P.E.R.C. No. 2026-32, Ho-Ho-Kus B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HO-HO-KUS BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-014 HO-HO-KUS EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Board's request for a restraint of binding arbitration of the Association's grievance, alleging that the Board disciplined a custodian without just cause when it eliminated his custodian position. The Board asserts that the grievant's custodian position was eliminated because of a reduction in force (RIF), which is within its managerial prerogative to implement, rather than for disciplinary reasons. The Commission finds that the Association's claim, that the grievant was disciplined without just cause and that the RIF was pretextual, is legally arbitrable. ¶

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 HO-HO-KUS BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-014 HO-HO-KUS EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Matthew J. Giacobbe, of counsel) ¶

For the Respondent, Springstead & Maurice, Esqs., attorneys (Alfred F. Maurice, of counsel) ¶

DECISION ¶

On October 6, 2025, the Ho-Ho-Kus Board of Education (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Ho-Ho-Kus Education Association (Association). The grievance alleges that the Board disciplined a custodian without just cause when it eliminated his custodian position. ¶

The Board filed briefs, exhibits, and the certifications of its Chief School Administrator (CSA). The Association filed a brief, exhibits and the certification of the grievant. These facts appear. ¶

The Association represents all certified personnel, nurse and building service staff. The Board and Association are parties to a collective negotiations agreement (CNA) with a term of July 1, 2025 through June 30, 2029. The grievance procedure ends in binding arbitration. ¶

The CSA certifies to the following facts. The Board anticipated a budgetary shortfall of approximately eight hundred thousand dollars ($800,000) for the 2025-2026 school year due to unforseen increased healthcare and energy costs. Due to the projected budgetary shortfall, the Board implemented a reduction in force (RIF) of three full-time paraprofessionals, a full-time wellness counselor/school social worker, a full-time day/evening shift custodian (the grievant) and a reduction in hours for the full-time Speech/Language pathologist. The grievant was the only building staff member employed in the Day/Evening Shift Custodian position. ¶

At the August 6, 2025 Board meeting, the Board eliminated the aforementioned positions. On August 7, the Board provided the grievant with a letter giving him sixty days notice of termination due to the RIF. On August 11, the Association filed its grievance, alleging the following, in pertinent part: ¶

The [A]ssociation contends [the grievant] has been in the district for several years and was not offered a chance to continue working on another shift. Custodians with fewer years seniority were retained by the Board. Not only were they retained with fewer years seniority, but they are also not members of the Union. ¶

The [A]ssociation also contends [the grievant] is being disciplined without just cause based on [the Principal’s] recommendation to the new Superintendent of Schools. ¶

In a August 13 letter to the Association, the CSA denied the Association’s grievance and reiterated that the day/evening custodian position was being eliminated because of unforseen increases in healthcare and energy costs. The grievance denial letter further stated that the CNA does not contain a seniority provision and the grievant was not terminated for disciplinary reasons. On August 18, the Association appealed the CSA’s denial. The Board denied the appeal on August 27 for the same reasons as the previous grievance denial. On September 3, the Association demanded binding arbitration. This petition ensued. ¶

The grievant certifies that he began employment on October 2020. He received a notice of termination on August 6, 2025 and was placed on administrative leave, with pay, until October 6. Upon receipt of the notice, he inquired as to why he was not moved to a day shift and why a newer employee was not subject to the RIF. The grievant certifies that the Board stated that it had no interest in changing him to a day shift or reducing another less senior custodian. The grievant certifies further that despite the Board’s stated reason for his termination being the RIF, he was directed by the Board to not appear at the school and was paid during his 60-day administrative leave. The grievant asserts that this undermines the Board’s economic rationale for targeting him in the RIF. The grievant alleges that his termination was discipline and retaliation for numerous complaints of a hostile work environment. He further asserts that his exclusion from school property was due to his supervisors being tired of hearing his unaddressed workplace complaints. The grievant certifies that he was targeted by the RIF “to shut me up, and intimidate the other custodians against speaking up or making complaints.” The grievant also certifies that there is no difference in position between the day/evening and other custodial assignments - they are simply different shifts. The grievant further certifies that he had outstanding performance reviews and received no complaints regarding his work. ¶

The Commission’s inquiry in a scope of negotiations petition is narrow. We are addressing a single issue in the abstract: whether the subject matter in dispute is within the scope of collective negotiations. The merits of the Association’s claimed violation of the agreement, as well as the employer’s contractual defenses, are not in issue, because those are matters for the arbitrator to decide if the Commission determines that the question is one that may be arbitrated. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

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]. ¶

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). ¶

The Board argues that the grievance is not legally arbitrable because it has the managerial prerogative to implement a RIF and eliminate the grievant’s position. The Board certifies that the RIF was necessary due to budgetary shortfalls and it affected multiple positions in addition to the custodian position. The Board argues that the grievant’s position was not eliminated for any alleged disciplinary or retaliatory reasons. The Board asserts that the grievant has not provided any evidence of his alleged hostile workplace complaints or that the Board knew of such complaints prior to implementing the RIF. The Board further argues that the CNA does not provide the grievant any seniority rights that would entitle him to another custodian position. ¶

The Association argues that its grievance is legally arbitrable because it is challenging the grievant’s termination without just cause, as permitted by N.J.S.A. 34: 13A-29(c). The Association argues that the Grievant’s position was eliminated due to retaliation for workplace complaints. It asserts that the Board’s defense that the position was eliminated due to the RIF is pretextual. In support of this claim, the Association asserts that the grievant was paid while on his 60-day administrative leave, undermining the Board’s assertion that his position was eliminated for economic reasons. The Association further asserts that the grievant was not allowed to take other custodian positions, where other less senior custodians were retained after the RIF. The Association argues that whether the grievant’s termination was due to the RIF or the alleged retaliatory reasons is a factual issue for an arbitrator to determine. ¶

It is well-settled that public employers’ “decisions to reduce the work force for economy or efficiency are non negotiable subjects.” Local 195, supra at 408, citing, e.g., State v. State Supervisory Employees Ass’n, 78 N.J. 54, 88 (1978) ( “a decision to cut the work force to a certain number unquestionably is a predominantly managerial function” ). However, seniority as it relates to layoffs, recalls, reemployment and bumping is a mandatory subject of negotiations absent preemption. State Supervisory, 78 N.J. at 84. ¶

N.J.S.A. 34:13A-29(c) provides: ¶

In addition to any rights provided pursuant to subsection a. of this section, an employee who is not a teaching staff member as defined by section 1 of P.L.1989, c.269 (C.34:13A-22) shall have the right to submit to binding arbitration any dispute regarding whether there is just cause for a disciplinary action, including, but not limited to, reprimands, withholding of increments, termination or non-renewal of an employment contract, expiration or lapse of an employment contract or term, or lack of continuation of employment, irrespective of the reason for the employer’s action or failure to act, and irrespective of any contractual or negotiated provision or lack thereof. In the arbitration, the burden of proof shall be on the employer. ¶

[Emphasis added.] ¶

In a recent case applying N.J.S.A. 34:13A-29(c), we found a grievance challenging the termination of a non-teaching employee following a RIF, was legally arbitrable as to whether the Association’s disputed factual allegations support its claim that the RIF was pretextual. Mainland Reg. Bd.of Ed., P.E.R.C. No. 2025-34, 51 NJPER 333 (¶75 2025). In Mainland, the Association, citing N.J.S.A. 34:13A-29, grieved that a special education aide was terminated without just cause when he was not reinstated after his original position was eliminated due to the RIF. The Board asserted that the grievance was not arbitrable because the RIF was allowed by school laws and a non-negotiable subject. In response, the Association asserted that the 2020 amendments to N.J.S.A. 34:13A-29 explicitly made any disciplinary “lack of continuation of employment” legally arbitrable. The Association claimed that the RIF was a pretext for the greivant’s disciplinary termination in connection with a social media incident. The Commission found that an arbitrator could decide whether the Association’s allegations, if true, support its claim that the RIF was pretextual with respect to the grievant. ¶

Similarly, the Commission has permitted arbitration of grievances challenging, as disciplinary or pretextual, terminations and non-renewals of both teaching and non-teaching staff that occurred in the context of reductions in force. See N.J. Inst. of Technology (NJIT), P.E.R.C. No. 81-45, 6 NJPER 494 (¶11252 1980). In NJIT, the Commission found that the only arbitrable issues were whether a RIF did take place or whether NJIT merely asserted that such a RIF had occurred to comply with a settlement agreement regarding the prior non-renewal of the grievant. However, we also stated, “if the arbitrator finds that a reduction in force did occur [and was not pretextual], the inquiry must end.” Moreover, we have found that job security for custodians is mandatorily negotiable, and a determination that deprives a custodian of a job will be legally arbitrable unless the determination is to reduce the size of the workforce. See Emerson Bd. of Ed., P.E.R.C. No. 92-85, 18 NJPER 102 (¶23047 1992)(allowing a custodian who was terminated due to a RIF to arbitrate her termination pursuant to N.J.S.A. 34:13A-29); see also Hamilton Tp. Bd. of Ed., P.E.R.C. No. 98-9, 23 NJPER 467 (¶28218 1997)(allowing arbitration of a grievance challenging the discharge of a custodian without just cause because the Board failed to offer a vacant custodial position to the grievant and the RIF was not the sole basis for his loss of employment.) ¶

Here, we find that the Association’s grievance is legally arbitrable concerning whether the grievant’s termination was based on the RIF or the Association’s alleged retaliatory reasons. The Board certifies that the grievant’s decision was eliminated solely due to the RIF, which was necessitated by economic and efficiency reasons. The grievant certifies that the Board’s reasoning is undermined by the fact that other less senior custodians were retained following the RIF and that the Board continued to pay him during his 60-day administrative leave, prior to his termination, where he was not permitted to be on school grounds. He certifies that his termination was in retaliation for his numerous complaints of a hostile workplace. These disputes of fact are for an arbitrator to determine.1/ However, as we cautioned in N.J.I.T. and Mainland, supra., if the arbitrator finds that the Board acted in good faith and that the RIF was not pretextual, the arbitrator’s inquiry must end. ¶

For the foregoing reasons, we find the Association’s claim legally arbitrable that the grievant was disciplined without just cause and that the RIF was pretextual. We make no findings as to the merits of the Association’s claim. The parties are left to present the proofs of their respective positions to the arbitrator at the hearing. ¶

OrderORDER ¶

The Ho-Ho-Kus Board of Education’s request for a restraint of binding arbitration is denied. ¶

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/ Given our decision, we decline the Association’s request for an evidentiary hearing pursuant to N.J.A.C. 19:13-3.7. ¶