Is your board of education preparing for successor contract negotiations? What if the education association designates a “bargaining council” – which is open to all members of the education association – as a member of its negotiations committee, and intends to have its “bargaining council” present for negotiations sessions?

A recent decision issued by the Public Employment Relations Commission found that a board of education’s refusal to meet and negotiate with the education association in the presence of its bargaining council violated multiple provisions of the New Jersey Employer-Employee Relations Act.

Although PERC acknowledged that, historically, there was a “practical basis” for not using large negotiations teams, it found that the practice of “open negotiations,” which brings the entirety (or a large number) of the union’s membership into the bargaining process, is not inherently an unfair practice “when carried out in accordance with good faith and within the boundaries of the Act.” More specifically, absent evidence of a conflict of interest, “persuasive evidence” of ill will, breach of confidentiality and/or safety or security concerns, neither a public employer nor employee organization may dictate or challenge the other’s choice of its negotiations representatives, including the number and/or identity of such representatives. In so holding, PERC held that neither the New Jersey Constitution nor the act “place express limitations on the size of a party’s collective negotiations team.”

In finding that the board of education violated 5.4a(1) and (5) of the act when it attempted to limit who could serve on the education association’s negotiations team, PERC found the following facts, among others, as persuasive: The education association designated its bargaining council as part of its negotiations team/committee; the bargaining council is only open to members of the education association; the bargaining council was present for at least one bargaining session during the parties’ previous contract negotiations (a few years prior); neither the board of education nor the education association filed an unfair practice charge in connection with those negotiations – and the parties were able to reach a settlement; there was no evidence that members of the bargaining council would be passive observers (and, in fact, they were active participants in the previous negotiations); there were no facts suggesting that the size of the education association’s negotiations team (or its potential size), standing alone, rendered it unable “to act for and to negotiate agreements covering all employees in the unit”; and the education association demonstrated “willingness (in the last round of negotiations) to negotiate” without the bargaining council if necessary, and certified it was willing “to set ground rules pertaining to the maximum size of the [‘b]argaining [c]ouncil]’] and the number of sessions it may attend in current negotiations.”

PERC additionally cautioned that the education association “should continue to remain open to reasonable restrictions on the deployment of its [‘b]argaining [c]ouncil[’] in negotiations, as well as to ground rules that will reasonably maintain effective negotiations when large negotiations teams are present.”

In preparing for successor contract negotiations, boards of education should consult with their board attorney on how to navigate a request from the education association to have all, or nearly all, of its members present at negotiations sessions.

For further information about this matter, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.