Answers: PERC AND ITS JURISDICTION

What is PERC?

The Public Employment Relations Commission (PERC or Commission) is a State administrative agency. It is charged with administering the New Jersey Employer-Employee Relations Act. The agency deals with certain labor relations issues involving public employers, public employees, and unions that represent public employees. Such issues include representation matters, the scope of negotiations, unfair practices, mediation, fact-finding and arbitration.

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Am I covered by PERC’s jurisdiction?

PERC’s jurisdiction is limited to certain public sector employees. Private sector employees, such as those employed by private hospitals, factories, or corporations, are governed by the National Labor Relations Act. Alleged violations of the National Labor Relations Act must be filed with the National Labor Relations Board, the federal agency charged with enforcing private sector labor relations. 1-866-667-NLRB (1-866-667-6572) or http://www.nlrb.gov

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What public sector employees are covered by the PERC statute?

PERC has jurisdiction over the following types of public employers: The State of New Jersey, counties, municipalities, local public school districts and charter schools, public colleges and universities, and autonomous agencies, authorities, boards and commissions.

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Does PERC’s jurisdiction extend to employees of New Jersey Transit or any bi-state agencies?

PERC has jurisdiction over New Jersey Transit bus and light rail operations and New Jersey Transit police. It does not have jurisdiction over New Jersey Transit Rail or any bi-state agencies. You may wish to contact them for further information: New Jersey Transit Rail http://www.njtransit.com, The Port Authority of New York and New Jersey http://www.panynj.gov, The Waterfront Commission of New York Harbor http://www.waterfrontcommission.org, The Delaware River Port Authority of Pennsylvania and New Jersey http://www.drpa.org, The Delaware River and Bay Authority http://www.drba.net, The Delaware River Joint Toll Bridge Commission http://www.drjtbc.org.

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Does PERC investigate allegations of race, gender, sexual orientation or religious discrimination?

No. PERC has no jurisdiction to enforce statutes regarding discrimination based on gender, sexual orientation, race, or religion. Allegations such as these are considered by the New Jersey Division on Civil Rights609-292-4605 or http://www.state.nj.us/lps/dcr and/or the federal Equal Employment Opportunity Commission 1-800-669-4000 or http://www.eeoc.gov. Such claims may also be the subject of a State or federal lawsuit.

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What types of allegations does PERC review?

The PERC statute does not prohibit all acts of perceived unfairness or discrimination against covered employees; rather, PERC's jurisdiction is limited to resolving claims of unfair practices. For example, PERC has jurisdiction to consider claims by an employee organization that the employer has failed or refused to negotiate in good faith or has interfered with employee organization rights granted by the statute. Also, an individual employee may file an unfair practice charge alleging that the employer or the employee organization representing him or her has discriminated against the employee in retaliation for protected activity under the Act, or has interfered with rights guaranteed by the Act. An employer may also file a charge against a union, alleging, for example, that the union failed to negotiate in good faith.

Return to Top What is the obligation to negotiate in good faith?

The PERC statute requires that proposed new rules or modifications of existing rules governing working conditions be negotiated before they are established. During negotiations, neither party is required to agree to a proposal of the other. But there must be a willingness to negotiate the issues with an open mind and a sincere desire to reach an agreement.

Return to Top What is the duty of fair representation?

When an employee organization is selected to represent employees in a negotiations unit, it becomes the majority representative of all employees, including those who have declined to become members of that organization. It is obligated to represent all employees in the negotiations unit fairly in negotiations and contract administration. A breach of the duty of fair representation occurs when a majority representative’s conduct toward a negotiations unit member is arbitrary, discriminatory or in bad faith. An employee may file an unfair practice charge with PERC or a lawsuit in court alleging that a majority representative has breached theduty of fair representation.

Return to Top Should I contact PERC if I need help with a pension or benefits problem?

No. Generally, public employees needing help with pension or benefits issues should contact the New Jersey Division of Pension and Benefits (609) 292-7524 or http://www.state.nj.us/treasury/pensions.

Return to Top Should I contact PERC if I am having a problem with pay or overtime issues?

If you work for a private employer and are having problems with your employer regarding payment of wages, overtime issues, holiday pay or other pay issues, you may contact the New Jersey Department of Labor & Workforce Development - Division of Wage and Hour Compliance. http://www.state.nj.us/labor/lsse/lsgenfaq.html. If you work for a public employer, you may contact the Federal Wage and Hour Division http://www.dol.gov/esa. Some pay and overtime issues are set by a union contract. If you work in a job that is represented by a union, you may want to first bring your problem to the attention of the union.

Return to Top May I bypass PERC and allege a violation of the PERC statute in State or federal court?

Generally no. The PERC statute expressly grants PERC exclusive jurisdiction over unfair practice charges and their remedies. As such, a determination as to whether a charge is justified is normally a matter within PERC’s exclusive jurisdiction.

Return to Top PERC AUTHORITY Does PERC enforce collective negotiations agreements?

No. PERC does not enforce agreements between employers and unions and will not issue a complaint on any charge alleging a mere breach of such an agreement. Contracts are generally enforced through negotiated grievance procedures. A repudiation of a contract may constitute an unfair practice and, in those cases, a complaint may issue.

Return to Top How does PERC remedy or correct violations of the PERC statute?

PERC has broad discretion to take action and issue orders as necessary to effectuate the purposes and policies of the statute it administers. Such remedies may include orders for back pay, orders for reinstatement of employees terminated for union activity, removal of disciplinary materials from personnel files, cessation of dues deductions, and disclosure of relevant information. Additionally, PERC is authorized to seek court enforcement of any of its subpoenas, rulings, orders or decisions. However, PERC has no specific statutory authority to grant punitive damages.

Return to Top Does PERC award attorney’s fees?

PERC does not have specific statutory authority to award attorney’s fees and costs.

Return to Top Does PERC enforce grievance arbitration awards?

No. PERC does not have the authority to enforce grievance arbitration awards. However, it may be an unfair practice for an employer to refuse to comply with an arbitration award. Under certain circumstances, PERC has discretionary jurisdiction to review a settlement or arbitration award solely for the purpose of determining whether to defer to its ruling rather than decide a related issue in an unfair practice proceeding.

Return to Top What role does PERC have in deciding whether I belong to a union?

PERC has the authority to determine the composition of negotiations units, to conduct an election if necessary to determine the will of the majority of unit employees, and, if an employee organization is chosen, to certify it as the exclusive representative of employees in the unit.

Return to Top What New Jersey public employees can form or belong to a union?

A public employee is any person employed by a public employer except elected officials, members of boards or commissions, managerial executives, and confidential employees.

Return to Top What are managerial executives?

In the case of the State of New Jersey, managerial executives are persons who formulate management policies and practices, but not persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in the case of the Executive Branch of the State of New Jersey, “managerial executive” includes only personnel at or above the level of assistant commissioner. In the case of any public employer other than the State of New Jersey, managerial executives are persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.

Return to Top What are confidential employees?

Confidential employees include employees whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties. Confidential employees of the State of New Jersey are employees who have direct involvement in representing the State in the collective negotiations process making their membership in any appropriate negotiating unit incompatible with their official duties.

Return to Top Can supervisors join a union?

Supervisors - employees with the power to hire, discharge, discipline, or to effectively recommend those actions - may form or join a union. However, except in some cases involving mixed units of supervisors and non-supervisors that existed before the passage of the PERC Act in 1968, PERC will grant requests to place supervisors and non-supervisors in separate negotiations units.

Return to Top Who can form a union?

A group of public employees can form a union and become an exclusive majority representative. They need not be members of a larger organization.

Return to Top How does a union become a majority representative?

If a majority of employees in a proposed unit express support for a particular employee organization, the public employer may recognize that organization as the exclusive representative without PERC intervention. If a majority of employees in a unit sign authorization cards, and only one union seeks to represent them, the employees may petition PERC to be certified as the exclusive representative by card check. If a group of employees or a union files a representation petition with an adequate showing of interest, PERC is authorized to conduct a secret ballot election to determine if an organization received a majority of the valid ballots cast.

Return to Top STATUTE OF LIMITATIONS IN UNFAIR PRACTICE CASES What is the statute of limitations for filing unfair practices under the PERC statute?

The statute requires that an unfair practice charge be filed within six months of when the unfair practice occurred, unless the charging party was prevented from filing a timely charge.

Return to Top When does the statute of limitations begin to run?

In general, the limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge.

Return to Top How is the statute of limitations calculated in duty of fair representation cases?

In cases alleging a breach of the duty of fair representation by an employee organization, the statutory limitations period begins to run on the date when the charging party knew or should have known that further assistance from the union was unlikely.

Return to Top FILING DOCUMENTS WITH PERC When is a document considered “filed” by PERC?

All documents shall be considered “filed” when the original and the required number of copies, if any, are actually received by the PERC office in Trenton. Documents received after 5:00 p.m. will be considered “filed” on the next business day.

Return to Top May I file documents with PERC via facsimile?

Yes. All documents, except showings of interest in certification and decertification cases, Petitions to Initiate Compulsory Interest Arbitration, Appeals of Interest Arbitration Awards, and Requests for Special Permission to Appeal Interest Arbitration Rulings, and briefs and appendices in Appeals of Interest Arbitration Awards may be filed by fax. A party filing documents by facsimile must retain all original filings because originals must be produced upon request.

Return to Top May I file documents by email?

All correspondence and submissions, such as briefs and motions, may be sent to mail@perc.state.nj.us as an attachment to an email. Initial filings, except Petitions to Initiate Compulsory Interest Arbitration and Appeals of Interest Arbitration Awards, as well as Answers, certifications and affidavits may be submitted by email attachment so long as the signature page is scanned and submitted as part of the filing. However, all original filings and submissions shall be retained by a filing party in its file. Such originals shall be produced upon request. Email may also not be used for briefs and appendices in Appeals of Interest Arbitration Awards.

Return to Top May I file an unfair practice charge on-line?

No. The charge form and other PERC forms are available on the PERC web site and can be filled out on a user’s screen before being printed, but charges and other case documents cannot be filed on-line at the present time.

Return to Top What is “Proof of Service”?

“Proof of Service” is a document that demonstrates that the person signing the Proof of Service served the materials on all other parties. Failure to provide a Proof of Service may result in delays in the processing of your charge or petition, or dismissal of the matter.

Return to Top FILING AN UNFAIR PRACTICE CHARGE Can an individual employee file an unfair practice charge alleging that an employer and/or an employee organization has violated provisions of the Act?

Yes. An employee can file a charge against an employer and/or an employee organization alleging that the employee’s rights were violated. However, individual employees do not have standing to allege that an employer changed a policy in violation of a collective negotiations agreement, or that the employer failed to negotiate with the union in good faith, or allege violations of statutory provisions that protect the collective negotiations rights of employee organizations.

Return to Top May I file a charge against my supervisor?

No. An unfair practice charge must name the employer (or employee organization) as the respondent. Charges may not be filed against an individual manager (or union representative), or a co-worker, but may refer to that person in the statement of facts constituting the alleged unfair practice.

Return to Top May I make an appointment with a PERC agent to assist me in completing my unfair practice charge form?

No. PERC is a neutral state agency charged with enforcing the public sector labor relations statute. As such, PERC agents may not provide you with legal assistance or advice in completing your forms. However, if you have a general question regarding procedures or completion of the charge form, you may contact PERC either in person or by telephone and ask for the Information Officer.

Return to Top What additional information should be attached to an unfair practice charge?

All factual allegations must be contained in a clear and concise statement of the facts constituting the alleged unfair practice. The facts must be included as a narrative in the charge itself. A Charging Party may not merely rely on other documents attached to the charge, but may present documents to support the charge if the case goes to hearing.

Return to Top Do I need an attorney to file an unfair practice charge?

No. While a Charging Party is free to seek legal representation, it is not required by PERC at any stage of the proceedings.

Return to Top How many copies must I send to PERC when I file an unfair practice charge?

Any party filing an unfair practice charge or an amended charge by mail must file the original and four copies. When filing by fax, the requirement to file copies is waived.

Return to Top PROCESSING AND ADJUDICATION OF AN ALLEGED UNFAIR PRACTICE CHARGE What does the PERC unfair practice process entail?

After a charge is filed, it is reviewed to determine if all filing requirements were met. If they were not, the Charging Party will be given an opportunity to correct the filing. If it is not corrected within the time frame provided, the charge will be dismissed. If it is corrected, the charge will normally be assigned to a staff agent who will attempt to resolve the matter through telephone calls, written communication, and/or an in person conference. If the charge cannot be resolved, it will be referred to the Director of Unfair Practices to determine further processing options which can include deferral to arbitration, dismissing the charge, or sending it to a formal hearing. If the allegations in the charge, even if true, would not constitute an unfair practice, the Director may send a letter to the Charging Party indicating the Director’s intent to refuse to issue a Complaint and to dismiss the charge. If the Director sends such a letter, the Charging Party will have approximately seven days to amend the factual allegations in the charge or to submit a statement as to why a Complaint should issue. After that seven-day period and after reviewing any response, if the Director still believes that no Complaint should issue, a Decision will issue refusing to issue a Complaint and dismissing the charge.

Return to Top When will I first be asked to come to the PERC office?

You will be asked to come to PERC only if an in person conference and/or hearing is scheduled.

Return to Top What is the Complaint and Notice of Hearing?

If the Director determines that the allegations in the charge, if true, may constitute an unfair practice, a Complaint and Notice of Hearing will issue. The Complaint explains that a formal hearing will be conducted and includes the name of the hearing examiner who will conduct the hearing. The Complaint may include a Notice scheduling a pre-hearing conference and/or hearing dates.

Return to Top What happens after a Complaint issues?

PERC rules requires that the Respondent file an Answer within tens days of service on it of the Complaint. The Answer must specifically admit, deny or explain each of the allegations in the Complaint. If no Answer is filed, the factual allegations in the Complaint will normally be deemed to be admitted to be true.

Return to Top Can I appeal the Director’s refusal to issue a Complaint?

A charging party has ten days to appeal that decision to the full Commission. A decision by the Director to issue a Complaint or to refuse to issue a Complaint on a portion of an unfair practice charge may not be appealed unless the Commission or the Commission Chairman grants special permission to appeal at that stage of the proceeding. Special permission will be granted only in extraordinary circumstances.

Return to Top How long does the processing of an unfair practice charge take?

Each case is unique and therefore a specific time frame cannot be provided. However, PERC will process cases as quickly as possible under the particular circumstances of each case. Some cases are processed and a conference completed within 60 to 90 days of filing, but other cases may take many months given the complexity of the issues, the requests and positions of the parties, and other factors. Should a formal hearing be necessary, such a hearing will normally begin within four months of the issuance of the formal Complaint and Notice of Hearing.

Return to Top THE UNFAIR PRACTICE HEARING What is the nature of a PERC hearing in an unfair practice charge?

Parties are entitled to a representative of their choice. The Charging Party bears the burden of proving its case. Parties may call witnesses and introduce documentary evidence. Witnesses testify under oath and may be examined and cross-examined. At the end of the hearing, parties may present oral arguments on the record or through post-hearing briefs. A hearing examiner presides over the hearing.

Return to Top What are the duties of a hearing examiner?

The hearing examiner, among other things, has the authority to: regulate the course and conduct of the hearing; grant or deny requests for subpoenas; hold conferences to frame issues; rule on objections, motions and questions of procedure; take evidence and rule on the admissibility of evidence; authorize the submission of briefs; and issue a Report and Recommended Decision.

Return to Top May I represent myself at a PERC hearing?

Yes. An individual may represent him or herself in all PERC proceedings. Witnesses can include yourself. If you appear pro se (without and attorney or representative) and choose to testify, your testimony can be in narrative form. You need not ask yourself questions.

Return to Top Do rules of evidence apply in PERC hearings?

The parties are not strictly bound by the rules of evidence used in the courts. Relevant evidence is admissible. Hearsay evidence is admissible, but it may not be sufficient by itself to support a factual finding. Immaterial, irrelevant or unduly repetitious evidence may be excluded. Statements made at a settlement conference are not admissible. The various rules of privilege apply.

Return to Top Are PERC hearings transcribed?

PERC hearings are transcribed by an official court reporter. Parties may purchase a transcript after the hearing for use in preparing written briefs or appealing the decision of the hearing examiner. If a party chooses not to purchase a transcript, he or she may review the transcript in the PERC office after making an appointment.

Return to Top Who has the burden of proof in an unfair practice hearing?

The Charging Party must prove the allegations in the complaint by a preponderance of the evidence to prevail. That means that you must convince the hearing examiner that it is more probable than not that the respondent committed an unfair practice.

Return to Top Does the hearing examiner render a decision immediately following the hearing?

No. Decisions typically are made after the hearing examiner reviews the entire record, including the transcripts of the hearing, exhibits and written briefs filed by the parties. Transcripts usually are available in two to three weeks after the hearing. In short uncomplicated cases, briefs may be submitted within in 30-60 days after the receipt of transcripts, but in multi-day and/or complex hearings, briefing may take several months.

Return to Top May a decision of a hearing examiner be appealed?

The decision of a hearing examiner is a recommended decision. Either party has ten days to appeal the decision by filing exceptions to the full Commission. If neither party files exceptions, the hearing examiner’s decision will become final and binding on the parties, unless the Commission notifies the parties within 45 days that the Commission will consider the matter further.

Return to Top FILING AN APPEAL WITH THE FULL COMMISSION When is an appeal to the full Commission due?

You may file an appeal of the hearing examiner’s decision by filing exceptions to the full Commission within ten days of receipt of the hearing examiner’s Report and Recommended Decision. Within five days of receipt of exceptions, any party that has not previously filed exceptions may file cross-exceptions and/or a response to the exceptions. The party filing the original exceptions has a right to respond to the cross-exceptions.

Return to Top How do I get an extension of time to file exceptions or a response before the full Commission?

Extensions of time must be received by the Commission before the due date for exceptions. The request must indicate the reason for the extension, the position of the other parties (if known), the amount of time needed and include proof of service of the request on the other parties. Where all parties consent, each party’s first request for an extension of time may be granted. Subsequent requests may be granted based on specific and substantial grounds establishing good cause, but will not necessarily be granted based solely on mutual consent.

Return to Top How do I file exceptions?

When filing exceptions to a Report and Recommended Decision, you must file an original and nine copies of exceptions and any brief in support of the exceptions. If you file by fax or email, the requirement to send copies is waived. Exceptions must specify each question of procedure, fact, law or policy to which an exception is taken; identify that part of the Report and Recommended Decision to which objection is made; designate by precise page citation the portion of the record relied on; state the ground for the exception; and include the legal authorities relied upon, unless they are set forth in a supporting brief.

Return to Top May I file a reply to a response?

Under most circumstances, a party may not file a reply to a response without permission of the Commission.

Return to Top May I withdraw my charge?

A Charging Party may withdraw its unfair practice charge at any time before the Respondent files its Answer to a Complaint. After that point, the Charging Party must have a request for withdrawal approved by the hearing examiner or the Commission.

Return to Top When will the Commission decide my case?

The Commission meets monthly. A notice that a case is scheduled to be decided is sent to the parties about one week before the meeting.

Return to Top How do I file a request for reconsideration?

After a Commission decision has been issued, a party may move for reconsideration. The motion must be filed within 15 days of service of the Commission decision and must be accompanied by proof of service of a copy on all other parties. Reconsideration will be granted only in extraordinary circumstances.

Return to Top How do I file a request for judicial review?

Commission decisions are final administrative decisions. Any appeal of a Commission decision must be filed with the Appellate Division of the Superior Court according to its rules. A request for a stay of a Commission decision pending court appeal should be filed with the Chairman who has the authority to deny stays and to grant stays until the next Commission meeting where an extension of a stay can be considered. http://www.judiciary.state.nj.us/appdiv/index.htm

Return to Top How do I find out the status of my case before PERC?

You may find out the status of your case by contacting the assigned staff agent, the office of the hearing examiner, or the office of the Commission.

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