P.E.R.C. No. 2026-19, Mercer Cty Spec Serv B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MERCER COUNTY SPECIAL SERVICES SCHOOL DISTRICT BOARD OF EDUCATION, Respondent, -and- Docket Nos. CO-2024-082 CO-2024-093 MERCER COUNTY SPECIAL SERVICES EDUCATION AND THERAPEUTIC ASSOCIATION, -and- MERCER COUNTY SPECIAL SERVICES SUPPORT STAFF ASSOCIATION, Charging Parties. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Board’s cross motion for summary and denies the Associations' motion for summary judgment on their unfair practice charge. The charge alleges that the Board violated the Act when it stopped automatically providing materials from the public session of the Board’s meetings two to three days in advance of the meeting to the Associations, and instead, made it publicly available on the day of the meeting. The Commission finds that the timing of the release of the materials is a term and condition of employment to the extent that the materials are potentially relevant to the Associations’ representational duties, and that the timing of the release of the materials is not statutorily preempted. However, the Commission also finds that, after weighing the interests of the parties, this record supports that the advance release of the materials is not mandatorily negotiable. The Board certified that the automatic advanced release of the materials has at times disrupted the operation of the District. Conversely, the Associations did not establish that advanced release of the materials was always related to their representational duties. The Commission concludes that its decision is limited to the automatic and advance monthly release of all materials from the public sessions of Board meetings to the Associations. The decision does not preclude the Associations from requesting specific information in advance of a Board meeting that meets the legal standard for disclosure. ¶

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 MERCER COUNTY SPECIAL SERVICES SCHOOL DISTRICT BOARD OF EDUCATION, Respondent, -and- Docket Nos. CO-2024-082 CO-2024-093 MERCER COUNTY SPECIAL SERVICES EDUCATION AND THERAPEUTIC ASSOCIATION, -and- MERCER COUNTY SPECIAL SERVICES SUPPORT STAFF ASSOCIATION, Charging Parties. ¶

AppearancesAppearances: ¶

For the Petitioner, Capehart Scatchard, attorneys (Geoffrey N. Stark, Esq., of counsel) ¶

For the Respondents, Mellk Cridge, LLC, attorneys (Edward A. Cridge, Esq., of counsel) ¶

DECISION ¶

On September 5, 2025, the Mercer County Special Services Education and Therapeutic Association (ETA) and Support Staff Association (SSA)(collectively, Associations) filed a motion for summary judgment in unfair practice charges (UPC) filed on December 5 and 19, 2023 respectively, against the Mercer County Special Services School District Board of Education (Board).1/ The charges allege that the Board violated sections 5.4a(1) and (5) of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq.,2/ when it stopped providing materials from the public session of the Board meeting two to three days in advance of the meeting to the Associations. ¶

On September 8, 2025, the Board filed an opposition brief and cross-motion for summary judgment, together with the certification of its Superintendent. On September 22, both parties simultaneously filed response briefs to the motions for summary judgment. That same day, the Chair referred the motions to the full Commission pursuant to N.J.A.C. 19:14-4.8. The following facts appear. ¶

JOINT STIPULATION OF FACTS 3/ ¶

1: The ETA is the majority representative unit for certificated, nonadministrative staff employed by the Board. ¶

2: The Board and the ETA are parties to a Collective [Negotiations] Agreement [CNA 1] that ran from July 1, 2022, through June 30, 2024. ¶

3: The SSA is the majority representative for non-certificated staff employed by the Board. ¶

4: The Board and the SSA are parties to a Collective [Negotiations] Agreement that ran from July 1, 2022, through June 30, 2025. [CNA 2]. ¶

5: For at least 15 years prior to September 2023, the Board consistently would provide the Associations with copies of certain documents / materials (referred to hereinafter as “Materials” ) in advance of all public Board meetings. ¶

6: The Materials would include all documents and things that would be considered / addressed by the Board, during the open public session of the Board meeting. ¶

7: The Materials would not include documents and things that would be considered/ addressed by the Board, during the closed /executive portion of the Board meeting. ¶

8: The Board’s providing of the Materials to the Associations in advance of Board meetings as aforesaid typically occurred 2-3 days before the Board meeting in question. ¶

9: In addition to the Associations, the Board similarly provided the Materials (this process as described in paragraphs 5-9 above is referred to hereinafter as the “Provision” ) to other groups of persons, including other persons employed by the Board in administrative positions. ¶

10: The Provision of the Materials to the Associations is not a term or condition of employment that is specifically enacted via [CNA 1 or 2], or in any other contractual agreement existing by and between the Board, and any employee thereof who is a member of either Association. ¶

11: The Provision of the Materials to the Associations has not been the subject of collective negotiations by and between the Board, and either Association, for at least the past 15 years. ¶

12: In or about September 2023, the Board ceased and discontinued the Provision of the Materials to the Associations, as well as to the other persons described in ¶9 above. ¶

13: Neither Association agreed or acquiesced to the Board’s discontinuation and cessation of the Provision of the Materials. ¶

In addition to the Joint Stipulation of Facts, the Board submits the certification of its Superintendent, which we summarize in pertinent part as follows: ¶

The Superintendent certifies that during the course of the Board’s meetings, it often considers or reviews documents drafted or compiled by the District’s administration, contractors, or others, in preparation for the Board meetings. These records and Board meeting materials are disseminated to members of the Board and other interested constituents approximately two or three days prior to each scheduled meeting. The Superintendent further certified that, prior to September 2023, the Board provided to certain interested constituents copies of all documents, not otherwise privileged or confidential, that would be considered or addressed during the public portion of the upcoming Board meeting. The recipients of the Materials included every District principal and supervisor, the District’s Human Resources department, as well as the Associations. ¶

In September 2023 the District halted the practice of providing advance copies of Board meeting materials to anyone other than the members of the Board. The Superintendent certifies that the practice was halted for policy-based reasons. He certifies that the premature public release of information that had not yet been reviewed, considered, or voted upon by the Board has, at times, caused district staff to question matters that had not been decided by the Board, or to speculate and unintentionally spread rumors about possible action of the Board. He further certifies that this resulted in the spread of misinformation which required corrective actions and caused disruption in the orderly functioning of the District. ¶

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 ¶

The Board contends that its motion should be granted because its decision to discontinue providing the Materials to the Associations prior to Board meetings does not affect a term and condition of employment, and thus, the Board did not violate the Act. The Board further argues that its change in policy regarding the Materials is a non-negotiable, managerial prerogative because advanced release of the Materials was disrupting the orderly functioning of the District. The Board also asserts that release of Board meeting materials is governed by the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 et seq., and thus, the Board’s policy change is statutorily preempted from negotiations. The Board asserts that pursuant to OPMA the Board is only required to release certain materials prior to Board meetings such as the agenda. The Board argues that the Associations are not entitled to the Materials prior to the Board meetings because the Board has not yet considered the Materials, rendering them deliberative materials not discloseable under OPRA. The Board further asserts that the Materials are not relevant to the Associations representational rights under Commission precedent. The Board maintains, that once considered by the Board at the meeting, the Materials will be released to the public, and the timing of the release of the Materials is not mandatorily negotiable. ¶

The Associations argue that their motions should be granted because the Board violated the Act by unilaterally repudiating the established past practice of providing the Materials prior to Board meetings, which were neither privileged nor confidential, thereby, interfering with the Associations’ right to information necessary for representing its members properly at Board meetings. The Associations maintain that release of the Materials is not statutorily preempted and that the Board has never claimed that this established past practice was preempted by OPRA or OPMA. The Associations asserts that OPMA sets minimum notification requirements for public meetings rather than limiting what information may be disclosed. The Associations claim that OPRA is not the exclusive mechanism for obtaining public records, citing the common-law right of access and the Associations’ right under the Act and Commission precedent to receive requested information relevant to the Associations’ representational duties. ¶

ANALYSIS ¶

The central issue before us concerns the automatic advance release of the Materials to the Associations every month two to three days in advance of the Board meeting (which was the parties’ past practice for approximately fifteen years). As of September 2023, the Board unilaterally stopped that past practice and currently makes the Materials publicly available on the day of the meeting. A past practice establishing a term and condition of employment is entitled to the same status as a term and condition of employment defined by statute or the parties' collective agreement. County of Sussex, P.E.R.C. No. 83-4, 8 NJPER 431 (¶13200 1982). However, the Board asserts that the past practice of advance release of the Materials concerns an issue that is not and never was a mandatorily negotiable subject. Therefore, we must make that negotiability determination. For the following reasons, we grant the Board’s cross-motion for summary judgment and deny the Associations’ motion for summary judgment. ¶

N.J.S.A. 34:13A-5.3 requires that: “the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.” “[U]nilateral imposition of working conditions is the antithesis of [the Legislature’s] goal that the terms and conditions of public employment be established through bilateral negotiation.” Atlantic Cty., 230 N.J. 237, 252 (2017), quoting Galloway Twp. Bd. of Educ., 78 N.J. 25, 48 (1978). 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-5.4(a)(5). ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405]. ¶

Where a statute or regulation is alleged to preempt an otherwise negotiable term or condition of employment, it must do so expressly, specifically and comprehensively. Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44-45 (1982). The legislative provision must “speak in the imperative and leave nothing to the discretion of the public employer.” State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

Addressing the first part of the Local 195 negotiability test, the Board asserts that the timing of the release of the Materials does not concern a term and condition of employment. Terms and conditions of employment are matters that intimately and directly affect the work and welfare of public employees and do not significantly interfere with a management prerogative. State v. State Supervisory Assn., 78 N.J. 54 (1978). Employers have an obligation to supply a union with 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 duties. In re Univ. Of Medicine and Dentistry of New Jersey (UMDNJ), 144 N.J. 511, 530-531 (1996). Thus, to the extent that there is a probability that the Materials are potentially relevant to the Associations and of use to them in carrying out their duties, the timing of the release of the Materials is a term and condition of employment. ¶

Turning to the second part of the Local 195 negotiability test, we find that negotiations over the timing of the release of the Materials is not statutorily preempted. The Board cites generally to the OPMA and OPRA, but cites to no specific provision which preempts the issue of timing of the release of the Materials to the Associations. Moreover, we have consistently found that OPRA is not applicable to the determination of what types of information may be disclosed to a majority representative in the context of labor relations under the Act. See Morris Cty and Morris Coun. No. 6, NJCSA, IFPTE, AFL-CIO, 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)(finding that the employer violated the Act, by failing to provide the union with the names and associated home addresses of every employee in the negotiations unit, despite claimed OPRA exemptions); Mt. Holly Bd. of Ed., et al., P.E.R.C. No. 2019-6, 45 NJPER 103 (¶27 2018), (finding that the Board violated the Act by declining to provide the Association with employees’ names, level of health insurance coverage and health insurance costs, despite claimed OPRA exemptions); City of Newark, State Operated School District, P.E.R.C. No. 2017-14, 43 NJPER 106 (¶32 2016)(finding that OPRA is not a bar to the District’s disclosure of names and addresses of unit members who received ineffective year-end performance ratings.) ¶

This case turns on the third prong of the Local 195 test, which considers whether the advance release of the Materials two to three days before a Board meeting significantly interferes with governmental interests. The Board certifies to policy-based reasons for stopping the advance release of the Materials.4/ ¶

Specifically, that the premature public release of Materials that have not been reviewed or voted upon by the Board has, at times, caused district staff to question or speculate on matters that had not yet been considered by the Board. The Board further certifies that this resulted in the spread of misinformation and rumors which required corrective actions and caused disruption to the orderly functioning of the District. Conversely, the Associations assert that the provision of the Materials prior to the Board meetings is required in order to prepare for and properly represent its members at the meetings. However, the Associations have not explained how automatic and advance monthly release of all the Materials for the public sessions of the Board meetings are always related to information that is potentially relevant and will be of use in carrying out the Associations’ representational duties. UMDNJ, supra. Additionally, the Associations did not submit a certification in support of their motion for summary judgment or in opposition to the Board’s cross-motion. PBA Local 187, P.E.R.C. No. 2005-61, 31 NJPER 60, 61 (¶29 2005)(both the party filing a motion for summary judgment and the party responding to such a motion must support facts with certifications or affidavits and cannot rely on the allegations in a charge or any attachments to the charge). Moreover, in accordance with the OPMA, the Board must post its meeting agenda within 48 hours of the meeting, which puts the Association and the public on notice of what issues will be discussed, allowing for some preparation despite not receiving advance Materials. N.J.S.A. 10:4-8(d). On this record, we find that the issue of advance release of the Materials is not mandatorily negotiable. This decision is limited to the automatic and advance monthly release of all Materials from the public sessions of Board meetings to the Associations. It does not preclude the Associations from making a specific information request for information from the public session that has a probability for being potentially relevant and of use to the Associations in carrying out their representational duties. If such a request is unreasonably denied by the Board, the recourse of filing an unfair practice charge is available to the Associations. UMDNJ, supra. ¶

For all the foregoing reasons, we grant the Board’s motion for summary judgment. ¶

OrderORDER ¶

The Board’s cross-motion for summary judgment is granted. The Association’s motion for summary judgment is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: December 18, 2025 ¶

Trenton, New Jersey ¶

Note1/ On April 29, 2024, the Deputy Director of Unfair Practices issued a Complaint and Notice of Hearing and an Order Consolidating the UPCs, Docket Nos. CO-2024-082 and CO-2024- 093. Additionally, on January 25, 2024, the Associations filed two scope of negotiations petitions, SN-2024-026 and - 027, related to the instant UPCs. See Mercer Cty. Special Services Dist. Bd. of Ed. P.E.R.C. No. 2024-45, 50 NJPER 400 (¶97 2024)(denying the petitions because “special circumstances” did not exist warranting scope of negotiations review.) ¶

2/ 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.” ¶

3/ The parties signed a Joint Stipulation of Facts, which is reproduced in its entirety. Any modifications are in brackets. ¶

4/ The Board certifies that in addition to stopping advance release of the Materials to the Associations, it also stopped advance release for every principal, supervisor, and head of every department in the District, as well as the District’s Human Resources Department. Under the current practice, only Board members receive advance release of the Materials. ¶