P.E.R.C. No. 2025-34, Mainland Reg B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MAINLAND REGIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2025-011 MAINLAND REGIONAL EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Mainland Regional Board of Education’s scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Mainland Regional Education Association. The grievance asserts that a special education aide was terminated without just cause when he was not reinstated after his original position was eliminated due to a reduction in force (RIF). The Commission finds the grievance is legally arbitrable as to whether the Association’s disputed factual allegations support its claim that the RIF was pretextual with respect to the grievant. The Commission further directs that if it is found the Board acted in good faith and that a RIF did occur, the arbitrator’s inquiry must end. ¶

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 MAINLAND REGIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2025-011 MAINLAND REGIONAL EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Gorman, D’ Anella and Morlok, LLC, attorneys (William C. Morlok, of counsel; Brett E.J. Gorman, on the brief) ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Keith Waldman, of counsel; Liz Pudel, on the brief) ¶

DECISION ¶

On December 11, 2024, the Mainland Regional Board of Education (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Mainland Regional Education Association (Association). The grievance asserts that a special education aide was terminated without just cause when he was not reinstated after his original position was eliminated due to a reduction in force (RIF). ¶

The Board filed briefs, exhibits and the certifications of its Chief School Administrator, Mark C. Marrone (CSA). The Association filed a brief, exhibits and the certifications of the grievant and its Association President, John-Fred Crane. These facts appear. ¶

The Association represents regularly employed non- supervisory certified and non-certified full-time and regular part-time employees under contract to the Board. The Board and Association are parties to a collective negotiations agreement (CNA) in effect from July 1, 2022, through June 30, 2025. The CNA’s grievance procedure ends in binding arbitration. ¶

The CSA certifies that the grievant was hired by the District on September 1, 2018. He served as a special education aide assigned to in-school suspensions during the 2023-2024 school year. The grievant was not assigned to any particular student and had no particular special education assignments. The CSA certifies that the District implemented a RIF as a result of a reduction in state aid in the 2023-2024 school year. ¶

The record includes a copy of a letter dated April 12, 2024, from the CSA to the grievant, informing him that as a result of the RIF, his Board employment would cease effective June 30. At the Board’s April 25 meeting the RIF was approved. The record shows the Board eliminated a total of 17 District positions, including seven teaching staff positions and ten others. Of the latter, five were non-certificated special education aides, including the grievant. The other four aides’ initials are: S.M., A.E., R.C. and J.L. ¶

According to the CSA, the grievant was terminated pursuant to the RIF and not due to any form of discipline. The record includes a positive employment reference from the CSA dated April 30, 2024, stating among other things that the grievant was let go “due to a significant reduction in the high school’s state aid,” attesting to the grievant’s “dependable work ethic” as a special education aide, and recommending the grievant “without hesitation” for employment in other school districts. The CSA certifies that of the 17 individuals who were subject to the RIF, the grievant was the only one who asserted that he “has been subject to termination without just cause.” The CSA certifies that the District no longer has a special education aide assigned to in-school suspensions. A certified teacher is currently filling that role. The CSA further certifies that the District uses special education aides for coverage of the certified teacher only when necessary. ¶

The grievant certifies that around mid-February 2024, he posted on several Facebook pages alerting the community to the school’s Veterans Club1/ activity delivering candy and cards to the Northfield Veterans home on Valentine’s Day. The grievant certifies that the Superintendent’s son was a student in the Veterans Club. The grievant certifies that he did not mention any students’ names in the Facebook post, but the wife of the Superintendent commented on the post, implying that her son should have been mentioned by name. The grievant certifies that the wife’s comment made him uncomfortable, so he blocked her on Facebook and later spoke to the CSA about it. The CSA certifies that when he spoke with the grievant about this incident, he “clarified that the lack of recognition for [his] son in this particular instance was not a significant issue” for him, and that he did “not believe it was intended to exclude [his son].” ¶

The grievant certifies that after he was notified about the RIF, he asked the CSA if he could be rehired if any money became available. The CSA told him he would need to reapply. ¶

The grievant certifies that in late spring of 2024, A.E. told the grievant that during her RIF meeting with the CSA she rejected his offer of an aide position where she would follow a District student to a special services district. The grievant certifies that R.C. had been serving as a substitute since September 2024 and was appointed to a long-term substitute position in January 2025. The grievant further certifies that although the Board minutes show J.L. being RIF’d and then rehired, J.L. never left the Board’s employment because he was selected in May 2024 to work in the District’s Extended School Year (ESY) program that begins right after the school year ends. The grievant certifies that after ESY, J.L. resumed his employment as a special education aide for the 24-25 school year. ¶

In reply, the CSA certifies that five special education aides were subject to the RIF, and that as to the other four (apart from the grievant) the following occurred after the RIF: S.M., who had been out on FMLA leave, resigned permanently; J.L. was interviewed, rehired, and assigned as a one-on-one aide to a multiple disabled student that was brought back to District, a position J.L. had held prior to the RIF supporting a different student; R.C. was hired in a completely different role as a long- term substitute in the subject area he is certified to teach, approximately eight months after the RIF; and A.E. was never offered another position, contrary to the grievant’s and Crane’s assertions. ¶

The grievant further certifies that the Board hired two new aides for the 2024-2025 school year, D.D. and K.D., who have less experience than him. The record includes copies of Agenda Item Details from the Board’s July 22, 2024, meeting. These list the CSA’s recommendations to make such appointments, among others, effective September 1, 2024. The grievant certifies that initially, the District posted the hiring notices for these positions in a “hidden channel” on its Microsoft Teams platform that is not available to the general public. The CSA’s certifications do not address these allegations about the Board’s post-RIF hiring of two new aides. ¶

Crane reiterates many of the assertions set forth in the grievant’s certification. Crane certifies that the Board’s response to an Open Public Records Act request confirms that only four special education aide positions had been eliminated. Crane certifies that the grievant was the only special education aide who was RIF’d, wanted to be rehired, applied, was formally re- interviewed, and was refused reinstatement.2/ The Board disputes that only four aide positions were eliminated. ¶

The CSA also certifies that in 2021 the grievant “expressed concerns” about the role of a special education one-on-one aide for a student with multiple disabilities. The CSA’s certification is unclear as to whether the grievant expressed those concerns in relation to his own or to J.L.’s occupancy of that role at the time. However, the CSA further certifies that in 2022, the grievant was reassigned to cover in-school suspensions, not an individual student. He certifies that the grievant does not possess a teaching certificate, unlike R.C. who was rehired as a long-term substitute. ¶

On August 12, 2024, the Association filed a level one grievance. It states, in pertinent part (emphasis added): ¶

This grievance is being filed with you pursuant to N.J.S.A. 34:13A-29 as amended by P.L.2020 Chapter 66 and in order to preserve our rights under the terms of the collective bargaining agreement, . . . . ¶

It is the contention of the grievant and the Association that the district took adverse action against [the grievant], without just cause, when he was not reinstated to fill an available aide position after his original position was eliminated due to a reduction in force. This action violated P.L.2020 Chapter 66 and the terms of the collective bargaining agreement, . . . . ¶

As relief in this matter, the Association seeks to immediately restore [the grievant] to any aide position in the district and make the member financially whole for any lost income resulting from his break in employment. ¶

The CSA denied the grievance at all steps. On August 23, 2024, he denied it at level one, stating, in pertinent part: ¶

The Grievance alleges that [t]he [grievant] should have been afforded recall rights. It is the position of the District that [the grievant] was non-tenured and therefore does not have seniority or recall rights. Board Policy 4117.4/4217.4; N.J.S.A. 18A:28-12; Cardillo v. City of Paterson Board of Education, AGENCY DKT. 290-10/2, 2024 WL 3313934, at *5[] (N.J. Adm. Apr. 10, 2024); Lichtman v. Bd. of Educ. of Vill. of Ridgewood, 93 N.J. 362, 368 (1983)[.] ¶

On September 12, the CSA denied the grievance at level two, stating, in relevant part (italics in original): ¶

The District’s Reduction in Force Policy states the following with respect to non- tenured staff members: ¶

Should it become necessary to reduce the number of employees in the district, the laws and regulations of the state shall be the controlling guides. If, in the case of such reduction, candidates for termination are nontenured personnel only, the primary basis for selection for termination or reduction shall be the needs of the district’s educational program and the individual’s contribution toward achievement of that program based on properly completed observations and evaluations. District Policy 4117.4/4217.4. ¶

Mainland’s policy, like the district policy in Cardillo, established state law as its guiding post and determined retention of non- tenured staff based on the needs of the district and staff contributions rather than seniority. Therefore, no recall rights were created by the policy for nontenured staff, and no such rights are available to [the grievant]. ¶

On October 5, 2024, the Association filed a Request for Submission of a Panel of Arbitrators. This petition ensued. ¶

The Commission’s inquiry in a scope of negotiations petition is narrow. We are addressing a single issue in the abstract: whether the subject matter in dispute is within the scope of collective negotiations. The merits of the union’s claimed violation of the agreement, as well as the employer’s contractual defenses, are not in issue, because those are matters for the arbitrator to decide if the Commission determines that the question is one that may be arbitrated. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405]. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

In support of restraining arbitration, the Board argues that the RIF is both allowed by the school laws and has been consistently held to be a non-negotiable topic. The Board further argues that as a non-certificated staff member, the grievant did not have tenure, seniority, and/or recall rights, either by law or contract; and that as a result of the RIF, the grievant’s former position of overseeing in-school suspensions no longer exists. The Association’s claim that the Board would RIF 17 employees in order to discipline the grievant is inaccurate and unsupported by the record or relevant case law. The Board contends it determined who to RIF based on the roles the RIF’d employees fulfilled and merit, consistent with the Board’s non- negotiable managerial prerogative to deploy personnel in the manner which it considers most likely to promote the overall goal of providing all students with a thorough and efficient education. ¶

The Association argues that P.L. 2020, c. 66 (Chapter 66), a 2020 legislative amendment to Section 29 of the Employer-Employee Relations Act (N.J.S.A. 34:13A-1 — 34:13A-64) (Act) explicitly renders any disciplinary “lack of continuation of employment” legally arbitrable. The Association characterizes the Board’s action as a “sham RIF,” a pretext for a disciplinary “non- continuation” of the grievant’s employment resulting from the Facebook post incident. While conceding the grievant has no statutory recall rights, the Association argues he has the right, under Chapter 66, to arbitrate the non-continuation of his employment as a disciplinary action without just cause. ¶

It is well-settled that public employers’ “decisions to reduce the work force for economy or efficiency are non negotiable subjects.” Local 195, supra at 408, citing, e.g., State v. State Supervisory Employees Ass’n, 78 N.J. 54, 88 (1978) ( “a decision to cut the work force to a certain number unquestionably is a predominantly managerial function” ). However, seniority as it relates to layoffs, recalls, reemployment and bumping is a mandatory subject of negotiations absent preemption. State Supervisory, 78 N.J. at 84. ¶

P.L. 2020, c. 66, amending N.J.S.A. 34:13A-29 effective August 13, 2020, provides non-teaching school employees: ¶

the right to submit to binding arbitration any dispute regarding whether there is just cause for a disciplinary action[3/], including, but not limited to, reprimands, withholding of increments, termination or non-renewal of an employment contract, expiration or lapse of an employment contract or term, or lack of continuation of employment, irrespective of the reason for the employer’s action or failure to act, and irrespective of any contractual or negotiated provision or lack thereof. ¶

[N.J.S.A. 34:13A-29(c) (emphasis added).] ¶

Even before Chapter 66 was enacted in 2020, it was well- settled law that terminations and non-renewals of non-teaching employees -including non-tenured support staff such as paraprofessional aides- are mandatorily negotiable and legally arbitrable. See, e.g., Buena Reg’ l School Dist. Bd. of Ed., P.E.R.C. No. 2021-26, 47 NJPER 326 (¶77 2021)(on factual record predating Chapter 66, allowing arbitration of grievance asserting board terminated without just cause a special education paraprofessional’s employment through non-renewal); Mercer County Special Services School District, P.E.R.C. No. 97-52, 22 NJPER 409 (¶27223 1996)(union’s grievance asserting board non-renewed teacher’s aide without just cause was arbitrable for non- professional employee who had no statutory tenure rights). ¶

Prior to Chapter 66, we have also permitted arbitration of grievances challenging, as disciplinary or pretextual, terminations and non-renewals of both teaching and non-teaching staff that occurred in the context of reductions in force. In N.J. Inst. of Technology (NJIT), P.E.R.C. No. 81-45, 6 NJPER 494 (¶11252 1980), we permitted arbitration of a grievance asserting that NJIT provided a false reason (a RIF) in its statement of reasons for the non-renewal of a non-tenured faculty member. However, in that case we cautioned: “If the arbitrator finds that a reduction in force did occur, the inquiry must end.” Id., at 495. We further noted: ¶

We do not mean to suggest that the arbitrator could review the accuracy of the judgments made by NJIT in the statement [of reasons] . . . if it is found that those statements were made in good faith or that a RIF did occur. Implicit in the dispute herein and in our analysis is [the association’s] allegation that NJIT acted in bad faith, and that the reason given . . . for [the] non-renewal was pretextual. ¶

It must be emphasized, given the nature of the matter in dispute, that our conclusion that the matter is arbitrable in no way suggests that we find merit in [the association’s] allegations. That is exactly what we leave to the arbitrator. ¶

[NJIT, 6 NJPER at 496, n.6 (internal citations omitted, emphases added).] ¶

In Emerson Bd. of Ed., P.E.R.C. No. 92-85, 18 NJPER 102 (¶23047 1992), the day after a school board notified a custodian that she would be terminated because of a reduction in force (the notice also stated the action was not performance-related), a vacancy occurred before the reduction took effect. Despite applying for the vacant position and being interviewed, the custodian was not hired to fill the vacancy. Id. Under those circumstances, we held, “When it proceeded to lay off [the grievant] anyway, it in effect discharged her and filled her position with a new employee. That was not a staffing decision, but rather a disciplinary discharge. The subject of that dispute may be submitted to arbitration pursuant to N.J.S.A. 34:13A-29.” 18 NJPER at 103. See also, Hamilton Tp. Bd. of Ed., P.E.R.C. No. 98-9, 23 NJPER 467 (¶28218 1997)(same). ¶

On the factual allegations presented here, we find that the grievance is legally arbitrable within the confines of our established precedent. The instant matter, unlike Hamilton and Emerson, supra, does not appear to involve an undisputed vacancy occurring after the announcement of the RIF but before its effective date, and while the grievant was still employed. However, there is a factual dispute as to whether, during A.E.’s RIF meeting with Superintendent Marrone in the Spring of 2024, A.E. was offered and rejected an aide position where she would follow a District student to a special services district. There are also disputes of fact about whether or to what extent the RIF actually discontinued the employment of other aides besides the grievant. ¶

In a scope decision we neither decide nor opine on the merits of the parties’ factual disputes. We find that an arbitrator may decide whether the Association’s allegations, if true, support its claim that the RIF was pretextual with respect to the grievant. The Association is left to its proofs, and the Board may present its statutory, contractual, and/or policy-based defenses to the arbitrator. However, as in NJIT, supra, if the arbitrator finds the Board acted in good faith and that a RIF did occur, the inquiry must end. ¶

OrderORDER ¶

The Mainland Regional Board of Education’s request for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Ford, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioner Higgins was not present. ¶

ISSUED: March 27, 2025 ¶

Trenton, New Jersey ¶

Note1/ The record reflects that the grievant served as an advisor to this student club. ¶

2/ The record does not indicate the dates the grievant applied and was re-interviewed, or the date he was refused reinstatement. The CSA’s certifications do not specifically address Crane’s assertions in this regard. Although the grievant certifies that the CSA told him he would need to reapply, he does not otherwise certify that he actually did so, without success. ¶

3/ N.J.S.A. 34:13A-22 defines “discipline” as “all forms of discipline, except tenure charges . . . or the withholding of increments” . ¶