NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1151-23
IN THE MATTERS OF WATCHUNG HILLS REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION,
Charging Party/Cross Respondent-Appellant,
and
WATCHUNG HILLS REGIONAL EDUCATION ASSOCIATION,
Respondent/Cross-Charging Party-Respondent. _____________________________
NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION,
Respondent. _____________________________
Argued December 2, 2024 – Decided December 20, 2024
Before Judges Sabatino, Berdote Byrne, and Jacobs. On appeal from the New Jersey Public Employment Relations Commission, PERC Nos. CE-2022-005 and CO-2022-168.
Joseph L. Roselle argued the cause for appellant (Schenck, Price, Smith & King, LLP, attorneys; Joseph L. Roselle, of counsel and on the briefs; Christopher J. Sedefian, on the briefs).
Samuel Wenocur argued the cause for respondent Watchung Hills Regional Education Association (Oxfeld Cohen, PC, attorneys; Samuel Wenocur, of counsel and on the brief).
John A. Boppert, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli-Carneiro, General Counsel, attorney; John A. Boppert, on the brief).
PER CURIAM
This appeal concerns whether reasonable limitations may be placed upon
the number of public employee union members who may attend and participate
in contract negotiations with a public employer.
The Watchung Hills Regional High School District Board of Education
("the Board") appeals from an October 26, 2023 final agency decision of the
Public Employment Relations Commission ("PERC"), finding the Board
violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1
to -64, ("EERA" or "the Act") when it declined to negotiate with the "Bargaining
A-1151-23 2 Council" of the Watchung Hills Regional Education Association ("the Union"),
the majority representative of its employees.
As structured by the Union, the Bargaining Council is comprised not only
of negotiators at the bargaining table with the Board's representatives , but also
the entire rank-and-file membership of the Union. That rank-and-file
membership in this case consists of over two hundred employees.
After the Union insisted on negotiating with the Board in the presence of
up to all of the members of its Bargaining Council, the Board filed with PERC
an unfair labor practice charge against the Union. The Board argued the Union
violated N.J.S.A. 34:13A-5.4(b)(1), (3), and (5) by refusing to negotiate without
the full Bargaining Council present and rebuffing the Board's proposed "ground
rule" for the parties to collectively bargain with only their negotiators present.
The Union filed a cross-charge alleging the Board engaged in an unfair
labor practice and violated N.J.S.A. 34:13A-5.4(a)(1) and (5) when it refused to
bargain with the Union's full Bargaining Council and, in doing so, violated its
employees' right to choose who will represent them at negotiations.
After considering the issues based on stipulated facts presented by the
parties, PERC found the Board violated N.J.S.A. 34:13A-5.4(a)(1) and (5) by
being unwilling to negotiate with the Union's entire Bargaining Council. PERC
A-1151-23 3 concluded that unwillingness constituted an unfair labor practice. Reciprocally,
PERC dismissed the Board's unfair labor practice charges against the Union.
In its final agency decision, PERC ordered the Board to engage in good
faith negotiations with the Union in the presence of its Bargaining Council.
However, PERC explicitly recognized in its decision the "possibility that such
large numbers of people in a negotiation session could become problematic
. . . ." Such problems could arise "both as a practical matter (in terms of
accommodations as well as safety and security), and in the event the [Union's
bargaining] group becomes disruptive, otherwise demonstrates ill will or fails to
observe confidentiality ground rules." Although it noted such problems had not
yet sufficiently materialized, PERC "caution[ed] . . . [the Union] [to] continue
to remain open to reasonable restrictions on the deployment of its Bargaining
Council in negotiations, as well as to ground rules that will reasonably maintain
effective negotiations when large negotiations teams are present."
The present appeal by the Board followed. The Board contests both
PERC's rejection of an unfair practice committed by the Union and its finding
of an unfair practice on the part of the Board. In the meantime, as we were
advised at oral argument, the negotiations proceeded, and an agreement was
achieved in the underlying matter.
A-1151-23 4 For the reasons that follow, we affirm PERC's decision in part and vacate
it in part. We conclude that neither the Union nor the Board engaged in an unfair
labor practice in the circumstances presented. The question of whether
reasonable restrictions or ground rules may be placed on the number of Union
bargaining representatives who may participate in a contract negotiation is not
the subject of any PERC regulation, nor has it been a holding of any published
judicial opinion. The Board did not act in bad faith in bringing this unsettled
legal issue to the attention of PERC, just as the Union likewise did not act in
bad faith by cross-moving for such a PERC determination. The legitimacy of
the Board's concerns about the numerosity of Union members at the negotiating
table were, in fact, acknowledged in PERC's decision. Given the uncertainty
and novelty of the issue, the unfair labor practice determination against the
Board should, in all fairness, be vacated and the denial of the charge against the
Union affirmed. The order directing the Board to negotiate with the Bargaining
Council is now moot. Malanga v. Twp. of W. Orange, 253 N.J. 291, 307 (2023)
(reaffirming the doctrine of mootness pertains where the ruling sought will have
"no practical effect on [an] existing controversy").
That said, we agree with PERC's admonishments in its decision to
encourage parties to agree to reasonable ground rules or restrictions on the
A-1151-23 5 number of participants in the negotiations process. We specifically urge PERC,
going forward, to engage in an administrative rulemaking process, with notice
and comment from interested parties, and promulgate regulations that address
such situations. As part of its consideration of such proposed regulations, we
respectfully suggest that PERC identify methods for the possible selective
"livestreaming" of negotiations that would promote transparency and enable all
members of the Union to observe the bargaining process remotely, subject to
confidentiality limitations.
I.
The following facts were jointly stipulated to by the Board and the Union.
We mention only those that are most germane to our discussion.
The Board is a public employer, "within the meaning of the [EERA]" and
operates Watchung Hills Regional High School. The high school serves as the
public high school for Greenbrook, Long Hill, Warren, and Watchung residents.
The Union serves as the representative for the Board's professional staff. At the
time of the collective bargaining negotiations relevant to the matter before this
court, the Union represented "approximately 225 Board employees, including
but not limited to teachers, secretaries, paraprofessionals, bus drivers, nurses,
A-1151-23 6 security personnel, child study team members, counselors, and buildings,
grounds and maintenance staff."
The Board and the Union had a collective negotiations agreement
("CNA"), which covered the contract period of July 1, 2019, to June 30, 2022.
When the Board and the Union negotiated for the 2019 to 2022 CNA, the Union
first implemented and started using a "Bargaining Council." The Union's
negotiations committee became "comprised of two parts: the [full] Bargaining
Council and the individuals at the bargaining table directly across the Board at
bargaining sessions ('Negotiators')." Although the Union's Bargaining Council
"was comprised of, and open to, all [Union] members," it was closed to non-
Union members.
When negotiating with the Board over the 2019 to 2022 contract, the
Union wanted to have up to all Bargaining Council members present at
negotiations. The parties stipulated to there being "at least one occasion during
the negotiations for the 2019 [to] 2022 CNA the Bargaining Council attended
the bargaining session."1
1 The record does not reveal an exact or stipulated number of the Bargaining Council members who had been present for this negotiation session. In its decision, PERC relied upon a news article submitted by the parties in their joint exhibit, which reported that over fifty Union Bargaining Council members were
A-1151-23 7 After the Bargaining Council was present for one of the negotiation
meetings, the Board and the Union "agreed to meet in a smaller setting in an
effort to expeditiously reach a successor agreement." The Board and the Union
also agreed to negotiate only salary and health benefits during the "smaller
setting" meeting and exclude legal representatives from both parties.
In the fall of 2019, the Board and the Union came to an agreement and
executed the 2019 to 2022 CNA. No unfair labor practices were filed by either
party during the period of the 2019 to 2022 negotiations.
Thereafter, in October 2021, the Board and the Union began discussions
to start the negotiations process for a successor CNA for the next contract
period. Between the ratification of the 2019 to 2022 CNA in the fall 2019 and
the start of successor agreement negotiations in October 2021, the Board and the
Union did not discuss "the scope of the Bargaining Council's involvement in the
negotiations for the successor CNA." The parties tentatively scheduled the first
negotiation session to discuss the successor agreement for November 10, 2021.
present. This article is included in the record before this court . We have considered remanding the appeal to have PERC settle the record on the number of members who had been present at that past session, but forego such a remand in the interests of expediency. A-1151-23 8 In October 2021, the Union's negotiations chair informed the Board's
negotiations chair of the Union's plan to have the negotiations sessions available
to all Bargaining Council members who wished to attend. The Board
negotiations chair objected to having to negotiate with a group of that size.
The disagreement persisted. On November 9, 2021, the Board
negotiations chair communicated to the Union negotiations chair the Board's
intention to propose a ground rule that would prohibit "the Bargaining Council
from being present at and participating in the negotiations sessions for the
successor agreement." The parties could not agree on whether the Bargaining
Council could be present for negotiations. Due to that ongoing disagreement,
the parties postponed the November 10, 2021 negotiation session t o provide
more time for the parties to come to an agreement regarding the Bargaining
Council's presence at negotiations sessions.
On December 8, 2021, the Union and the Board agreed to have designated
representatives of both parties meet to "discuss ground rules, including the role
of the Bargaining Council during negotiations sessions." For this limited event,
the Union agreed to not have the Bargaining Council present for the December
8, 2021 meeting only.
A-1151-23 9 During the December 8, 2021 meeting, the Board "maintained its position
that the [Union's] Bargaining Council should not be allowed to attend the
negotiations sessions." The Union disagreed, and contended "it had the right to
include its Bargaining Council members at negotiations sessions." At the
December 8, 2021 meeting, the Board and the Union "exchanged numerous
proposals regarding the Bargaining Council or alternatives, but were unable to
agree to any solution at this meeting." Meanwhile, as to the substance of the
negotiations, the parties concluded the meeting with an agreement to exchange
successor contract proposals by the end of January 2022.
In January 2022, the Board filed with PERC an unfair labor practice
charge against the Union. In turn, the Union filed a cross-unfair labor practice
charge against the Board in February 2022.
On June 15, 2023, the Board and the Union filed with PERC a joint
stipulation of facts. The parties also agreed to submit the consolidated matters
to the full PERC for a final agency decision and waive "a hearing examiner's
report and recommended decision."
On October 26, 2023, PERC issued a final agency decision and order. In
that ruling, PERC concluded the Board had violated N.J.S.A. 34:13A-5.4(a)(1)
A-1151-23 10 and (5). PERC conversely dismissed the Board's unfair practice charge against
the Union.
In its ruling PERC explained "our decision today is not intended to
endorse or discourage 'open' collective negotiations, as defined by [the Union]
. . . . [W]e find that its practice, when carried out in accordance with good faith
and within the boundaries of the Act, is not inherently an unfair practice." PERC
found the "record contains no persuasive evidence substantially implicating
conflict of interest, ill-will, or safety and security concerns in connection with
the [Union's] designation of the Bargaining Council as part of its negotiations
team" and "no evidence suggesting Bargaining Council members are mere
passive observers of the negotiations process, as opposed to active participants
in it."
PERC accordingly ordered the Board to refrain from refusing to negotiate
with the Union in good faith in the presence of its Bargaining Council over
"mandatorily negotiable subjects, including over negotiations ground rules
respecting the presence of the [Union's] Bargaining Council during negotiations
sessions."
Nevertheless, PERC included several caveats within its decision, which
we quote here at length:
A-1151-23 11 We do not underestimate the possibility that such large numbers of people in a negotiation session could become problematic, both as a practical matter (in terms of accommodations as well as safety and security), and in the event the group becomes disruptive, otherwise demonstrates ill will or fails to observe confidentiality ground rules. But we find that those issues have not yet materialized in a manner that would support a good faith refusal to negotiate on the part of the Board, based on the stipulated record before us. Our decision today is limited to that record.
Significantly, we note the [Union's] demonstrated willingness (in the last round of negotiations) to negotiate without the presence of its Bargaining Council if necessary, and its certified willingness to set ground rules pertaining to the maximum size of the Bargaining Council and the number of sessions it may attend in current negotiations. We caution that the [Union] should continue to remain open to reasonable restrictions on the deployment of its Bargaining Council in negotiations, as well as to ground rules that will reasonably maintain effective negotiations when large negotiations teams are present.
Our decision also does not preclude the Board, going forward, from asserting any good faith challenges during the parties’ negotiations if actual evidence arises of conflict of interest or ill-will, breach of confidentiality, or concerns over safety and security in connection with the [Union's] use of its Bargaining Council.
[(Emphases added).]
A-1151-23 12 This appeal by the Board followed. We were advised for the first time at
oral argument that the parties have successfully negotiated a CNA for the
contract period. As such, PERC's mandatory injunction against the Board is
now moot. We therefore limit our discussion, retrospectively, to the unfair
practice determinations.
II.
The issues presented here involve both questions of statutory
interpretation and operational subject matters within the expertise of PERC. We
review the statutory issues, de novo, as questions of law. In re Cnty of Atl., 445
N.J. Super. 1, 11 (App. Div. 2016), aff'd on other grounds sub nom. Matter of
Cnty. of Atl., 230 N.J. 237 (2017). We review the operational questions with
deference to the agency, assessing whether its decision is arbitrary, capricious,
or unreasonable. City of Jersey City v. Jersey City Police Officers Benev. Ass'n,
154 N.J. 555, 566–67 (1998).
The specific legal question of whether a public employee Union may
designate a large "Bargaining Council" (consisting here of over two hundred
employees) to participate in contract negotiations with an employer's
negotiating team is not squarely addressed in the pertinent statutes , nor for that
matter, in any existing PERC regulations.
A-1151-23 13 To be sure, as PERC acknowledged, there is a general and important legal
right of a Union to choose what the statutes term its "representatives." N.J.S.A.
34:13A-5.3 (providing that "representatives" are designated or selected by a
majority of public employees for the purposes of collective negotiations). The
employer cannot pick and choose which subset of Union members it will
negotiate with at contract bargaining sessions. The Board has not asserted a
right to make such a selection. Instead, the Board asserts concerns about the
sheer number of Union members who will participate in the sessions, and
whether the enormous potential size of the Bargaining Council—over two
hundred people—will be unwieldy and thwart the effective and orderly progress
of negotiations. By contrast, the governing body of the public employer may be
prevented by Open Public Meetings Act limitations from having a quorum or
more of its officials gather and take part in the sessions. N.J.S.A. 10:4-6 to -21.
As PERC expressly recognized in its decision, the Board has raised
numerous concerns about safety and security, confidentiality, and other
impediments that may arise if large numbers of the Union members are
permitted to take part in the negotiations. It is unclear, for example, whether
each of the two hundred or more Union members "participating" in the session
would have the prerogative to speak out at the bargaining sessions at all times.
A-1151-23 14 Would each employee, as a member of the Bargaining Council, have an
individual right to demand that certain contract proposals be scuttled or
advanced, even if the Union's negotiating team has a contrary strategy or
position? How would order and confidentiality be maintained? If the sessions
become unruly or disruptive would the Board be able to have disruptive Union
members excluded from the room? Would PERC be available to intercede
promptly on an application for emergent relief?
On the other hand, PERC's decision also expressly recognizes the
importance of transparency, and, subject to confidentiality restrictions,
providing an opportunity to members to see and hear how negotiations are
conducted and whether their chosen Union leaders are carrying out their duty of
fair representation.
These legitimate operational concerns are within the expertise of PERC
as an administrative agency to address. It is not our role as a court to micro-
manage the negotiations process. Although PERC did not see evidence in the
present record that operational problems about the size of the Bargaining
Council had yet arisen, PERC also recognized that reasonable limitations on the
full rank-and-file's participation at bargaining sessions may prove to be
warranted. Like PERC, we do not discern that the statutory scheme forbids such
A-1151-23 15 reasonable limitations when they may be appropriate. State v. Harper, 229 N.J.
228, 237–38 (2017) (expressing the well-established principle that courts should
strive to construe statutes in a sensible fashion that give meaning to all of their
provisions).
In that vein, we therefore urge PERC to consider promulgating
administrative regulations that address these legitimate concerns, and which
may guide public employers and public employee unions in future bargaining
sessions. Such regulations may be considered through the notice-and-comment
process authorized by N.J.S.A. 52:14B-4 and N.J.A.C. 1:30-1.1 to -6.7. With
respect to transparency concerns, we respectfully suggest that PERC consider
whether the "livestreaming" of select portions of bargaining sessions may be a
practical solution that could enable Union members to monitor the events at the
sessions remotely without being physically present. We take no position on the
substance of such possible regulations and render no advisory opinion. G.H. v.
Twp. of Galloway, 199 N.J. 135, 136 (2009) (disfavoring advisory opinions by
courts).
We finally turn to PERC's declaration of an unfair labor practice on the
part of the Board. Relevant to this appeal, the EERA defines "unfair practice"
to include:
A-1151-23 16 (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.
....
(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.
[N.J.S.A. 34:13A-5.4(a).]
In assessing whether conduct constitutes an unfair practice, the totality of the
evidence proffered and the competing interests of the public employer and the
Union should be considered. Matter of Bridgewater Twp., 95 N.J. 235, 244
(1984) (citing Matter of E. Orange Pub. Library, 180 N.J. Super. 155, 160 (App.
Div. 1981)); In re Bd. of Fire Comm'rs, 443 N.J. Super. 158, 174 (App. Div.
2015).
The record in this case does not reflect bad faith or anti-union bias by the
Board. Both the Board and the Union took reasonably viable positions about
whether the full membership of the Bargaining Council may be permitted to
attend and actively participate in all of the contract negotiations. Both sides
petitioned and cross-petitioned to have PERC resolve the novel questions
presented. We discern no bad faith on the part of either side in seeking the
A-1151-23 17 agency's guidance, not unlike a litigant who brings in good faith a case in the
Superior Court under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62.
Although PERC found the Board's concerns to be premature, the extensive
caveats set forth in its decision reflect a recognition that those concerns stem
from legitimate considerations. Given the circumstances, we conclude it was
unreasonable to declare the Board's actions to comprise an unfair labor practice.
Of course, if the Board had defied PERC's guidance and continued to refuse to
meet with the Bargaining Council, that would have justified a finding of an
unfair labor practice.
In sum, we affirm the agency's denial of the unfair labor practice charge
against the Union and vacate its unfair practice charge against the Board, subject
to the caveats wisely expressed in the final agency decision.
Affirmed in part and vacated in part.
A-1151-23 18