P.E.R.C. No. 2026-30, Newark Council No 21 IFPTE

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEWARK COUNCIL 21, IFPTE, AFL-CIO Respondent, -and- Docket No. CI-2026-026 THOMAS H. WHITE, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants Thomas White’s appeal of the Director of Unfair Practices dismissal of the unfair practice charge filed against his majority representative, Council 21, IFPTE, and remands the matter to the Director for the issuance of a complaint. White alleges that his employer, City of Newark, improperly compensated him, and that Council 21 agreed it was a violation of the Council 21’s CNA with the City. White further alleges that Council 21 never filed a grievance on his behalf even after he contacted the union multiple times. The Commission finds that White’s UPC meets the complaint-issuance standard for a 5.4b(1) claim because, if true, it is a breach of the DFR for a union to not file a grievance without justification after telling a member that they suffered a contract violation. ¶

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 COUNCIL 21, IFPTE, AFL-CIO Respondent, -and- Docket No. CI-2026-026 THOMAS H. WHITE, Charging Party. ¶

AppearancesAppearances: ¶

For the Charging Party, Thomas H. White, pro se ¶

For the Respondent, Newark Council 21, IFPTE, AFL-CIO (Sean Small) ¶

DECISION ¶

On December 31, 2025, Thomas White appealed from the December 23 decision of the Director of Unfair Practices (Director) refusing to issue a complaint on his unfair practice charge (UPC). The UPC, filed on December 17, and amended on December 23, alleged that Newark Council 21, IFPTE, AFL-CIO (Council 21), violated subsections 5.4b(1), (3) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq., when it did not process grievances on his behalf claiming he was not compensated according to the collective negotiations agreement (CNA). ¶

The UPC alleges the following: ¶

I am a full dues-paying member in good standing of Council 21, the exclusive bargaining representative for my bargaining unit. The City and Council 21, through collective bargaining, agreed to a 2.25% increase to base pay for all union members for the year 2023. On or about September 19, 2025, I submitted a complaint to Council 21, through its President, Shawn Smalls, regarding the Department of Public Works’ unlawful failure to include longevity pay in my retroactive compensation for the year 2023, in violation of the collective bargaining agreement. On September 29, 2025, after receiving no meaningful resolution, I filed a formal grievance with the union. In a separate but related matter, I was officially awarded $33,650.23 for performing work in a higher title (supervisor) from February 1, 2023 through January 2024. This award constituted an adjustment to my base salary for 2023. ¶

The UPC further alleges that Council 21 breached its duty of fair representation (DFR) “by failure to act on a meritorious grievance involving clear contractual violations and undisputed wage adjustments was irrational and without reasonable justification.” ¶

In response to the UPC, the Director determined it did not meet the requirements of N.J.A.C. 19:14-1.3(a)32/ and issued a “Defect Letter.” The Letter dismissed the UPC’s 5.4b(3) claim because an individual does not have standing to bring this type of claim. It also dismissed the 5.4b(5) charge because the UPC did not identify what PERC rule or regulation was violated. As to the 5.4b(1) charge, the Letter concluded that: ¶

Your charge does not appear to sufficiently allege facts indicating IFPTE’s actions/omissions were/are arbitrary, discriminatory or [in] bad faith. While you seem to challenge IFPTE’s representation, these bald allegations (even if mistaken or negligent) do not appear to constitute a breach of the DFR. Instead, they appear to fall within the broad range of discretion IFPTE has under the Act and do not appear to demonstrate arbitrary, discriminatory, or bad faith conduct towards you. Moreover, you seem to allege that IFTPE negotiated and obtained a retroactive salary adjustment but that your wage payment is less than what you believe you are owed; this appears to be a wage/hour violation over which the Commission does not have jurisdiction (i.e., the US Department of Labor and/or State of New Jersey Dep't of Labor typically have jurisdiction over wage/hour claims). ¶

The Letter also noted that the charge may have been filed outside of the statute of limitations. It then provided that, for only the 5.4b(1) claim, White had the option of providing additional information by the close of business on December 26, 2025 to correct the charge. ¶

On December 23, White amended the UPC, asserting that sections 5.4b(1) and (5) were violated and certified to the following: ¶

[Council 21] in bad faith failed to provide a (DFR) Duty of [F]air [R]epresentation for me when I submitted a grievance alleging the City of Newark didn’t honor the terms in our CBA pertaining to longevity payments for hours of work in 2023 and paid in September 2025. (Please see exhibit A) ¶

[Council 21] also in bad faith failed to provide a (DFR) Duty of [F]air [R]epresentation for me when I submitted a grievance alleging the City of Newark didn’t honor the terms in our CBA pertaining to longevity and our newly executed MOA pertaining to wage increase payments for the year 2023 on all hours worked in a higher title and was paid in July on 2025 (Please see exhibit B). ¶

Exhibit A contains an email dated September 29, 2025 sent from White to Sean Small, Council 21 President, providing a detailed statement regarding the improper retroactive payments for year 2023 and requesting a grievance be filed on his behalf. White sent another email to the Council 21 President on October 7 which states the following: ¶

On September 29, 2025, I submitted a formal complaint statement to initiate a grievance concerning a violation of my union contract by the City of Newark. Along with my statement, I provided a signed piece of discovery which substantiates my claim (please see attached) and, in my view, makes this a clear-cut matter. ¶

We previously discussed this issue in your office and came to a mutual understanding that a contractual violation had occurred. Post that conversation, I followed through with the necessary documentation. However, I have yet to receive a response or confirmation indicating that Council 21 is actively pursuing this grievance. ¶

As today is October 7, 2025, I am respectfully requesting clarification on whether council 21 has officially filed the grievance. If not, I need to know promptly, just in case a resolution through PERC is necessary. ¶

(Emphasis added.) ¶

On December 23, the Director issued another letter reiterating that White’s section 5.4b(5) allegation remained dismissed. He also dismissed the 5.4b(1) claim, finding that the amended charge did not provide the necessary “additional facts and/or legal authority demonstrating a viable claim...demonstrating that IFPTE breached the DFR standard beyond mere negligence, incompetence, or mistakes or specify how/why your allegations are not more appropriately a wage/hour violation for which the Commission lacks jurisdiction.” ¶

The instant appeal followed. White’s 5.4b(1) allegation is the sole issue before us, as he did not appeal the dismissal of his 5.4b(5) claim. White submits a letter brief and exhibits in support of the appeal. The Council 21 President was properly served with the appeal and acknowledged receipt on January 9, 2026. The Commission informed the Council 21 President via letter the same day that his opposition would, at that point, be out of time, but provided instructions on how to file an opposition nunc pro tunc. To date, no opposition has been filed and no attorney has entered their appearance in the case on behalf of Council 21. White argues that the dismissal of his unfair practice charge was incorrect because the charge establishes Council 21’s conduct was arbitrary. Specifically, he avers that Council 21’s inactions in investigating and processing his meritorious grievance — even after he supplied supporting evidence — amounts to a breach of the duty of fair representation. Further, White contends that his charge was filed well within the statute of limitations as the retroactive payments for 2023 were not actually made until the fall of 2025. ¶

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. The questions in this case are whether White filed the UPC in a timely manner and alleged sufficient facts, that if true, would constitute a breach of the duty of fair representation that Council 21 owed to White. We find that the amended UPC was filed within the statutory deadline and contained sufficient allegations such that a complaint should have been issued. ¶

We first address the threshold issue as to whether the UPC was timely filed. N.J.S.A. 34:13A-5.4c provides that “no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge....” The original UPC was filed by White on December 17, 2025. While the charge lacked clarity as to the timing of the 2023 retroactive payments and interactions with Council 21, the amended UPC detailed that those payments were made in September 2025, and the union’s alleged inaction on filing a grievance occurred in early October 2025. Thus, the UPC was filed well-within the statute of limitations. ¶

N.J.S.A. 34:13A-5.4b(1) prohibits an employee organization from “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by the Act.” An employee organization violates this proscription when its action tends to interfere with protected rights and lacks a legitimate and substantial organizational justification. FOP, Lodge No. 12 (Colisanti), P.E.R.C. No. 90-65, 16 NJPER 126 (¶21049 1990). ¶

Section 5.3 of the Act empowers a union to negotiate collectively and administer the collective negotiations agreement on behalf of all unit employees. With that exclusive authority comes the duty to fairly represent all unit employees in negotiations and contract administration. A breach of the duty of fair representation occurs when a union’s conduct towards a member of the negotiations unit is arbitrary, discriminatory or in bad faith. Lullo v. IAFF, 55 N.J. 409 (1970); D’ Arrigo v. New Jersey State Bd. of Mediation, 119 N.J. 74, 76 (1990); Belen v. Woodbridge Tp. Bd. of Ed., 142 N.J. Super. 486 (App. Div. 1976); see also Vaca v. Sipes, 386 U.S. 171 (1967). “The complete satisfaction of all who are represented is hardly to be expected” and “[a] wide range of reasonableness must be allowed a statutory bargaining representative in servicing the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” PBA Local 187, P.E.R.C. No. 2005-78, 31 NJPER 173 (¶70 2005) (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 337-338 (1953)). A breach of the duty of fair representation violates subsection 5.4b(1) of the Act. ¶

Recently, we have reiterated that “[a] union must exercise reasonable care and diligence in investigating, processing, and presenting grievances; and must evaluate the merits of requests for arbitration in good faith.” State of New Jersey Judiciary (Administrative Office of the Courts), P.E.R.C. No. 2026-9, 52 NJPER 100 (¶25 2025) (citations omitted). ¶

A majority representative’s inaction on a grievance may constitute an unfair practice. See N.J. Sports & Exposition Auth. (Andes), P.E.R.C. No. 98-163, 24 NJPER 357 (¶29170 1998) (union determined grievant’s termination was without just cause but failed to pursue grievance arbitration with no explanation); compare Sussex Cty. Sheriff and PBA Local 378 (Liobe), P.E.R.C. No. 2021-49, 47 NJPER 527 (¶123 2021) (holding no breach of DFR where union initially pursued grievance but then abandoned it and provided rationale). While “the duty of fair representation does not require a union to arbitrate every grievance” the union may breach the duty when it states or gives the impression that the grievance would be meritorious. Ibid. ¶

In Amalgamated Transit Union, Division 540, (Coley), P.E.R.C. No. 2022-7, 48 NJPER 131 (¶33 2021), the Commission applied this principle when it adopted a Hearing Examiner’s report and recommended decision. The Commission determined it was an unfair practice when a union president did not file a grievance after he told the grievant it was meritorious “and failed to articulate a justification for not filing it and the record did not demonstrate that the [union] made a good faith evaluation that the grievance lacked merit.” ¶

In this case, White provided evidence and alleges that he attended a meeting with Council 21’s President where it was agreed that White had suffered a contract violation. White also contends that Council 21 never responded or filed a grievance on the issue even after it gave the impression that the grievance was meritorious and he supplied information requested by Council 21. This allegation, if true, mirrors facts in Amalgamated Transit Union, which would constitute an unfair practice. In other words, if White’s allegations are true, it may constitute a breach of the DFR if Council 21 told White his grievance was meritorious, did not file a grievance, and did not respond to his correspondence or otherwise provide a reason for its inaction in filing a grievance. Thus, we reverse the Director’s refusal to issue a complaint and remand the matter to the Director for the issuance of a Complaint and Notice of Pre-Hearing solely on the 5.4b(1) charge. ¶

OrderORDER ¶

The case is remanded to the Director of Unfair Practices for issuance of a complaint and notice of pre-hearing. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: March 26, 2026 ¶

Trenton, New Jersey ¶

Note1/ Employee organizations, their representatives or agents are prohibited from: (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit; (5) Violating any of the rules and regulations established by the commission. ¶

2/ This regulation requires filers to provide “[a] clear and concise statement of the facts constituting the alleged unfair practice. The statement must specify the date and place the alleged acts occurred, the names of the persons alleged to have committed such acts, the subsection(s) of the Act alleged to have been violated, and the relief sought. ¶