July 2003

Q. What are the new procedures now required by law?

The new law prohibits boards of education from implementing their last best offer if post-factfinding negotiations fail to produce a negotiated agreement. Under the new law, boards of education and their employee unions who cannot reach a negotiated settlement during mediation are now required to proceed to factfinding. If the factfinding process does not result in a settlement, then the parties are required to proceed to super conciliation. The law also requires the public release of factfinders’ and super conciliators’ reports 10 days after the neutrals’ recommendations are received by the parties.

Q. Do either the factfinder or the super conciliator have the authority to issue recommendations that are binding on the parties?

No. The recommendations of the neutrals remain advisory. The responsibility to reach a final agreement and a binding contract continues to belong to the parties.

Q. Does the new law apply to ongoing negotiations that are currently at impasse?

Yes. The new law was signed on July 10 and went into effect immediately. Therefore, it applies to all negotiations that were at impasse on that date. It also applies to any other set of ongoing face-to-face negotiations that may experience impasse after the law’s enactment.

Q. Must we now release a factfinder’s report that was received several weeks before the effective date of the law? We are now in post-factfinding negotiations, and have far exceeded the law’s time lines for public release of the document.

This issue is open to different interpretations that will need to be clarified by the Public Employment Relations Commission (PERC). The immediate effect of the law would seem to suggest that the intent of the legislature was to make all factfinders’ report public documents. However, at this point, it is unclear whether the clearly defined time lines for release of the factfinder’s report (10 days after the parties’ receipt of the recommendations) will be read to apply the law only to reports issued after the adoption of the law.

PERC is currently in the process of developing regulations to clarify and administer the law. We expect that this issue may well be addressed by the Commission either through its rule-making process or through subsequent litigation. Until then, local boards can determine how they wish to proceed.

In assessing your options, keep in mind that PERC’s prior decisions seem to typically favor a liberal interpretation of its rules and is likely to rely on legislative intent. Also, consider the possible public relations complications of withholding from the community a report that has been declared a public document.

Q. Our Association rejected the factfinder’s report and we have just started post factfinding negotiations. If we are unable to reach agreement, are we required to go to super conciliation?


Q. How do we proceed to super conciliation? Will PERC contact us to initiate the process?

PERC’s rules and regulations are expected to include procedures for the parties to follow to file a request for the assignment of a super conciliator. Given the direction of all other PERC procedures, it is expected that PERC will not police local negotiations to be the initiator of stages in the impasse process. Rather, we anticipate that PERC will expect the parties to notify the Commission of continued deadlocks in accordance with its regulations. As with other earlier impasse procedures (mediation and factfinding), it is expected that PERC will develop forms, time lines, and other procedures to control and govern the conduct of super conciliation.

Until PERC’s adoption of new rules, districts that wish to initiate super conciliation may write to PERC and request the appointment of a super conciliator. PERC can be reached at 609-292-9898 by mail at P.O.Box 429, Trenton, New Jersey 08625-0429.

Q. Who pays for the neutrals’ services?

The cost of mediation is paid by the Public Employment Relations Commission. (PERC). The parties have traditionally split the cost of factfinding.** It is expected that PERC’s upcoming regulations will address the payment of the superconciliator’s fees.

** PERC’s current rules (N.J.A.C.19:12-4.3 provide that the cost of the factfinder "shall be borne by the Commission unless mandated otherwise by subsequent legislation." Since the State’s budget has never included funds for factfinding, the costs has always been the parties’ responsibility.

Q. Can the super conciliator force an agreement upon us?

No. The the super conciliator provides advisory recommendations. The board remains accountable for the terms of its settlement

Q. How does this law limit what boards can do during a negotiations impasse?

Prior to this law, New Jersey boards like many other public employers in New Jersey and throughout the nation, had the right to impose their last, best offer if and when they reached a "genuine impasse" - - that is, after engaging in good-faith negotiation, mediation, fact finding, and post factfinding negotiations, the parties were still unable to reach an agreement. This right no longer exists for New Jersey boards.

Under the law, both the reports of factfinders and super conciliators must be made public. Public release is required to occur ten days after the reports are received by the board and the union.

Otherwise, this law does not in any way change boards’ rights and obligations during a negotiations impasse. Boards can still continue to enforce an "expired" agreement. Boards still cannot make unilateral changes in terms and conditions of employment. However, nothing in the new law changes the holding that boards are still not authorized by school law to enter into salary policies that extend beyond three years and still cannot pay increments upon the expiration of a three year contract which covers a unit which includes teaching staff members.