P.E.R.C. No. 2025-46, Elizabeth B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of ELIZABETH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2025-070 ELIZABETH EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the refusal of the Director of Unfair Practices to issue a complaint on an unfair practice charge filed by the Association. The charge alleges that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (Act) by depriving Association bus drivers of overtime opportunities when the Board subcontracted with a private company to fill 6:00 to 7:00 a.m. bus routes that were not part of the Association bus drivers’ negotiated schedule. The Commission finds that because the Association bus drivers did not work the disputed routes on an overtime basis during the preceding year, and had negotiated a schedule that did not include the 6:00 to 7:00 a.m. routes, the Board’s subcontracting of those routes did not “affect” the employment of Association bus drivers pursuant to N.J.S.A. 34:13A-46 of the Act’s subcontracting amendments. ¶

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 ELIZABETH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2025-070 ELIZABETH EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Kologi Simitz, attorneys (Edward Kologi, of counsel) ¶

For the Charging Party, Zazzali, P.C., attorneys (Richard Friedman and Sheila Murugan, of counsel) ¶

DECISION ¶

On March 17, 2025, the Elizabeth Education Association (Association) appealed from the March 7, 2025 decision of the Director of Unfair Practices (Director) refusing to issue a complaint on its unfair practice charge filed on October 29, 2024. D.U.P. No. 2025-8, 51 NJPER 347 (¶79 2025). The charge alleges that the Board violated subsections 5.4a(1) and (5)1/, and sections 45 and 46 of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., when, during the term of an existing collective negotiations agreement (CNA), the Board entered into a subcontracting agreement with Durham School Services (Durham) for the 2024-2025 school year to provide private bus drivers for a shift that Association bus drivers had previously worked as overtime. The charge alleges that the Board did not negotiate or discuss the subcontracting agreement with the Association and that the agreement has affected current unit employees by depriving them of overtime work. As a remedy, the Association seeks that the Board’s subcontracting agreement be declared void ab initio as violating N.J.S.A. 34:13A-46, that the Board offer unit employees the overtime work it subcontracted to Durham and provide back pay for lost overtime opportunities as a result of the subcontracting, and that the Board negotiate with the Association over all aspects of the Durham subcontracting agreement. ¶

Summary of Facts ¶

We summarize the pertinent facts as follows. The Association is the exclusive majority representative for all unit employees, including bus drivers, employed by the Board. The Board and Association are parties to a CNA with a term of July 1, 2022 through June 30, 2025. ¶

On September 19, 2024, the Board passed a resolution to enter into a contract with Durham to service 28 school routes for the 2024-2025 school year to cover the 6:00 to 7:00 a.m. bus shift. According to the Board’s December 4, 2024 position statement, the district employs approximately 43 Association bus drivers who, prior to the 2024-25 school year, had been on a “split schedule” where they would work a 6:00 to 10:30 a.m. shift and then a 2:00 to 5:30 p.m. shift. For the 2024-25 school year, the parties negotiated a change to a “straight schedule” in which the Association bus drivers work a single 7:00 a.m. to 4:00 p.m. shift.2/ However, due to the work schedule change, the Board still needed bus drivers for the 28 routes that must commence at 6:00 a.m. to properly service Special Education High School students. ¶

The Board’s position statement asserts: “To utilize the employee Drivers to continue in this capacity (working the 6-7 a.m. shift) would necessitate overtime for 28 individuals each day” and the “cost to the District would be in excess of seven figures annually.” The parties agree that during the 2023-2024 school year, these 28 High School bus routes commencing at 6:00 a.m. were covered as part of the Association bus drivers’ regular split schedule. The Association stated that prior to the 2023-24 school year, these bus routes were worked as overtime. The Association does not allege that any unit employees have lost their jobs or had their regular straight schedule (7:00 a.m. to 4:00 p.m.) hours reduced as a result of subcontracting. ¶

Legal Arguments ¶

The Association asserts that the Director prematurely dismissed its unfair practice charge because its allegations, “if true, may constitute unfair practices.” The Association argues that the Board’s Durham agreement meets the Act’s definition of subcontracting because it affects the employment of unit employees during the term of the existing CNA. It argues that the Director improperly dismissed its allegation of lost overtime opportunities for not providing names of employees affected, even though the allegation is that all unit employees have lost overtime opportunities. ¶

The Board asserts that the Director’s decision should stand because, with the return to the “straight schedule,” the Association bus drivers could no longer be assigned to the 6:00 a.m. bus routes without the Board incurring “exorbitant overtime costs.” The Board argues that a claim for lost overtime, rather than job displacement, is not considered an adverse effect of subcontracting under the Act’s subcontracting amendments. The Board contends that the obligation to negotiate was not triggered by the Durham contract because it was not a subcontract under the Act. Finally, the Board contends that the Association has not provided the names of specific employees who sustained losses. ¶

Standard of Review ¶

The Director of Unfair Practices “shall issue” a complaint and notice of hearing “if it appears . . . 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.” N.J.A.C. 19:14- 2.1(a). Where no complaint is issued by the Director, the charging party may appeal to the Commission, which may sustain the refusal to issue a complaint or may direct that further action be taken. N.J.A.C. 19:14-2.3(b). ¶

Analysis ¶

The subcontracting amendments to the Act (P.L. 2020, c. 79, codified as N.J.S.A. 34:13A-44 to -49)3/ 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. Pursuant to 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. N.J.S.A. 34:13A-48 provides that an employer’s violation of the subcontracting amendments shall be an unfair practice, allows “any employee or majority representative organization affected by the violation” to file an unfair practice charge with the Commission, and provides that “[i]f 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.” N.J.S.A. 34:13A-48. ¶

It is undisputed that during the 2023-2024 school year, Association bus drivers did not perform the 6:00 to 7:00 a.m. shift on an overtime basis because they were working a split schedule that included that shift. That school year immediately preceded the 2024-2025 school year, when subcontracting began and the Association negotiated a return to the 7:00 a.m. to 4:00 p.m. “straight schedule” that did not accommodate the Board’s bussing needs for the 6:00 to 7:00 a.m. shift. Although the Association asserts that its drivers earned overtime for the 6:00 to 7:00 a.m. shift during the 2022-2023 school year, that practice had ended by 2024, when the straight schedule was negotiated. Therefore, the Board’s decision to subcontract the 6:00 to 7:00 a.m. bus routes in the 2024-2025 school year did not “affect” the employment of the Association bus drivers pursuant to N.J.S.A. 34:13A-46.4/ ¶

Previous Commission cases that considered alleged violations of the Act’s subcontracting amendments did not involve claims that subcontracting affected unit employees’ overtime opportunities. See Vineland Bd. of Ed., P.E.R.C. No. 2024-47, 50 NJPER 406 (¶99 2024); and Paterson Bd. of Ed., P.E.R.C. No. 2025-31, 51 NJPER 296 (¶67 2025).5/ In light of our finding that Association bus drivers were not affected by the Board’s decision to subcontract the 6:00 to 7:00 a.m. shift falling outside of their negotiated straight schedule, we need not reach the issue of whether the loss of overtime work caused by subcontracting could qualify as employees being “affected” under the Act’s subcontracting amendments. ¶

OrderORDER ¶

The Director’s refusal to issue a complaint is affirmed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Higgins, Kushnir, and Papero voted in favor of this decision. Commissioners Eaton and Ford opposed this decision. ¶

ISSUED: June 26, 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 employment in that unit, or refusing to process grievances presented by the majority representative.” ¶

2/ In 2021, the Association filed an unfair practice charge (Docket No. CO-2022-135) alleging that the Board had unilaterally changed Association bus drivers back to a split schedule that the parties had previously negotiated in an MOA that expired in 2016. The charge sought a return to the straight schedule. The parties settled the dispute and the Association withdrew the charge. ¶

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

4/ We add that, when the Association negotiated the schedule change, it could have but did not negotiate an overtime preference clause for the 6:00 to 7:00 a.m. shift. See, e.g., Paterson State-Operated School District, P.E.R.C. No. 2001-42, 27 NJPER 99 (¶32038 2001), aff’d (App. Div. 2002) (union could arbitrate to enforce overtime preference clause for unit employees over private security subcontractors); and Howell Tp. Bd. of Ed., P.E.R.C. No. 2005-7, 30 NJPER 333 (¶109 2004) (union could arbitrate preference clause for bus drivers to perform extra work on overtime before using outside contractors). ¶

5/ The Director’s decision cited by the Board was not reviewed by the Commission and did not specifically address the Association’s allegation that the subcontracting agreement would affect union members financially by impeding their ability to work overtime. The Director concluded that the Association’s allegations were “not possible to make at this time because [the subcontractor] has not performed any work in the district yet.” See Jersey City Bd. of Ed., D.U.P. No. 2024-16, 51 NJPER 11 (¶4 2024). ¶