P.E.R.C. No. 2027-5, NJ/State (William Paterson Univ)-Passaic

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY WILLIAM PATERSON UNIVERSITY, Respondent, -and- Docket No. CO-2026-020 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, AFL-CIO, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission reverses the Director of Unfair Practices' dismissal of an unfair practice charge alleging that the University violated N.J.S.A. 34:13A- 5.4a(1) and (5) of the Act by unilaterally implementing performance-based step progression procedures for Steps 12 and 13 of the salary guide. The Commission finds no bar to timeliness for the charge, as the parties’ communications about the step progression procedures could create a factual issue regarding when the Council knew or should have known that those procedures were definitive and/or that negotiations would not take place. The Commission further finds that whether the Council waived its right to negotiate step progression procedures requires further development of the record. The Commission also finds that deferral to binding arbitration was premature since the record did not establish that arbitration was available. The Commission remands the matter for the issuance of a complaint and further processing. ¶

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 WILLIAM PATERSON UNIVERSITY, Respondent, -and- Docket No. CO-2026-020 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, AFL-CIO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, ¶

Jennifer Davenport, Attorney General ¶

(Kaitlyn A. McDonald, Deputy Attorney General) ¶

For the Charging Party, ¶

Weissman & Mintz, LLC, attorneys ¶

(Kevin P. McGovern, of counsel) ¶

DECISION ¶

On February 13, 2026, the Council of New Jersey State College Locals, AFT, AFL-CIO ( “Charging Party” or “Council” ) appealed from the February 3 decision of the Director of Unfair Practices (Director), D.U.P. No. 2026-11, 52 NJPER 241 (¶64 2026), refusing to issue a complaint and dismissing the Council’s unfair practice charge (UPC or charge) filed against William Paterson University ( “Respondent” or “University” ). The Council’s August 4, 2025 UPC alleges that the University violated N.J.S.A. 34:13A-5.4(a)(1) and (5)1/ of the New Jersey Employer-Employee Relations Act (Act) by unilaterally implementing step progression procedures for Steps 11 to 12 and 12 to 13 of the salary guide. On September 12, the University filed a position statement with exhibits. On November 7, the Council filed a response. ¶

We incorporate the Director’s Findings of Fact, which the parties do not dispute. ¶

The Council is the majority representative for faculty, professional staff and librarians employed by the State of New Jersey at its colleges and universities, including William Paterson University. The Council is comprised of several constituent local units, and Local 1796 (Local) represents those employees at William Paterson University. The Council and University are parties to a CNA with a term of July 1, 2023 to June 30, 2027. ¶

Article XXI ( “Salary and Fringe Benefit Agreement” ) of the parties’ CNA provides for a new thirteenth step to the Salary Schedule, and states, “Eligible employees shall advance to the thirteenth step...if warranted by peformance.” (Emphasis added.)2/ ¶

Article XXXVIII (A) ( “Maintenance and Implementation of Agreement” ) provides, in pertinent part, “neither party shall be required to negotiate with respect to any such matter except that proposed new rules or modification of existing rules, including local rules, governing working conditions shall be presented to the [Council] and negotiated upon the request of the [Council] as may be required pursuant to the New Jersey Public Employer- Employee Relations Act, as amended.” ¶

On September 18, 2024, the University sent a letter notifying the Local President that, effective June 2025, the University would enforce the performance-based requirement of Article XXI for progression to Steps 12 and 13 of the Salary Schedule. On September 30, the Council responded, stating that the development of a formal process to determine eligibility for progression to Step 12 and Step 13 would violate the parties’ CNA and established past practice between the parties regarding salary guide movement. The Council requested that the University confirm in writing by October 11 that it would not deviate from the salary step movement established by past practice and the CNA. The Council notified the University that if it proceeded with implementation of such procedures it would pursue its legal rights. The University did not provide the requested written confirmation. ¶

On February 5, 2025, the University sent the Local an agenda for a Labor/Management meeting the following week, which included “Management’s Proposal for Advancement to the 12th and 13th Step.” On February 6, the Local replied, “Since [the University] never formally requested negotiation on the 12th and 13th steps, we will not be addressing this issue [at the meeting.]” Later that day, the University responded, stating “As you know, we plan to implement performance-based advancement to the 12th and 13th step Spring 2025. We do not dispute impact must [be] negotiated. Understandably, you may want additional time to review our proposal.” On February 10, the Council responded with its objections to negotiations as follows: ¶

The issue is not one “reserved for resolution between the Local union and the individual College/University” ...and is therefore not subject to Local negotiations. Furthermore, pursuant to Article XXXVIII.A, the Council is under no obligation to negotiate over matters which are governed by the master Statewide contract during the term of the agreement. To be clear, any changes to the current procedures regarding employee step movement steps [sic] must be negotiated at the Statewide level during bargaining for the next contract. Any change in the existing practice at William Paterson University regarding employee step movement will be treated as a violation of both the contract and the New Jersey Employer-Employee Relations Act, and will be dealt with accordingly. ¶

On February 21, the University replied to the Council’s letter requesting confirmation in writing that the Council declines to negotiate the salary step procedures at the February 28 meeting. ¶

On April 16, 2025, the University notified employees of newly implemented procedures for step progression to Steps 12 and 13. On July 1, in response to an information demand from the Council, the University identified employees who were denied step movement based on the newly implemented procedures. At least three members have been denied step movement based upon “deficiencies in teaching, scholarship, research, creative expression, or service” , and at least 17 were denied step movement for providing “insufficient information” for the University to make an eligibility determination. ¶

On February 3, 2026, the Director issued his decision, finding that the charge was untimely because the “operative date” for filing the charge was when the University first provided notice of the salary progression procedures (September 18, 2024) rather than when those procedures were implemented (April 16, 2025). The Director concluded that the Council’s refusal to negotiate constituted a waiver and that it may not refuse to negotiate and then claim that the University acted unilaterally. Finally, the Director deferred the matter to the parties’ contractual grievance process, finding that the charge alleges a contractual dispute concerning the interpretation and application of the parties’ CNA.3/ However, the Council asserts that despite it communicating to the staff agent at the exploratory conference that no grievances had been filed, the Director’s decision went on to assert that the Council has filed or will be filing grievances on behalf of those members who did not progress on the salary guide. ¶

On February 13, 2026, the Council filed a letter brief with exhibits in support of its appeal of the Director’s decision. On February 25, 2026, the University filed a letter brief with exhibits in response to the Council’s appeal. ¶

In its appeal of the Director’s decision, the Council argues that its charge was timely because it was filed within six months of the date the University unilaterally implemented the procedures (April 16, 2025) rather than when the University announced its intent to implement the procedures (September 18, 2024). The Council further argues that the Director’s dismissal of the charge due to the Council waiving its right to negotiate was in error because the Local could not negotiate with the University due to the state-wide CNA. Moreover, the Council argues it was under no obligation to negotiate over a term and condition established in the CNA and through past practice during the term of the contract. Lastly, the Council argues the Director’s deferral of the charge to the parties’ grievance process was erroneous because there was no pending grievance filed by the Council, which was communicated to the staff agent. In response to the Council’s appeal, the University argues that the Director’s finding that the charge was untimely is correct because the Council was notified of the University’s intent to implement the procedures on September 18, 2024, the Council immediately objected but then did not file its charge within six months of the notice. The University further argues that the Council rebuffed its attempts to negotiate the procedures. Lastly, the University agrees that arbitration was appropriate because the issue is a matter of contractual interpretation, namely, whether the University could enforce the contractual language (i.e. “if warranted by performance” ) by implementing performance review procedures for movement to Steps 12 and 13 of the Salary Schedule, but faults the Council for not filing a grievance. ¶

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. After careful review of the record, we reverse the Director’s decision to dismiss the Council’s UPC and remand this matter for the issuance of a complaint and further processing. ¶

N.J.S.A. 34:13A-5.4(c) provides that no complaint shall issue based upon any unfair practice occurring more than six months before the filing of the charge unless the charging party was prevented from filing a timely charge. In deciding whether a charging party was prevented from filing a timely charge, the Commission must consider all relevant considerations bearing upon the fairness of imposing the statute of limitations in each individual case. Kaczmarek v. N.J. Turnpike Auth., 77 N.J. 329, 340 (1978). Relevant considerations could include whether a charging party sought timely relief in another forum; whether the respondent fraudulently concealed and misrepresented the facts establishing an unfair practice; when a charging party knew or should have known the basis for its claim; and how long a time has passed between the contested action and the charge. See e.g. State of N.J. (Dept. of Human Services) and CWA, P.E.R.C. No. 2003-56, 29 NJPER 93 (¶26 2003); East Windsor Reg. Bd. of Ed., P.E.R.C. No. 2026-36, 52 NJPER 318 (¶85 2026). ¶

The Director’s decision concluded that the six-month statute of limitations was triggered on September 18, 2024, when the University first provided notice about the step progression procedures. The University’s September 18 letter raised various items to be negotiated for 2024-25, including the step progression procedures. The Council’s September 30 response identified its objections to those procedures, and requested that the University confirm that it would not move forward with implementation. On February 5, 2025, the University, during an email exchange regarding an agenda for an upcoming Labor/Management meeting for which the step progression procedures were listed, referred to the procedures as a “proposal” and acknowledged that their impact must be negotiated. On February 10, the Council responded with its objections to negotiations, and on February 21, the University requested confirmation that the Council was refusing to negotiate. The University then implemented the step progression procedures on April 16. ¶

The parties’ exchanges about the step progression procedures after the September 18, 2024 notice could call into question when the Council knew or should have known that those procedures were definitive and/or that negotiations would not take place. The announcement and the implementation of a unilateral change could be separate unfair practices. Bloomfield Tp., P.E.R.C. No. 2024-51, 50 NJPER 434 (¶106 2024); Cf. In re Middlesex Cty. Sheriff's Office, No. A-1728-16T3 (App. Div. Mar. 19, 2018) (finality of employer’s action was the date the employee received a suspension notice and reassignment, not the effective date of the suspension, because the suspension notice was not a preliminary discipline notice nor was it conditional). Therefore, at this complaint issuance stage, we find no bar to timeliness. The parties may advance their positions on timeliness as the case progresses. ¶

Next, we turn to the Director’s finding that the Council waived its right to negotiate over the step progression procedures, and therefore, cannot claim that the University acted unilaterally in implementing those procedures. A public employer’s unilateral change to mandatorily negotiable terms and conditions of employment may constitute a violation of subsection 5.4a(5) of the Act. City of Newark (App. Div. 2023), aff’ g P.E.R.C. No. 2022-47, 49 NJPER 17 (¶4 2022). The parties agree that the step progression procedures are mandatorily negotiable. However, the Council asserts that its Local did not have authority to negotiate with the University over those procedures. Moreover, the Council asserts that it had no mid-contract duty to negotiate over the procedures since they are established in the CNA and by past practice. ¶

If a CNA is silent or unclear concerning a particular term, the parties’ past practice regarding that subject may control. Hamilton Tp., P.E.R.C. No. 2026-2, 52 NJPER 75 (¶18 2025) (citing, Ridgefield Bd. of Ed., P.E.R.C. No. 2022-45, 49 NJPER 4 (¶2 2022); Sussex Cty., P.E.R.C. No. 83-4, 8 NJPER 431 (¶13200 1982)). N.J.S.A. 34:13A-5.3 “prohibits an employer from unilaterally altering the status quo concerning mandatory bargaining topics, whether established by expired contract or by past practice, without first bargaining to impasse.” Bd. of Educ. v. Neptune Twp. Educ. Ass’n, 144 N.J. 16, 22 (1995). See also, County of Atlantic, 230 N.J. 237, 252 (2017); Sayreville Bor., P.E.R.C. No. 83-105, 9 NJPER 138, 140 (¶14066 1983) (employer may not unilaterally alter “an existing practice or rule governing a term and condition of employment, such as . . . the amount of an employee’s salary, even though that practice or rule is not specifically set forth in a contract” ) (citing, Galloway Twp. Bd. of Ed. v. Galloway Twp. Ed. Ass’n, 78 N.J. 25, 48-49, n.9 (1978); N.J.S.A. 34:13A-5.4)). ¶

Whether the parties established a binding past practice, whether the CNA itself resolves the issue, and whether any bargaining obligation rested with the Statewide Council or the Local are factual and legal questions that require further development of the record. At the complaint issuance stage, it was premature to find a waiver bar to the Council’s claim that the University failed to negotiate regarding the step progression procedures. As the case progresses, the parties shall advance their positions on their respective mid-contract negotiations obligations for those procedures. ¶

Finally, we find that deferral to arbitration is premature. Deferral to binding arbitration is the preferred mechanism when a charge essentially alleges a violation of subsection 5.4(a)(5) interrelated with an alleged breach of contract and no procedural barriers bar arbitration. Brookdale Comm. Coll., P.E.R.C. No. 83-131, 9 NJPER 266 (¶14122 1983). The Director concluded the Council’s charge centers on whether the provision “if warranted by performance” permits the University to implement the step progression procedures, whether such procedures are consistent with past practice, and whether the contract requires uniform application at the Statewide level. ¶

The Council asserts that despite communicating to the staff agent at the exploratory conference that it had not filed a grievance, the Director went on to conclude that “the Council has filed or will be filing a grievance on behalf of those members who did not progress to the next step on the pay scale.” (D.U.P. 2026-11 at 5). Given that a grievance has not been filed, the record does not establish that arbitration is presently available. However, on remand, deferral to the parties’ grievance procedure should be further explored, including the University’s willingness to waive any procedural defenses. State of New Jersey, P.E.R.C. No. 2000-71, 26 NJPER 171 (¶31068 2000), granting recon., P.E.R.C. No. 2000-36, 26 NJPER 12 (¶31001 1999)(declining to defer an unfair practice charge to binding arbitration because the State did not waive its defenses to the filing of the grievance)(internal citations omitted); see also Hopewell Tp., P.E.R.C. No. 2010-10, 35 NJPER 295, n.3, (¶103 2009)( “Deferral to arbitration is not appropriate unless the Township agrees to waive all procedural defenses to arbitration.” ). ¶

For the foregoing reasons, we remand the matter to the Director of Unfair Practices for issuance of a Complaint and further processing. ¶

OrderORDER ¶

D.U.P. 2026-11 is reversed and the unfair practice charge is remanded to the Director of Unfair Practices for issuance of a Complaint and further processing. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: August 27, 2026 ¶

Trenton, New Jersey ¶

Note1/ 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;” 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.” ¶

2/ Article XXI of the parties’ 2019-2023 CNA provides a similar provision for the twelfth step of the Salary Schedule, stating, “Employees who have been at the eleventh step of the same range for fifty-two (52) pay periods or longer shall be eligible for movement to the twelfth step if warranted by performance.” (Emphasis added.) ¶

3/ We are aware of the case citations in the Director’s Decision on pages 7 and 8 that are in error, as identified by the Council in its brief. ¶