P.E.R.C. No. 2026-9, NJ/State (Admin Off/Courts)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY JUDICIARY, ADMINISTRATIVE OFFICE OF THE COURTS, -and- Docket No. CI-2024-037 COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1036, Respondents, -and- DESIRE ROBINSON, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the refusal of the Director of Unfair Practices to issue a complaint on an unfair practice charge filed by Robinson against the Judiciary and CWA. The charge alleges that the CWA violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq., by arbitrarily missing the deadline to file for advisory arbitration of Robinson’s disciplinary termination and that the Judiciary repudiated the CNA’s just cause provisions by refusing to allow her disciplinary appeal. The Commission finds that, despite the untimely filing, the CWA represented her in good faith during her internal disciplinary hearing, attempted to appeal to advisory arbitration, and sought to remedy its filing mistake. The Commission further finds that even if the CWA had timely appealed and an arbitrator recommended reinstatement, the Judiciary would not have to accept the advisory arbitration decision. ¶

Finally, the Commission finds that the Judiciary’s denial of the CWA’s appeal to advisory arbitration did not repudiate the contract or violate Robinson’s rights under the Act because it was based on a procedural defect pursuant to the CNA. ¶

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 STATE OF NEW JERSEY JUDICIARY, ADMINISTRATIVE OFFICE OF THE COURTS, -and- Docket No. CI-2024-037 COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1036, Respondents, -and- DESIRE ROBINSON, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, State of New Jersey Judiciary, (Thomas Russo, Staff Attorney) ¶

For the Respondent, CWA Local 1036, Beckett & Paris, LLC, attorneys (David Beckett, of counsel) ¶

For the Charging Party, Law Offices of Michael A. Bukosky & Associates, LLC, attorneys (Michael A. Bukosky, of counsel) ¶

DECISION ¶

On July 29, 2025, the Charging Party (Robinson) appealed from the July 23, 2025 decision of the Director of Unfair Practices (Director) refusing to issue a complaint on her unfair practice charge. D.U.P. No. 2026-3, 52 NJPER 54 (¶13 2025). On May 16 and May 17, 2024, Robinson filed an unfair practice charge and amended charge, respectively, against the New Jersey State Judiciary (Judiciary) and Communications Workers of America Local 1036 (CWA). The charge alleges that, despite Robinson’s request that her disciplinary termination proceed to advisory arbitration pursuant to the collective negotiations agreement (CNA), the CWA arbitrarily declined to process her appeal, thereby breaching the duty of fair representation in violation of subsection 5.4b(1) of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1, et seq.1/ The charge further asserts that the Judiciary repudiated the CNA’s just cause provisions by refusing to allow her disciplinary appeal, thereby violating subsections 5.4a(1) and (5)2/ of the Act. As a remedy, Robinson seeks to be made whole, including “a fair and substantive hearing before a neutral arbitrator” as provided for by the CNA. ¶

Summary of Facts ¶

The CWA is the exclusive majority representative for the Judiciary’s employees in the professional (non-case related) unit comprised of non-supervisory employees performing administrative duties in trial court operations and various other court clerk and administrative offices throughout the Judiciary, as well as all case-related professional employees in certain Judiciary programs as specified in the CNA’s recognition clause. The Judiciary and CWA are parties to a CNA with a term of July 1, 2020 through June 30, 2024. ¶

Article 9 of the CNA, entitled “Disciplinary Actions,” classifies removals as major discipline. Article 9.3(A) sets forth a “just cause” standard for discipline and provides that the Judiciary “shall bear the burden of proof.” Article 9.6(B) provides for an internal disciplinary hearing process during which an employee may be represented by a union representative. Article 9.6(B)(6) provides that, following the hearing officer’s decision and a final notice of disciplinary action (FNDA), “[u]nclassified employees may appeal the departmental decision on major discipline through the Union to advisory arbitration” and such “appeal must be filed in writing by the Union within thirty (30) calendar days from the date the Union received the Appointing Authority’s decision on the major discipline.” Article 9.6(B)(6)(b)(a) provides that the parties utilize a permanent panel of at least five (5) arbitrators to serve on a rotating basis. Article 9.6(B)(6)(g) provides that the “fees and expenses of the arbitrator shall be borne equally by the parties.” Article 9.6(B)(6)(e)-(f) provide that the Judiciary may decide not to accept an advisory arbitration decision after meeting with the union and issuing a written determination. ¶

Robinson was employed in the Judiciary’s Camden Vicinage as a Court Services Officer 1 (CSO 1), a title in the CWA’s unit. The CSO title is “unclassified” and not subject to Civil Service regulations. On October 26, 2023, Robinson was served with a “Notice of Intent to Issue Immediate Suspension Without Pay (Non- Criminal)” memorandum by the Camden Vicinage’s Human Resources Manager (HR Manager). The memorandum immediately suspended Robinson with pay effective October 26, and stated the Judiciary’s intention to suspend her without pay effective October 31. It alleged that Robinson mistakenly did not schedule an emergent application for a court hearing and later falsely indicated that the matter had been withdrawn. It also indicated the Judiciary’s intention to seek major discipline and advised Robinson to contact her union representative and respond in writing to challenge the suspension pending a hearing on the forthcoming Preliminary Notice of Disciplinary Action (PNDA). ¶

On October 27, 2023, a CWA Staff Representative responded by letter challenging the suspension. On October 30, the HR Manager issued a memorandum informing Robinson that she was being suspended without pay effective October 31. On November 1, the HR Manager issued the PNDA indicating that the Judiciary was seeking Robinson’s removal. Robinson requested a departmental hearing to appeal the major discipline, which was conducted on December 11, 2023 before a Judiciary hearing officer. Robinson was represented by a CWA Staff Representative at the hearing. ¶

On January 5, 2024, the Judiciary hearing officer issued a written decision finding that management had demonstrated just cause for Robinson’s removal. The same day, the Judiciary’s Trial Court Administrator informed Robinson (and two CWA representatives) that the Camden Vicinage had accepted the hearing officer’s recommendation for her removal. On January 8, the HR Manager issued the FNDA for Robinson’s removal in an email to her and her two CWA Representatives, enclosing the Trial Court Administrator’s letter accepting the hearing officer’s recommendation. ¶

On February 20, 2024, 43 days after the January 8 notice, a CWA Representative emailed the HR Manager: ¶

By this email, and pursuant to Article 9.6(B)(6) of the Collective Bargaining Agreement, the Union hereby appeals this determination on behalf of Ms. Robinson and requests that arbitration be scheduled. ¶

That same day, Counsel to the Administrative Office of the Courts responded: ¶

I am in receipt of your email below seeking to appeal the hearing officer’s decision in this matter involving the removal of one of your members from the Camden Vicinage. On January 8, you received an email from [Assignment Judge] accepting the hearing officer’s decision. Under the collective bargaining agreement, you had 30 calendar days (until February 7) to appeal the decision. Accordingly, your email dated February 20 seeking to appeal the decision is late and the appeal is denied for that reason. ¶

The CWA explained in its position statement to the Director that it miscalculated the filing deadline by counting 30 “working days” instead of “calendar days” from the service of the FNDA. After realizing the error, CWA endeavored in good faith to have the Judiciary reconsider its strict adherence to the deadline by offering to cover the full cost of the arbitration, rather than just its 50% share. ¶

On May 15, 2024, Robinson’s personal counsel wrote a letter to the CWA President requesting that the CWA submit Robinson’s case to arbitration. The letter stated that although the Judiciary denied the appeal as untimely, the arbitrator can address any alleged procedural defects. On May 17, the attorney also wrote a letter to the HR Manager requesting that Robinson’s disciplinary appeal proceed to advisory arbitration, regardless of whether the CWA submits it. Neither the CWA nor the Judiciary proceeded to advisory arbitration. ¶

In D.U.P. No. 2026-3, the Director declined to issue a complaint on Robinson’s unfair practice charge. The Director found that although the CWA attempted to pursue Robinson’s termination to advisory arbitration, it was unable to do so because it missed the contractual filing deadline and such a negligent mistake does not constitute a breach of the duty of fair representation. D.U.P. at 8, 11. As to the allegations against the Judiciary, the Director determined that Robinson’s claim of repudiation - based solely on her disagreement with the hearing officer’s determination - amounted to nothing more than a contractual dispute. D.U.P. at 16. The Director further found that Robinson did not specify how the Judiciary’s refusal to process a disciplinary appeal that was untimely under the CNA to advisory arbitration violated her rights under the Act. D.U.P. at 17. ¶

Standard of Review ¶

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. Where the complaint issuance standard has not been met, the issuance of a complaint may be declined. N.J.A.C. 19:14-2.3; CWA Local 1040, D.U.P. No. 2011-9, 38 NJPER 93 (¶20 2011), aff’d, P.E.R.C. No. 2012-55, 38 NJPER 356 (¶120 2012). Where no complaint is issued by the Director, the charging party may appeal to the Commission, which may sustain the refusal to issue a complaint or may direct that further action be taken. N.J.A.C. 19:14-2.3(b). ¶

Arguments ¶

Robinson asserts that the Director mischaracterized the CWA’s late filing as “mere negligence” because it was a mistake that prevented her from pursuing her contractual right to further appeal her termination. Robinson cites federal circuit court cases holding that a union’s unexplained failure to take a basic and required step unrelated to the merits of a grievance that severely prejudices an employee’s rights is arbitrary conduct that breaches the duty of fair representation.3/ Robinson further asserts that because the arbitrator has jurisdiction to determine procedural arbitrability issues such as timeliness, the CWA arbitrarily or in bad faith refused to submit her grievance to arbitration to allow consideration of the Judiciary’s procedural defense. Finally, Robinson contends that the CWA and Judiciary colluded to deny her request to pursue advisory arbitration pro se. ¶

The CWA asserts that it did not breach its duty of fair representation to Robinson because there is no evidence that it colluded with the Judiciary to prevent her disciplinary appeal from proceeding to arbitration. The CWA acknowledges its mistake in calendaring “led to the request for arbitration being filed out of time,” but argues it was an “honest mistake” that does not rise to the level of arbitrary conduct and a breach of the duty of fair representation. (CWA Brief at 2, 5). In response to federal cases cited by Robinson, the CWA cites a different federal circuit court’s case that applied a higher threshold for arbitrary conduct.4/ The CWA further contends that a breach of the duty of fair representation “requires proof of intentional misconduct by a Union” but that “[a]ll that can be established is that there was a mistake in calendaring.” (CWA Brief at 7). ¶

The Judiciary asserts that the Director correctly found that Robinson’s charges against it do not meet the complaint issuance standard and that it did not violate the Act by terminating her and refusing to proceed to advisory arbitration following the CWA’s untimely appeal. The Judiciary acknowledges that procedural arbitrability issues such as timeliness “are matters for an arbitrator to decide.” (Judiciary Brief at 3). However, it argues that there is no basis for bringing her appeal to an arbitrator only to have it dismissed based on the uncontested fact that it was filed beyond the CNA’s 30-day period. The Judiciary contends that Robinson’s allegation of collusion between the Judiciary and CWA to prevent her from proceeding to arbitration is devoid of factual support. ¶

Analysis ¶

Section 5.3 of the Act empowers a union to negotiate on behalf of all unit employees and to represent all unit employees in administering the CNA. With that power comes the duty to represent all unit employees fairly in negotiations and contract administration. The standards in the private sector for measuring a union’s compliance with the duty of fair representation were articulated by the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171 (1967). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca at 190. The Commission and New Jersey courts have adopted the Vaca standard in deciding fair representation cases arising under the Act. See Belen v. Woodbridge Tp. Bd. of Ed., 142 N.J. Super. 486 (App. Div. 1976); Lullo v. International Ass’n of Fire Fighters, 55 N.J. 409 (1970); D’ Arrigo v. New Jersey State Bd. of Mediation, 119 N.J. 74 (1990); and Jersey City Housing Auth., P.E.R.C. No. 2015-70, 41 NJPER 477 (¶148 2015), aff’d, 43 NJPER 255 (¶77 App. Div. 2017). “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 (Cipriano), 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. D’ Arrigo, 119 N.J. at 79. ¶

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. Middlesex Cty. and NJCSA, P.E.R.C. No. 81-62, 6 NJPER 555, 557 (¶11282 1980), aff’d, NJPER Supp.2d 113 (¶94 App. Div. 1982), certif. den., 91 N.J. 242 (1982); Jersey City Medical Center (Shine), P.E.R.C. No. 87-19, 12 NJPER 740 (¶17277 1986); and Trenton Bd. of Ed. (Salter), P.E.R.C. No. 86-146, 12 NJPER 528 (¶17198 1986). However, the duty of fair representation does not require a union to arbitrate every grievance. See, e.g., New Jersey Turnpike Auth. (Beall), P.E.R.C. No. 81-64, 6 NJPER 560 (¶11284 1980), aff’d, NJPER Supp.2d 101 (¶85 App. Div. 1981) (union’s decision not to arbitrate was based on good faith belief that grievance lacked merit); Carteret Ed. Ass’n, P.E.R.C. No. 97-146, 23 NJPER 390 (¶28177 1997); and Essex Cty. (Miller), P.E.R.C. No. 2019-16, 45 NJPER 195 (¶50 2018). ¶

Both parties cite federal case law concerning whether a union’s inadvertent failure to timely file a grievance or advance it to the next step may, under certain circumstances, be considered arbitrary conduct beyond mere negligence that breaches the duty of fair representation. See, e.g., Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, supra; Ahmad v. United Parcel Serv., 281 F. App’ x 102, supra. The Commission has not previously adopted another jurisdiction’s precedent on this specific issue and we decline to do so here.5/6/ ¶

Here, the CWA concedes that it mistakenly filed for advisory arbitration of Robinson’s termination beyond the CNA’s 30-day deadline due to an unintentional calendaring error. However, the record as a whole demonstrates that the CWA represented her in good faith during her internal disciplinary hearing and intended to represent her in her appeal to advisory arbitration. The Judiciary, relying on Article 9.6(B)(6) of the CNA, rejected the arbitration request as untimely. However, the CWA still made an effort to have the Judiciary waive the contractual deadline and offered to pay the Judiciary’s share of the arbitrator’s fees. ¶

The CNA does not provide for arbitration filings through the Commission or any other outside agency. Instead, disciplinary appeals are limited to the rotating five-member panel of arbitrators jointly maintained by the parties. Thus, CWA’s only path to arbitration is through the negotiated procedure in the CNA, and it could not file elsewhere.7/ Once the Judiciary refused to waive its procedural defense, the CWA reasonably determined that any further attempt to pursue arbitration would be futile given the CNA’s clear 30 calendar day filing deadline. See Article 9.6(B)(6)(a). Furthermore, advisory arbitration is the final disciplinary appeal step for non-Civil Service employees such as Robinson. Thus, even if the CWA had timely appealed and an arbitrator recommended reinstating Robinson, the Judiciary would not have to accept the arbitrator’s recommendation. See Article 9.6(B)(6)(e)-(f). Based on the totality of these circumstances, we concur with the Director’s determination that CWA’s alleged arbitrary conduct in representing Robinson did not breach its duty of fair representation and therefore does not meet the complaint issuance standard for a 5.4b(1) violation. See, e.g., N.J. Turnpike Auth. (Papajani), P.E.R.C. No. 2022-38, 48 NJPER 393 (¶90 2022) ( “Proof of union negligence, poor judgment, or even ineptitude, standing alone, does not suffice to prove a breach of the duty of fair representation.” )8/ ¶

We next turn to Robinson’s claims against the Judiciary. A public employer violates subsection 5.4a(1) of the Act if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986). Individual employees normally do not have standing to assert a 5.4a(5) violation “because the employer’s duty to negotiate in good faith runs to the majority representative, not individual employees.” Hudson Cty., P.E.R.C. No. 2010-15, 35 NJPER 346 (¶116 2009). However, “where [an] employee not only alleges a breach of the contract, but also alleges that the majority representative either alone, or in collusion with the employer, processed [a] grievance in bad faith, or in some other way violated the duty of representation owed the employee[,]” an employee may proceed with a 5.4a(5) claim against the employer. New Jersey Turnpike Auth., P.E.R.C. No. 81-64, 6 NJPER 560, 561 (¶11284 1980), aff’d, NJPER Supp.2d 101 (¶85 App. Div. 1981); and Essex Cty. (Miller), P.E.R.C. No. 2019-16, supra. ¶

Robinson’s unfair practice charge fails to allege facts indicating that the Judiciary either repudiated the CNA’s just cause provisions or interfered with her rights under the Act by not advancing her disciplinary appeal to advisory arbitration. The Judiciary had the authority to impose discipline and the record demonstrates that a disciplinary hearing was conducted pursuant to the CNA’s disciplinary review procedures. “The employer cannot be charged with having violated its duty under N.J.S.A. 34:13A-5.4(a)(5) when that employer has in good faith participated in the grievance procedure negotiated with that representative for the resolution of disputes arising under the agreement.” N.J. Turnpike Auth., supra, 6 NJPER at 561. ¶

The Judiciary’s denial of the CWA’s attempt to appeal Robinson’s termination to advisory arbitration was based on an asserted timeliness defect pursuant to Article 9.6(B)(6) of the CNA. Robinson’s disagreement with that procedural defense amounts to a mere contractual dispute rather than an unfair practice repudiation claim. State of New Jersey (Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984). The CWA’s admitted mistake in filing the appeal beyond the contractual time limits does not preclude the Judiciary from asserting its procedural defense. Moreover, as Article 9.6(B)(6) specifically provides that appeals to advisory arbitration are to be made “through the Union” and “filed in writing by the Union,” the Judiciary did not violate Robinson’s rights under the Act or repudiate the CNA by declining to allow her to proceed to arbitration pro se. In addition, Robinson lacked standing to file for arbitration. N.J.S.A. 34:13A-62 provides that “Only the parties to a CNA shall have the authority to invoke the arbitration procedures of the agreement.” The CNA therefore governed the matter exclusively, leaving Robinson without a mechanism to file for arbitration on her own. Accordingly, we concur with the Director’s determination that the allegations against the Judiciary set forth in the unfair practice charge do not meet the complaint issuance standard for a 5.4a(1) or 5.4a(5) violation. ¶

OrderORDER ¶

The Director’s refusal to issue a complaint is sustained and Robinson’s unfair practice charges against the Judiciary and CWA are dismissed. ¶

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 employee organizations, 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/ These provisions prohibit public employers, their representatives and agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; and (5) Refusing 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, or refusing to process grievances presented by the majority representative.” ¶

3/ See Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1272-1274 (9th Cir. 1983); Ruzicka v. General Motors Corp., 649 F.2d 1207, 1211 (6th Cir. 1981); and Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1089-90 (9th Cir. 1978). ¶

4/ Ahmad v. United Parcel Serv., 281 F. App’ x 102 (3d Cir. 2008). ¶

5/ While NLRB and federal court decisions interpreting the National Labor Relations Act (NLRA) and Labor Management Relations Act (LMRA) in the private sector may be used as a guide in interpreting our Act, they are not binding on the Commission. Lullo v. International Ass’n of Firefighters, 55 N.J. 409, 423-424 (1970); Galloway Twp. Ass’n of Educ. Secs., 78 N.J. 1, 9 (1978). ¶

6/ The Commission may consider the persuasive, non-binding authority of other state and federal labor relations agencies in applying our Act. See, e.g., N.J. Transit Bus Operations, P.E.R.C. No. 2015-53, 41 NJPER 392 (¶123 2015). ¶

7/ The Director of Arbitration would not have processed the CWA’s arbitration request. See N.J.A.C. 19:12-5.1 ( “The release of a panel of arbitrators is predicated solely upon a prima facie showing of the parties’ intention to utilize the Commission’s arbitration service.” ) ¶

8/ We note that the CWA’s contention that arbitrary conduct alone cannot breach the duty of fair representation without intentional misconduct is incorrect. The Vaca standard provides that the duty of fair representation is breached when a union’s conduct towards a member “is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190 (emphasis added). In Zalejko v. Radio Corp. of America, 98 N.J. Super. 76 (App. Div. 1967), the Appellate Division held that the use of the “disjunctive ‘or’” in Vaca means that “the union’s statutory duty of ‘fair representation’ . . . may also be breached in the absence of bad faith, if the union’s conduct is shown to have been ‘arbitrary’ or ‘discriminatory.’” Zalejko, 98 N.J. Super. at 83-84. ¶