P.E.R.C. No. 2025-31, Paterson B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PATERSON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-007 PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Commission sustains a decision by the Director of Unfair Practices, D.U.P. No. 2025-2, 51 NJPER 143 (¶35 2024), refusing to issue a complaint on an unfair practice charge filed by the Paterson Education Association against the Paterson Board of Education. The charge alleges the Board violated subsections 5.4a (1), (3), and (5) of the Act and the school subcontracting provisions of sections 45 and 46 of the Act when it entered a subcontracting agreement to receive in-classroom teaching services from remote instructors who were not Board employees during the term of the parties’ current collective negotiations agreement (CNA). In rejecting the Association’s appeal the Commission finds the Director properly concluded it was not a subcontracting agreement as defined by or subject to the notice and negotiation requirements of the school subcontracting laws because, among other things, the Association did not: (1) allege, as a threshold matter, facts that if true would show that existing unit employees were replaced or displaced as a result of the Board entering the disputed agreement; or (2) were passed over in favor of remote instructors for assignments that the Board posted. ¶

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 PATERSON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-007 PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Souder Shabazz & Woolridge Law Group, LLP, attorneys (Bryant Lawrence Horsley, Jr., of counsel) ¶

For the Charging Party, Oxfeld Cohen, PC, attorneys (Randi Doner April, of counsel) ¶

DECISION ¶

On November 7, 2024, the Paterson Education Association (Association) appealed from a decision issued on October 2, 2024 by the Director of Unfair Practices (Director), D.U.P. No. 2025- 2, 51 NJPER 143 (¶35 2024), refusing to issue a complaint on the Association’s unfair practice charge, filed on October 28, 2021, and amended on March 9, 2022, against the Paterson Board of Education (Board). ¶

The Association’s four-count amended charge alleges the Board violated subsections 5.4a (1), (3), and (5)1/, and Sections 45 and 46 2/ of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., when it: ¶

1. adopted a resolution approving an alleged subcontracting agreement with a Texas-based company, Proximity Learning (Proximity Agreement) during the term of the parties’ current collective negotiations agreement (CNA), allegedly violating Section 46 of the Act; ¶

2. failed to negotiate or meet and confer with the Association over any aspect of the Proximity Agreement, or the impact thereof, allegedly violating subsections 5.4a(1) and (5), and sections 45 and 46 of the Act; ¶

3. repudiated by failing to honor Article 11:7 of the CNA (establishing a joint committee to “consider the subcontracting of [Association] unit work where the effect would be the loss of any unit job” ) and a related settlement agreement resolving a grievance over SAT test preparation subcontracting, allegedly violating subsections 5.4a(5) and (1) of the Act; and ¶

4. used the Proximity Agreement to substitute multiple Association bargaining unit positions in bad faith for private workers, allegedly violating subsections 5.4a(3) and (1) of the Act. [This count does not appear in the initial charge.] ¶

In addition to facts alleged under each of the above counts, the amended charge (like the initial) alleges: “Association members have been called into classrooms where the remote teaching is taking place to deal with technical, language, and other issues that cannot be dealt with by Proximity Learning, the remote teacher, or the adult in the classroom.” (Amended Charge, ¶10; Initial Charge, ¶11.) ¶

Each party filed position statements, supplemental position statements, certifications and exhibits with the Director. The parties filed briefs, respectively, in support of and opposition to the Association’s appeal from the Director’s decision. Based on our review of the entire record, we summarize the pertinent facts as follows. ¶

The Association is the majority representative of certificated teaching staff members employed by the Board, a public employer within the meaning of the Act. On April 19, 2023, the Board passed a resolution to enter into the Proximity Agreement for the provision of remote “live instruction and software solutions for the 2022-2023 school year” . At the same meeting, the Board passed a resolution ratifying the parties’ current CNA, which has a term of July 1, 2022 through June 30, 2027, and succeeds their prior CNA which expired June 30, 2022. The Board contracted with Proximity again for the 2023-2024 school year.3/ ¶

According to its certification in support of its initial position statement, the Board’s reasons for entering the Proximity Agreement were to “to fill in the gaps” of a “teacher shortage plaguing the District,” and to “fill high needs, hard to fill areas such as Bilingual, ESL, Science, and Math,” which “required the District to utilize non-traditional teacher recruitment and retention strategies, and have required the District to exhaust its substitute teacher pool.” (Certification of Luis Rojas, Assistant Superintendent of Human Resources, Labor Relations, and Affirmative Action, ¶ ¶4-6). ¶

The Association’s initial charge alleges, “Since at least the start of the 2022-23 school year, the Board has had a large number of vacant teaching positions in its schools that it has struggled to fill.” (Initial Charge, ¶3). While this allegation is not repeated in its amended charge, the amended charge includes the following statement: “The teachers employed and/or contracted by Proximity Learning are filling vacant positions in the Paterson School District, mostly in the areas of elementary and ESL/Bilingual education.” (Amended Charge, ¶9.)4/ ¶

Article 11:7 of the parties’ CNA states that “[a] joint committee of equal members shall be established by the parties, and will be convened as soon as practicable after any decision by the District to consider the subcontracting of unit work where the effect would be the loss of any unit job . . .” ¶

The parties referenced the Article 11:7 subcontracting committee provisions in a January 2023 grievance settlement that provided: “[p]ursuant to Article 11:7 . . . , the Subcontracting Committee will meet at least five (5) times per year.” ¶

The Association stated on page 4 of its initial position statement: “at this point, the Association lacks information with regard to the Proximity contract’s effect on the Board’s recruitment efforts for in-house teaching positions because the Board has failed to provide the Association with any meaningful information whatsoever about its advertisement and recruitment efforts.” ¶

During processing of its initial charge, the Association was asked to address whether a prior Commission decision where we thoroughly examined the legislative and judicial history of subcontracting and the new amendments to the Act, Vineland Bd. of Ed., P.E.R.C. No. 2024-47, 50 NJPER 406 (¶99 2024), had any controlling effect on the outcome here.5/ This evidently resulted in the Association filing its amended charge, a supplemental position statement, the certification of NJEA Field Representative Sasha Wolf, and exhibits. ¶

Wolf certified that as of April 2024 (based on information provided by the District in response to an information request), the District had assigned Proximity instructors to various classes at six District schools. (Wolf Cert., ¶4.) Comparing this information with all current job postings for those schools (posted by the District as of May 6, 2024, on “Applitrack,” a searchable online database for applicants to review current job openings), Wolf concluded: “out of the 160 courses being taught by Proximity . . . approximately 81 courses, or over 50%, were never posted on Applitrack.” (Wolf Cert., ¶ ¶5-9.) Wolf asserted this evidence “negates” the Board’s position “that Proximity is being utilized to fill long-term job vacancies.” (Id., ¶9.) In its supplemental position statement, the Association argued that this evidence “indicates that the Board is utilizing subcontractors for positions that it is not attempting to fill and that it has not advertised as vacant.” The Board’s supplemental position statement does not address Wolf’s evidence or the Association’s view of it. ¶

The Director’s refusal to issue a complaint was chiefly based upon his conclusion, addressing Count 1, that because the Proximity Agreement was not an illegal subcontract the Board had no obligation to negotiate over it. Relying on Vineland, supra, the Director reasoned: the Proximity Agreement did not violate Section 46 in the absence of “facts alleging that any existing employees were actually displaced or replaced by Proximity’s instructors.” 51 NJPER at 145. ¶

Addressing Count 2, the Director found no 5.4a(5) violation given his conclusion that the Board had no Section 46 obligation to negotiate, and thus, the Association could not sustain a derivative 5.4a(1) charge on that issue. Id. He further found the Association did not state an independent 5.4a(1) violation because it did not “specifically plead” as to how the Board not negotiating over the Proximity Agreement “reasonably tends to chill employees in the exercise of their protected rights.” Id. ¶

Addressing Count 3, the Director found no evidence of contract repudiation under 5.4a(5) because the alleged violations of the contract and settlement agreement were falsely premised on the Proximity Agreement being an illegal subcontract, and because the contract language at issue expressly conditions the formation of a joint subcontracting committee on the loss of a unit job. 51 NJPER at 146. ¶

Finally, the Director rejected Count 4 of the amended charge, which alleged the Board violated subsections 5.4a(1) and (3) of the Act when it used the Proximity Agreement in bad faith to substitute unit positions for private workers. The Director found the facts alleged did not support a 5.4a(3) claim because they did not show that “any employee was engaged in protected activity, that the employer knew of this activity and that the employer was hostile towards [it].” 51 NJPER at 146. The Director addressed the 5.4a(1) “bad faith” claim in a footnote: ¶

Wolf’s certification does not provide evidentiary support that the Board has used the Proximity Agreement to substitute its workforce in bad faith. It is unclear why Wolf compares courses to job positions. It is also unclear why Wolf concludes the Board never made a posting for certain positions from the mere fact that a posting did not appear on Applitrak as of May 2024 since job postings may have been listed for a limited period of time before being removed. Assuming however the Board neglected to post a position on Applitrak, Wolf . . . fails to provide evidence that there are qualified candidates available that would have applied if it had been posted. There is also no evidence that a single qualified applicant was ever passed over in favor of Proximity instructors for the vacant positions that were posted on Applitrak by the Board. ¶

[51 NJPER at 146, n.7.] ¶

In support of its appeal from the Director’s decision, the Association argues, among other things, that its amended charge satisfies the complaint-issuance standard under N.J.A.C. 19:14- 2.1, and that a complaint should also be issued because the charge involves a matter of unsettled law, the relatively recently enacted subcontracting amendments to the Act. The Association further contends that the Director: made findings based on the Board’s assertions, without opportunity for the Association to cross-examine relevant witnesses or related documents; made findings of fact not in evidence at all; and based his refusal to issue the complaint on incorrect and irrelevant facts and a misapplication of the rules and law. The Association also asserts it was unable to specify that current unit members’ work was displaced or replaced by non-unit members due to the Board’s “continual failure to provide information” in that regard.6/ For this reason, the Association argues, the Director’s factual finding that no unit members were adversely affected by the Proximity Agreement (thus negating the issue of subcontracting), should not have been made at this juncture. ¶

In opposition, the Board argues that because a District’s contracting practices with private vendors is governed by Title 18A, the charge was properly dismissed as the Commissioner of Education, not PERC, has exclusive jurisdiction here. The Board further argues that its utilization of the Proximity Agreement to obtain long-term substitute teaching services for the District, in response to a teacher shortage and teacher vacancies, does not frustrate the purposes and protections of the subcontracting prohibition statute. The Board contends that this is so because: the Proximity Agreement did not result in any Association member being displaced, replaced or subjected to a reduction in force (RIF); the District did not decrease the number of staffing allocations for any teaching position; and no Association member lost any salary or opportunities for extra compensation. ¶

For the reasons that follow, we sustain the Director’s refusal to issue a complaint. ¶

As we discussed at length in Vineland, in Local 195, supra, 88 N.J. at 407-08, the Supreme Court held that public employers have a non-negotiable managerial prerogative to subcontract governmental services to a private company even if the decision is based solely on a desire to save money and even if employees will lose jobs as a result. The Court held that public employees’ vital interest in not losing their jobs was outweighed by the employer’s interests in determining “whether governmental services are provided by government employees or by contractual arrangements with private organizations” and making “basic judgments about how work or services should be performed to best satisfy the concerns and responsibilities of government.” Local 195 at 407. The Court further held that notice provisions and procedural aspects concerning the impact of subcontracting remained mandatorily negotiable and that proposals to “discuss” alternative solutions to subcontracting motivated by economic considerations were negotiable. Id. at 409-410. Finally, the Court explained that a public employer could not subcontract “in bad faith for the sole purpose of laying off public employees or substituting private workers for public workers.” Id. at 411. ¶

Following Local 195, the Commission and courts have consistently prohibited negotiations or arbitration over the substantive decision to subcontract unit work to private companies and contractors and dismissed unfair practice charges alleging a failure to negotiate over the decision to subcontract. See, e.g., Toms River Tp. (¶72 App. Div. 2008), certif den., 198 N.J. 315 (2009), rev’ g, P.E.R.C. No. 2007-56, 33 NJPER 108 (¶37 2007) (subcontracting tree removal); Kean University, P.E.R.C. No. 2022-43, 48 NJPER 430 (¶98 2022) (subcontracting grounds and housekeeping work); Vernon Tp. Bd. of Ed., P.E.R.C. No. 2016-9, 42 NJPER 115 (¶33 2015) (subcontracting child study team services to therapy company); Matawan-Aberdeen Regional Bd. of Ed., P.E.R.C. No. 2004-35, 29 NJPER 541 (¶173 2003) (subcontracting cafeteria services); East Brunswick Bd. of Ed., P.E.R.C. No. 2000-41, 26 NJPER 21 (¶31006 1999) (subcontracting child study team services to independent social workers); and Burlington Cty. Bd. of Social Services, P.E.R.C. No. 98-62, 24 NJPER 2 (¶29001 1997) (subcontracting energy assistance program). ¶

In Ridgewood Bd. of Ed. (App. Div. 1994), certif. den., 137 N.J. 312 (1994), aff’ g, P.E.R.C. No. 93-81, 19 NJPER 208 (¶24098 1993), the Appellate Division affirmed the Commission’s decision finding that, even during the term of a CNA, the employer had no obligation to negotiate over subcontracting school custodial and maintenance services that terminated the employment of an entire negotiations unit. Relying on Local 195, the Appellate Division held: ¶

[T]he Court left no doubt that “. . . public employees have no right to negotiate on the ultimate decision to subcontract.” [Local 195] at 409. The import of the Court’s holding is that public employees cannot by negotiation protect themselves during the contract term from the risk of job termination resulting from subcontracting during the life of the contract. By definition, therefore, the public employer retains the right, if it acts in good faith, to subcontract at any time and without reference to the existing contract. That conclusion is impelled by In re IFPTE. We are obliged to follow it. ¶

[Ridgewood, *3.] ¶

However, limitations on a public employer’s non-negotiable right to subcontract were implemented with the enactment of P.L. 2020, c. 79 (codified as N.J.S.A. 34:13A-44 to -49 in our Act).7/ Under N.J.S.A. 34:13A-46, an employer is prohibited from entering into a “subcontracting agreement which affects the employment of any employees” in a unit represented by a majority representative during the term of an existing CNA. When a CNA expires, an employer may only subcontract if, at least 90 days prior to soliciting subcontracting bids, it “[p]rovides written notice to the majority representative of employees in each collective bargaining unit which may be affected by the subcontracting agreement” and the Commission, and offers to meet and consult with the majority representative and negotiate over the impacts of subcontracting. N.J.S.A. 34:13A-46(a)-(b). The employer maintains its right to subcontract if no successor agreement exists. N.J.S.A. 34:13A-46(b). ¶

N.J.S.A. 34:13A-44 through -49 define “subcontracting” as: ¶

any action, practice, or effort by an employer which results in any services or work performed by any of its employees being performed or provided by any other person, vendor, corporation, partnership or entity. ¶

[N.J.S.A. 34:13A-44 (emphases added).] ¶

N.J.S.A. 34:13A-45 provides: ¶

Except for actions of an employer expressly required or prohibited by the provisions of this act [C.34:13A-44 et seq.], all aspects or actions relating to or resulting from an employer’s decision to subcontract including, but not limited to, whether or not severance pay is provided, shall be mandatory subjects of negotiations. [(Emphases added.)] ¶

N.J.S.A. 34:13A-46 provides: ¶

No employer shall enter into a subcontracting agreement which affects the employment of any employees in a collective bargaining unit represented by a majority representative during the term that an existing collective bargaining agreement with the majority representative is in effect. No employer shall enter into a subcontracting agreement for a period following the term of the current collective bargaining agreement unless the employer: ¶

a. Provides written notice to the majority representative of employees in each collective bargaining unit which may be affected by the subcontracting agreement and to the New Jersey Public Employment Relations Commission, not less than 90 days before the employer requests bids, or solicits contractual proposals for the subcontracting agreement; and b. Has offered the majority representative of the employees in each collective bargaining unit which may be affected by the subcontracting agreement the opportunity to meet and consult with the employer to discuss the decision to subcontract, and the opportunity to engage in negotiations over the impact of the subcontracting. The employer’s duty to negotiate with the majority representative of the employees in each collective bargaining unit shall not preclude the employer’s right to subcontract should no successor agreement exist. ¶

N.J.S.A. 34:13A-48 states: ¶

An employer who violates any provision of this act [C.34:13A-44 et seq.] shall be deemed to have committed an unfair practice, and any employee or majority representative organization affected by the violation may file an unfair practice charge with the New Jersey Public Employment Relations Commission. If the employee or organization prevails on the charge, the employee is entitled to a remedy including, but not limited to, reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, attorney’s fees, and any other relief the commission deems appropriate to effectuate the purposes of this act. ¶

We find that the Director properly relied upon and applied our decision in Vineland, supra, to this matter, to conclude the Proximity Agreement was not a subcontracting agreement as defined in N.J.S.A. 34:13A-44. As we stated in Vineland, an employer’s notice obligation and duty to negotiate as set forth in N.J.S.A. 34:13A-46 “is intended only to restrict subcontracting that affects the employment of an employer’s current represented employees, such as through replacement or displacement.” 50 NJPER at 409. ¶

The Director found the Association failed to “identify a single existing employee that was displaced by a non-employee provided through the Proximity Agreement.” 51 NJPER at 145. Although the Association asserted it was unable to do so because the Board failed to provide it with relevant information, before reaching his decision the Director specifically afforded the Association an opportunity to address our decision in Vineland. ¶

In response, the Association relied upon information it obtained from the Board pursuant to an information request. Yet it was still unable to identify any existing employees who were replaced or displaced through the Proximity Agreement. Additionally, it may be presumed that the fact of a current member’s displacement or replacement (for any reason) would be in the possession of any unit member so affected. As such, it is not information that would be exclusively within the control of the Board. The Association has not alleged that it canvassed its membership for such information after the Association was alerted to the Vineland question, nor explained why it could not reasonably have done so. Under these circumstances we find the Director’s conclusion was reasonable. ¶

The Association alleges the Proximity Agreement affected current members when they were called into classrooms where remote teaching was being provided by Proximity instructors, “to deal with technical, language, and other issues that cannot be dealt with by Proximity Learning, the remote teacher, or the adult in the classroom.” (Amended Charge, ¶10; Initial Charge, ¶11.) The fact that Vineland did not address such allegations, and does not appear to have involved a contract for non-Board employees to remotely provide teaching services to students in classrooms, does not negate Vineland’s requirement that a party asserting a violation of N.J.S.A. 34:13A-46 must, as a threshold matter, allege facts that if true would show that the employer’s challenged action resulted from its entry into a subcontracting agreement as defined by N.J.S.A. 34:13A-44. Absent same, the Association’s “affect” allegation does not warrant the issuance of a complaint under N.J.S.A. 34:13A-46. ¶

We also sustain the Director’s dismissal of the Association’s 5.4a(3) allegation in Count 4. We agree with the Director that the facts alleged do not support a 5.4a(3) anti- union animus claim because they do not show that “any employee was engaged in protected activity, that the employer knew of this activity and that the employer was hostile towards [it]” under Bridgewater Tp. v. Bridgewater Public Works Assn., 95 N.J. 235, 246 (1984). ¶

Finally, we affirm the Director’s refusal to issue a complaint as to the Association’s 5.4a(1) “bad faith” charge under count 4. In New Jersey College of Medicine and Dentistry, P.E.R.C. No. 79-11, 4 NJPER 421, 422 (¶4189 1978), we articulated the standard for finding a violation of section 5.4a(1) of the Act: ¶

It shall be an unfair practice for an employer to engage in activities which, regardless of the absence of direct proof of anti-union bias, tend to interfere with, restrain or coerce an employee in the exercise of rights guaranteed by the Act, provided the actions taken lack a legitimate and substantial business justification. ¶

The tendency of an employer’s conduct to interfere with employee rights is the critical element of a 5.4a(1) charge, “proof of actual interference, restraint, or coercion is not necessary.” Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550, 552 (¶13253 1982), aff’d, 10 NJPER 78 (¶15043 App. Div. 1983). ¶

The Association alleges in count 4 that the Board never posted 81 out of 160 classes that the Board assigned to Proximity instructors. We agree with the Director that such evidence was inconclusive because it was unclear if those postings referred to courses or job positions, or “may have been listed for a limited period of time before being removed.” 50 NJPER at 146, n.7. We also find it was not unreasonable for the Director to refuse to issue a complaint on that allegation, in light of the Association’s failure to allege “that there are qualified candidates available that would have applied if it had been posted,” or that “a single qualified applicant was ever passed over in favor of Proximity instructors for the vacant positions that were posted on Applitrak by the Board.” 50 NJPER at 146, n.7 (emphasis added). If the Association becomes aware of an employee displaced or a qualified applicant denied a position in favor of Proximity staff member, it may file a new charge. ¶

OrderORDER ¶

The Director’s refusal to issue a complaint is sustained. The Association’s charge is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: February 27, 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; (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; (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment in that unit, or refusing to process grievances presented by the majority representative.” ¶

2/ These provisions amending our Act, as codified in N.J.S.A. 34:13A-44 through -49, were enacted on September 11, 2020. P.L. 2020, c. 79. In brief, they make subcontracting (as defined in N.J.S.A. 34:13A-44) in public school districts (and other institutions under the authority of the Commissioner of Education or State Board of Education) a mandatory subject of negotiations (N.J.S.A. 34:13A-45), prohibit subcontracting during the term of a CNA (N.J.S.A. 34:13A-46), and require employers to provide notice to unions and negotiate the impact of any proposed subcontracting once a CNA expires (Id.). Although not cited in the Association’s pleadings, we note that N.J.S.A. 34:13A-48 states that any employer who violates these provisions “shall be deemed to have committed an unfair practice.” ¶

3/ The Proximity Agreement is the subject of a pending petition of appeal before the Commissioner of Education, filed by the Association on July 14, 2023 (Agency Ref. No. 188–7/23), wherein the Association contends the agreement violates various provisions of the New Jersey school laws (Title 18A) because Proximity instructors: do not hold New Jersey teaching certificates or endorsements; have not undergone a criminal history check; were not appointed by a majority vote of the full membership of the Board; are not evaluated by District supervisors; and are not New Jersey residents. ¶

4/ We take administrative notice that on November 10, 2022, Governor Murphy issued Executive Order 309, which acknowledged teacher staffing shortages at school districts throughout the State of New Jersey and established a task force to address said shortages. ¶

5/ In Vineland, we sustained the Director’s refusal to issue a complaint on a teacher union’s charge alleging a school board violated the subcontracting provisions of N.J.S.A. 34:13A-45 and -46. We concluded, among other things, that the Vineland board did not violate those laws because the alleged subcontracting decision at issue did not displace any current employees but only filled vacancies and new positions. ¶

6/ We note the Board’s alleged refusal to respond to the Association’s information request(s) is not the subject of this charge. ¶

7/ These statutes apply to certain public employers including school districts such as the Board. N.J.S.A. 34:13A-44. ¶