P.E.R.C. No. 2025-4, Fairfield Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of FAIRFIELD BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-040 FAIRFIELD EDUCATION ASSOCIATION, Charging Party ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission reverses a decision of the Director of Unfair Practices, D.U.P. No. 2024-17, 51 NJPER 54 (¶14 2024), which dismissed the Association's charge alleging that a principal engaged in direct dealing when he asked teachers to agree to a work schedule change without first negotiating with the Association and then sent a threatening email to members demanding a commitment to the change. The Commission finds that the dismissal of the charge, in the absence of a more fully-developed record, is premature and remands this matter for the issuance of a complaint. ¶

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 FAIRFIELD BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2024-040 FAIRFIELD EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Machado Law Group, attorneys ¶

(Isabel Machado, of counsel) ¶

For the Charging Party, Oxfeld Cohen, P.C., attorneys ¶

(Gail Oxfeld Kanef, of counsel) ¶

DECISION ¶

On October 3, 2023 the Fairfield Education Association (Association) appealed from the June 18, 2024 decision of the Commission’s Director of Unfair Practices (Director), D.U.P. No. 2024-17, 51 NJPER 54 (¶14 2024) (Decision), that dismissed the Association’s unfair practice charge (UPC) against the Fairfield Board of Education (Board). The UPC alleges that the Board violated sections 5.4a(1), a(3) and (5)1/2/of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., when the Principal of Winston S. Churchill school (Principal) “engaged in direct dealing with numerous members when he asked them to agree to a change in work hours in order to accommodate an early morning duty assignment.” The Association also alleges that after it contacted the Principal about directly dealing with members, he sent a threatening email to members demanding they commit to the changed schedule immediately and that the Association had blocked their ability to take advantage of the offered schedule change. The remedy requested is that the Board change employees’ schedules back to the original 8:35 a.m. to 3:35 p.m. schedule, negotiate over any change in schedules, negotiate over compensation for employees with altered work schedules, and issue an apology to the members who received the Principal’s email. ¶

The Association filed a brief, and the Board filed a responsive brief, incorporating its November 3, 2023 position statement in the UPC. For the following reasons, we grant the Association’s appeal and remand for further processing of the UPC, consistent with this decision. ¶

We summarize the factual background of the UPC, as set forth in the Decision’s Findings of Fact (at 3-8), that is pertinent to our analysis as follows: ¶

The Association represents all regularly employed instructional and educational support personnel, including non- confidential secretaries, custodians, and aides employed by the Board. The Board and the Association are parties to a CNA with a term of July 1, 2019 through June 30, 2024. ¶

Article IX of the parties’ CNA ( “Teaching Hours and Teaching Loads” ), provides in pertinent part: ¶

1. Teachers: The arrival and departure time shall be designated; however, the total in-school teacher workday shall, in general, not consist of more than seven (7) hours, which shall include a forty-five (45) minute duty free lunch period . . . . ¶

The current schedule for teachers is 8:35 a.m. until 3:35 p.m. On September 15, 2023, the Principal sent the following email to staff3/ soliciting volunteers to work early morning bus duty: ¶

Hi Everyone, ¶

Please let me know if any of you would be interested in working early morning bus duty from 8:20 a.m.- 8:35 a.m. We are trying to alleviate some of the congestion in the mornings in the East parking lot. If you choose to do this, you will be permitted to leave at 3:20 p.m., with the students. Obviously, this would not apply on Tuesdays, but the plan would be to have a group of people who can rotate. On the day you work, you would be able to leave at 3:20 p.m. If you want to move it to another day, we can accommodate you. If you work it on a Tuesday, you’d leave early on a Monday or Wednesday. Either way, for everyday you do AM early duty you get a day to leave at 3:20 p.m. ¶

Please let me know if you are interested. ¶

The Association responded to the Principal’s offer to change schedules for those who volunteered for bus duty with the following September 18, 2023 email: ¶

It has been brought to our attention that you are in violation of the Recognition Clause in our contract, and have unilaterally made a change in the terms and conditions of employment by direct dealing/bargaining with our membership. This is not allowed. ¶

As union Co-Presidents, we are asking you to rescind your offer for volunteers or work with us to negotiate a stipend for positions, as compensation time cannot be given outside contract hours. This is something that must be negotiated. ¶

We are advising you that members will not be at early bus duty until we reach a mutual agreement. ¶

That same day, the Principal responded to the Association, as follows: ¶

Thanks for reaching out. As per your contract, teachers are to work from 8:35 a.m. until 3:35 p.m. As has been the practice in our district consistently, over the last seven years, some of our teachers coach at high school and middle school, and asked for some relief to get to practice and games in a reasonable amount of time. As you know we cannot just let them leave early, so for years the agreement has been that they can come in at 8:20 a.m. and leave with the students at 3:20 a.m.(sic). The teacher’s workday is unchanged with time required of them during the day. This was agreed upon in 2016 by the representatives of the FEA. So, all we have done at Churchill, in an effort to provide a safe environment for staff and students, is ask if anyone else would like to take advantage of this flexibility. Two other teachers felt it was in their best interest to pursue this option. If you, as a union, want to deny them the opportunity to make their lives easier, that’s up to you, but it is not a violation of the contract. That was explored in 2016, and agreed to by all parties. ¶

I will let them know that their union leadership feels they can deny them this opportunity, and they can take it up with both of you. ¶

Prior to a response from the Association, the Principal sent another email to the Association and the teachers who wanted to volunteer for the schedule change and bus duty, as follows: ¶

I need to know immediately if I can count on our people doing what they’ve been doing for the last seven years tomorrow morning. If the union leadership is going to block them from doing something that makes their lives easier, I need to reach out to the community and let them know what is happening. This practice has been in place since 2016. It was agreed upon by the union leadership in 2016 that it was not a violation of the contract. I am unsure why this has suddenly become an issue. It doesn’t impact anyone else and makes things easier on your members who choose to participate. ¶

To those of you who have been doing this for years, or asked to participate now, I am truly sorry that you are placed in the middle of this. I appreciate your flexibility and assistance, and I am happy to afford you the flexibility to leave school with the children at 3:20 p.m. It is my sincere hope that you can continue to take advantage of this opportunity. ¶

[Association Co-Presidents], please let me know if I need to reach out to the community and let them know this is no longer an option because the union is blocking their members from doing something that has been in place for seven years. ¶

The Association then responded with the following email: “The Association has made its position clear. We have consulted with our NJEA representative and will be filing an Unfair Labor Practice.” ¶

The Director’s Decision dismissed the UPC’s 5.4a(1) claim because the “facts do not indicate that [the Principal’s] September 18, 2023 email to Association leadership, and the members who desired to volunteer, tended to interfere with employee rights or discourage them from engaging in protected activity.” The Director further found that the email was not disrespectful, not threatening, did not invite a disavowal of the Association, and did not improperly engage in direct dealing with bargaining unit employees. The Decision dismissed the UPC’s 5.4a(5) claim because the “facts do not indicate that any greater or lesser benefits were in fact negotiated or agreed upon for any individual and/or all unit members.” The Director further found that the proposed altered work schedule was worked by employees in the past and the Association knew of this or should have known of this. ¶

The Association appeals the Decision because the Director made findings of fact based on the Board’s response to the UPC without having any testimony or formal information from the Association, including the Director’s finding that the proposed alternate work schedule was already an established past practice, which the Association disputes. The Association contends that the Director made this fact finding based on schedules provided by the Board without the Association have an opportunity to cross-examine the Board’s witnesses or present its own testimony regarding the Board’s exhibits. The Association asserts that the Principal’s emails in response to the Association’s claims of direct dealing and demand to negotiate over the proposed schedule change for volunteer bus duty interfered with the Association’s representational rights; and thus, a complaint on the UPC should have issued. ¶

The Board responds that the Director correctly dismissed the Association’s UPC based on the Board’s position statement because the Association was afforded the opportunity to respond to the Board’s position statement. The Board asserts that the UPC made no allegation that could support a finding that the Board interfered with, restrained or coerced employees in the exercise of their rights or that it refused to negotiate in good faith. Our standard for issuing a complaint on an unfair practice charge is as follows: ¶

After a charge has been processed, if it appears to the Director of Unfair Practices that the allegations of the charge, if true, may constitute unfair practices on the part of the respondent, and that formal proceedings should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues, the Director shall issue and serve a formal complaint including a notice of hearing before a hearing examiner at a stated time and place. ¶

[N.J.A.C. 19:14-2.1(a) (emphases added).] ¶

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). Public employers are also prohibited from “[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.” N.J.S.A. 34:13A-5.4a(1). This provision will be violated derivatively when an employer violates another unfair practice provision. Lakehurst Bd. of Ed., P.E.R.C. No. 2004-74, 30 NJPER 186 (¶69 2004). Additionally, for a 5.4a(1) violation to be found, proof of actual interference, intimidation, restraint, coercion or motive is unnecessary; the tendency to interfere is sufficient. Trenton Bd. of Ed., P.E.R.C. No. 2022-20, 48 NJPER 245 (¶55 2021) (internal citations omitted). ¶

Here, we find dismissal of the UPC, in the absence of a more fully-developed record, was premature. Regarding the a(1) claim, the Commission applies a balancing test acknowledging two important interests: the employer’s right of free speech and the employees’ right to be free from coercion, restraint or interference in the exercise of protected rights. State of N.J. (Trenton State College), P.E.R.C. No. 88-19, 13 NJPER 720, 721 (¶18269 1987)(affirming a Hearing Examiner’s decision finding that an employer’s communication implying that employees should not discuss the organizational structure with their union crossed the line separating permissible employer speech from speech that could reasonably be found to interfere with the employees’ rights under the Act.) The Act permits employers to express opinions about labor relations provided such statements are not coercive. Ibid. ¶

The Principal’s email, sent to the entire staff in response to the Association’s claims of direct dealing and demand to negotiate over any schedule changes, includes language that could have a tendency to interfere with the Association’s representational rights. The Principal’s statements that “if [the union] want[s] to deny [the employees] the opportunity to make their lives easier, that’s up to you” and “I will let [the employees] know that their union leadership feels they can deny them this opportunity, and they can take it up with [the union]” and “the union is blocking their members from doing something that has been in place for seven years” could have a tendency to threaten, coerce, or otherwise interfere with the Association’s representation of its members. Dismissal of the UPC prior to sufficient proceedings to properly determine whether these statements constituted an a(1) violation is premature. ¶

The Commission has held that public employers violate subsection 5.4a(5) by negotiating directly with individual employees or groups of employees rather than with their majority representative over negotiable terms or conditions of employment, even where individual negotiations resulted in greater benefits. See, e.g., City of Hackensack, P.E.R.C. No. 2018-54, 45 NJPER 18 (¶5 2018) (unilateral salary increases for some unit members to settle federal lawsuit). With regard to the a(5) claim, the Director’s decision established as a fact that the Principal’s proposed work schedule change for volunteer bus duty had been previously implemented, a factual assertion that the Association disputes. The Director found this established past practice based on the Board’s position statement and exhibits, without the benefit of the Association’s contrary evidence or cross examination of any of the Board’s witnesses. The Association has the burden of proving the allegations of the UPC by a preponderance of the evidence. N.J.A.C. 19:14-6.8. The Board should be left to its proofs regarding the affirmative defense that the proposed work schedule change was an established past practice. The parties should be afforded an opportunity to litigate the relevant legal and factual issues. ¶

Further, the Association clearly made a demand to negotiate the work schedule change, which was denied by the Principal’s email. The Commission and courts have consistently held that work schedules are mandatorily negotiable except where the employer has demonstrated that maintaining a particular schedule would substantially limit a governmental policy determination. Local 195, IFPTE v. State, 88 N.J. 393, 411-413 (1982). The UPC seeks that the Board negotiate over the mandatorily negotiable proposed work schedule change. The Principal’s refusal to negotiate the proposed work schedule change, if true, may constitute an a(5) violation on the part of the Board. ¶

OrderORDER ¶

Based on the foregoing, we remand to the Director for the issuance of a complaint and further proceedings on the Association’s UPC. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: September 26, 2024 ¶

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; and (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/ The a(3) allegation was dismissed on October 11, 2023 for failing to satisfy the pleading requirements for such a claim. The Association has not appealed the dismissal of the a(3) allegation. ¶

3/ This email was sent to every member of the Principal’s staff, including Association building representatives, Association Executive Board members, as well as past Association presidents. ¶