Gail Oxfeld Kanef, Esq. (Bar ID 035131992) : Attorneys For Defendant, Montclair Education Association

ESX-C-000018-21 03/01/2021 02:49:24 PM Pg 1 of 44 Trans ID: CHC202139485
Gail Oxfeld Kanef, Esq. (Bar ID 035131992)

Oxfeld Cohen, P.C.
60 Park Place, 6th Floor
Newark, New Jersey 07102
Tel:(973)642-0161
Email: gok@oxfeldcohen,cpm
Attorneys for Defendant, Montclair Education Association
MONTCLAIR BOARD OF EDUCATION, SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION
Plaintiff, ESSEX COUNTY
V. DOCKET NO. C-18-21
MONTCLAIR EDUCATION CIVIL ACTION
ASSOCIATION,
Defendant.
BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY

INJUNCTION
Gail Oxfeld Kanef, Esq. (Of Counsel and On the Brief)

Randi Doner April, (On the Brief)
TABLES OF CONTENT
PRELIMLNARY STATEMENT
STATEMENT OF FACTS_AND PROCEDUAL HISTORY. .........................2
LAW AND ARGUMENT. ................................. ...................8
POINT I
PLAINTIFF DOES NOT HAVE A REASONABLE
PROBABILITY OF SUCCEEDING ON THE MERITS. ...9
POINTII
INJUNCTIVE RELIEF SHOULD BE WITHHELD
BECAUSE THE LEGAL MGHT UNDERLYING PLAINTIFF'S
CLAIM CLEARLY FAVORS REJECTING THE PLAINTIFF'S
APPLICATION. ...14
POINT III
THE BOARD CANNOT DEMONSTRATE THAT
INJUNCTIVE RELIEF IS NECESSARY IN THE MATTER
TO PREVENT IRREPARABLE HARM. ...18
A. The Employee Action in the Present Case Does

Not Constitute a Strike Under Federal Law. .21
B. The Employee Action in the Present Case Does

Not Constitute a Strike Under State Law. .23
POINT IV
A BALANCING OF THE RELATIVE HARDSHIPS FAVORS
THE ASSOCIATION. .24
POINT V
IN THE ALTERNATIVE, THIS COURT SHOULD STAY
1
THE PROCEEDINGS AND REFER THIS MATTER TO PERC,

WHICH HAS EXCLUSIVE JURISDICTION TO DECIDE
UNFAIR PRACTICE CHARGES FILED AGAINST EITHER
AN EMPLOYER OR AN EMPLOYEE ORGANIZATION AND
TO DETERMFNE WHETHER A COMPELLING THREAT TO
PERSONAL WELFARE EXISTS. 24
CONCLUSION. .......................................... ..................26
11
TABLE OF AUTHORITIES
CASES:
Bd ofEduc., Bar. of Union Beach v. New Jersey Educ. Ass'n,

53 N.J. 29 (1968).......................................................23,25,28
Burlington Cty. Evergreen Park Mental Hasp. v. Cooper,
56N.J. 579 (1970),. ......................................... ..................27
City ofHackensack v. Winner,
82 N.J. 1, 24 (1980) .........................................................27-28
Crowe v. De Gioia,
90N.J. 126, 133 (1982). ............................................ 11,17, 19-20, 26
Galloway Tp. Bd. ofEduc. v. Galloway Tp. Ass'n ofEduc. See'vs.,
78 N.J. 1, 9 (1978). ......................................................24,27-28
Gateway Coal Co. v. United Mine Workers,
414 U.S. 368 (1974) (quoting 29 U.S.C. § 143). .................................. 24-25.
Hodge v. Giese,
43 N.J. Eg. 342, 350 (Ch.1887)................................. .................20
Kaczmarek v. New Jersey Turnpike Authority,
77 N.J. 329, 337 (1978). ........................................................28
Maurice River Bd. ofEduc.,
P.E.R.C. No. 87-91, 13 NJPER 123 (^18054 1987). ......................... .11-12, 14, 28
Outdoor Sports Corp. v. A.F. of L., Local 23132,
6 N.J. 271,230(1951)......... . . .. . ... . ................................... .....20
Passaic Valley Ree'l High School Bd. ofEduc.,
I.R. No. 2021-10, 2020 N.J. PERC LEXIS 136 *20. ....................... ...........29
Paternoster v. Shuster,
296 N.J. Super. 544, 555 (App. Div.1997). ............................ .............20
Plotnick v. Delucia,
437 N.J. Super. 597, 612 (Ch. Div. 2013)..........................................20
Subcarrier Commc'ns, Inc. v. Day,
299 N.J. Super. 634, 638 (App. Div.1997). ........................ .................20
Ill
Sunbeam Corp. v. Windsor-Fifth Ave.,

14 N.J. 222, 233 (1953) 20
TNS, Inc.,
329 N.L.R.B. 602 (1999).......................................................24
Tu. of Franklin,
P.E.R.C. No. 85-97, 11 NJPER224 (^ 16087 1985).................................. 12
Union Cty.,
P.E.R.C. No. 84-23, 9NJPER 588 ^14248 1983).
.12
STATUTES AND REGULATIONS:
N.J.A.C. 6A:16-2.1............................................................8
N.J.S.A.18A:7F-9. ............................................................19
N.J.S.A. 34:13A-5.13(f) .................................. ......................29
N.J.S.A. 34:13A-5.4(a) ....................................... ..................27
N.J.S.A. 34:13A-5.4(b) ........................................................ .27
N.J.S.A. 34:13A-5.4(c) ................................. ........................27
IV
PRELIMINARY STATEMENT
STATEMENT OF FACTS AND PROCEDUAL HISTORY
In March of 2020 the Montclair School District closed its buildings to in person learning
as required by Governor Murphy in response to the Covid-19 pandemic. (Robertson Cert. p).
Since that time, the Montclair School District has failed to adequately prepare its buildings for
reopening during a global pandemic. In August of 2020, Governor Murphy issued Executive Order
175 calling for the reopening of schools and the New Jersey Department of Education created The
Road Back, a detailed guideline for schools about reopening with pandemic safety protocols in
place. (Robertson Cert 1f2). Since that time, the Montclair School District has failed to establish
clear protocols, has failed to make required repairs and has failed to set in place means for
implementing safety protocols such that it is unsafe for staff and students to return to school under
these circumstances.
The Road Back and Centers for Disease Control guidelines both require that districts have
in place functioning HVAC, open windows, masking requirements, air purifiers, social distancing
and handwashing as ways to prevent the spread of Covid-19. (Robertson Cert ^4) Specifically
with respect to HVAC, the Road Back provides under Critical Area of Operation #2:
Schools and districts must ensure that their indoor facilities have adequate
ventilation, including operational heating, and ventilation systems where appropriate.
Recirculated air must have a fresh air component

Open windows if A/C is not provided
Filters for A/C units must be maintained and changed according to manufacturer
recommendations.
Montclair has not followed these rules.
' The Certification and attachments of Petal Robertson, President of the Montclair Education Association is attached
hereto.
1
In August of 2020, the district hired an engineering firm to evaluate the HVAC systems in
the buildings to determine whether those systems were operational and purportedly whether those
systems could provide appropriate air circulation to avoid the spread of Covid-19. The report
designated classrooms as "red" "yellow" or "green" depending on whether the rooms were able to
be used as they were in August of 2020. (Robertson Cert. ^6). The Association obtained a copy
of that report in order to see the room designations. More than half the rooms in the district were
designated as not ready for reopening because they were "red" or "yellow." Id.
On numerous occasions throughout the fall of 2020, the district established a date for
reopening the schools for hybrid instruction. Each time the dates were moved back because the
district admitted that it did not have the buildings or plans ready for the reopening including a
delay due to the increase in Covid numbers. (Robertson Cert. ^7). Dr. Ponds actually admitted
that one of the delays was due to the rising numbers. (Robertson Cert. ^7). It is important to note
that during this time period, in or around October 2020, the district intended to begin in person
instruction for the Applied Behavior Analysis ("ABA") students. These students are the
population most likely to be unable to wear masks and require assistance from staff with toileting
or changing. As the district did not provide details about how it would implement a safe return to
school, the Association submitted a series of questions to the district. (Robertson Cert. ^10). The
district never supplied an adequate response. Most answers were "to be determined" or "building
principal will address." The district never provided any update for the return for this program and,
as such, the ABA staff has continued to successfully work remotely. (Robertson Cert. <(fl0).
Thereafter, on December 4, 2020 the district notified parents that it would be reopening on
January 19, 2021 for staff to set up classrooms and on January 25, 2021 for students to return for
hybrid learning. (Robertson Cert. ^8).
2
The district's reopening plan is approximately 12 pages. (Robertson Cert. ^9). Reopening
plans from districts in the surrounding area have been at least 60 pages in length and in the case of
Jersey City 300 pages in length. Many district plans are included on websites for review.
(Robertson Cert. 1f9).
As per the district's own August 20, 2020 engineering report, numerous HVAC repairs
were needed. Although the Association requested on numerous occasions information on what
repairs and/or updates were made to these HVAC systems, no updated report has been provided.
(Robertson Cert. ^11). The Association has not been provided with any evidence of repairs to the
HVAC systems nor any final report of an engineering firm that has examined the repairs to assert
that the systems are functioning appropriately. (Robertson Cert. ^11). On January 15, 2021, just
before the scheduled reopening, the Superintendent notified the community that the HVAC
systems had been inspected by the district's engineering firm and certified the systems. (Robertson
Cert. Tfl 1). Additionally, on January 20,2021 Dr. Ponds promised he would make the report public.
The Association was also told by Dr. Ponds in late January that the engineering firm was at that
time conducting a walk through to inspect and certify the HVAC systems. However, the
certification of Mr. Monzy submitted with the district's filing on February 2, 2021 makes clear
that no such follow up inspection has occurred, and the information the Superintendent provided
to the public was false.
On January 12-14, 2021, the Association conducted walk throughs of a number of spaces
specifically for the purpose of reviewing the HVAC systems and determining if those systems
were working properly. The district had represented that these spaces were ready for reopening.
In a number of buildings, the HVAC systems were not turned on and no staff in the building could
turn them on for the Association to observe functionality. (Robertson Cert. 1fl2). In some
3
buildings in which the Association actually opened the vents in certain classrooms, the Association
observed that filthy old filters were present in some of the classroom systems and in some systems,
no filter was present at all. (Robertson Cert. ^12). The Association did not walk through all
buildings, nor did it open all Univents in the classrooms and yet were able to ascertain that the
district had failed to carefully check and ensure that the systems were functional and safe.
(RobertsonCert412).
The Montclair district has ignored its infrastructure for so long that many of the HVAC
systems are beyond repair. In one building an HVAC contractor noted that the systems were so
old that no replacement motor was available for a number of the broken motors in that building.
Another piece of equipment was considered by the contractor to have been "abandoned" by the
district because it had failed to perform any regular maintenance on the system and now it is
beyond repair. (Robertson Cert ^12)
In order to filter out Covid-19, it is generally accepted that a filter with a rating ofMERV-
13 is sufficient (see link to ASRAE standards in Robertson Cert ^13), but the Association has been
advised that none of the buildings in the district can use MERV-13 filters. However, on February
10, 2021 in documentation provided by the district, the Association learned that a number of
MERV-13 filters had been purchased on January 21, 2021, two days AFTER the staff were
supposed to have been back at work. (Robertson Cert ^13).
The Association's walkthroughs on January 12-14, 2021 uncovered over 100 sinks that
were not functioning. The district's reopening plan calls for students to wash their hands every 90
minutes. With this many broken sinks, it seems impossible for the hand washing to be done with
sufficient time for learning. (Robertson Cert 1J14). The Association shared with the Board its list
4
of issues gleaned from the January walkthroughs, but the Association has not received any
feedback from the Board as to whether any of these repairs have been made. (Robertson Cert Tfl4).
The district has claimed that it will place air purifiers in spaces that are listed as "red" on
the engineers' August 2020 report. The District erroneously asserts that its promise to place air
purifiers in classrooms without ventilation is sufficient though it offers no support for its
supposition. Further, without information about the cubic size of the rooms, it is unclear whether
the purifier will even provide the appropriate air exchange to prevent the spread of Covid.
(Robertson Cert. ^[15). When the Association conducted walkthroughs in the buildings, the air
purifiers were not even in place in the majority of the required spaces. (Robertson Cert. ^15).
The Court should also be aware that even with a functioning HVAC system, classrooms
must have windows open before school starts and after students and staff leave in order to provide
for the appropriate air exchanges in rooms to filter out and prevent the spread of Covid-19. It is
the beginning of March, and temperatures are still in the 20s and 30s. With windows open at this
time of year, it is simply untenable for staff and students to remain in the buildings with coats and
hats and gloves on. (Robertson Cert. ^fl6). However, the district has no plan in place for who will
open windows and close them and when. (Robertson Cert. ^16). May of the windows only open
from the top which makes it impossible for teachers to take on this task. Id.
The Road Back document sets forth a number of requirements for districts before they can
reopen. In part. The Road Back requires that districts establish protocols for enhanced cleaning of
buildings, rest rooms, and high touch surfaces. Montclair has not published a written protocol for
enhanced cleaning for any of these areas. (Robertson Cert. ^18). The Road Back requires districts
to ensure that students are socially distanced in their classrooms. However, Montclair teachers
have never been provided with updated class rosters or information about the classrooms to which
5
they are assigned so they cannot assess whether they are able to socially distance in their rooms.
(Robertson Cert. ^18). They have been told to show up on the first student day and "we'll see" if
social distancing is possible in your room. (Robertson Cert. T(18). The Road Back requires that
districts install dividers in areas where social distancing is not possible because staff and students
must be closer together for care or therapy. Montclair has promised to install these barriers but
has not done so. (Robertson Cert. ^19). The Road Back requires that hand sanitizer and hand
washing stations be easily available. When the Association conducted walk throughs between
January 12-14, hand sanitizer was not readily available and was not present in classrooms.
(Robertson Cert. ^19). Required PPE was not present in classrooms. (Robertson Cert. ^19).
The Road Back requires districts to screen individuals entering the buildings. Montclair
claims that a security guard will be assigned to the front door but has not provided any schedule
for how that post will be covered on a daily basis. Moreover, at the present time when secretaries
and custodians are in the building, no one is monitoring who enters the buildings and whether they
are using the installed temperature kiosk. In some buildings, a handheld thermometer is stationed
at the door with a book in which entrants must record their temperature. Each entrant who enters
is touching the same thermometer, pen and book. (Robertson Cert. Tf20).
On or about February 10, 2021, the district provided the Association, through the PERC
appointed mediator, an additional set of protocols purportedly to supplement its published
reopening plan. (Robertson Cert. Exhibit J). On February 17, 2021, the Association presented the
district, also through the mediator, with a list of questions and comments about the protocols
(Robertson Cert Exhibit K). It is the Association's belief that the district simply copied and pasted
the additional protocols from other places to be used as the protocols in Montclair without regard
to how those protocols would be implemented. A number of the protocols are different from or
6
conflict with the district's original reopening plan. The district has provided no schedules or an
actual plan for implementing these protocols in response to the Association's February 17th
questions. (Robertson Cert 1f21)
The district is required by The Road Back to provide for social distancing on buses. The
district has not provided any information to the Association about how it will accomplish this and
how it will reduce the number of students on buses in order to allow for social distancing.
(Robertson Cert. ^22). The district subcontracts busing services to a private contractor. Thus, it
may not have control over whether and how the contractor implements The Governor's Road
Back/Executive Order 175. (Robertson. Cert Tf22). The Road Back requires that staff monitor
bathrooms to ensure that only a few students at a time enter the bathroom. Montclair has no
protocol in place for who will do this and on what schedule. (Robertson Cert. ^22).
The Road Back requires the district to have a separate isolation space for potentially Covid
positive staff and students. Montclair does not have separate rooms for isolation. Rather, they
have installed shower curtains in the nurse's offices purportedly to separate the potential Covid
cases from other individuals in the nurse's office. There spaces on either side of the shower curtain
are part of the same air filtration system which will not stop the spread ofCovid. (Robertson Cert.
^17).
On February 10, 2021 the district provided the Association with Power Point presentations
written by each school nurse at each building. These presentation purport to be the Covid-19
training and protocols for the individual buildings they represent. Some protocols offer plans for
how students will enter the buildings and remain socially distanced as they have their temperature
checked. Some buildings have no such protocol. In one building the "plan" is to have teachers
meet their students in the lobby of the building. Even if only half of the students are present at a
7
time, this "plan" seems fraught with peril from a social distancing perspective. Some of the power
point presentations say that masks "must" be worn. Others say that masks "should" be worn.
Some of the power point presentations make no mention of hand washing at all. There is simply
no planned consistency among the various district buildings. Incredibly, these power points
indicate that teachers will have first aid kits in their classrooms and will be required to make triage
decisions about caring for student injuries and illnesses rather than sending students to the nurse.
(Robertson Cert ^23) This is completely contrary to law. N.J.A.C. 6A: 16-2.1
Given that the district has failed to have protocols in place and has failed to establish clear
procedures for implementing the protocols it does have in place, the Association is wary of
returning to in-person instruction at this time. The district's hollow promises and flat-out
misrepresentation about the existence of a follow-up engineering report support the Association's
lack of trust in the administration. In this regard, before returning, the Association must have an
opportunity to carefully examine and evaluate the district's facilities and plans once these plans
have been carefully formulated and all equipment is in place and ready to go. (Robertson Cert ^
24).
To that end, the Association has attempted to be as transparent as possible and has therefore
provided the district with copies of the checklists the Association will use on its walkthroughs.
These checklists (Robertson Cert Exhibit L) are based almost entirely on the Governor's Road
Back document. (Robertson Cert ^24).
The Association's lack of trust is justifiable. In his certification filed with the district's
order to show cause. Dr. Ponds claimed that the schools were ready for reopening. In paragraph
13, he claims that he "personally walked the buildings and classrooms that the district intends to
use and I am satisfied that the short-term recommendations of El Associates were appropriately
8
implemented." The Superintendent provides no information about what in his background makes
him able to make such an assessment. (Robertson Cert ^26). Mr. Wozny, from El Associates,
candidly admits in his certification that he only evaluated some buildings in the summer or fall of
2020 and has never returned to check the buildings.
Mr. Bispo, the Supervisor of Custodial and Maintenance employees, verified in the
district's February 2, 2021 filing that El Associates short-term recommendations had been met.
However, that is clearly not the case. (Robertson Cert ^28). All these assertions are inconsistent
with the district's subsequent behavior. On February 5, 2021, three days after the district's papers
were filed herein and before the Court even denied the order to show cause, the Association
observed contractor vans parked at the Bullock School, the newest school built in 2010, that
allegedly required no repairs. On the same day, contractors were present at Automated Building
Controls were present at Glenfield School and Combustion Service Corp at Bradford School.
(Robertson Cert ^31-32). On February 7, 2021 Combustion Service Corp was present at Buzz
Aldrin Middle School conducting repairs. (Robertson Cert 1133). The Association has been advised
that at least some of this work is for the purpose of installing needlepoint ionization machines used
to purify the air in classrooms. If this was necessary, why was it not done before the district filed
its papers claiming that the buildings were ready for reopening? (Robertson Cert ^28-30)
Dr. Ponds, in his affidavit, shockingly ignores that there is a global pandemic. He makes
not reference to it at all. (Robertson Cert. ^36a). He further ignores any of the actual requirements
that The Road Back and the CDC list in the reopening plans. (Robertson Cert. p6b,e). He ignores
the CDC's specific guidance that districts are only safe IF guidelines are followed. (Robertson
Cert. 1f36d).
9
The district's engineer, Michael Wozny, admitted in his affidavit that Bullock School was
not assessed because it was relatively new. He assumes it is code compliant if it has been properly
maintained but has no firsthand knowledge whether that is true. (Robertson Cert437a). While he
acknowledges that short term repairs were needed at the schools, he could not and did not certify
that either he or his staff walked through the buildings to confirm completion. (Robertson Cert.
^36b). There is nothing to note that he himself has walked through the buildings since August 2020
when the first report, and the only report the Association has seen, was issued. (Robertson Cert.
1f36b).
Finally, it is worth noting that while the district has taken the erroneous position that the
Association has engaged in a job action rather than reacting to a lack of safety standards as well as
the continuation of remote teaching, the district has actually locked the teachers out. On February
2, 2021 Damen G. Cooper, Director of Personnel, sent an email to all staff stating that while the
parties are engaged in mediation and a lawsuit, "no teachers may enter the buildings until there is
a resolution reached." (Robertson Cert.Tf 38).
Given that we are living through a global pandemic that is becoming worse as a new variant
promises greater spread, this is not a time for a "we'll see" approach. It is simply unsafe for staff
to return to the Montclair Schools under the present circumstances in which this district has failed
at every turn to establish safety procedures and to provide the equipment necessary for staff to
return. Because these are compelling threats to staff safety during a global pandemic, the
Association asserts that its members cannot return to an unsafe environment.
10
LAW AND ARGUMENT
Plaintiff Board has failed to show that a preliminary injunction should issue in this matter
pursuant to the high standard for injunctive relief as set forth in Crowe v. De Gioia, 90 N.J. 126
(1982).
The first principle set forth in Crowe is that a preliminary injunction should not issue except
to prevent irreparable harm. Id. at 132. A second principle is that temporary relief should be
withheld when the legal right underlying plaintiffs claim is unsettled. IcL at 133. A third rule is
that a preliminary injunction should not issue where all material facts are controverted. Id. Thus,
in order to prevail on an application for temporary relief, a plaintiff must make a preliminary
showing of a reasonable probability of ultimate success on the merits. Id. The final test in
considering the granting of preliminary injunction is the relative hardship to the parties in granting
or denying relief. Id. at 134.
The Board has failed to meet any of these standards, let alone all four, and thus cannot
demonstrate that its request for injunctive relief should be granted in the matter.
POINT I
PLAINTIFF DOES NOT HAVE A REASONABLE

PROBABILITY OF SUCCEEDING ON THE MERITS
With respect to the third Crowe factor, the Board cannot demonstrate that it has a
reasonable probability of succeeding on the merits in this matter because its employees are simply
not prohibited from engaging in the specific job action at issue. The New Jersey Public
Employment Relations Commission (PERC) has repeatedly held that teaching staff members may
refuse an assignment where there exists a compelling threat to personal welfare. See, e.g., Maurice
River Bd. of Educ., P.E.R.C. No. 87-91, 13 NJPER 123 (TJ18054 1987). Moreover, federal
11
guidance on the matter indicates that a work stoppage due to abnormally dangerous conditions, as
in this case, does not constitute a strike. Additionally, the health and safety concerns underlying
this particular job action constitute an exception to the common law rule denying New Jersey
public employees the right to strike. Nor is this job action a refusal to work; rather, it is a refusal
to work in person.
It is well established that a public employee may refuse an assignment where there exists
a compelling threat to personal welfare. Maurice River Bd. ofEduc., supra. 13 NJPER 123; Tp. of
Franklin, P.E.R.C. No. 85-97. 11 NJPER 224 ^ 16087 1985); Union Cty., P.E.R.C. No. 84-23, 9
NJPER 588 (TJ14248 1983). In Maurice River, PERC determined that a contract provision stating
that "[e]mployees shall not have to perform tasks or work under conditions which would endanger
their health, safety or well-being," was mandatorily negotiable, but cautioned that "a decision to
refuse an assignment cannot be based upon speculation or subjective beliefs, but only a compelling
threat to personal welfare." Id. at 124.
In the present case, by opening its schools to in-person instruction under the current
conditions, the Board has created exactly such a compelling threat to personal welfare and placed
its employees directly at risk that is more than merely speculative. Because their health, safety,
and/or well being is endangered, Board employees' decision to refuse in-person assignments is
reasonable and supported by PERC precedent.
In the Montclair community, the threat ofCOVID-19 remains a grim reality and a
compelling threat to the personal welfare of those who are placed in unacceptably high levels of
risk. As transmission of the COVID-19 virus is much more likely to occur in enclosed indoor
12
spaces such as schools than outdoors, district employees are placed at far greater risk than other
members of the Montclair community at large, creating a compelling threat to the personal
welfare of District employees.
Nor is the compelling threat to the personal welfare of Board employees mitigated by the
misconception that children are somehow more immune to the coronavirus or that they are less
likely to spread the virus. These are myths, not facts. The fact is that both the number and rate of
CO VID-19 cases in children in the United States have steadily increased since March 2020.3 The
prevalence of diagnosed cases in children has specifically increased in New Jersey. Yet evidence
suggests that as many as 45% of pediatric COVID-19 infections are asymptomatic5 and that
children may even carry greater viral loads than adults.6 Because children are less likely to develop
symptoms ofCOVID-19 than adults, they are more likely to spread the infection unknowingly as
asymptomatic carriers into their own homes and into the classroom.
In recent months, scientists have discovered a more contagious variant of Covid-19 and
infection rates are surging in New Jersey. In the month of January New Jersey reached an all-time
high number of daily cases, nearly 7,000 new positive tests in one day.8 This is significantly higher
2 See Center for Disease Control and Prevention, "Deciding to Go Out" (updated July 30, 2020), available
at https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out.html ("Indoor spaces
are more risky than outdoor spaces where it might be harder to keep people apart and there's less
ventilation").
3 CDC, "Information for Pediatric Healthcare Providers" (updated August 14, 2020), available at
https://www.cdc.gov/coronavirus/2019-ncov/hcp/pediatric-hcp.html.
4 Jason Laughlin, Maddie Hanna, "Kids Make up a Growing share of New Jersey Coronavirus Cases as
schools Grapple Over Reopenings," The Philadelphia Inquirer (August 12, 2020), available at
https://www.inquirer.com/health/coronavirus/covid-19-school-reopen-transmission-new-jersey-cherry-
hill-20200812.html.
5 CDC, "Information for Pediatric Healthcare Providers," supra n.10.
6 Massachusetts General Hospital News and Public Affairs, "Children's Role in Spread of Virus Bigger
Than Thought, The Harvard Gazette" (August 20, 2020), available at
https://news.harvard.edu/gazette/story/2020/08/looking-at-children-as-the-silent-spreaders-of-sars-cov-2/.
7Id,
8 https://covidl9.nj.gov/
13
than the rate of infection when the Governor closed schools in March of 2020. Id. The Covid risk
assessment in New Jersey presently places the entire state in the "high" risk of transmission
category of "orange."9 The risk matrix "orange" category means that school districts should
consider moving to all remote learning at this time. Id. Nonetheless, with the new more contagious
variant and the high alert warnings, the Montclair Public Schools without concern for the safety
of its staff and students, plans to open on a hybrid schedule.
Under current conditions in the district, board employees are unnecessarily exposed to
these risks. Further, the Board's HVAC and ventilation systems are wholly inadequate, as
evidenced in its own engineers' report, to allow the safe return of staff to the buildings, let alone
to allow students to return as well. The district's plan to enforce proper social distancing guidelines
is non-existent. Equipment that should already be in place because school was supposed to open
yesterday is not in place. PPE is not in classrooms; saaitizers are not in classrooms; air purifiers
are not in rooms; sinks are broken. The district's position that it all will be in place as long as the
employees return would be comical if the current situation was not so desperate. Taken as a whole,
these failures constitute a compelling threat to the personal welfare of District employees within
the meaning of Maurice River. (Robertson Cert49-20).
Throughout the U.S., reopening schools without strictly adhering to recommended health
and safety protocols has repeatedly led to new outbreaks of the coronavirus followed by school
closures. For example, in Georgia, nearly 2,500 students and 62 staff members in the Cherokee
9 https://www.ni.coin/education/2020/l 2/all-21 -counties-are-orange-on-nis-covid-1 9-map-again-heres-what-that-

means-for-schools.html; see also.
https://wwvv.ni.sov/health/cd/documents/topics/NCOV/COVID 19 Report 2021 Week l.pdf
14
County School District were ordered to quarantine.10 In Santa Clara, California, 40 school
principals and other district officials were forced to quarantine when they were exposed to COVID-
19 at an indoor meeting.11 Many states and school districts have also failed to set up proper
reporting systems, or have intentionally prevented information regarding confirmed cases to be
released to health officials and their school communities.12
Israel, one of the first countries to reopen its schools to in-person instruction, serves as a
cautionary tale. Within days of reopening, a Jerusalem high school became the site of the largest
outbreak in a single Israeli school and possibly the world, ultimately infecting hundreds of
students, teachers, and relatives.13 Across the country, tens of thousands of students and teachers
were quarantined. According to Israeli experts, the lesson learned was that even when community
spread appears to be down based on a low number of reported cases in an area, the threat of harm
still exists.15 Alarmingly, at the time Israel opened its schools, it had fewer than 100 new infections
per day.16
By reopening its schools in defiance of global health data and expert recommendations, the
Board has placed its employees at compelling risk to their personal welfare, thus decreasing the
Board's likelihood of success on the merits of the present case.
10 Dan Levin, "Covid in the Classroom? Some Schools Are Keeping It Quiet," The New York Times
(August 22, 2020), available at https://www.nytimes.com/2020/08/22/us/school-reopenings-coronavirus-
reporting.html.
u Aldin Vaziri and Jill Tucker, "Santa Clara County Meeting That Exposed 40 Principals to Coronavirus
Raises Red Flags," The San Francisco Chronicle (July 2, 2020), available at
https://www.sfchronicle.com/bayarea/article/More-than-40-Bay-Area-school-principals-in-15381335.php.
12 Dan Levin, "Covid in the Classroom? Some Schools Are Keeping It Quiet," supra n.15.
13 10 Isabel Kershner and Pam Belluck, "When Covid Subsided, Israel Reopened Its Schools. It Didn't Go
Well," The New York Times (August 4, 2020), available at
https://www.nytimes.com/2020/08/04/world/middleeast/coronavirus-israel-schools-reopen.html.
14 Id,
15 Id,
16 Id,
15
The Governor's Road Back document provides that all districts must have protocols in
place for health and safety procedures.
https://www.nj.gov/education/reopening/NJDOETheRoadBack.pdf (Seepages 16-31 for all

health and safety protocols). Indeed, at pages 28-29, districts must have protocols for increased
cleaning of frequently touched surfaces. Montclair has no protocol in place for this. (Robertson
Cert. Tfl8). Districts are required to have protocols in place for frequent hand washing and
sanitizing, but Montclair does not have such a protocol in place. (Robertson Cert. ^17).
Bathrooms must be sanitized as much as possible, but Montclair does not have a protocol in
place for this. (Robertson Cert. ^17). The Road Back document at page 18 requires districts to
have barriers between desks when social distancing is not possible. (Robertson Cert. 18-19).
Indeed, with students who receive therapy, distancing is not possible. Indeed, these rooms and
spaces are supposed to be cleaned even more frequently than other areas of the building, but
Montclair has no plan or protocol for this. Although the Association has advised the district that
it must provide dividers in these circumstances, the district has advised the Association that these
barriers "will be" installed. The Association has yet to see that this is implemented. Students are
required to wash hands at regular intervals, yet Montclair has no protocol for this. (Robertson
Cert. 19). And, multiple sinks are broken. (Robertson Cert. 14).
The Governor's directive requires buses to be cleaned and sanitized according to a

protocol, yet Montclair has not established one. (Robertson Cert. 22). It requires that high touch
surfaces be cleaned more frequently and yet Montclair has no plan to implement these plans.
The Road Back document requires districts to create protocols for all of these items and
more, yet Montclair has issued a vague reopening plan, has moved it back multiple times and has
changed which populations will be returned to in-person instruction and where they will be housed.
16
At a time when organization and detailed rules are required by health and safety concerns,
Montclair has no established plan for doing the utmost to prevent the spread of Covid- 19. Because
of this chaos, it is simply unsafe for the ]VIontclair Education Association staff to return to in-
person instruction at this time.
POINT II
INJUNCTIVE RELIEF SHOULD BE WITHHELD BECAUSE

THE LEGAL RIGHT UNDERLYING PLAINTIFF'S CLAIM
CLEARLY FAVORS REJECTING THE PLAINTIFF'S
APPLICATION
The second prong of the Crowe analysis is whether the legal right underlying the plaintiffs
claim is settled. If the plaintiff is unable to make such a showing, "temporary relief should be
withheld." Crowe v. De Gioia, 90 N.J. 126, 133 (1982). In the present matter, the Board effectively
claims that it has an unassailable legal right to require teachers to report for in-persoa instruction
under conditions that do not comply with either federal or state guidelines. As detailed more fully
below, this is substantively not the case. See infra at Point III. Moreover, the legal right underlying
the Board's claim is unsettled simply because of the unprecedented nature of the Covid-19
pandemic and its effect on education. A cause of action in a novel situation is not amenable to
having a settled legal right and is incompatible with an application for temporary relief.
The legal claim brought forth by the Board in this application for relief is inextricably
linked to the conditions in which it arose - i.e., the reopening of school districts in September 2020
following a school year during which all school buildings were closed in the midst of a global
pandemic and instruction was fully remote for the final three-plus months of the school year. This
unique situation - where an imminent health hazard forced schools to close but where existing
technology allowed instruction to continue on a fully remote basis - simply has not occurred
17
before. Accordingly, there can be no settled legal right based on a completely unprecedented
situation.
Further confirmation of the unsettled nature of the legal right underlying the Board's claim
is demonstrated by the status of public schools in New Jersey from mid-March 2020 through the
present date. On March 9, 2020, Governor Murphy issued Executive Order 103 which declared a
Public Health Emergency and a State of Emergency throughout New Jersey. One week later, on
March 16, 2020, Governor Murphy issued Executive Order 104, which closed all public, private,
and parochial schools, and provided for home instruction as follows:
The Commissioner of DOE shall continue working with each public

school district, and private and parochial schools as appropriate, to
ensure that students are able to continue their educations during this
time period through appropriate home instruction. Local school
districts, charter schools, and renaissance schools, in consultation
with the Commissioner of DOE, shall have the authority and
discretion to determine home instruction arrangements as
appropriate on a case-by-case basis to ensure all students are
provided with appropriate home instruction, taking into account all
relevant constitutional and statutory obligations.
This Executive Order not only authorized but required remote work for all teaching staff members
and remote instruction for all students due to the unsafe conditions in schools. Executive Order
107, issued less than one week later on March 21, 2020, extended the school closures.18 "The Road
Back," issued in June 2020, presented guidance for school buildings to "open in some capacity for
in-person instruction and operations" in Fall 2020 based on guidelines from the CDC. Although
"The Road Back" was primarily focused on resuming in-person instruction, the document also
provided that "[d]istricts need to be prepared to pivot to remote instruction at any time during the
17 See https://nj.gov/infobank/eo/056murphy/pdf/EO-104.pdf
18
2020-21 school year."19 Clearly, this was a signal that fully remote instruction would resume
should conditions prove to be unsafe for students and staff.
Executive Order 175, issued on August 13, 2020, reiterated the minimum health and safety
standards that must be met in order for school districts to reopen for full- or part-time in-person
instruction for the 2020-21 school year. That Executive Order, recognizing that some school
districts would be unable to meet the minimum health and safety standards, provided that school
districts could opt for full remote instruction:
Public school districts that are or become unable to satisfy the health
and safety requirements for in-person instruction, as detailed in
Paragraph 2 of this Order, may provide full-time remote instruction
to all students pursuant to N.J.S.A. 18A:7F-9.20
Accordingly, based on the numerous executive orders and the guidance issued from the
NJDOE over the past six months, it is clear that the legal right underlying the Board's claim,
namely, that it can reopen its school buildings and force employees to report for in-person
instruction in hazardous conditions, is wholly unsettled.
Significantly, not only is the legal right to require employees to report for in-person
work unsettled within the meaning of Crowe, but such a claim is also contrary to the
circumstances present in the district in this matter. Based on the facts and certifications
presented here, the Board has failed to create conditions in its buildings that comply with
either CDC guidelines or the minimum health and safety standards required by NJDOE to
reopen for in-person instruction. The Board has not, and indeed cannot, demonstrate that it
has a settled legal right to require employees to work in person under these circumstances. All
applicable facts, guidance, and common sense dictate the opposite conclusion - in this
19 See https://www.nj.gov/education/reopening/NJDOETheRoadBack.pdf
19
unprecedented time in public education, a school district has no settled legal right to require
its employees to provide in-person instruction at significant risk to themselves, their families,
and their students if a school district cannot meet minimum health and safety standards.
Accordingly, as the legal right underlying Plaintiffs claim is unsettled, the Board's
application for temporary relief must be denied.
POINT III
THE BOARD CANNOT DEMONSTRATE THAT

INJUNCTIVE RELIEF IS NECESSARY IN THE MATTER
TO PREVENT IRREPARABLE HARM
With respect to the first Crowe principle, the Supreme Court explained that "harm is
generally irreparable in equity if it cannot be redressed adequately by monetary damages." Id. at
133; See also Subcarrier Commc'ns, Inc. v. Day, 299 NJL-Syper. 634, 638 (App. Div. 1997). This
is because "pecuniary damages may be inadequate because of the nature of the injury, or the right
affected." Crowe at 133. In certain circumstances, noted the Court, "severe personal inconvenience
can constitute irreparable injury justifying issuance ofinjunctive relief." Id^ at 133 (citing Hodge
v. Giese, 43 N.J. Eg. 342. 350 (Ch. 1887)); see also Paternoster v. Shuster. 296 N.J. Super. 544,
555 (App. Div. 1997). New Jersey courts have recognized that "injunctive relief 'should not be
entered except when necessary to prevent substantial, immediate and irreparable harm."' Plotnick
v. Delucia, 437 N.J. Super. 597, 612 fCh. Div. 2013) fquoting Subcarrier Commc'ns Inc.,299 N.J.
Super, at 638). Such relief should be granted only to prevent immediate and irreparable harm from
occunring pending a final determination by the court on the merits of the case. Sunbeam Corp. v.
Windsor-Fifth Ave., 14 N.J. 222. 233 C1953); Outdoor Sports Corp. v. A.F. of L., Local 23132, 6
N.J. 271, 230 (1951).
20
In support of its request for injunctive relief in the present matter, the Board asserts that
the relief requested is necessary to prevent irreparable harm in the form of students being denied
in-person instruction. However, that does not equate to irreparable harm, since the students will
not be deprived educational opportunities, but rather, their education will be provided via remote
and/or virtual learning. As a result, a mere delay in the commencement ofin-person instruction in
favor of remote or virtual instruction - at least pending remediation of the clear public health and
safety issues at issue in the Board's facilities - does not and cannot rise to the level of irreparable
harm necessary for the grant ofinjunctive relief.
It should initially be noted that all students in the State of New Jersey were engaged in
remote learning as a result of the statewide school shutdown commencing on or about March 21,
2020, pursuant to Governor Murphy's Executive Order No. 107, which effectively mandated
continued education of students on a remote or virtual basis. Thus, at this point, with remote
learning having taken place since March 2020, there is nothing novel with respect to a school
district's use of remote learning tools and practices for the purpose of protecting public, employee
and student health, safety, and welfare via temporary school closures coupled with remote
instruction.
In addition, the New Jersey Department of Education's (NJDOE) "The Road Back, Restart
and Recovery Plan" contemplates the provision of remote instruction through the implementation
of "hybrid" learning models.22 As such, the Board has in place, or should have in place, remote
learning policies and procedures that were initiated in March 2020, but presumably have been
refined since that time. Indeed, the "Road Back" provides that "[d]istricts need to be prepared
to pivot to remote instruction at any time during the 2020-2021 school year." See "The Road
21 See https://ni.gov/mfobank/eo/056murphv/pdf/EO-107.pdf.
22 See https://www.nj.gov/education/reopening/NJDOETheRoadBack.pdf.
21
Back," p. 46. (Emphasis added.) The Board cannot thus claim that the move to an all-remote
learning enviromnent is not anticipated, or that it is not prepared for this eventuality, given that
NJDOE best practices expressly provide otherwise.
In addition, the Board is obligated under Executive Order No. 175 to provide remote
instruction for any and all students who exercise their right to opt out ofin-person instruction. See
Executive Order 175, ^6. This Order further provides that a district may temporarily delay in-
person instruction pending its ability to implement the necessary health and safety procedures in
accordance withNJDOE and Centers for Disease Control (CDC) guidelines. See Executive Order
17547.
Based on the plain terms of Executive Order 175, Governor Murphy, in consultation with
the NJDOE, does not believe that remote learning on a temporary basis irreparably harms students
because the Order permits all-remote instruction for parents who opt out. Likewise, parents who
opt their own children out of in-person instruction presumably do not believe they are irreparably
harming their own children. In fact, this District, as well as nearly all others in this State, will be
providing remote instruction for all students on those alternate days they are not in school under a
hybrid learning model. Will this very district be irreparably harming children on those days its
students are engaging in remote learning under the District's own reopening plans?
To date, more than 290 school districts across the State have used and continue to use all-
remote educational plans, including districts within Essex County in which the Plaintiff is
located.24 Surely, it cannot be said that each and every one of these local school districts is
23
See https://nj .gov/infobank/eo/056murphy/pdf/EO-175.pdf.
24 Seehttps://www.nj.com/education/2020/08/list-of-nj-school-districts-planning-all-remote-classes-
grows-to-150-aug-26-2020.html.
22
irreparably harming its respective students by choosing to teach on an all-remote basis. Nor are
the various cities and states across the country that likewise chose to keep staff and students safe
by providing all-remote instruction based on local conditions related to the COVID-19 pandemic
and/or the establishment of appropriate health and safety protocols and procedures in their school
facilities.
The Association acknowledges that, all matters being equal, in-person instruction is
preferable to remote instruction, if and only if a district's facilities and protocols are safe both for
children and for staff members. Simply because in-person instruction would be "better," it does
not follow that temporarily implementing remote learning plans that have been used, and used
competently, in the recent past and currently in other districts would result in irreparable harm. If
it would, hybrid models would never be adopted; parents would never be permitted to opt out of
in-person instruction, and schools would never be afforded the option of delaying in-person
instruction for as much as a single day.
The Board thus has not demonstrated, nor can it demonstrate, the element of irreparable
harm necessary to warrant injunctive relief, which the court should deny accordingly.
A. The Employee Action in the Present Case Does Not

Constitute a Strike Under Federal Law.
The District is further unlikely to succeed on the merits of its application for interim relief
because the job action in question directly resulted from abnormally dangerous working conditions
and therefore does not constitute an unlawful strike.
In Bd ofEduc.. Bor. of Union Beach v. New Jersey Educ. Ass'n, 53 N.J. 29 (1968), the
New Jersey Supreme Court ruled that under the common law in New Jersey, concerted action
which "obstructs or disables" government runs "strongly against sound public policy" and that, in
23
the absence of express authorization from the Legislature, public employees in New Jersey do not
have the right to strike. Id.at 46,44.
Nonetheless, federal labor law, specifically the Labor Management Relations Act
(LMRA), the "experience and adjudications" under which the Court has determined "may
appropriately guide the interpretation of New Jersey labor law, is instructive. Galloway Tp. Bd.
ofEduc. v. Galloway Tp. Ass'n ofEduc. Sec'vs., 78 N.J. 1, 9 (1978). Under the LMRA, "[tjhe
quitting of labor by an employee or employees in good faith because of abnormally dangerous
conditions for work... [shall not] be deemed a strike[.]" Gateway Coal Co. v. United Mine
Workers, 414 U.S. 368 (1974) fquoting 29 U.S.C. § 143). In Gateway Coal Co.. the United States
Supreme Court concluded that a work stoppage initiated solely to protect employees from
immediate danger cannot be the basis for either a damage award or an injunction against the strike.
Id,
That case also defined an "abnormally dangerous" working condition as one that presents
"some identifiable, presently existing threat to the employees' safety" when judged by
ascertainable, objective evidence. 414 U.S. at 386. Likewise, in TNS, Inc., 329 N.L.R.B. 602
(1999), the National Labor Relations Board (NLRB) found conditions to be abnormal in cases
where "risks that are ordinarily present have been intensified," including but not limited to cases
where normally hazardous working conditions are exacerbated by an outside factor, such as an
improperly operating exhaust blower that causes temperatures to rise to 110 degrees or
inadequately functioning respirators. Id.
In the present matter, the dangers associated with the reopening of schools in Montclair are
by no means "normal." On the contrary, the dangers presented by the COVID-19 pandemic are
unprecedented by any contemporary standard. The District's failure to enact a reopening plan that
24
adequately protects its employees exacerbates these dangers and creates an abnormal threat,
converting any work stoppage into a job action that does not constitute a strike within the meaning
of the LMRA and Gateway Coal. Taking federal precedent as a guide, the employee job action at
issue in this case cannot be deemed a strike and nor can it provide a basis for the interim relief
sought by the Board.
B. The Employee Action in the Present Case Does Not Constitute a Strike
Under State Law.
Moreover, the employee job action in this matter does not constitute a strike even under
the Union Beach standard. A strike is a refusal to work. The actions taken by employees of the
Board constitute only a refusal to work in person due to the compelling threat to personal welfare
caused by abnormally dangerous working conditions. Board employees are specifically seeking
the right to work remotely, which they were previously not merely able but required to do from
March through June 2020.
In Union Beach, the Court's concern was that public employees "seeking] to 'coerce' a
public body to their wish. .. [would attempt to] achieve that end by disabling the public body from
acting at all." 53 N.J. at 40. Such concerns are inapplicable here. Teaching staff members who
work remotely do not and cannot "disable" a school district. The District's schools were not
"disabled" from March through June 2020 when all operations were conducted remotely. Instead,
because of the dedication and ingenuity of the Board's employees, students in the District were
able to continue their education.
Critically, because this particular job action is a refusal to engage in a particular

assignment - namely, conducting work in person, based on a compelling threat to employees'
personal welfare — it is a negotiable issue. The Board cannot unilaterally require its teaching staff
members to work on site, and their refusal to do so does not constitute a strike nor can it be the
25
subject ofinjunctive relief. Finally, it is important to note the February 2, 2021 email from Damen
G. Cooper, Direct of Personnel (Robertson Cert Exhibit Q). :
While the district and MEA are currently in mediation and a lawsuit
has been filed, no teachers may enter the building until there is a
resolution reached...
Thus, while the district would have this Court believe the Association is conducting an illegal
strike, which is not the case as evidenced supra, by the lack of safety standards and the continuation
of teaching models, it is quite clear the district is conducting a lock out. (Robertson Cert. p8).
The Board's application must be denied accordingly.
POINT IV
A BALANCING OF THE RELATIVE HARDSHIPS FAVORS

THE ASSOCIATION.
The fourth Crowe factor, the relative hardship to the parties, also favors the Association.
Should the Board's application for an injunction be denied and the Association prevail, the
District's teaching staff members would teach remotely, which is exactly what occurred from
March through June 2020 and up until the present time. Conversely, should the Board's application
be granted, teaching staff members are much more likely to contract CO VID-19, become severely
ill and/or die.
Indeed, in the extreme, death is the hardship that will result if the Board's application for
an injunction is granted. But even if no individual teaching staff member should die from COVID-
19, the virus's long-term impacts are nonetheless devastating. From lingering fatigue and ongoing
headaches, to heart complications, blood clots, lung damage, seizures, and even paralysis, the risk
to Board employees is not just severe but permanent.25
25 MAYO CLINIC, COVID-19, Long-term effects, available at https://www.mayoclinic.org/diseases-

conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351 (last visited 8/26/20).
26
In comparison, the hardship to the Board should its application be denied is minimal. As
noted above, remote learning was previously implemented in March 2020 and remains at the
present time. It is not ideal, but like the COVID-19 crisis, it is temporary. Conversely, the effects
of COVID-19 are permanent. In short, the balance of hardships tips strongly in favor of the
Association.
POINT V
IN THE ALTERNATIVE, THIS COURT SHOULD STAY

THE PROCEEDINGS AND REFER THIS MATTER TO
PERC, WHICH HAS EXCLUSIVE JURISDICTION TO
DECIDE UNFAIR PRACTICE CHARGES FILED AGAINST
EITHER AN EMPLOYER OR AN EMPLOYEE
ORGANIZATION AND TO DETERMINE WHETHER A
COMPELLING THREAT TO PERSONAL WELFARE
EXISTS
The Employer-Employee Relations Act created PERC and empowers the agency with
"exclusive power . . . to prevent anyone from engaging in any unfair practice," N.J.S.A. 34:13A-
5.4(c), as enumerated in N.J.S.A. 34:13A-5.4Ca)(unfair practices of employers) and N.J.S.A.
34:13A-5.4(b)(unfair practices of employee organizations). See Galloway Tp. Bd. of Ed. v.
Galloway Tp. Ass'n of Ed. Sec, 78 N.J. 1, 8 n. 2 (1978) (PERC has exclusive jurisdiction over
unfair practice charges).
As a result of this Legislative delegation of administrative power, the courts have
recognized that PERC has exclusive agency jurisdiction to hear and decide unfair practice charges.
As the New Jersey Supreme Court noted in City ofHackensack v. Winner, 82 N.J. 1, 24 (1980):
...the Legislature by its 1974 amendment [to the Act] corrected a defect in administrative
coverage which this Court noted in Burlington Cty. Evergreen Park Mental Hosp. v.
Cooper, 56 N.J. 579 (1970), where no statutory power to deal with unfair labor practices
was found to reside in PERC.... The Legislature obviously believed that the existence or
occurrence of unlawful practices called for the expert handling of a specialized
administrative agency such as PERC and that in these matters that agency's jurisdiction
27
was indeed to be preferred to even that of the courts.... The 1974 amendment vested in
PERC full authority to deal remedially with all aspects of the public employment
environment when tainted by unfair labor conduct and to provide broad remedial relief to
compensate victimized employees for economic injury; to eliminate, correct and prevent
unfair practices; and to improve the overall working climate for public employees....
Hence, the Public Employer-Employee Relations Act, as amended, should be understood
as granting to PERC the exclusive administrative power to deal fully and completely with
complaints of unlawful practices related to employee rights not covered by other laws.
82 N.J. at 24-25 (citations omitted). See also, e.g.. Galloway, supra, 78 N.J. at 8 n.
2 (recognizing PERC's exclusive jurisdiction over unfair practice charges).
A person aggrieved by an unfair practice is authorized to file a charge with PERC and
PERC must then start the appropriate administrative proceedings to resolve the controversy.
Kaczmarek v. New Jersey Turnpike Authority, 77 N.J. 329, 337 (1978).
As Plaintiff Board's claim is based entirely in the common law pursuant to Union Beach,
not in any legislative act, it falls squarely within PERC's grant to "the exclusive administrative
power to deal fully and completely with complaints of unlawful practices related to employee
rights not covered by other laws." City of Hackensack, 82 N.J. at 24.
Any claims brought under this theory, and which necessarily turn on whether a compelling
threat to personal welfare pursuant to Maurice River exists, must be brought before the agency
exclusively tasked with hearing such matters - PERC.
PERC is similarly vested with the authority to rule on decisions regarding the Workplace
Democracy Enhancement Act ("WDEA"). A Union's right to access the workplace was codified
in the WDEA. The Board's failure to respond to the Association's request to conduct health and
safety walkthroughs prior to any reopening violates section 5.13(f) of the WDEA which states in
pertinent part:
exclusive representative employee organizations shall have the right

to use government buildings and other facilities that are owned or
leased by government entities to conduct....the investigation of
grievances, other workplace-related complaints and issues...
28
N.J.S.A.34:13A-5.13ff).
In Passaic Valley Reg'l High School Bd. of Educ, I.R. No. 2021-10, 2020 N.J. PERC
LEXIS 136 *20 (attached hereto), the Commission granted interim relief to the union where a
school district denied it access to the premises to conduct health and safety walkthroughs related
to Covid-19 health safety concerns. In granting interim relief, the Commission Designee noted:
The Association's request for a health and safety walkthrough is
strongly supported by numerous well settled labor principles. As
reviewed in detail above, the health and safety of employees is a
mandatorily negotiable term and condition of employment. The
Board has a duty to provide the Association with a broad range of
potentially useful information that the Association needs to
represent its members. The Association has a right to access the
workplace absent a legitimate, substantial business justification, a
right that was codified in the WDEA. The NLRB has upheld a
union's right to inspect health and safety issues int eh workplace so
long as the inspection does not unduly interfere with the employer's
operation.
Thus, PERC has held, in a Covid related matter, that the Association is entitled to conduct
health and safety walkthroughs. The district herein has ignored the Association's request which is
quite alarming at this stage. It has repeatedly withheld information, misled the Association and is
now preventing a look into what is going on inside the school buildings.
CONCLUSION
For all the foregoing reasons, the Board's Motion for Preliminary Injunctive Relief should
be denied.
Respectfully submitted,
0 NdCohen, P.C.
..0.1
a Oxfeld Kanef, Esq.
Dated: March 1,2021
29
Passaic Valley Regional High School Board of Education,., 47 NJPER U 54 (2020)
47 NJPER 154; 47 New Jersey Pub. Employee Rep. 154, 2020 WL 7706689
New Jersey Public Employment Relations Commission
Passaic Valley Regional High School Board of Education, Respondent, and Passaic Valley Education Association,
Charging Party
No. CO-2021-061
I.R. NO. 2021-10
RUCH
November 19, 2020
Related Index Numbers

43.871 Union Security, Access to Facilities, Safety Inspections
74.37 Types of Orders, Interim Relief
74.373 Types of Orders, Interim Relief, Likelihood of Success
74.374 Types of Orders, Interim Relief, Irreparable Nature of Harm
74.375 Types of Orders, Interim Relief, Absence of Substantial Harm
Appearances:
Raymond Reddin, of counsel, for the Respondent, Reddin Masri, LLC attorneys, for the Respondent
Sasha A. Wolf, NIEA Uniserv Field Representative, for the Charging Party
Judge / Administrative Officer
RUCH
Ruling
PERC's Designee granted a union's application for interim relief in connection with an unfair practice charge. In the charge,
the union challenged a school employer's refusal to allow it to conduct a health and safety walkthrough of school premises,
in light of the COVID-19 pandemic. The Designee found that the union maintained a substantial likelihood of prevailing in a
final PERC decision on its legal and factual allegations. Both the factors of irreparable harm and the relative hardship to the
parties weighed in favor of granting interim relief, the Designee concluded.
Designee grants interim relief in dispute over safety inspection request
Meaning
The Designee acknowledged the absence of any PERC decisions directly addressing whether a union maintains a right to
access the workplace to conduct a health and safety inspection. However, the Designee took note of an NLRB ruling
[Holyoke Water Power Co., 273 NLRB 1369 (1985)], that a union maintains a right to inspect health and safety issues in the
workplace so long as the inspection does not unduly mterfere with the employer's operations.
Case Summary
The union filed an unfair practice charge against the school employer. It alleged that the employer violated EERA provisions
by failing to allow the union access to the school building to conduct a health and safety walkthrough, in light of the
COVID-19 pandemic. The unfair practice charge was accompanied by an application for interun relief, which PERC's
Designee granted. The Designee found that the union maintained a substantial likelihood of prevailing in a final PERC
decision on its legal and factual allegations. The Designee cited the mandatorily negotiable nature of employee health and
safety issues as well as the employer's duty to provide the union with a wide variety of information necessary for it to
represent its members. The Designee concluded that the union showed a potential for irreparable harm without the health and
safety walk-through, and that the relative hardship to the parties weighed in favor of granting the union's request for a
walkthrough. The Designee directed the employer to allow the union access to school premises to conduct a health and safety
walkthrough by three union representatives or less, for a time period allowing those representatives to fully observe and
survey health and safety conditions.
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Full Text
Interlocutory Decision
On September 28, 2020, the Passaic Valley Education Association (Association) filed an unfair practice charge against the
Passaic Valley Regional High School Board of Education (Board), together with an application for interim relief, a
supporting brief, exhibits and a certification. The charge alleges that in response to the CO VID-19 pandemic for the
2020-2021 school year, the Board opted for a hybrid model of instruction where different cohorts of students are physically
present on different school days, but employees are required to be physically present every school day to perform
instructional duties.
The charge further alleges that during September 2020, the Association raised a number of health and safety concerns to the
Board relating to the Board's COVID-19 preparations. These included the alleged lack of appropriate HVAC filters,
insufficient classroom ventilation, an insufficient number of air scrubbers for the auditorium and gym, and a lack of adequate
CO VID-19 screening procedures.
The charge further alleges that on September 25, 2020, the Board suspended in-person instruction for two weeks because a
student tested positive for CO VID-19, announced that it would conduct all-virtual instruction for the next two weeks, and
staff would be required to physically report back to work on October 5,2020. Upon hearing this news, the Association
became gravely concerned that not only was the Board failing to address the existing health and safety issues, but that it was
not prepared to adequately safeguard the workplace from the spread of COVID-19 when employees returned on October 5,
2020.
Further, the charge alleges that based on these concerns, on September 24, 2020, the Association made a request to
Superintendent Joann Cardillo to conduct a walkthrough of the school on September 28, 2020, at 4:00 p.m. Cardillo denied
the Association's request without explanation. The Association then made a second request on September 25, 2020, to
Cardillo, clarifying that the walkthrough was necessary to address health and safety concerns prior to the school's projected
reopening of October 5, 2020. Later that same day, Cardillo again denied the Association's request and denied the
Association access to the school building;
The charge alleges that the Board's failure to allow the Association access to the school building to conduct a health and
safety walkthrough violates sections 5.4a(l) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A.
34:13A-1, et seq. (Act),' as well as section 5.13(f) of the Workplace Democracy Enhancement Act, N.J.S.A. 34:13A-5.13
(WDEA).
On October 5, 2020,1 conducted a telephone conference call with the parties to select dates for briefing and a hearing on the
Association's application for interim relief. On October 6, 2020, I issued an Order to Show Cause, which included the
schedule agreed upon by the parties during the October 5, 2020 conference call, i.e., the Board's answering brief was due
October 14, 2020; the Association's reply brief was due October 19, 2020; and a hearmg via telephone conference call would
be conducted on October 23, 2020.
As noted above, on September 28, 2020, the Association filed an application for interim relief, a supporting brief, exhibits
and a certification of Association President Marc Salvatore. The Association contends that it is entitled to interim relief
granting it a health and safety walkthrough of the building due to its right to represent and advocate for its members on
workplace health and safety issues under the Act, and its right of access to the workplace under the WDEA. The Association
contends that CO VID-19 constitutes an imminent threat to its members, and therefore it should not have to wait for the
resolution of the unfair practice charge before it is granted a walkthrough.
On October 14, 2020, the Board filed an answering brief with exhibits, and the certification of Superintendent Cardillo. The
Board contends that the Association has no legal right to a walkthrough pursuant to the Act, the WDEA, Governor Murphy's
Executive Order 175, or any other authority, and that this issue should be resolved through the parties' contractual grievance
procedure, as the Association has also filed a related grievance which is currently pending.
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On October 19, 2020, the Association filed a reply brief, and an additional certification of Marc Salvatore. In its reply brief,
the Association contends that Executive Order 175 does not bar the Association from conducting a walkthrough, and that the
Commission has jurisdiction over this matter.
On October 23, 2020, the parties argued their respective cases on the application for interim relief in a hearing via telephone
conference call.
The following facts appear.
The Association is the majority representative for non-supervisory certificated staff including, but not limited to, teachers,
child study team members and guidance counselors employed by the Board. The Association and the Board are parties to a
collective negotiations agreement (CNA) effective July 1, 2018 through June 30, 2021.
In response to the CO VID-19 pandemic for the 2020-2021 school year, the Board adopted a hybrid model of instmction
where different cohorts of students are physically present on different days, but employees are required to be physically
present every school day to perform instructional duties (Salvatore cert., ^4). During September 2020, the Association
became concerned about health and safety protections for employees, and members communicated those concerns to
Salvatore. (Id., ^5). Salvatore communicated those concerns to Cardillo and other administrators. (Id.)
The Association's numerous health and safety concerns included: 1) whether HVAC units were fitted with filters that
complied with CDC guidelines of MERV 13 or higher; 2) whether classroom windows opened, and how much they opened
to ensure adequate classroom ventilation; 3) whether there were sufficient air scrubbers for the square footage of the
auditorium and gym; and 4) why the Board was requiring all students and staff to "self-report" any COVID-like symptoms
before entering the building rather than conducting active screenings or temperature checks as recommended by the CDC.
(Id., T)6). Salvatore certifies that to date, the Board has taken little to no action on these concerns. (Id., ^[7).
On September 25, 2020, the Board announced that a student had tested positive for COVID-19 and that it would conduct
all-virtual instruction for the following two weeks. (Id., ^8). Staff would be required to physically report back to work on
October 5, 2020. (Id.). The Association became concerned that the Board was failing to address existing health and safety
concerns, and was not prepared to adequately safeguard the workplace from the spread of CO VID-19 when employees
returned on October 5. (Id., ^9). Thus, on September 24, 2020, Salvatore made a request to Cardillo to conduct a walkthrough
of the school on September 28, 2020 at 4:00 p.m., because 4:00 p.m. was at the end of the normal work day, and because no
students would be m the building and no student activities were going to be held on September 28. (Id., T(10). Cardillo denied
the request without explanation. (Id.).
On September 25, 2020, Salvatore made a second request to Cardillo, clarifying that the walkthrough was necessary to
address health and safety concerns prior to the school's projected reopening on October 5, 2020. (Id., ^11). Later that same
day, Cardillo denied the second request stating that, "[t]he district has followed the guidance of the New Jersey Department
of Education (NJDOE), and worked in "collaboration with our local and county health Department on this matter." (Id., ^12).
Cardillo certifies that in response to COVID-19, the Board adopted a Restart and Recovery Plan (Plan), which was approved
by NJDOE. (Cardillo cert., Tf3). The Plan outlines protocols and provides a comprehensive list of practices that the Board was
mandated to implement in order to reopen the school safely in response to Governor Murphy's Executive Order 175. (Id.,
^4-5). Pursuant to Executive Order 175, the Board's Plan must include provisions for meeting numerous health and safety
standards, including but not limited to student and staff health screenings, a plan detailing the response when students and/or
staff test positive for COVID-19, and a plan to ensure that indoor facilities have adequate ventilation. (Id., ^10-11). Cardillo
certifies that all of the mandated protocols and practices in the Plan have been m place since the initial reopening of school on
September 1, 2020, and remained in place when the school reopened on October 5, 2020. (Id., Tfl 1). Cardillo further certifies
that as part of the reopening process, she met with stakeholders including Salvatore and other Association members, and
developed the Plan in accordance with state mandated procedures and protocol. (Id., W5, 29).
With regard to the Association's health and safety concerns regarding air ventilation and airflow in the workplace, Cardillo
certifies that "NJDOE did not mandate the MERV-13 HVAC filter to be used nor do the guidelines require a certain MERV
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air filter grade." (Id., ^19). Cardillo further certifies that the Association, "informally expressed its opinion that higher
standards than required for reopening should be used," the Association "has named specific items and areas in the building
where it wanted higher standards applied," and the Association has shared these concerns with the Board. (Id.). Cardillo
certified that the Association's "demands were responded to by the Administration assuring it that it has met reopening
NJDOE guidelines." (Id, 1)20).
Cardillo further certifies that the Association seeks "for the Administration to allow the unqualified [Association] to conduct
a walk-through of the school premises upon demand while there has been no change to the terms and conditions of
employment implemented under the approved reopening protocol and District school buildings were closed due to a
temporary 14-day isolation protocol under the NJDOE guidelines." (Id., 121). Cardillo further certifies that the Association
"admitted there is no contractual right to a walk through on demand and the concerns previously brought by members were
discussed with the [Association] prior to the temporary closure," and the Association "made no demand to bargain for higher
safety and health measures than required" pursuant to Executive Order 175. (Id., ^[22).
With regard to the Association's concerns regarding air quality and ventilation, Cardillo certifies that NJDOE's Checklist for
the Reopening of School 2020-21 "does not refer to any specific grade ofHVAC air filter." (Id., ^23). Furthermore, Cardillo
certifies that the district has passed the NJDOE's checklist requirements that ensure that indoor facilities have "[a]dequate
ventilation by maintaining operational heating and ventilation systems where appropriate," "[rjecirculated air with a fresh air
component," "[w]indows that can be opened," and "[fjilters that are maintained according to the manufacturers'
recommendations. (Id., 1f24).
Cardillo also certifies that the district "has been m the process of addressing classrooms that currently have windows in need
of repair," but "there is no protocol that requires all rooms to have windows or defines the extent to which a window must
open," and there are also "safety concerns involved with students' ability to fall out of windows that open too much." (Id. •;
^25). Cardillo further certifies that the Association "did not request to review information from the District demonstrating its
compliance with ventilation standards." (Id., T(26).
With regard to a walkthrough, Cardillo certifies that the "Administration, in consultation with the school nurse, and local and
county health officials, completed a thorough walk-through in early August 2020 to view classrooms, health offices, and [the]
isolation room." (Id., ^30). Cardillo also certifies that Salvatore "participated in additional walk-throughs throughout the
course of August 2020 to view our model classroom." (Id., ^31). Cardillo certifies that the Association did not request a
walkthrough "prior to the reopening of school on September 1 2020." (Id., p3).
Cardillo certifies that the Association filed a grievance on September 14, 2020 regarding an alleged violation of district
policy 8420, regarding the Board's responsibility to provide for safety and security in each school building. (Id., p4 and Ex.
F). In this grievance, the Association alleges that the school environment is unsafe and hazardous during the COVID-19
pandemic because the Board's Plan has numerous issues, including that it does not provide for sufficient ventilation for
rooms that rely solely on open windows for fresh air, does not include sufficient screening for students and staff upon entry,
does not require sufficient physical distancing and protective barriers, and does not require adequate HVAC systems. (Id. at
Ex. F). Through its grievance, the Association sought a remedy of continuing "100% remote learning" until the Board could
ensure a safe and healthy work environment. (Id.). The Association's grievance was denied at Level II on September 30,
2020, and is currently pending at Level III as an appeal to the Board. (Id., 1f34).
Cardillo certifies that the Board had to shutdown and revert to full virtual learning for two weeks from September 25, 2020
through October 5, 2020 due to a student testing positive for CO VID-19. (Id., p5). Cardillo certifies that the positive test
'was not through the fault of the District; conversely, was due to a community outbreak." (Id., p6). Cardillo certifies that
((
there has been no change to safety protocols "since the last walk throughs that were conducted when school was open," and
that no safeguards have changed due to the fourteen day shutdown. (Id., IP7-38). Cardillo then certifies that "[d]uring the
school closure period, the Association then demanded to inspect the building." (Id., p9).
Cardillo certifies that the Board denied the Association's "demands to walkthrough the school buildings while closed" for
numerous reasons, including that "[t]he Association's demand was not a request to bargain but to open buildings contrary to
District's NJDOE protocol and consultation with local health officials," that the Association's "list of higher standards than
required by the NJDOE for the safe opening and operation of schools aligns to criteria [that] cannot be accomplished," and
^
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that are "unrelated to a demand for a walk through while the District was temporarily closed in compliance with state
safeguards." (Id., T(40). Cardillo further certifies that the Association's air ventilation and HVAC filter requests "are not
requirements that need to be met according to the NJDOE checklist to open schools and CDC guidelines," and that "no
request to bargain for higher safety and health standards has been made." (Id.).
Cardillo also certifies that if the Association were to make a "request to bargain for higher health and safety measures," "the
appropriate time to change a term and condition of employment is during a negotiation year." (Id., ^(41). Cardillo further
certifies that due to CO VID-19, "the status quo for safety standards are those imposed by Executive Order 175 and NJDOE
guidelines," and the Board has not made any unilateral change to those standards. (Id., 1f42).
Cardillo certifies that the Association "has made it known" that "its members do not want to return to in-person learning and
prefer to work from home in the virtual classroom." (Id., ^43). Cardillo further certifies that "[i]t is [her] belief that this
sudden demand for an additional walk through" during the district's closure "is meant to provide the impetus and platform
for those Association members to continue to quibble about the already identified conditions of the building" and as an
"opportunity for the [Association] to try a different attempt to derail the state reopening plan to revert back to in-person
learning." (Id., ^44). Cardillo then certifies that the Association's "unilateral demand to have access to a building when it is
closed for a CO VID-19 reason would be a change and condition of employment as no Association members have ever
demanded access to school buildings during a school emergency closure." (Id., 1f45).
In his reply certification, Salvatore certifies that in August 2020, Tim Platt, the Board's Supervisor of Building and Grounds,
allowed Salvatore to inspect a single classroom, but Salvatore was not pennitted to inspect any other rooms in the building,
and at no point during the 2019-2020 school year was either Salvatore or any other Association representative allowed to
conduct a health and safety walkthrough of the entire building. (Salvatore reply cert., T[3). Salvatore further certifies that
during the two week closure between September 25, 2020 and October 5, 2020, although teaching staff and students were
engaged in virtual instruction, "[o]ther employees, such as custodians and secretaries continued to physically report to the
school during this time and perfonn their job duties." (Id., *^4). However, Salvatore certifies that the Association does not
represent either custodians or secretaries, and those titles are each represented by separate bargaining units. (Id., *?.).
Analysis
A charging party may obtain interim relief in certain cases. To obtain relief, the moving party must demonstrate both that it
has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that
irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim
relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. DeGioia, 90
N.J. 126, 132-134 (1982); Whitmeyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State
College), P.E.R.C. No. 76-6, 1 NJPER41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975).
Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulated the standards for determining whether a subject is mandatorily
negotiable:
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work
and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a
negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a
negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance
the interests of the public employees and the public employer. Wlien the dominant concern is the government's managerial
prerogative to detennine policy, a subject may not be included in collective negotiations even though it may intimately affect
employees' working conditions.
[88 N.J. at 404-405]
Furthermore, it is well settled that the health and safety of employees is a mandatorily negotiable term and condition of
employment. See In re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J. 322, 332 (1989) (employee safety is mandatorily
negotiable in the absence of issues demonstrably affecting governmental policy); Maurice River Bd. of Ed., P.E.R.C. No.
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87-91, 13 NJPER 123 (^18054 1987)(negotiation proposal that would allow employees to refuse to work under conditions
that would endanger their health, safety or well-being is mandatorily negotiable); Tp. of Franklin, P.E.R.C. No. 85-97, 11
NJPER 224 (1fl6087 1985); Union Cty., P.E.R.C. No. 84-23, 9 NJPER 588 (^14248 1983). See also N.J.S.A. 34:13A-26 ("the
safety and health of public employees in the workplace is a primary concern in which employers and employees should
cooperate to enforce standards to assure a healthy and safe workplace").
It is also well settled that a public employer has a duty to provide a majority representative with information relevant to
contract administration. UMDNJ, P.E.R.C. No. 93-114, 19 NJPER 342 (1f24155 1993), recon. granted, P.E.R.C. No. 94-60,
20 NJPER 45 (1T25014 1994), aff ' d, 21 NJPER3\9 (p6203 App. Div. 1995), a^ ' d, 144 N.J. 511 (1996). An employer's
refusal to provide a majority representative with information that the union needs to represent its members constitutes a
refusal to negotiate in good faith in violation of subsections 5.4a(l) and 5.4a(5) of the Act. UMDNJ; Morris Cty., P. E.R.C.
No. 2003-22, 28 NJPER 421 (p3154 2002), aff ' rf, 371 N.J. Super. 246 (App. Div. 2004), certif. den., 182 N.J. 427 (2005);
Mt. Holly Bd. of Ed. et al., P.E.R.C. No. 2019-6, 45 NJPER 103, 104 (1)27 2018); and City of Newark, P.E.R.C. No. 2015-64,
41 NJPER 447 (1)138 2015).
An employer must supply infonnation if there is a probability that the information is potentially relevant and that it will be of
use to the representative in carrying out its statutory duties. UMDNJ; State ofN.J. (OER), P.E.R.C. No. 88-27, 13 NJPER 752
(118284 1987), recon. den., P. E.R.C. No. 88-45, 13 NJPER 841(^18323 1987), off ' d, NJPER Supp.2d 198 ^177 App. Div.
1988). Relevance is detennined through a discovery-type standard; therefore, unions are entitled to a broad range of
potentially useful information. UMDNJ; see also NLRB v. Acme Industrial Co, 385 U.S. 432, 437 (1967); Proctor &
Gamble Manufacturing Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979). The employer is required to produce information
unless it is clearly irrelevant, confidential, or not in its control or possession. UMDNJ; State ofN.J. (OEK).
The Commission has also long held that absent a legitimate, substantial business justification, a public employer cannot bar a
union access to the worksite, and to do so would violate the union's right under section 5.4a (1) of the Act to represent and
advocate for its members. See Perth Amboy Bd. of Ed, H.E. No. 2016-13, 42 NJPER 410 (Tfl 13 2015)(access to employer's
premises to represent employees is protected conduct and cannot be unreasonably restricted; Atlantic Cty., H.E. No. 97-22,
23 NJPER 206, 208 (^28100 1997) (employer may not impose total ban on access to its premises without a substantial,
legitimate business reason); Bergen Cty., P.E.R.C. No. 84-2, 9 NIPER451, 457 (^14196 1983).
This well established right of union access to the workplace was recently codified in the WDEA. The Association contends
that the Board's failure to allow it access to the school building to conduct a health and safety walkthrough violates section
5.13(f) of the WDEA, which provides that
[e]xclusive representative employee organizations shall have the right to use government buildings and other facilities that
are owned or leased by government entities to conduct meetings with their unit members regarding collective negotiations,
the administration of collective negotiations agreements, the investigation of grievances, other workplace-related complaints
and issues, and internal union matters involving the government or business of the union, provided such use does not
interfere with governmental operations.
N.J.S.A. 34:13A-5.13(f) (emphasis added).

The Association notes although that there have been no Commission decisions directly on point regarding whether a union
has a right to access the workplace to conduct a health and safety inspection, the National Labor Relations Board (NLRB) has
held in Holyoke Water Power Co., 273 NLRB 1369 (1985), for its holding that a union has a right to inspect health and safety
issues in the workplace so long as the inspection does not unduly interfere with the employer's operations. The Association
argues that between the Commission's long history of decisions upholding union access to the employer's premises, the
codification of that right of access in the WDEA, and the NLRB's decision in Holyoke Water Power Co., the Commission
must similarly find that the Association has a right to conduct workplace health and safety inspections.
In Holyoke Water Power Co., 273 NLRB at 1369, the employer operated a power plant that included a forced draft fan room,
which contained two fans that forced air into the plant's burners as part of the combustion process. The fan room was very
noisy, and the employer required that all employees who entered the fan room must wear earmuffs provided by the employer
for hearing protection. Id.
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The union requested that the employer permit the union's industrial hygienist to have access to the fan room to survey
potential health and safety hazards. Id. The employer denied the request but gave the union a summary of an overall noise
survey, and then a noise level reading from the fan room, that the employer had performed. Id.
An administrative law judge found that the employer was obligated to grant access to the fan room to the union's industrial
hygienist. Id. The NLRB adopted the administrative law judge's recommended order with the modification that access must
be for a "reasonable period sufficient to allow the union hygienist to fully observe and survey noise level hazards." Id.
In so ordering, the NLRB noted that it disagreed with the administrative law judge's analysis
insofar as it finds that a request for access is tantamount to a request for information; that is, the union is entitled to access if
it is shown that the information sought is relevant to the union's proper perfonnance of its representation duties.
Id. (emphasis added). The NLRB further reasoned that, "[w]hile the presence of a union representative on the employer's
premises may be relevant to the union's perfonnance of its representative duties," the NLRB "disagree[d] that that alone, ipso
facto, obligates an employer to open its doors." Id.
Instead of treating the request for access as "tantamount to a request for information," the NLRB found that the appropriate
analysis was the accommodation of two conflicting rights: "the right of employees to be responsibly represented by the labor
organization of their choice," and "the right of the employer to control its property and ensure that its operations are not
interfered with." Id. (citing Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966). In balancing these two conflicting
rights, the VLRB found that
[w]here it is found that responsible representation of employees can be achieved only by the union ' s having access to the
employer ' s premises, the employer's property rights must yield to the extent necessary to achieve this end.
Id. (emphasis added). With regard to access, the NLRB opined that
the access ordered must be limited to reasonable periods so that the union can fulfill its representational duties without
unwarranted interruption of the employer ' s operations . . . [but] where it is found that the union can effectively represent
employees through some alternate means other than by entering on the employer's premises, the employer's property rights
will predominate and the union may properly be denied access.
Id. (emphasis added).
The NLRB then reiterated that "health and safety conditions are a term and condition of employment about which an
employer is obligated to bargain on request," and "health and safety data is relevant to the Union's representation obligation."
Id. (citing Minnesota Mining Co., 261 NLRB 27 (1982)). The NLRB then noted that it was "a matter of common knowledge
that exposure to excessive noise presents potential health hazards," and "no one disputes that the . . . fan room is very noisy."
Id.
Thus, the NLRB held that in these circumstances,
the employees' right to responsible representation entails the Union's obtaining accurate noise level readings for the fan room
to ascertain the extent of the hazard and to suggest means of ensuring that employees are properly protected.
Id. In balancing the rights of the union and the employer, the NLRB further held that "the property rights must yield to the
extent necessary to enable the union hygienist to independently conduct his noise level tests." Id.
With regard to the sufficiency of the noise level data supplied by the employer to the union in lieu of an inspection, the
NLRB found that those test results were "insufficient to meet the Union's purposes." Id. Also, the NLRB found that the
employer's willingness to permit the union's business agent, but not the union's hygienist, who was the union's choice of
representative, to enter the fan room was also insufficient. Id.
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I now examine the first Crowe factor, whether the Association has a substantial likelihood of prevailing in a final
Commission decision on its legal and factual allegations. Again, the Association seeks a health and safety walkthrough of the
building, contending that CO VID-19 constitutes an imminent threat to its members, and therefore it should not have to wait
for the resolution of the charge before it is granted a walkthrough. Notably, neither the Association's charge nor its
application for interim relief seeks a determination by the Commission that the Board must implement any particular remedy
to address the Association's health and safety concerns relating to the Board's COVID-19 preparations. The Association does
not seek a detennination that the Board must install any particular grade of HVAC filter, make any particular improvements
to classroom ventilation systems, add additional air scrubbers to the auditorium and gym, or implement any additional
COVID-19 screening procedures. Nor does the Association seek an order that the Board revert to all virtual instruction due to
any particular health or safety concern, as it does in its pending grievance. Here, the Association simply seeks an order from
the Commission requiring the Board to allow it to conduct a walkthrough of the building so that it can collect information to
assist it in representing and advocating for its members on workplace health and safety issues.
Notably, the relevant facts in this matter are undisputed. It is undisputed that Governor Murphy's Executive Order 175
necessitated a school reopening plan in response to CO VID-19, and it is undisputed that the Board developed its plan m
accordance with, and then met all state mandated procedures and protocol. It is also undisputed that Salvatore, on behalf of
the Association, participated in a walkthrough in August 2020 to view a model classroom, but not the entire building. It is
undisputed that the Association made two requests for walkthroughs in September, 2020, but the Board denied those
requests. It also undisputed that the Association has been advocating, both in its communications to the Board and through its
grievance, for higher quality air ventilation equipment that may exceed the standards mandated by NJDOE's reopening
guidelines, such as the installation ofMERV-13 HVAC filters.
The Association's request for a health and safety walkthrough is strongly supported by numerous well settled labor
principles. As reviewed in detail above, the health and safety of employees is a mandatorily negotiable term and condition of
employment. See In re Hunterdon Cty., Maurice River Bd. of Ed., supra. The Board has a duty to provide the Association
with a broad range of potentially useful information that the Association needs to represent its members. See UMDNJ, Morris
Cty., supra. The Association has a right to access the workplace absent a legitimate, substantial business justification, see
Perth Amboy Bd. of Ed., supra, a right that was codified in the WDEA. The NLRB has upheld a union's right to inspect
health and safety issues in the workplace so long as the inspection does not unduly interfere with the employer's operations.
See Holyoke Water Power Co., supra.
The Board's arguments in opposition to the Association's request for a health and safety walkthrough are based upon
mischaracterizations of the Association's relatively straight-forward request. First, the Board relies upon meeting NJDOE
guidelines, and NJDOE's approval of its Plan, as its basis for rejecting the Association's request for a walkthrough. This
argument would be relevant as a defense if the Association was seeking an order from the Commission declaring that the
Board had violated certain health and safety standards, or requiring that the Board implement a particular health and safety
improvement. But that is not the remedy sought here by the Association, which seeks only an opportunity to access the
workplace to collect a broad range of potentially useful infonnation that it needs to represent its members during a pandemic.
Next, the Board argues that the Association's request for a walkthrough "upon demand" is inappropriate because there is no
contractual right to a walkthrough on demand, and the Association had "made no demand to bargain for higher safety and
health measures than required" pursuant to Executive Order 175. (Cardillo cert., 1(22). But again, this argument
mischaracterizes the nature of this action. The Association has filed a separate grievance alleging a potential violation of the
parties' CNA. This is an unfair practice charge alleging a violation of the Act and the WDEA, and therefore the Association
need not cite a contractual right. Furthermore, the Board's argument again ignores the Association's representational duties to
its members to collect potentially relevant health and safety information during the CO VID-19 pandemic. Cardillo
mischaracterizes the Association's "demand" for a walkthrough as a "platform for those Association members to continue to
quibble about the already identified conditions of the building," and as an "attempt to derail the state reopening plan to revert
back to in-person learning," (Cardillo cert., 1f44), but the Association is simply exercising its well supported rights under the
Act and the WDEA.
Finally, the Board argues that it cannot allow the Association a health and safety walkthrough because the school building
was closed, and the Board could not open "contrary to . . . NJDOE protocol and consultation with local health officials," and
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Passaic Valley Regional High School Board of Education,..., 47 NJPER II 54 (2020)
the building "was temporarily closed in compliance with state safeguards." (Cardillo cert., T(40). The argument is flawed for
numerous reasons. First, although teaching staff and students were engaged in virtual instruction between September 25,
2020 and October 5, 2020, "custodians and secretaries continued to physically report to school during this time and perfomi
their job duties." (Salvatore reply cert., 14). Second, Cardillo did not offer this reason on September 24 or 25, 2020, in
response to either of the Association's requests. And third, the school reopened on October 5, 2020. If the Board was
concerned about allowing the Association to conduct a walkthrough during the closure, the Board could have responded that
the Association could conduct its walkthrough on or after October 5, 2020, but it did make any attempt to accommodate the
Association's request.
Under these unique circumstances, I find that the Association has established a substantial likelihood of prevailing in a final
Commission decision on its legal and factual allegations.
I next consider irreparable harm. Harm becomes irreparable in circumstances where the Commission cannot fashion an
adequate remedy which would return the parties to the conditions that existed before the Commission of any unfair practice
at the conclusion of the processing of the unfair practice charge. City of Newark, I.R. No. 2006-3, 31 NJPER 250 (^97 2005);
Atlantic City Bd. of Ed., I.R. No. 2003-14, 29 NJPER 305 (^94 2003); and 5'uêx Cty., I.R. No. 2003-13, 29 AW£'7? 274 ffl81
2003). "Hami is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages."
Crowe.90NJ.at 132-33.
Here, the Association is requesting a health and safety walkthrough during the COVID-19 pandemic, which the Association
reasonably contends constitutes an unminent threat to its members. It is difficult to imagine harm more irreparable than the
threat posed to employees by potential health and safety issues in a workplace that may increase their exposure to COVID-19
during a pandemic.
Thus, I find that the Board's refusal to accommodate the Association's request for a health and safety walkthrough when
students are not in the building, but willingness to allow custodians and secretaries to continue to work in the building, is
unjustified and harmful to the labor relations process. Accordingly, we find that the Association has demonstrated irreparable
harm if the Board does not allow it to conduct a health and safety walkthrough of the workplace.
Finally, to grant interim relief, the public interest must not be injured and the relative hardship to the parties in granting or
denying relief must be considered. We find that there is little to no hardship to the Board if ordered to allow a health and
safety walkthrough to the Association when students are not in the building, as the Board already allows custodians and
secretaries to work in the building at this time. In contrast, there would be comparably great hardship to the Association
caused by continuing to deny it access to a health and safety walkthrough during a pandemic in a timely manner. Thus, I find
that the relative hardship to the parties weighs in favor of granting the Association's request for a health and safety
walkthrough.
Order
The application of the Association for interim relief is granted. The Board must allow the Association access to the school
premises to conduct a health and safety walkthrough by not more than three representatives of the Association's choice, for a
reasonable period sufficient to allow the Association's representatives to fully observe and survey health and safety
conditions on the premises, at a time when any employees are working on site and students are not on the premises.
Footnotes
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. (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.
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Passaic Valley Regional High School Board of Education,..., 47 NJPER K 54 (2020)
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9 US. Governîent'VVcrks 10

Gail Oxfeld Kanef, Esq. (Bar ID 035131992) : Attorneys For Defendant, Montclair Education Association

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ESX-C-000018-21 03/01/2021 02:49:24 PM Pg 1 of 44 Trans ID: CHC202139485

Gail Oxfeld Kanef, Esq. (Bar ID 035131992)

Attorneys for Defendant, Montclair Education Association

MONTCLAIR BOARD OF EDUCATION, SUPERIOR COURT OF NEW JERSEY

BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY

Gail Oxfeld Kanef, Esq. (Of Counsel and On the Brief)

STATEMENT OF FACTS_AND PROCEDUAL HISTORY. .........................2

LAW AND ARGUMENT. ................................. ...................8

A. The Employee Action in the Present Case Does

B. The Employee Action in the Present Case Does

THE PROCEEDINGS AND REFER THIS MATTER TO PERC,

CONCLUSION. .......................................... ..................26

Bd ofEduc., Bar. of Union Beach v. New Jersey Educ. Ass'n,

Sunbeam Corp. v. Windsor-Fifth Ave.,

STATUTES AND REGULATIONS:

STATEMENT OF FACTS AND PROCEDUAL HISTORY

Recirculated air must have a fresh air component

Montclair has not followed these rules.

beyond repair. (Robertson Cert ^12)

Back document. (Robertson Cert ^24).

2020 and has never returned to check the buildings.

LAW AND ARGUMENT

PLAINTIFF DOES NOT HAVE A REASONABLE

threat to personal welfare." Id. at 124.

9 https://www.ni.coin/education/2020/l 2/all-21 -counties-are-orange-on-nis-covid-1 9-map-again-heres-what-that-

place for health and safety procedures.

https://www.nj.gov/education/reopening/NJDOETheRoadBack.pdf (Seepages 16-31 for all

The Governor's directive requires buses to be cleaned and sanitized according to a

person instruction at this time.

INJUNCTIVE RELIEF SHOULD BE WITHHELD BECAUSE

The Commissioner of DOE shall continue working with each public

THE BOARD CANNOT DEMONSTRATE THAT

A. The Employee Action in the Present Case Does Not

Critically, because this particular job action is a refusal to engage in a particular

A BALANCING OF THE RELATIVE HARDSHIPS FAVORS

25 MAYO CLINIC, COVID-19, Long-term effects, available at https://www.mayoclinic.org/diseases-

IN THE ALTERNATIVE, THIS COURT SHOULD STAY

5.4(c), as enumerated in N.J.S.A. 34:13A-5.4Ca)(unfair practices of employers) and N.J.S.A.

34:13A-5.4(b)(unfair practices of employee organizations). See Galloway Tp. Bd. of Ed. v.

As a result of this Legislative delegation of administrative power, the courts have

Kaczmarek v. New Jersey Turnpike Authority, 77 N.J. 329, 337 (1978).

rights not covered by other laws." City of Hackensack, 82 N.J. at 24.

exclusively tasked with hearing such matters - PERC.

exclusive representative employee organizations shall have the right

Dated: March 1,2021

Passaic Valley Regional High School Board of Education,., 47 NJPER U 54 (2020)

Related Index Numbers

Designee grants interim relief in dispute over safety inspection request

Passaic Valley Regional High School Board of Education,..., 47 NJPER ^ 54 (2020)

Passaic Valley Regional High School Board of Education,., 47 NJPER K 54 (2020)

The following facts appear.

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Passaic Valley Regional High School Board of Education,..., 47 NJPER If 54 (2020)

[88 N.J. at 404-405]

Passaic Valley Regional High School Board of Education,..., 47 NJPER K 54 (2020)

N.J.S.A. 34:13A-5.13(f) (emphasis added).

Passaic Valley Regional High School Board of Education,..., 47 NJPER II 54 (2020)

Id. (emphasis added).

Thus, the NLRB held that in these circumstances,

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Passaic Valley Regional High School Board of Education,.., 47 NJPER D 54 (2020)

Passaic Valley Regional High School Board of Education,..., 47 NJPER II 54 (2020)

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