporary restraints, is warranted. ¶

In its opposition to the instant motion, the City provides a certification from the City Manager that supports the factual background that the City outlined in the City’s November 25 letter. (See City Manager’s cert. at ¶ ¶4-19). The Director’s decision identified disputed facts regarding whether the City changed the overtime policy, refused to negotiate over the alleged change, and whether the UBPW suffered any irreparable harm that could not be remedied through the pending UPC. These disputed facts were articulated in the City’s November 25 letter brief, and were later set forth in greater detail in the City Manager’s certification. The disputed facts identified in the Director’s decision militates against the UBPW’s heavy burden of proof in establishing a substantial likelihood of success on the merits of its factual and legal claims. ¶

Lastly, the UBPW argues that the Director’s denial of interim relief resulted in “manifest injustice” and “properly dooms the unfair practice to irrelevance and mootness” because “no relief can be had at the end of this case.” The UBPW’s interim relief application does not establish that irreparable harm has resulted or will result from the Director’s denial of interim relief. Irreparable harm is harm that cannot be remedied at the conclusion of a final Commission determination. State of New Jersey (Kean University), I.R. No. 2019-2, 45 NJPER 61 (¶17 2018). Essentially, the UPC involves the alleged repudiation of a contractual overtime provision resulting in lost overtime opportunities. Such claims are not extraordinary or exceptional for a UPC and can be remedied if a violation is found at the conclusion of the case. Nonetheless, the Director’s decision need not reach establishment of irreparable harm where it has already been found that one of the Crowe factors, namely “substantial likelihood of success,” has not been established. See Paterson, supra. ¶

In sum, we find that the UBPW’s motion for reconsideration of the Director’s denial of interim relief does not constitute extraordinary circumstances nor is this a case of exceptional importance. The UBPW’s motion for reconsideration is denied, and this charge shall be processed in the normal course. ¶

OrderORDER ¶

The United Brotherhood of Public Workers’ motion for reconsideration is denied. The charge is referred to the Director of Unfair Practices for further processing. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: January 30, 2025 ¶

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. (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/ N.J.A.C. 19:14-9.2(c) states, “The Commission Chair or such other person designated by the Commission Chair shall review the interim relief application and any accompanying documents and may deny the application, if there is insufficient basis in the pleadings to meet the standards for granting interim relief.” ¶