P.E.R.C. No. 2025-47, Atlantic Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF ATLANTIC, Respondent, -and- Docket No. CI-2025-040 AFSCME N.J. Council 63, Respondent, -and- JEREMIAH MCKINNIS, 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 McKinnis against the County and AFSCME. The charge alleges that the County violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq., by terminating him in retaliation for his protected union activity and violating his due process rights during his pre- disciplinary hearing and departmental disciplinary hearing. The charge alleges that AFSCME violated the Act by not adequately representing him during his disciplinary hearings and declining to appeal his termination following his disciplinary hearing. The Commission finds that the Director properly dismissed the charge as untimely because it was filed beyond the Act’s six month statute of limitations. N.J.S.A. 34:13A-5.4c. Furthermore, even accepting McKinnis’ asserted period of homelessness as a basis for tolling the statute of limitations, such period did not begin until after the deadline had passed. ¶

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 COUNTY OF ATLANTIC, Respondent, -and- Docket No. CI-2025-040 AFSCME N.J. Council 63, Respondent, -and- JEREMIAH MCKINNIS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, County of Atlantic (Arthur J. Murray, Esq., Assistant County Counsel) ¶

For the Respondent, AFSCME N.J. Council 63 (Yolanda Lawson, Staff Representative) ¶

For the Charging Party (Jeremiah McKinnis, pro se) ¶

DECISION ¶

On May 12, 2025, the Charging Party appealed from the April 30, 2025 letter of the Director of Unfair Practices (Director) dismissing his unfair practice charge (UPC). ¶

On April 30, 2025, the Charging Party filed a UPC against his former employer, the County of Atlantic (County), and his majority representative, AFSCME NJ Council 63 (AFSCME). The Charging Party alleges that the County violated subsections 5.4a(1) and (3)1/ of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1, et seq., by terminating him in retaliation for his protected activity - specifically, advocating against the County’s disciplinary actions targeting a co-worker, who is also his sister. The UPC further alleges that the County violated the Charging Party’s due process rights under Civil Service regulations and the Act during his November 6, 2023, pre- disciplinary “Loudermill hearing” 2/ where he was presented with a Preliminary Notice of Disciplinary Action (PNDA) suspending him effective that day and stating that he could be terminated as of the next day, November 7. The UPC also alleges that the Charging Party was denied a fair process at his departmental disciplinary hearing on December 11. ¶

The Charging Party also alleges that AFSCME violated subsection 5.4b(1)3/ of the Act by not adequately representing him during the November 6, 2023, pre-disciplinary hearing, delaying discovery requests, dismissing the value of his evidence prior to the December 11 disciplinary hearing, and declining to appeal his termination after providing him with the departmental hearing officer’s decision on January 3, 2024. ¶

The Director’s April 30, 2025 letter dismissing the UPC noted that it was nearly identical to another recent UPC filed by the Charging Party (Docket No. CI-2025-037) that the Director ultimately dismissed on April 7 and that it would be dismissed for the same reasons. The letter went on to specifically address the defects in the UPC, including: ¶

• Lack of timeliness within the Act’s six-month statute of limitations for filing unfair practice charges; specifically, the UPC was filed on April 30, 2025 and the allegations appear to be from December 2023 at the latest. ¶

• Failure to assert rights violated under subsection 5.4a(1) of the Act, lack of clarity connecting protected conduct as a motivating factor to the adverse employment action for his 5.4a(3) claim, and lack of sufficient facts alleged indicating arbitrary, discriminatory, or bad faith conduct by AFSCME to support his 5.4b(1) claim against AFSCME for allegedly breaching its duty of fair representation. ¶

The Charging Party’s appeal disputes that his charge was untimely. Although he does not claim to have filed his charge within six months of the alleged unfair practices that occurred in December 2023, he argues that the Director did not adequately consider and apply the doctrine of equitable tolling based on extraordinary circumstances. Specifically, the Charging Party states that in his previous charge he explained that he experienced homelessness from approximately August to December 2024, which, due to the lack of a stable address and access to communications resources, directly prevented timely filing. ¶

He further contends that he demonstrated diligence by actively pursuing related claims through other administrative agencies (EEOC and NJDCR) during the period when the PERC charge should have been filed (December 2023 through October 2024). Regarding the substance of his claims, the Charging Party alleges that the County violated his due process rights, independent of the collective negotiations agreement (CNA), in the conduct of the November 6 and December 11, 2023, hearings, thereby supporting his 5.4a(1) claim. He also asserts that his charge identified protected activity on October 30, 2023, when he opposed the County’s alleged workplace harassment of his coworker/sister, specifically concerning the alleged attempted exploitation of her “Last Chance Agreement,” and that his subsequent termination constituted retaliation for that activity. The Charging Party maintains that his 5.4b(1) claim is supported by AFSCME’s inadequate representation during the November 6 pre- disciplinary hearing, its refusal to fairly evaluate his evidence, and its refusal to appeal his termination following the departmental hearing. Neither the County nor AFSCME submitted a response to the appeal. ¶

The Charging Party’s appeal refers to the allegations of his UPC and the exhibits submitted therewith. The UPC attached multiple exhibits, including e-mail and text message exchanges between him and AFSCME representatives and/or County employees between November 2023 and January 3, 2024, a copy of the November 6, 2023 PNDA, a portion of what appears to be the departmental hearing officer’s decision following the December 11 hearing (labeled “Hearing Log” by Charging Party), a copy of the CNA’s disciplinary clause and the County’s anti-discrimination policy, and a copy of the “Last Chance Agreement” applied to the Charging Party’s co-worker/sister. ¶

The November 6, 2023 PNDA charged the Charging Party with conduct unbecoming a public employee and posing a threat to a coworker due to alleged “aggressive flirting” and “threatening comments.” The PNDA suspended the Charging Party immediately and terminated him effective the following day, November 7. ¶

Following the December 11 departmental disciplinary hearing, AFSCME forwarded the Charging Party a copy of the hearing officer’s decision on January 3, 2024. AFSCME also provided information on how to appeal the decision but stated that it had fulfilled its obligations and that he would need to retain his own attorney if he wished to pursue an appeal. The record does not indicate whether the Charging Party appealed the hearing officer’s decision. ¶

Attachments to the Charging Party’s UPC allege that he became homeless in August 2024 and regained housing and access to communications in December 2024. The Charging Party filed his initial UPC (CI-2025-037) on March 27, 2025, which was dismissed on April 7. He then filed this nearly identical UPC (CI-2025- 040) on April 30, 2025, which the Director dismissed the same day for the same reasons as the earlier dismissal. ¶

The Commission has authority to issue a complaint where it appears that a charging party’s allegations, if true, may constitute an unfair practice within the meaning of the Act. N.J.S.A. 34:13A-5.4c; N.J.A.C. 19:14-2.1. Where the complaint issuance standard has not been met, the issuance of a complaint may be declined. N.J.A.C. 19:14-2.3; CWA Local 1040, D.U.P. No. 2011-9, 38 NJPER 93 (¶20 2011), aff’d, P.E.R.C. No. 2012-55, 38 NJPER 356 (¶120 2012). After careful review of the Charging Party’s submissions and arguments, we sustain the Director’s decision not to issue a complaint and dismiss the UPC. ¶

N.J.S.A. 34:13A-5.4c establishes a six-month statute of limitations period for the filing of unfair practice charges. The statute provides, in pertinent part: ¶

[N]o complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the six-month period shall be computed from the day he was no longer so prevented. ¶

“The Act does not rigidly bar relief on all causes of action arising more than six months before a charge was filed.” State of New Jersey (Juvenile Justice) and Judy Thorpe, P.E.R.C. No. 2014-71, 40 NJPER 512 (¶164 2014), aff’d, 43 NJPER 353 (¶100 App. Div. 2017), certif. den., 231 N.J. 211 (2017). “The determination of whether a party was “prevented” under the Act from filing a timely charge with the Commission, includes “all relevant considerations bearing upon the fairness of imposing the statute of limitations.” Kaczmarek, 77 N.J. at 340. Relevant considerations include whether a charging party sought timely relief in another forum; whether the respondent fraudulently concealed and misrepresented the facts establishing an unfair practice; when a charging party knew or should have known the basis for its claim; and how long a time has passed between the contested action and the charge. See, e.g., Kaczmarek; State of N.J. (Juvenile Justice). ¶

The allegations in the UPC primarily concern the period from November to December 2023, beginning with the November 6, 2023 PNDA, and include the Charging Party’s interactions with both the County and AFSCME following the PNDA, leading up to the December 11, 2023 departmental disciplinary hearing. The latest date referenced in the UPC regarding interactions with either the County or AFSCME is January 3, 2024, when AFSCME provided the Charging Party with a copy of the hearing officer’s decision and notified him that it would not represent him in an appeal of that decision. ¶

Using that date, the UPC would have needed to be filed by July 3, 2024 to be considered timely under the six-month statute of limitations. N.J.S.A. 34:13A-5.4c. Even if the Charging Party’s asserted homelessness from August to December 2024 is considered an extraordinary circumstance justifying tolling of the statute of limitations, the filing deadline of July 3, 2024, occurred prior to the start of his homelessness. ¶

Furthermore, the Charging Party has submitted no facts to support a claim that he was effectively prevented from timely filing his UPC between January and July 2024. Since his UPC was filed in April 2025 - more than 15 months after receiving the County hearing officer’s decision regarding his termination and being informed that AFSCME would not support an appeal (and still more than 10 months later if tolling is applied for homelessness period) - his unfair practice claims are beyond the Act’s statute of limitations and must be dismissed as untimely. ¶

OrderORDER ¶

The Director’s April 30, 2025 letter of dismissal is sustained. The unfair practice charge is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

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

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.” and “(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.” ¶

2/ A Loudermill hearing is a public employee’s due process right to receive notice of the allegations against them and an opportunity to be heard in response to the proposed discipline. It is applicable to proposed discipline that would result in economic loss for the employee. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) (Civil servants have a property right to continued employment that cannot be denied unless they are provided an opportunity to hear and respond to charges against them). ¶

3/ This provision prohibits employee organizations, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.” ¶