P.E.R.C. No. 2025-32, Warren Hills Reg B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WARREN HILLS REGIONAL BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-173 WARREN HILLS REGIONAL EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Association’s special permission to appeal the Director of Unfair Practices’ (Director) partial refusal to issue a Complaint in his decision, D.U.P. No. 2025-4. The Director’s decision refused to issue a Complaint on the Association’s N.J.S.A. 34:13A-5.4a(3) claim, which alleged the Board violated the Act by retaliating against an Association member, who served as the Association’s Grievance Chair, when it removed her access to students’ Individualized Education Plans (IEPs) after she used IEP information in a grievance hearing. The Commission denies the Association’s special permission to appeal due to the undisputed critical fact that the Association member did not suffer any adverse employment action, an essential element of a N.J.S.A. 34:13A-5.4a(3) claim. ¶

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 WARREN HILLS REGIONAL BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-173 WARREN HILLS REGIONAL EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Schenck, Price, Smith & King, attorneys, (Marc H. Zitomer, of counsel) ¶

For the Charging Party, Oxfeld Cohen, PC, attorneys ¶

(Sanford R. Oxfeld, of counsel) ¶

DECISION ¶

On December 16, 2024, the Warren Hills Regional Education Association (Association) filed a request for special permission to appeal pursuant to N.J.A.C. 19:14-4.6. The Association seeks special permission to appeal the Director of Unfair Practices (Director) partial refusal to issue a Complaint in his decision, D.U.P. No. 2025-4.1/ The Director’s decision refused to issue a Complaint on the Association’s N.J.S.A. 34:13A-5.4a(3) claim. That claim alleged that the Warren Hills Regional Board of Education (Board) violated the Act by denying Association member and Grievance Chair Geri McKelvey (McKelvey) access to student Individualized Education Plans (IEPs). ¶

The Association filed a letter brief, and the Board filed a responsive letter brief. The facts set forth in the Director’s decision are incorporated below.2/ ¶

McKelvey is a physical education teacher. She also serves as a testing coordinator, a position for which she receives a stipend. During the presentation of a grievance by McKelvey in her role as Association Grievance Chair, the Board discovered that McKelvey had access to all student IEPs. The Board thereafter removed McKelvey’s access. The Board also discovered that other teachers had broad access to student IEPs. The Board then limited teacher access to IEP information to only those students for whom the teacher had direct educational responsibility. ¶

The Association alleges that access to all student IEPs is essential for McKelvey to perform her duties as testing coordinator. The Board argues that it is not necessary for McKelvey to have access to the actual IEP documents. The Board provides McKelvey with a spreadsheet that identifies the students who require testing accommodations, as well as the specific accommodations needed. The Board further asserts that McKelvey plays no role in determining which accommodations are appropriate for a specific student. Rather, it is her job to make sure the recommended accommodations are implemented. Lastly, the Board asserts a business justification for limiting access to student IEPs, namely that allowing general access would violate student confidentiality rights under State and Federal law. ¶

During an exploratory conference, the Board confirmed that if McKelvey provides students with the listed accommodation, she will not be disciplined if it is incorrect. McKelvey confirmed this was accurate as no action was taken against her after an incident occurred where the listed accommodation was incorrect. The Director’s decision dismissed the N.J.S.A. 34:13A- 5.4a(3) claim because removal of McKelvey’s access to student IEPs did not constitute an adverse employment action, an essential element for such a claim. The Director found that removal of McKelvey’s access to the student IEPs did not adversely effect her terms and conditions of employment and did not result in any discipline. The Director found that McKelvey did not require access to student IEPs to perform her role as testing coordinator. Additionally, the Director reasoned that McKelvey was not singled out as all other teachers’ general access to student IEPs was also limited. ¶

We deny the Association’s request for special permission to appeal the Director’s decision. Special permission is only granted in exceptional circumstances, which are not present here. See Newark State Operated School Dist., P.E.R.C. No. 2014-63, 40 NJPER 442 (¶153 2014); and Sussex Cty., P.E.R.C. No. 2010-34, 35 NJPER 430 (¶140 2009) (citing State of New Jersey, P.E.R.C. No. 2005-62, 31 NJPER 61 (¶30 2005)). ¶

In its special permission to appeal, the Association argues that the timing of the removal of McKelvey’s access to student IEPs - shortly after she used IEP information in a grievance - was not properly considered in the Director’s decision. Additionally, the Association argues that the removal of McKelvey’s access to student IEPs will have a chilling effect on other Association members. However, the Association’s appeal does not address the undisputed critical fact that McKelvey did not suffer any adverse employment action as a result of using the IEP information during the grievance. She was not disciplined and did have any other term or condition of employment affected. The Board’s removal of McKelvey’s broad access to student IEPs, along with the removal of such access for all other teachers, did not interfere with her ability to perform her testing coordinator responsibilities. When the Board discovered that McKelvey had broad access, it remedied the oversight to ensure the confidentiality of student IEPs. The unfettered access to the IEPs was revealed through the grievance process, but that circumstance does not release the Board from its obligation to maintain confidential records required by State and Federal law. Moreover, the Board’s removal of access to all student IEPs does not interfere with McKelvey’s ability to obtain information needed for the representation of Association members. “[A]n employer must supply information if [there is] a probability that the information is potentially relevant and that it will be of use to the union in carrying out its statutory duties. Thus, unions are entitled to a broad range of potentially useful information.” In re Univ. of Medicine and Dentistry of New Jersey, 144 N.J. 511, 530-531 (1996). ¶

For the foregoing reasons, the Association’s special permission to appeal is denied. ¶

OrderORDER ¶

The Association’s request for special permission to appeal is denied. We refer the matter to the Director for further processing. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: February 27, 2025 ¶

Trenton, New Jersey ¶

Note1/ The Director issued a complaint on the Association’s N.J.S.A. 34:13A-5-4a(1) allegation pertaining to a healthy workplace environment complaint filed against McKelvey. ¶

2/ Neither party filed certifications in support of their letter briefs. ¶