P.E.R.C. No. 2026-8, Lakewood Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of LAKEWOOD TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2025-168 LAKEWOOD TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Commission denies the parties’ cross-motions for summary judgment on the Lakewood Township Education Association’s unfair practice charge alleging the Board of Education violated the Act when it excluded the Association President, Executive Board, and faculty of the Lakewood Middle School from serving as Weingarten representatives during investigatory interviews resulting from a hostile work environment claim filed by the Middle School principal. The Board asserted that the excluded members were implicated in the principal’s claim and thus had a conflict of interest such that their presence during interviews would undermine the investigation. The Commission finds that while the Board has a legitimate interest in protecting the integrity of its investigation, the record is unclear as to whether the Board’s blanket exclusion was necessary to protect that interest. The Commission orders an evidentiary hearing to develop material facts regarding whether or to what extent the Board’s exclusions were justified. ¶

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 LAKEWOOD TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2025-168 LAKEWOOD TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Resondent, Methfessel & Werbel, Esqs. (Scott Ketterer, of counsel) ¶

For the Charging Party, Mellk Cridge LLC (Edward A. Cridge, of counsel) ¶

DECISION ¶

In this matter we consider cross-motions for summary judgment respectively filed by the charging party, Lakewood Township Education Association (LEA or Association), and the respondent, Lakewood Township Board of Education (Board), on the LEA’s unfair practice charge (UPC) against the Board. The UPC alleges the Board violated section 5.4a(1) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (Act)1/ when the Board excluded the Association President, Executive Board, and faculty of the Lakewood Middle School from serving as union representatives during investigatory interviews resulting from a hostile work environment claim filed by the middle school principal. ¶

The Association filed its charge on April 4, 2025.2/ On April 14, the Board filed a Position Statement, and the matter was scheduled for a conference with a Commission Staff Agent. On June 18, the Director of Unfair Practices issued a Complaint and Notice of Pre-Hearing. On July 2, the Board filed an Answer. On July 18, the Association filed a motion for summary judgment, as amended on July 21 to include missing exhibits. On July 28, the Board filed opposition and cross-moved for summary judgment. On July 30, the Association filed a response to the Board’s cross- motion. On July 31, the motions were referred to the full Commission, pursuant to N.J.A.C. 19:14-4.8(a). The motions are supported by briefs and exhibits.3/ ¶

We derive the following background information from the Board’s Position Statement and attached exhibits. By letter to the Superintendent dated March 19, 2025, signed by some 70 Middle School staff members, the LEA detailed concerns over “escalating incidents of student behavior” in the Middle School. (Bd. Pos. Stmt., Ex. D.) The letter addressed increases in “physical altercations between students, often resulting in injuries to . . . students and staff,” “verbal threats and harassment directed” at staff and students, “destruction of school property, indicating a growing disregard for school rules and authority,” and “incidents involving students with severe emotional and behavioral disturbances, for which. . . [staff] do not have adequate training or support.” (Bd. Pos. Stmt., Ex. D.) The letter requested a meeting with the Superintendent to discuss “implementation of more robust disciplinary policies” and “the district’s commitment to staff and student safety.” 4/ (Id.) ¶

The Association’s letter to the Superintendent was reported on by the Asbury Park Press. (Id., Ex. E.) Its reporting quoted a responsive “note to teachers” written by the principal, which was described as the principal “blaming the instructors for much of the problem.” (Id.) The principal responded, as quoted by the newspaper, that building administrators and security guards “cannot alone prevent students from engaging in situations in which students curse, scream, run down the hallway or fight with one another.” Her response continued, “All stakeholders must play their role in assisting with maintaining the order of the classrooms and hallways.” (Id.) ¶

On March 28, 2025, the principal filed a “hostile work environment” claim 5/ with the Board over “actions and behaviors exhibited by the president and members of the LEA.” (Id., Ex. A.) The claim alleged that an Association member shared the LEA’s letter and the principal’s responsive email with the press. (Bd. Pos. Stmt., Ex. A.) The claim further alleged that on March 27 and 28, 2025, radio station N.J. 101.5 “ran a live session about the Middle School issues . . . where [the principal] was personally spoken negatively about and attacked in an inappropriate manner based on the false information that was reported.” (Id.) The claim alleged the principal was approached on a daily basis by staff who were “upset that the media has been involved; however, they are a part of the 71 staff members who signed” the LEA’s March 19 letter. (Id.) The principal also alleged the LEA’s President and members had been attempting to have her transferred out of the Middle School “since the previous school year.” (Id.) ¶

Undisputed Facts 6/ ¶

1. The LEA is the Majority Representative for certain employees of the Board. ¶

2. The Board’s Superintendent is not a member of the LEA. ¶

3. K.S. is the President of the LEA. ¶

4. On April 3, 2025, the Superintendent sent an email to various LEA members including K.S. It stated, in pertinent part: ¶

On March 28, 2025, the district received a detailed report containing allegations related to the creation and perpetuation of a hostile workplace environment. Pursuant to District Policies 3351 and 4351, the district is obligated to conduct a comprehensive and impartial investigation into these allegations to ensure a fair and equitable work environment for all employees. ¶

In response to the allegations and as part of the district’s established investigatory procedures, initial meetings have been scheduled with those staff members specifically named or directly implicated within the report starting on Monday, April 7, 2025. Classroom coverage will be provided. The purpose of these meetings are to gather information, provide clarity regarding the allegations, and outline the steps involved in the investigation process. All involved parties will be given a fair and reasonable opportunity to respond to the allegations, present relevant information, and ask pertinent questions during this meeting. ¶

Due to the sensitivity and nature of the allegations involved, please be advised that representatives such as: the LEA President, LEA Executive Board, and Lakewood Middle School faculty are not permitted to attend as your representative. However, you retain the right to request LEA representation from another school building of your choice to accompany you during the meeting. ¶

[(UPC, Ex. A (emphasis added).] ¶

5. The LEA arranged for other Association representatives to accompany LEA members to the aforesaid investigatory interviews. (LEA Br., Ex. C.) ¶

The Summary Judgment Standard ¶

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. A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (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). ¶

Applying the above standards to the undisputed material facts in the record (set forth above and viewed in a light most favorable to each respective non-moving party), we deny both the Association’s motion for summary judgment and the Board’s cross- motion. We remand the case to the Director of Unfair Practices for a hearing, as further discussed below. ¶

Parties’ Arguments ¶

The Association argues that by unilaterally excluding the Association’s President and other agents from representing LEA members at investigatory meetings, the Board interfered with rights guaranteed to the LEA and its members by the Act including: members’ rights to union representation in meetings that might result in disciplinary action; and the Association’s exclusive right to designate persons whom it has determined are qualified and capable of such representation. The LEA argues that established limitations on a union representative’s authority during an investigatory interview preclude the existence of any conflict of interest; and the Board has no unilateral right to determine otherwise. Finally, the LEA argues any actual conflict could be addressed by appropriate instructions given to employees being interviewed. ¶

The Board argues that because LEA representatives are “potential targets” of and/or “potentially adverse witnesses” in its investigation of the principal’s claim, their appearance as employee representatives during related interviews will “impugn the effectiveness” of the investigation. The Board argues that the LEA’s “propensity to litigate the matter in the press” and other alleged conduct by its President shows that Association representation will be adversarial and will prevent interviewed employees from speaking freely. The Board contends its investigation is part of an effective remedial process required by the New Jersey Law Against Discrimination (NJLAD), therefore the NJLAD preempts the Association’s rights under the Act. The Board also contends it has “balance[d] the LEA’s interest and its own” by allowing for union representation from other school buildings during investigatory interviews. ¶

The Association replies that the NJLAD does not preempt employees’ rights under the Act, as each law covers separate and distinct subject matters. The Association argues the NJLAD does not justify the Board’s actions because the principal’s claim arises from First Amendment-protected criticism that she is an ineffective school principal, and has nothing to do with characteristics protected by the NJLAD. ¶

Analysis ¶

An employer independently violates section 5.4a(1) if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. Somerville Bd. of Ed., D.U.P. No. 2024-18, 51 NJPER 59, 60 (¶15 2024) (citing, Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); N.J. Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550, n.1 (¶10285 1979)). Proof of actual interference, intimidation, restraint, coercion, or motive is unnecessary; the objective tendency to interfere is sufficient. Id. (citing, Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550 (¶13253 1982), aff’d (App. Div. 1983); City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (¶4096 1978), aff’d (App. Div. 1979)). ¶

Based upon the parties’ submissions, there appears to be no dispute that LEA members who are subject to the Board’s investigatory interviews at issue would have a right, under NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), to request union representation during those interviews. “[W]hen acting as agents of the majority representative in investigatory interviews, union representatives are limited to assisting the employee rather than bargaining with the employer. Their representation cannot obstruct the employer’s right to conduct such interviews.” State of N.J. (DOT), P.E.R.C. No. 2001-51, 27 NJPER 167, 175 (¶32056 2001) (representative’s activity lost its protection when he turned investigatory interview into adversarial confrontation and prevented questioning of employee). ¶

Public employees have the right to present proposals to their employers and make known their grievances “through representatives of their own choosing.” N.J. Const. at Article 1, Para. 19. Section 5.3 of the Act implemented this constitutional provision “through the use of majority representatives selected by the employees in an appropriate unit.” Dover Tp., P.E.R.C. No. 77-43, 3 NJPER 81, 83 (1977). A union’s right to choose its representatives encompasses a broad range of representational activities including negotiations, grievances, and investigatory interviews. State of N.J. (DOT), supra, 27 NJPER at 173-175. See also, Office of Admin. v. Pa. Labor Rels. Bd., 591 Pa. 176, 193 (S.Ct. of Pa. 2007) (holding that under Weingarten, employee subject to investigatory interview has “right to have the union representative of his or her choice, if the assisting union representative is reasonably available and absent extenuating circumstances” ). ¶

The Board contends it was justified in peremptorily barring certain LEA officers and members from acting as Weingarten representatives because it determined they have a conflict of interest arising from the fact they are implicated in the claim under investigation. The Board asserts that if such people are permitted to be Weingarten representatives, they will behave in an adversarial manner during interviews, intimidate employees being interviewed, or interfere with their ability to speak freely, thus compromising the integrity of the investigation. The Association counters that there is no such risk, based upon the limited role played by a Weingarten representative. During such an interview, as our Supreme Court has explained: ¶

“[T]he employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. . . . The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation. . . . ¶

A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” ¶

[In re UMDNJ, supra, 144 at 526, 527 (quoting, Weingarten, supra, 420 U.S. at 256- 260, 262-263).] ¶

This case presents competing interests of the Association and the Board. While the Board offered employees union representation from another building, the Association has a right under the Act to have a representative of its own choosing. Conversely, the Board has a legitimate and substantial business interest in ensuring the integrity of the investigation of the principal’s hostile work environment complaint. The Board’s position that employees might be uncomfortable speaking freely about another employee directly implicated by the complaint while that employee is present as a Weingarten representative is not unreasonable. Nevertheless, we are concerned about the breadth of the Board’s exclusions. A blanket exclusion of all middle school staff and LEA leadership from serving as Weingarten representatives sweeps more broadly than may be necessary to protect the integrity of the investigation. Additionally, it risks undermining employees’ statutory rights to a representative of their own choosing. ¶

While we have found no PERC precedent directly on point, there is support in another jurisdiction for potentially excluding those who are directly implicated by such a complaint from serving as Weingarten representatives during related investigatory interviews. In Illinois Federation of Public Employees, IFT-AFT, 40 PERI ¶104 (2024), the Illinois Labor Relations Board (ILRB) conceded that an employer’s “interest in safeguarding the integrity of an investigation may be a legitimate employer prerogative,” but found a hearing was required “as to whether the Respondent’s disqualification of all local union representatives was necessary to achieve that end under the circumstances” of that case. Id. (emphasis in original). The ILRB reasoned in pertinent part as follows: ¶

The broad sweep of the Respondent’s disqualification of union representatives . . . raises questions as to the materiality of each as witnesses. . . . There are also factual questions as to whether any of the identified representatives had a stake in the outcome of the investigation or potential liability for having received the confidential information allegedly disclosed by Streb. Similarly, there are issues of fact as to whether any of the Union representatives were reasonably viewed by the Respondent as subjects of the investigation into Streb. Overall, there is need for a full fact finding as to the basis for the Respondent’s claim that all the local union representatives had a conflict of interest warranting their disqualification as Streb’s union representatives in the interests of safeguarding the Respondent’s investigation. ¶

[ at *13. See also, Evergreen Park H.S. Ed. Ass’n, 42 PERI ¶42 (2025)( “potential conflict of interest” may arise if Weingarten rep. is involved in same disciplinary investigation).] ¶

Here, the Board unilaterally and peremptorily imposed a blanket exclusion of all Association officers and members who are middle school staffers from acting as Weingarten representatives during the investigation. The record is unclear as to the need for the blanket exclusion. The principal’s hostile work environment complaint is not instructive as it is largely redacted. Moreover, the Board itself has not provided detailed explanations of its specific rationale for each of the individuals excluded as Weingarten representatives. Consideration of that rationale is necessary to determine whether or to what extent allowing any of the excluded employees would interfere with the Board’s legitimate interest in protecting the integrity of the investigation. Further, while the record reflects that the Association has arranged for individuals not excluded by the Board to serve as Weingarten representatives during the interviews, it is unclear if the Board’s investigation is ongoing. Accordingly, we find an evidentiary hearing is necessary to develop material facts regarding whether the Board’s extensive exclusions were justified. ¶

OrderORDER ¶

We deny the parties’ cross-motions for summary judgment. We remand this case to the Director of Unfair Practices for further proceedings consistent with this decision. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Higgins, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioner Ford was not present. ¶

ISSUED: September 25, 2025 ¶

Trenton, New Jersey ¶

Note1/ This provision prohibits 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.” ¶

2/ A related UPC filed by the Association on June 18, 2025, Docket No. CO-2025-229, has been held in abeyance pending the outcome of this matter. ¶

3/ N.J.A.C. 19:14-4.8(b) provides that summary judgment motions “may” be filed with supporting affidavits. Here the Association did not file a supporting affidavit or certification. The Board filed the certification of its counsel, stating that it will rely on the exhibits attached to the Association’s motion for summary judgment. The Board’s Position Statement and attached exhibits are included in that filing. ¶

4/ The letter does not mention the principal. ¶

5/ The record includes a partly redacted copy of the hostile work environment claim. (Bd.’s Position Statement, Ex. A.) ¶

6/ We derive the undisputed facts from the record presented and from each party’s statement of material facts. The Board’s five-paragraph statement substantively mirrors the first five paragraphs of that of the LEA. The Association, in its response to the Board’s cross-motion, admits to all material facts asserted by the Board. We combine paragraphs 4-5 of the parties’ statements and quote at greater length the exhibit referenced therein. Lastly, we include factual statements from the Association’s sixth and final paragraph, as no evidence in the record suggests they are disputed. ¶