P.E.R.C. No. 2025-37, NJ/State Judiciary (Mercer)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of Communications Workers of America Local No. 1036, Charging Party, -and- Docket No. CO-2024-065 New Jersey State Judiciary (Mercer), Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission refers the cross motions for summary judgment filed by the State Judiciary and the Communications Workers of America to a Commission Designee. The CWA alleges that the Judiciary violated the Act by refusing to provide its staffing model to the CWA in response to an information request prior to the onset of collective negotiations. The Judiciary asserts the staffing model is not relevant to collective negotiations and is confidential, and thus it did not violate the Act. Since the current staffing model is not in the record, the Commission directs that the Commission Designee conduct an in camera review of the staffing model and then determine whether additional briefing and/or testimony is needed before issuing a written decision. ¶

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 Communications Workers of America Local No. 1036, Charging Party, -and- Docket No. CO-2024-065 New Jersey State Judiciary (Mercer), Respondent. ¶

AppearancesAppearances: ¶

For the Charging Party, Beckett & Paris, LLC, attorneys (David Beckett, of counsel) ¶

For the Respondent, Meryl G. Nadler, Esq., Counsel to the Administrative Director of the Courts (Susanna J. Morris, on the brief) ¶

DECISION ¶

On November 14, 2023, Communications Workers of America, Local 1036 (CWA or the Local), filed an unfair practice charge (UPC) alleging that the New Jersey State Judiciary (Judiciary) violated sections 5.4a(1), (5) and (7) of the New Jersey Employer-Employee Relations Act (EERA), N.J.S.A. 34:13A-1 et seq.,1/ when it did not comply with CWA’s information request seeking a copy of the “Judiciary Staffing Model” (Model). On January 29, 2024, the Director of Unfair Practices issued a complaint on the 5.4a(1) and (5) claims, but dismissed the claim alleging a violation of section 5.4a(7). On February 20, 2024, the Judiciary filed an Answer, denying the claims and asserting that the Models are confidential internal deliberative documents that are unrelated to mandatorily negotiable terms and conditions of employment. On February 22, 2024, CWA filed an uncertified reply, denying the Judiciary’s assertions in its Answer and requesting an in camera review. ¶

On December 2, 2024, CWA filed a motion for summary judgment on the UPC, and on January 10, 2025, the Judiciary filed opposition and a cross-motion for summary judgment. The Local filed its opposition to the cross-motion on January 24, 2025. CWA’s motion is supported by briefs, exhibits, and the certification of its president, Adam Liebtag. The Judiciary’s motion is supported by briefs, exhibits, and the certifications of its Director of Office Management and Administrative Services, Todd McManus, and its Assistant Director of Human Resources, Rhonda Berliner-Gold. The parties’ motions for summary judgment were referred to the full Commission for a decision pursuant to N.J.A.C. 19:14-4.8(a). Based upon the record, we summarize the pertinent facts. ¶

FACTUAL BACKGROUND ¶

The Judiciary and CWA are, respectively, a public employer and majority representative within the meaning of the Act. (Ans. ¶1). CWA represents all non-supervisor, non-case related professional employees employed by the Judiciary and all case- related professional employees in the Intensive Supervision Program, Juvenile Intensive Supervision Program, and Pre-trial services program. (Compl. ¶1; Ex. 1). The Judiciary and CWA are parties to a series of collective negotiations agreements (CNA), with the relevant CNA containing a term of July 1, 2020 through June 30, 2024. (Compl. ¶3; Ans. ¶3). ¶

In 2002, the Judiciary created its first Model in the form of an Administrative Directive, which was posted on the Judiciary’s Infonet, a website accessible to judiciary employees. (McManus Cert. ¶9; 25). The Model, based on its description in the record, is “a stable formula used annually to calculate staff for each division. . . . The staffing models — one for each of the nine Divisions — use measures of work, called drivers, and multiplication formulas to estimate in a consistent way the relative staffing needs of each Division in each Vicinage.” (CWA Br. Ex. 5-6; 8). The Judiciary revises the Model quadrennially. (McManus Cert. ¶22). ¶

The Model assumes full funding of the Judiciary, and only applies to the Vicinages, not the Central Office, Supreme Court, or other arms of the Judiciary. (McManus Cert. ¶10-11; 23). The Model is used to create Divisional staffing tables for Judiciary management in order to determine the distribution of available staff among the Judiciary’s Vicinages, and also aids in maintaining a unified court system. (CWA Br. Ex. 5-6; 8; McManus Cert. ¶10;12; 23-24). Based on actual appropriations, the pro rata staffing allocation is the “target staffing level” for each Vicinage. (CWA Br. Ex. 5-6; 8; McManus Cert. ¶22.) ¶

The Judiciary also uses the Model as part of its budget process, of which 93% is allocated for employee salaries. (McManus Cert. ¶3). It uses this information to equalize resourcing allocation of staffing among its Vicinages, including the Civil, Criminal, Family, Finance, Information Technology, Human Resources, Municipal, Operations, and Probation divisions. (McManus Cert. ¶10; 17). McManus also certifies that the Judiciary uses the Model to equalize its financial resources to effectuate proportional staffing based on its budget. It also contends that the Model does not control workload or produce a required amount of work per employee, and is only a guide for local Vicinage management in assigning staff. (McManus Cert. ¶10; 15; 17). Beginning in 2010, the Judiciary stopped posting the Model on its Infonet and has sought to keep it confidential, only sharing the model with Assignment Judges, Trial Court Administrators, Presiding Judges, and Division Managers, who use the model as a guide for developing a staffing plan. (McManus Cert. ¶27-29). ¶

In preparation for negotiations over the successor CNA, CWA sent an information request on June 5, 2023, to the Judiciary’s Assistant Director of Human Resources (Ans. ¶5; Compl. Ex. 2). Included in that request, CWA sought “Judiciary Staffing Model showing metrics to determine number and level of positions that would be approved for Divisions or Appointing Authorities.” (Compl. Ex. 2;). On July 17, 2023, the Assistant Director responded to that portion of the request, writing: ¶

Judiciary’s response: in accordance with the position it has consistently taken with all collective negotiations units, the Judiciary declines to provide its Staffing Model as this request relates to a confidential and deliberative Judiciary document that does not reflect current staffing. Further, staffing decisions are a managerial prerogative. ¶

[Ans. ¶5]. ¶

After receiving this response, CWA’s President discussed the matter further with the Judiciary during collective negotiations, and caused the filing of the instant UPC after it became clear that the Judiciary would not produce the Model. (Liebtag Cert. ¶19; 67). ¶

CWA asserts that the model is relevant to evaluating and developing contract proposals in areas affecting staffing, workload, recruitment/retention, employee compensation, promotional considerations and procedures, classification appeals, and remote work issues, and that it generally needs the model as part of ongoing representation and contract enforcement. (Liebtag Cert. ¶8). The Judiciary contends that the Model is not used in disciplinary matters, to classify employees, or in negotiations, nor is it used to determine individual employee workloads or compensation. (McManus Cert. ¶13-14; 16). It also avers that the Model is confidential. (McManus Cert. ¶27). ¶

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 ¶

CWA argues that it is entitled to the Model because it is information that would be potentially relevant to its representational duties, including negotiations, classification of employees, compensation, workload and caseload, reassignments, as well as representational matters. CWA notes that it is constrained from stating exactly how it would use the current Model because it has never been provided, but uses examples from the 2010 Model in support of its position. ¶

The Judiciary refutes that the Model is related to any of CWA’s duties as majority representative because there are no objective facts supporting its claim that the information would affect mandatorily negotiable terms and conditions of employment, and that merely surmising that it would do so is insufficient for the Local to prevail. The Judiciary also contends that the Model is confidential and part of its internal budgeting process, and thus not subject to disclosure for this additional reason. ¶

CWA avers that the Model is not confidential. Specifically, it argues that the Model is not a trade secret, as no harm would come to the Judiciary if it was shared with the Local, as it was prior to 2011. Further, CWA contends that the exceptions to required disclosure cited by the Judiciary do not apply in the present case. ¶

ANALYSIS ¶

The questions presented in this case are whether (1) the Model is relevant to negotiations and (2) whether the Model is “confidential.” The Commission finds that without viewing the current Model these determinations cannot be made.2/ ¶

As discussed in further detail, infra, to effectuate efficient further processing of this UPC, the Commission, pursuant to N.J.S.A. 34:13A-6(f)-(g), and N.J.A.C. 19:10-4.1, delegates this matter to a Commission Designee to conduct an in camera review of the current Model. ¶

Public employers are prohibited from “[r]efusing 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. . . .” N.J.S.A. 34:13A- 5.4a(5). A refusal to supply potentially relevant information may constitute a refusal to negotiate in good faith in violation of N.J.S.A. 34:13A- 5.4a(5) and derivatively a(1). State Operated School District, City of Newark, P.E.R.C. No. 2017-14, 43 NJPER 106 (¶32 2016). The Commission has jurisdiction to decide whether information requested under the Act is relevant and is the appropriate forum to resolve such questions. Id.; see also, N.J.S.A. 34:13A-5.3. ¶

In re Univ. of Medicine and Dentistry of New Jersey, 144 N.J. 511, 530-531 (1996), our Supreme Court noted the following regarding union requests for information: ¶

[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. PERC requires every public employer to provide its employee’s union with the information that the union needs to evaluate the merits of an employee’s complaint about employer conduct unless such information is clearly irrelevant or confidential. ¶

[citations omitted]. ¶

Is There a Probability that the Model is Potentially Relevant to CWA’s Statutory Duties? ¶

The Model is a data-driven formula that is used to determine appropriate staffing among the Vicinages. The Judiciary asserts that the finalized Model is used as a guide only by designated members of Vicinage management, who determine the appropriate staffing needs at the local level. CWA asserts that the Model is relevant to employee classification, compensation, workload/caseload, reassignments, and disciplinary matters and offers documentary support on each of those points, although these assertions are disputed by the Judiciary. It is likely that the Model is “potentially relevant” to the CWA in carrying out its representational duties. See UMDNJ. However, we decline to make a determination on relevancy since the current Model is not in the record.3/ ¶

Is the Model a confidential document not subject to disclosure? ¶

The Judiciary also contends that the Model is a confidential document that, even if relevant to collective negotiations, is not disclosable to CWA. In particular, it argues that it is a document produced as part of its budgeting process and in making staffing determinations.4/ (See McManus Cert. at ¶10; 15; 17.) ¶

It is not an unfair practice to refuse to provide confidential documents to a union that requests such a document. UMDNJ, 144 N.J. 511. In determining whether a document is confidential, the Commission has looked to a variety of sources and contexts in making that determination. In analogizing deliberative draft budget worksheets to attorney work product, a Hearing Examiner determined the worksheets were confidential where the union possessed the final budget. See Union City, H.E. No. 83-34, 9 NJPER 251 (¶14115 1983), aff’d, P.E.R.C. No. 83-162, 9 NJPER 394 (¶14179 1983). Where a statute has declared information to be confidential, the Commission has found it confidential for information request purposes. See Newark State Operated School District, P.E.R.C. No. 2017-14, 43 NJPER 106 (¶32 2016) (teacher evaluations confidential pursuant to TEACH NJ Act). Exemptions pursuant to the Open Public Records Act, including a public entity’s normal responsibility to protect personal identifying information, are not relevant in determining whether a document should be provided to a labor organization. See Morris Cty., P.E.R.C. No. 2003-22, 28 NJPER 421 (¶33154 2002), aff’d 371 N.J. Super. 246 (App. Div. 2004), certif. den. 182 N.J. 427 (2005) (majority representative was entitled to home addresses of employees; OPRA not applicable); see also Mt. Holly Board of Ed., et al., P.E.R.C. No. 2019-6, 45 NJPER 103 (¶27 2018) (majority representative entitled to employee names and health insurance plan selections, along with cost; OPRA is not relevant). ¶

We also recognize that “[i]t is well-settled that a public employer has a non-negotiable managerial prerogative to determine the [staffing] levels necessary for the efficient delivery of government services.” City of Plainfield, P.E.R.C. No. 2017-73, 44 NJPER 30 (¶9 2017) (citing Irvington PBA Local 29 v. Town of Irvington, 170 N.J. Super. 539 (App. Div. 1979)., certif. den. 82 N.J. 296 (1982)). ¶

The Judiciary contends that it uses the confidential information to equalize its financial resources to effectuate proportional staffing based on its budget. It also contends that the Model does not control workload or produce a required amount of work per employee, and is only a guide for local Vicinage management. (See McManus Cert. at ¶10; 15; 17.) Since these are matters of managerial prerogative, the Judiciary argues they are confidential, which is disputed by CWA. ¶

There is also a dispute of fact as to how closely guarded the Model is throughout the Judiciary. The Union contends that a Vicinage Division Manager/ADA Coordinator utilized the Model when transferring an employee. However, the Judiciary asserts that that individual was a Division Manager who would have had access to the Model, and the dispute involved a tri-county Vicinage in a situation where the Model did not apply anyway.5/ ¶

Without viewing the current Model, the Commission cannot determine whether or not the document is confidential. Therefore, the Commission delegates this matter to a Commission Designee. The Designee shall conduct an in camera review of the Model and any associated documents. The Designee shall decide after the in camera review whether additional proceedings and/or briefing are necessary. The Designee shall issue a decision, which shall be reviewable by this Commission. The parties shall have the opportunity to file exceptions to the Designee’s decision. ¶

OrderORDER ¶

The cross-motions for summary judgment filed by CWA Local 1036 and the Judiciary are assigned to a Commission Designee for further processing. ¶

1. The Commission Designee shall contact the Judiciary to obtain an unredacted hard copy of the current Model and any associated documents defining its intended use and distribution within the Judiciary. ¶

2. The Commission Designee shall conduct an in camera review of the Model and associated documents and determine whether additional briefing and/or proceedings are necessary. ¶

5. The Designee shall issue a written decision of his or her factual findings and legal conclusions. The parties shall have the opportunity to file exceptions to the Designee’s decision. The Designee’s decision shall be reviewable by this Commission. ¶

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

2/ Included in the record are copies of previous Models, the most recent being the 2010 Model. ¶

3/ In a grievance arbitration award involving the Judiciary and the Probation Association of New Jersey, dated April 30, 2024, an arbitrator determined that the 2010 Model contained “potentially relevant information to help [the union] address workload complaints by its members whether it be in labor-management meetings, contract negotiations, fact- finding, grievance processing, etc...and at least meets the ‘potentially relevant’ tests set forth in PERC decisions and court cases.” (CWA Br., Ex. 18 at p. 24). ¶

4/ The Judiciary also suggests that the entire Model is a trade secret, but does not explain why it is a trade secret, nor does it certify to facts as to how it would be harmed if CWA was able to review the Model. ¶

5/ In the arbitration award discussed in footnote 3, the arbitrator ultimately determined that the Model was disclosable to PANJ, but placed strict limits on PANJ’s ability to share the Model both inside and outside PANJ. The arbitrator additionally held that if PANJ violated those terms, it would not receive copies of future Models. ¶