P.E.R.C. No. 2025-7, Newark Public Schools

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEWARK PUBLIC SCHOOLS BOARD OF EDUCATION, Respondent -and- Docket No. CO-2022-185 LOCAL 617, WORKERS UNITED, SEIU, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Newark Public Schools Board of Education’s (Board) request for special permission to appeal a Hearing Examiner’s decision granting, in part, and denying, in part, its motion for summary judgment. That motion sought dismissal of Local 617, Workers’ United’s unfair practice charge, which alleged that it violated the Act when it disciplined and subsequently discharged an employee for allegedly engaging in protected conduct. The Commission finds that the Board’s disagreement with the Hearing Examiner does not constitute an exceptional circumstance warranting Commission review at this stage and directs that the matter proceed in the normal course. ¶

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 NEWARK PUBLIC SCHOOLS BOARD OF EDUCATION, RESPONDENT, -and- Docket No. CO-2022-185 LOCAL 617, WORKERS UNITED, SEIU, CHARGING PARTY. ¶

AppearancesAppearances: ¶

For the Respondent, Antonelli Kantor Rivera, attorneys (John J.D. Burke, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys (Arnold S. Cohen, of counsel) ¶

DECISION ¶

On June 10, 2024, Newark Public Schools Board of Education (Board) filed special permission to appeal the Hearing Examiner’s June 3 decision granting, in part, and denying, in part, its motion for summary judgment. (H.E. No. 2024-12, 51 NJPER 43 (¶12 2024)). The motion sought complete dismissal of the complaint. The unfair practice charge alleges the Board violated sections 5.4(a)(1) and (a)(3)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:14A-1 et seq., when it disciplined and then subsequently discharged B.B., a custodian employed by the Board. The Hearing Examiner dismissed the charges filed by Local 617, Workers United, SEIU (Local), except for the alleged violation of section (a)(3) relating to B.B.’s discharge. That charge alleges B.B. was discharged from employment in retaliation for requesting to speak with her shop steward after receiving an assignment to clean up cut grass. The Local alleges that this function was outside of her job description and that she was allergic to the grass. ¶

Pursuant to N.J.A.C. 19:14-4.6 and 19:14-4.8(f), motions for summary judgment shall not be appealed to the Commission except by special permission to appeal. Special permission is only granted in exceptional circumstances. See Newark State Operated School Dist., P.E.R.C. No. 2014-63, 40 NJPER 442 (¶153 2014); and Sussex Cty., P.E.R.C. No. 2010-34, 35 NJPER 430 (¶140 2009) (citing State of New Jersey, P.E.R.C. No. 2005-62, 31 NJPER 61 (¶30 2005)). ¶

Claims of retaliatory discharge are analyzed under the Bridgewater framework which requires the charging party prove by a preponderance of the evidence that an employee was dismissed from employment for engaging in protected activity. In re Bridgewater, 95 N.J. 235, 240 (1984). Where the record shows an adverse employment action was motivated by both lawful and unlawful reasons, “the burden shifts to the employer to go forward and establish by a preponderance of the evidence that the action occurred for legitimate business reasons and not in retaliation for the protected activity.” Id. at 244. ¶

The Board argues that it is entitled to dismissal of the complaint because it proved that it would have terminated B.B.’s employment for poor attendance, disciplinary issues, and unsatisfactory performance regardless of whether the termination was motivated by anti-union animus.2/ The Local did not file an opposition to this request. ¶

The Commission finds that the record does not present an exceptional circumstance requiring the Commission to intrude in the proceedings at this early stage. Viewing the record in the light most favorable to the non-moving party, the Hearing Examiner determined that a genuine issue of material fact existed as to whether the Board, in dismissing B.B. from employment, was primarily motivated by the Board’s alleged hostility towards B.B.’s protected conduct or B.B.’s allegedly poor disciplinary and work record.3/ We note that the Hearing Examiner’s decision contained specific findings of fact and conclusions of applicable law supporting her decision. While it is possible that the full Commission could come to a different conclusion, the potential for disagreement with a Hearing Examiner sitting as a Commission designee is not an exceptional circumstance warranting special permission to appeal. All arguments presented by the Board are preserved should it take exception to a final order by the Hearing Examiner. ¶

OrderORDER ¶

The Newark Public Schools Board of Education’s request for special permission to appeal is denied. The case is referred back to the Hearing Examiner for continued processing. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Kushnir and Papero voted in favor of the 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” ; and “(3) [d]iscriminating in regard to hire or tenure of employment or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.” of the New Jersey Employer-Employee Relations Act. ¶

2/ We note that the Board’s argument does not directly address the “exceptional circumstances” standard, but we consider it under that framework nonetheless. ¶

3/ T he Hearing Examiner utilized discretion to accept and consider documents favorable to the Board that were not certified by an individual with personal knowledge of their authenticity as required by N.J.A.C. 1:1-12.4. ¶