IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION AND BELLEVILLE BOARD OF EDUCATION BELLEVILLE EDUCATION ASSOCIATION VS. BELLEVILLE BOARD OF EDUCATION (PUBLIC EMPLOYMENT RELATIONS COMMISSION, AND L-7237-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5104-14T3
A-2956-15T3
IN THE MATTER OF BELLEVILLE
EDUCATION ASSOCIATION and BELLEVILLE
BOARD OF EDUCATION.
____________________________________
APPROVED FOR PUBLICATION
BELLEVILLE EDUCATION ASSOCIATION,
July 16, 2018
Plaintiff-Appellant, APPELLATE DIVISION
v.
BELLEVILLE BOARD OF EDUCATION,
Defendant-Respondent.
_____________________________________
Argued September 13, 2017 – Decided July 16, 2018
Before Judges Fuentes, Koblitz, and Suter.
On appeal from the Public Employment Relations
Commission, Docket No. CO-2014-149, and
Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-7237-15.
Stephen J. Edelstein argued the cause for
appellant/cross-respondent Belleville Board
of Education (in A-5104-14) (Schwartz Simon
Edelstein & Celso, LLC, attorneys; Stephen J.
Edelstein, of counsel and on the brief; Joshua
I. Savitz and Aimee S. Weiner, on the brief).
Sanford R. Oxfeld argued the cause for
appellant (in A-2956-15) (Oxfeld Cohen, PC,
attorneys; Sanford R. Oxfeld, of counsel and
on the brief; Samuel B. Wenocur, on the brief).
Sanford R. Oxfeld, argued the cause for
respondent/cross-appellant Belleville
Education Association (in A-5104-14) (Oxfeld
Cohen, PC, attorneys; Sanford R. Oxfeld, of
counsel and on the brief; Samuel B. Wenocur,
on the brief).
Stephen J. Edelstein argued the cause for
respondent (in A-2956-15) (Schwartz Simon
Edelstein & Celso, LLC, attorneys; Stephen J.
Edelstein, of counsel and on the brief; Joshua
I. Savitz, Aimee S. Weiner and Vanessa E.
Pena, on the brief).
Christine Lucarelli, Deputy General Counsel,
argued the cause for amicus curiae New Jersey
Public Employment Relations Commission (in
A-2956-15) and respondent (in A-5104-14)
(Robin T. McMahon, General Counsel, attorney;
Christine Lucarelli, on the briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
This opinion involves two separate, but interrelated cases
arising from the same core of operative facts. In the appeal
filed by the local board of education under Docket Number A-5104-
14, this court upholds the decision of the Public Employment
Relations Commission (PERC) to assert its exclusive jurisdiction
to decide complaints arising under the New Jersey Employer-
Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -43, even when
raised in the context of tenure charges. Applying the Supreme
Court's holding in In re Local 195, IFPTE, 88 N.J. 393 (1982),
this court also upholds the union's right to engage in good faith
2 A-5104-14T3
negotiations to ascertain the impact the installation of exposed
cameras with both audio and video capabilities would have on the
terms and conditions of employment for the employees.
In the separate, but related appeal filed by the union under
Docket Number A-2956-15, this court holds the Law Division does
not have jurisdiction under Rule 4:67-6 to enforce an order entered
by PERC. Adhering to the Supreme Court's holding in Galloway Twp.
Bd. of Educ. v. Galloway Twp. Educ. Ass'n, 78 N.J. 25 (1978), we
hold that only PERC may file a motion before the Appellate Division
to enforce its own order under the EERA. A prevailing party in
a PERC proceeding only has the right to request that PERC enforce
its own order.
The simplest and most direct way to address the issues raised
by the parties in these appeals is to proceed chronologically.
I
A-5104-14
On January 13, 2014, the Belleville Education Association
(BEA) filed an unfair practice charge with PERC alleging that the
Belleville Board of Education (Board) had violated the EERA. The
BEA alleged the Board unilaterally implemented a policy that
requires staff to wear radio frequency identification cards (RFID)
and, in the guise of upgrading the security system in the schools,
placed exposed cameras "with both video and audio capabilities"
3 A-5104-14T3
in virtually all areas of the schools, leaving staff without a
private space to congregate and express concerns to BEA officers.
The BEA argued that these material alterations of the school
environment affected their members' terms and conditions of
employment and were therefore subject to good faith negotiation.
The BEA also alleged the Board retaliated against its
President, Michael Mignone, by filing tenure charges against him
when he openly advocated against these policies. The BEA claimed
the Board's actions violated N.J.S.A. 34:13A-5.4(a)(1),(2),(3) and
(5). The BEA sought interim injunctive relief prohibiting the
Board from implementing the security measures and staying the
prosecution of the tenure charges against Mignone.
The Board argued it had a non-negotiable managerial
prerogative to unilaterally implement these security measures to
protect the safety of the students and staff, especially in
response to the recent surge of school shootings. The Board also
stated the issues related to the retaliation charges were moot
because it had withdrawn its complaint against Mignone. However,
even if the charges were pending, the Board argued PERC did not
have jurisdiction over this matter. In response, the BEA disputed
that the charges against Mignone had been dismissed.
After considering the arguments of the parties, the
Commission Designee denied the BEA's application for interim
4 A-5104-14T3
injunctive relief. The Designee found that the
surveillance/security system and RFID employee cards were a "more
pervasive type of system, with newer technology, [that] has never
been considered by the Commission." Under these circumstances,
the Designee concluded that "[a]n interim relief proceeding is not
the appropriate application for creating new law . . . ." With
respect to the tenure charges against Mignone, the Designee
rejected the Board's jurisdiction argument, holding that PERC "has
[the] authority to decide whether the charges were brought against
the individual for an inappropriate reason that may constitute a
violation of the [EERA]." However, the Designee declined to grant
any interim relief because there were material factual issues in
dispute.
On May 16, 2014, PERC issued a Complaint and Notice of
Prehearing. The parties thereafter presented their case to an
arbitrator. On July 28, 2014, the arbitrator issued a decision
in favor of the BEA and awarded remedies specifically tailored to
the issues at hand. The arbitrator's comprehensive opinion found
insufficient evidence to support the charges against Mignone, with
one exception. The exception related to Charge II, Count 5 of the
complaint, which alleged that Mignone inappropriately allowed a
BEA representative to listen surreptitiously during a telephone
conversation with a parent of a student.
5 A-5104-14T3
The arbitrator found the evidence proved that Mignone
"engaged in substantial misconduct by having an undisclosed BEA
representative present during a conference call with the [p]arent
of one of his students and the Guidance Counselor." The presence
of the third party during this parent-teacher conference call
"posed the potential violation of the privacy of the [p]arent and
student despite the fact that nothing detrimental was revealed in
the conversation."
The arbitrator dismissed the remaining charges and ordered a
one-month suspension without pay as the appropriate penalty for
the sustained charge. The arbitrator also ordered the Board to
reinstate Mignone to his former position and "be made whole for
the loss of compensation, if any, beyond the one-month suspension
without pay imposed herein." By mutual agreement, both parties
moved for summary judgment before PERC.
On June 25, 2015, PERC issued its written decision on the
parties' summary judgment motions. With respect to whether the
Board had the authority to install the audio-video surveillance
system, PERC found:
In the instant matter, the Board has installed
exposed cameras with both audio and video
capabilities in all classrooms, hallways,
cafeterias, kitchens, gymnasiums, faculty
lounges, most stairwells, some closets and
other public spaces as well as the exterior
of the buildings. Cameras are not installed
6 A-5104-14T3
in restrooms, locker rooms and nurses'
offices. Audio recordings will only be
triggered in the event of an emergency or
security issue. Each classroom will also have
a telephone that will allow teachers to
quickly communicate with [School] District
officials and the police in the event of a
crisis. The Bellville Police Department will
have the ability to tap into the audio and
video feeds in the event of an emergency, but
will not be continuously monitoring the
[School] District.
. . . .
[T]he installation of exposed cameras for the
purpose of protecting people and property is
a significant government interest which places
the issue outside of the domain of
negotiability.
. . . .
The [School] District has a prerogative, and
responsibility, to take the measures it deems
appropriate to protect the safety of its
students and staff, particularly in light of
the numerous incidences of public violence in
our schools nationwide in recent past.
PERC reached a similar conclusion with respect to the RFID
employee identity cards:
[W]e consider the use of RFID cards as part
of the security system implemented by the
Board. The RFID cards can locate staff when
they are on school grounds or a school bus and
in proximity to a card reader. The [School]
District has determined that the use of these
cards is an important part of security for its
schools. The cards have a panic button
feature that could be critical in instantly
alerting the administration and police in the
event of a crisis. The [School] District's
7 A-5104-14T3
interests in security in this area are
substantial, in contrast to employees who
cannot claim an interest in concealing their
location during work hours, on school grounds
and buses.
Despite these findings, PERC found the BEA had raised "many
of the valid concerns" that favor the negotiability of these
"impact issues." These issues include, but are not limited to:
(1) the placement of cameras in the faculty lounges; (2) the
designation of areas where cameras would not be installed to permit
teachers to meet with BEA officers "to discuss sensitive or
confidential matters;" (3) the establishment of notice protocols
if data collected from RFID or audio-video recordings is used to
support disciplinary charges, and procedures for accessing such
data; (4) policies for retaining audio or video recordings and
data collected from RFID cards; and (5) procedures for notifying
staff if the Board planned to make significant changes to the
cameras or the RFID cards.
In a footnote, PERC noted that the Board did not identify a
particular need for monitoring areas where teachers and other
staff congregate on school property. PERC acknowledged that the
traditional teachers' lounge may be the only location in a school
building where teachers are entitled to expect a measure of
privacy:
8 A-5104-14T3
In a school setting, teachers generally do not
have individual offices . . . [and] have no
privacy in classrooms because they are engaged
with students for the majority of the day, and
also because classrooms are monitored by
cameras. Faculty lounges should be areas
where staff can go to during break to engage
in conversations with colleagues about
professional or personal matters without a
concern of being monitored or overhead by a
camera.
Finally, PERC found the arbitrator's decision to sustain
certain tenure charges against BEA President Mignone, as well as
the imposition of a one-month suspension without pay as a sanction,
violated Mignone's rights under N.J.S.A. 34:13A-5.4(a) of the
EERA. PERC also rejected the Board's argument challenging its
jurisdiction to review this matter. Citing N.J.S.A. 34:13A-
5.4(c), PERC held: "This agency has exclusive jurisdiction over
unfair practice claims arising under the [EERA]."
PERC found that Mignone "engaged in protected activity" under
EERA when he met with the Superintendent of Schools in September
2013 to "express his concerns about the security system" and when
the BEA disseminated information disclosing the cost of the
proposed surveillance system and encouraging BEA members to attend
the Board meeting in October 2013.
PERC found the evidence showed the Board had "dual motives"
for sending Mignone letters of reprimand, for suspending him, and
for ultimately filing tenure charges against him. PERC also found:
9 A-5104-14T3
The record supports that Mignone engaged in
misconduct when he participated in a
conversation with his students about the
security system and did not advise a mother
of his student that [a BEA] representative was
present listening in on their telephone call.
However, the discipline that was imposed is
notably disproportionate to the misconduct,
particularly in light of Mignone's clean
disciplinary record in his fourteen years of
teaching in the [School] District prior to
becoming [BEA] President.
PERC concluded that the punitive nature of the charges the
Board filed against Mignone, coupled with the "timing" of these
charges, are important factors in assessing the Board's motivation
and "give rise to an inference that a personnel action was taken
in retaliation for protected activity." PERC thus ordered the
Board "to cease and desist from . . . [i]nterfering with,
restraining or coercing employees in their exercise of the rights
guaranteed to them by the [EERA] . . . ." PERC specifically cited
the disciplinary actions the Board took against Mignone as an
example of the type of retaliation prohibited by the EERA. PERC
also restrained the Board from discriminating "in regard to hire
or tenure of employment or any term or condition of employment to
encourage or discourage employees in the exercise of the rights
guaranteed to by the [EERA] . . . ."
PERC also found the Board violated the EERA by "[r]efusing
to negotiate in good faith with the [BEA], particularly with regard
10 A-5104-14T3
to the severable impact on the staff from implementation of
security cameras and use of RFID cards." PERC ordered the Board
to apprise all staff of this decision by posting "in all places
where notices to employees are customarily posted," a "Notice to
Employees,"1 attached as Appendix A to its June 25, 2015 final
order and decision.
The Board appealed PERC's decision to this court on July 14,
2015. The matter came for oral argument on September 13, 2017.
In response to our request during oral argument, counsel for the
Board submitted a certification2 in which he described the action
and measures the School District has taken, as described by Dr.
Richard D. Tomko, the Superintendent of Schools for the Bellville
School District:
5. Dr. Tomko became the Superintendent in
February 2015.
6. According to Dr. Tomko, at that time,[3] the
District was in the process of removing those
security cameras from District property that
were not operational.
1
We include a copy of PERC's "Notice to Employees" as an Appendix
to this opinion.
2
The certification contains eighteen numbered sections. We
include here only those sections that are relevant to the issues
related to PERC's decision and order.
3
Because counsel's certification is dated September 18, 2017, we
construe the phrase "at that time" to refer to the conditions that
existed and the actions that were taken as of September 2017.
11 A-5104-14T3
7. Dr. Tomko advises that thereafter he
continued to remove all cameras from
classrooms and faculty spaces, excluding
hallways, laboratories, gymnasiums, and
auditoriums.
8. Dr. Tomko further advises that he notified
the [BEA] of his actions in one or more of the
regular weekly meetings which he holds with
[BEA] leadership and worked with BEA President
Micheal Mignone in determining whether any
cameras remained.
9. Cameras which were disconnected, but still
physically present in rooms, were then removed
at the [BEA's] request.
10. As of some point in 2015, the exact date
of which is unknown to Dr. Tomko, all cameras
were removed from District Property.
. . . .
12. Dr. Tomko further advises that since his
arrival in February 2015, there have not been
any operational Radio Frequency
Identification ("RFID") cards utilized within
the District.
13. The District does not maintain the
requisite server of software to operate the
tracking feature of the RFID cards.
14. Although faculty members still have
identification cards which may include RFID
hardware inside the card, there is no software
to monitor the hardware.
15. Moreover, the battery component of any
such hardware, which was intact in
approximately 2014, would have long expired
at this time.
16. According to Dr. Tomko . . . the District
did not circulate any documents or memoranda
12 A-5104-14T3
regarding the cameras or RFID cards since his
arrival.
17. None of the above was memorialized in any
Board action.
[(Emphasis added).]
The BEA did not respond to or otherwise refute the facts described
in this certification.
II
PERC is an administrative agency designated by the
Legislature to interpret, implement, and enforce the EERA. PERC's
interpretation of the EERA is therefore entitled to substantial
deference. Commc'ns Workers of Am., Local 1034 v. N.J. State
Policemen's Benev. Ass'n., Local 203, 412 N.J. Super. 286, 291
(App. Div. 2010). The EERA guarantees employees "a vast array of
rights, including the ability to appoint a majority representative
to represent their interests and negotiate agreements on their
behalf with an employer." In re Cty. of Atl., 230 N.J. 237, 252
(2017) (citing N.J.S.A. 34:13A-5.3). It prohibits a public
employer from "interfering with, restraining or coercing employees
in the exercise of their rights" under the EERA, "[d]iscriminating
in regard to . . . tenure of employment or any term or condition
of employment to . . . discourage employees in the exercise of the
rights guaranteed to them by this act[,]" and "[r]efusing to
13 A-5104-14T3
negotiate in good faith" the terms and conditions of employment.
N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (5), and (7).
Here, PERC concluded that the Board's installation of exposed
cameras, equipped with audio and video recording capability, for
the purpose of protecting staff, students, and other people and
property is a significant government interest which places the
issue outside of the domain of negotiability. PERC reached the
same conclusion with respect to the RFID employee identity cards.
However, PERC also found that the BEA had raised many valid
concerns that favored the negotiability of these "impact issues."
In the seminal case of Local 195, 88 N.J. at 403-05, our
Supreme Court established the test for determining whether a
subject is mandatorily negotiable between public employers and
employees. The Court held that to be negotiable, "the subject
matter must: (1) be an 'item [that] intimately and directly affects
the work and welfare of public employees'; (2) be a topic that
'has not been fully or partially preempted by statute or
regulation'; and (3) involve a matter where 'a negotiated agreement
would not significantly interfere with the determination of
governmental policy.'" Cty. of Atl., 230 N.J. at 253 (alteration
in original) (quoting Local 195, 88 N.J. at 404-05).
Before we apply the Local 195 test to the issues at hand, we
are bound to determine whether the Board's counsel's September
14 A-5104-14T3
2017 certification attesting to the actions taken by the School
District's Superintendent, Dr. Tomko, to abandon and remove the
security camera surveillance initiative as well as the RFID staff
identification badges, without formal approval by the Board, has
any bearing of the continued legal viability of these issues.
Stated more directly: are these issues now moot? Furthermore,
even if these issues are now technically moot, we are entitled to
assert our jurisdiction over them if they involve matters of
substantial public importance and are capable of repetition. Brady
v. Dep't of Pers., 149 N.J. 244, 253-254 (1997) (citing In re
J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104-05 (1988)).
We conclude these issues are not moot. The Board's counsel
made clear in his certification that the Superintendent's actions
have not been memorialized in a resolution formally approved by
the Board. PERC's order directed the Board to engage in good
faith negotiations with the BEA over the impact these measures
would have on the terms and conditions of its members' employment.
The Superintendent's unilateral actions to de facto abandon these
surveillance projects do not constitute compliance with PERC's
order.
PERC also ordered the Board to post the specific Notice to
Employees that we have attached as an Appendix to this opinion.
The Board's counsel's certification does not address this issue.
15 A-5104-14T3
Finally, the Board's legal challenge to PERC's jurisdiction to
address and adjudicate the retaliation charge filed by the BEA's
President was not within the scope of this court's request to the
Board's counsel. Thus, it is not covered by the certification.
"The Legislature has vested PERC with 'the power and duty,
upon the request of any public employer or majority representative,
to make a determination as to whether a matter in dispute is within
the scope of collective negotiations.'" City of Jersey City v.
Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567-
68 (1998) (quoting N.J.S.A. 34:13A-5.4(d)). "The standard of
review of a PERC decision concerning the scope of negotiations is
thoroughly settled. The administrative determination will stand
unless it is clearly demonstrated to be arbitrary or capricious."
Id. at 568 (citations and internal quotations omitted).
"Questions concerning whether subjects are mandatorily
negotiable should be made on a case-by-case basis." Troy v.
Rutgers, 168 N.J. 354, 383 (2001) (citing City of Jersey City, 154
N.J. at 574). The Supreme Court has established a three-part test
for scope of negotiations determinations. Local 195, 88 N.J. at
403. A subject between public employers and employees is
negotiable when:
(1) the item intimately and directly affects
the work and welfare of public employees; (2)
the subject has not been fully or partially
16 A-5104-14T3
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. When the dominant
concern is the government's managerial
prerogative to determine policy, a subject may
not be included in collective negotiations
even though it may intimately affect
employees' working conditions.
[Id. at 404-05.]
In our view, PERC's thoughtful decision properly applied the
Local 195 test to strike a proper balance between the Board's
managerial prerogative and obligation to ensure the safety of
students and staff, and the BEA's right to advocate and negotiate
for the interests of its members. The issues PERC addressed
include, but are not limited to, good faith negotiations concerning
the designation of zones of privacy where cameras would not be
installed. A designation of a place like the traditional teachers'
lounge would allow staff to discuss personal matters, including
union issues, without fear of electronic eavesdropping by school
administrators. The same principles of privacy and unwarranted
intrusion would animate the negotiation involving the RFID staff
identification badges.
17 A-5104-14T3
As PERC noted, the BEA and the Board can negotiate the
establishment of notice protocols if data collected from RFID
badges are used to support disciplinary charges. This is but a
small sampling of the universe of issues associated with this
multifaceted security/tracking system. As the Court recently
reaffirmed, through the enactment of the EERA, the Legislature
"recognized that the unilateral imposition of working conditions
is the antithesis of its goal that the terms and conditions of
public employment be established through bilateral negotiation."
Cty. of Atl., 230 N.J. at 252 (quoting Galloway Twp. Bd. of Educ.
v. Galloway Twp. Educ. Ass'n, 78 N.J. 25, 48 (1978)).
III
The Board argues that PERC lacks jurisdiction over the tenure
charges it brought against Mignone. As PERC explained, the focus
of the charge brought by the BEA was directed at the motivation
for the Board's actions against Mignone. The BEA argued the tenure
charges were pretextual, a ruse to conceal the Board's retaliatory
motive to punish Mignone for engaging in protected conduct in the
form of speaking out against the installation of the security
system. PERC concluded it has "exclusive jurisdiction over unfair
practice claims arising under [the EERA]" pursuant to N.J.S.A.
34:13A-5.4(c).
18 A-5104-14T3
We agree with PERC. The EERA prohibits "[p]ublic 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.
(2) Dominating or interfering with the
formation, existence or administration of any
employee organization.
(3) Discriminating in regard to hire or tenure
of employment or any term or condition of
employment to encourage or discourage
employees in the exercise of the rights
guaranteed to them by this act.
[N.J.S.A. 34:13A-5.4(a).]
In adopting the EERA, the Legislature bestowed upon PERC the:
exclusive power as hereinafter provided to
prevent anyone from engaging in any unfair
practice listed in [N.J.S.A. 34:13A-5.4(a) and
(b)].
Whenever it is charged that anyone has engaged
or is engaging in any such unfair practice,
the commission, or any designated agent
thereof, shall have authority to issue and
cause to be served upon such party a complaint
stating the specific unfair practice charged
and including a notice of hearing containing
the date and place of hearing before the
commission or any designated agent thereof
. . . .
[N.J.S.A. 34:13A-5.4(c) (emphasis added).]
The rules governing proceedings brought in the Office of
Administrative Law (OAL) provide:
19 A-5104-14T3
As soon as circumstances meriting such action
are discovered, an agency head, any party or
the judge may move to consolidate a case which
has been transmitted to the Office of
Administrative Law with any other contested
case involving common questions of fact or law
between identical parties or between any party
to the filed case and any other person, entity
or agency.
[N.J.A.C. 1:1-17.1(a).]
This procedural paradigm requires the Administrative Law
Judge (ALJ) assigned to a case to "hear and rule upon the motion
to consolidate." N.J.A.C. 1:1-17.1(c). Acceptance of the Board's
argument would have required an ALJ to consolidate the tenure
charges complaint filed by the Board against Mignone with the
retaliation complaint Mignone filed against the Board under the
EERA. However, Title 18A tenure charges are no longer referred
to the OAL for hearing. The Legislature's enactment of TEACHNJ
in August 2012 radically changed the disciplinary process for
tenure teachers. As we explained in Pugliese v. State-Operated
School Dist. of City of Newark, 440 N.J. Super. 501 (App. Div.
2015), under the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10
to -18.1, the OAL no longer has any role to play in this process.
Any charge against a tenured employee "shall
be filed with the secretary of the board [of
education] in writing, and a written statement
of evidence under oath to support such a
charge shall be presented . . . ." N.J.S.A.
18A:6-11. If "the board finds that such
probable cause exists and that the charge, if
20 A-5104-14T3
credited, is sufficient to warrant a dismissal
. . . then it shall forward such written charge
to the commissioner for a hearing pursuant to
N.J.S.[A.] 18A:6-16, together with a
certificate of such determination." Ibid.
Importantly, pursuant to the amendment
contained in TEACHNJ, if the commissioner
determines that the charge is sufficient to
warrant dismissal, the case is referred to an
arbitrator. N.J.S.A. 18A:6-16.
. . . .
"The arbitrator's determination shall be final
and binding and may not be appealable to the
commissioner or the State Board of Education.
The determination shall be subject to judicial
review and enforcement as provided pursuant
to N.J.S.[A.] 2A:24-7 through N.J.S.[A.]
2A:24-10." N.J.S.A. 18A:6-17.1(e).
[Id. at 509-510 (emphasis added).]
Our Supreme Court has recently reaffirmed the basic
principles of statutory construction:
[T]he starting point of all statutory
interpretation must be the language used in
the enactment. We construe the words of a
statute in context with related provisions so
as to give sense to the legislation as a whole.
If the plain language leads to a clear and
unambiguous result, then our interpretative
process is over. We rely on extrinsic
evidence of legislative intent only when the
statute is ambiguous, the plain language leads
to a result inconsistent with any legitimate
public policy objective, or it is at odds with
a general statutory scheme.
21 A-5104-14T3
[Spade v. Select Comfort Corp., 232 N.J. 504,
515 (2018) (emphasis added) (internal
citations omitted).]
The plain text in N.J.S.A. 34:13A-5.4(c) confers upon PERC
the exclusive power to adjudicate any claims asserted by a public
employee alleging the public employer has engaged in any unfair
practice listed in N.J.S.A. 34:13A-5.4(a). The EERA also expressly
gives PERC "the power and duty" to determine whether a matter is
within the scope of collective negotiations. N.J.S.A. 34:13A-
5.4(d); see also In re Judges of Passaic Cty., 100 N.J. 352, 363
(1985). These unambiguous proclamations of PERC's statutory
authority by the Legislature leaves no room for doubt. PERC had
the power and duty to adjudicate Mignone's claims of retaliation
under N.J.S.A. 34:13A-5.4(a).
This court reviews final decisions of State administrative
agencies pursuant to Rule 2:2-3(a)(2), mindful of the need to
respect the action taken by such agencies pursuant to authority
delegated by the Legislature. In re Proposed Quest Acad. Charter
Sch., 216 N.J. 370, 385 (2013). Thus, we may reverse an agency's
decision only if its decision is arbitrary, capricious, or
unreasonable, or the decision is inconsistent with the agency's
mandate. Ibid. (citing In re Petition for Rulemaking, 117 N.J.
311, 325 (1989)). In going about this task, our role
22 A-5104-14T3
is generally restricted to three inquiries:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Id. at 386 (quoting Mazza v. Bd. of Trs., 143
N.J. 22, 25 (1995)).]
Applying these long-settled standards of review, we discern
no legal basis to interfere with PERC's decision finding the
Board's disciplinary action against Mignone was retaliatory and
punitive in nature, and consequently violated the rights
guaranteed to public employees under N.J.S.A. 34:13A-5.4. PERC
was entitled to focus on the timing of the disciplinary charges
against Mignone to infer the Board's retaliatory motive. PERC
also found that under these circumstances, the Board's decision
to file tenure charges against an employee with an unblemished
thirteen-year record of service buttressed Mignone's claims of
retaliation under the EERA. We thus affirm PERC's decision to set
aside the arbitrator's decision to impose a one-month suspension
without pay against Mignone.
23 A-5104-14T3
IV
A-2956-15
We now address the BEA's appeal from the order entered by
Judge Vicki A. Citrino on February 19, 2016, denying its motion
to reconsider the judge's January 5, 2016 order dismissing its
verified complaint and order to show cause (OTSC) filed against
the Board pursuant to Rule 4:67-6, seeking enforcement of PERC's
June 25, 2015 order. Inexplicably, the BEA opted not to appeal
the January 5, 2016 order, which directly denied the BEA's
enforcement action. Judge Citrino correctly noted the standard
for granting a motion for reconsideration in her statement of
reasons in support of her decision.
The decision to deny a motion for reconsideration falls
"within the sound discretion of the [trial court], to be exercised
in the interest of justice." Cummings v. Bahr, 295 N.J. Super.
374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)). Reconsideration should only be
used "for those cases which fall into that narrow corridor in
which either (1) the [c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or (2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate
the significance of probative, competent evidence." Ibid.
24 A-5104-14T3
Whether as a matter of appellate strategy or inadvertent
oversight, the BEA's decision to limit the scope of this appeal
to Judge Citrino's reconsideration decision also limits the scope
of our review. As a threshold issue, the BEA has only provided
us with the transcript of the oral argument session of the motion
for reconsideration. The appellate record does not include the
transcript that contains the January 5, 2016 decision denying the
BEA's OTSC and dismissing its verified complaint.4 Without this
record, we cannot determine whether Judge Citrino's decision to
deny reconsideration constituted a valid exercise of her
discretionary authority.
However, given the great public importance of the issue before
us, and recognizing that whether the Law Division has jurisdiction
to enforce a final order of a State administrative agency is purely
a question of law subject to de novo review, we have decided to
address it. Rule 4:67-6(a) provides the following mechanism for
the enforcement of final orders:
Applicability of Rule. This rule is
applicable to (1) all actions by a state
administrative agency as defined by N.J.S.A.
52:14B-2(a) brought to enforce a written order
or determination entered by it, whether final
or interlocutory, and whether the order to be
enforced requires the payment of money or
4
In her January 5, 2016 order denying the BEA's enforcement
pursuant to Rule 4:67-6, Judge Citrino wrote: "DENIED for the
reasons set forth on the record."
25 A-5104-14T3
imposes a non-monetary requirement or includes
a combination of monetary and non-monetary
remedies; and (2) all such enforcement actions
brought by a party to the administrative
proceeding in whose favor a written order or
determination was entered affording that party
specific relief.
[(Emphasis added).]
Rule 4:67-6(b)(1) provides:
Actions pursuant to paragraph (a) of this rule
shall be brought in accordance with [Rule]
4:67 unless an applicable statute requires a
plenary action in a specific matter. If the
order sought to be enforced requires only the
payment of money, it may be brought in the
Superior Court, Law Division, or in any other
court having statutory jurisdiction over the
specific matter. If the order sought to be
enforced provides in full or in part for a
non-monetary remedy, the action shall be
brought in a trial division of the Superior
Court subject to motion pursuant to [Rule]
4:3-1(b) for transfer to the other trial
division.
[(Emphasis added).]
However, in her statement of reasons for denying the BEA's
motion for reconsideration, Judge Citrino noted that in enacting
the EERA, the Legislature expressly authorized PERC to enforce its
decision by making a direct application to the Appellate Division.
Accordingly, N.J.S.A. 34:13A-5.4(f) provides:
The commission shall have the power to apply
to the Appellate Division of the Superior
Court for an appropriate order enforcing any
order of the commission issued under
subsection c. or d. hereof, and its findings
26 A-5104-14T3
of fact, if based upon substantial evidence
on the record as a whole, shall not, in such
action, be set aside or modified; any order
for remedial or affirmative action, if
reasonably designed to effectuate the purposes
of this act, shall be affirmed and enforced
in such proceeding.
In light of this explicit grant of legislative authority, Judge
Citrino concluded that the BEA had not met its burden of proving
that her original decision was palpably incorrect. Cummings, 295
N.J. Super. at 384-85.
We start our analysis by noting that the BEA did not name
PERC as a party. By leave granted, PERC is participating in this
appeal in an amicus curie capacity. PERC acknowledges that the
Legislature provided PERC with a mechanism to enforce its orders
by applying to the Appellate Division under N.J.S.A. 34:13A-
5.4(f). However, PERC argues that the process for seeking
enforcement of its orders "changed in 1983 when [Rule 4:67-6] was
adopted to provide a uniform procedure for the enforcement of
orders issued by administrative agencies." Without citing any
competent legal authority, PERC claims: "The rule effectively
nullified the portion of N.J.S.A. 34:13A-5.4(f) providing that
jurisdiction to enforce PERC's orders would reside in the Appellate
Division . . . ."
What we find most troubling in PERC's legal position, however,
is that it is based entirely on a 1984 unpublished opinion from
27 A-5104-14T3
this court, which purportedly states that "the enforcement of
agency orders has been allocated to the trial division of the
Superior Court." By citing and relying on this unpublished
opinion, PERC has violated an important principle of our
jurisprudence:
No unpublished opinion shall constitute
precedent or be binding upon any court. Except
for appellate opinions not approved for
publication that have been reported in an
authorized administrative law reporter, and
except to the extent required by res judicata,
collateral estoppel, the single controversy
doctrine or any other similar principle of
law, no unpublished opinion shall be cited by
any court.
[Rule 1:36-3 (emphasis added).]
As a unanimous Supreme recently stated: "This rule has been
affirmed time and again by this Court." Badiali v. N.J. Mfrs. Ins.
Group, 220 N.J. 544, 559 (2015); see also Guido v. Duane Morris
LLP, 202 N.J. 79, 91 n. 4, (2010); Mount Holly Twp. Bd. of Educ.
v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319, 332 n. 2 (2009);
In re Alleged Improper Practice, 194 N.J. 314, 330 n.10 (2008).
Moreover, PERC's position in this respect is also directly
undermined by our Supreme Court's forty-year-old decision in
Galloway Twp. Bd. of Educ. As Justice Pashman wrote on behalf of
the Court:
In the event of noncompliance with its orders
issued in unfair practice cases, PERC resumes
28 A-5104-14T3
a prosecutorial role. PERC has been empowered
to seek the aid of the courts in compelling
compliance by applying to the Appellate
Division for an appropriate judicial decree
enforcing its order. N.J.S.A. 34:13A-5.4(f).
. . . .
The decision whether to initiate an
enforcement action in a given case is
entrusted to PERC's sound discretion. The
statute authorizes, but does not require PERC
to seek judicial assistance to enforce its
orders. See also N.J.A.C. 19:14-10.2(b).[5]
It is noteworthy that while the party found
by PERC to have committed an unfair practice
may seek appellate review of PERC's decision
and order pursuant to R. 2:2-3(a), the
successful charging party may only request
PERC to seek judicial enforcement of its
order. See N.J.A.C. 19:14-10.3.[6] The lack
of any statutory authorization for the
charging party to seek enforcement of PERC's
5
N.J.A.C. 19:14-10.2(b) provides: "The Commission may at any
time in the exercise of its discretion institute proceedings for
enforcement of its order pursuant to court rules."
6
N.J.A.C. 19:14-10.3 provides, in pertinent part:
(a) Any party to the proceeding which resulted
in the order for which compliance is sought
may request that the Commission seek
compliance with and enforcement of any
Commission order.
(b) Such a request shall normally take the
form of a motion addressed to the Chair and
shall be accompanied by affidavits, as
appropriate, setting forth the facts regarding
the noncompliance of the party to whom the
order was directed. An original and two copies
of such request shall be filed with the
Chairman, together with proof of service of a
copy on all other parties.
29 A-5104-14T3
orders is consistent with the legislative
design that PERC's role in enforcing the
public rights created by the Act is exclusive.
[Galloway Twp. Bd. of Educ., 78 N.J. at 34-35
(emphasis added).]
In accordance with Galloway Twp. Bd. of Educ., we hold that
the BEA did not have the legal authority to enforce PERC's order
by filing a verified complaint and OTSC under Rule 4:67-6.
Although PERC does not have the obligation to act, it has the
exclusive authority to enforce its own orders and decisions
pursuant to N.J.S.A. 34:13A-5.4(f). A prevailing party, such as
the BEA, may request PERC to seek enforcement of its decision in
the form of a motion addressed to the Chair. N.J.A.C. 19:14-
10.3(b). The party to whom the order is directed, in this case
the Board, may respond to the request within five days of service.
See N.J.A.C. 19:14-10.3(c).
V
Summary
In the appeal by the Board under Docket Number A-5104-14
challenging the decision and order entered by PERC on June 25,
2015, we affirm PERC's decision in all respects. In the appeal
filed by the BEA under Docket Number A-2956-15, we affirm Judge
Citrino's February 19, 2016 order denying the BEA's motion for
reconsideration. We hold that PERC had jurisdiction, pursuant
30 A-5104-14T3
to N.J.S.A. 34:13A-5.4(c), to determine whether the tenure charges
the Board filed against the President of the BEA violated the
EERA. We further hold that the Law Division does not have
jurisdiction to enforce an order entered by PERC under the summary
enforcement proceedings available in Rule 4:67-6.
Affirmed. We do not retain jurisdiction.
31 A-5104-14T3
NOTICE TO EMPLOYEES
PURSUANT TO
AN ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT,
AS AMENDED,
We hereby notify our employees that:
WE WILL cease and desist interfering with, restraining or coercing employees
in the exercise of the rights guaranteed to them by the Act, particularly
by imposing discipline that was disproportionate to the misconduct of
Michael Mignone in retaliation for him expressing the Association’s
concerns about: the security system and by failing to negotiate with the
Association regarding the severable impact on the staff from the
implementation of the security cameras and RFID cards.
WE WILL cease and desist from discriminating in regard to hire or tenure
of employment or any term or condition of employment to encourage or
discourage employees in the exercise of the rights guaranteed to them by
the Act, particularly by imposing discipline that was disproportionate to
the misconduct of Mignone in retaliation for him expressing the
Association’s concerns about the security system.
WE WILL cease and desist from refusing to negotiate in good faith with the
Association, particularly with regard to the severable impact on the staff
from the implementation of security cameras and use of RFID cards.
Docket No. CO-2014-149 BELLEVILLE BOARD OF EDUCATION
(Public Employer)
Date: ______________________ By: ______________________________
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered,
defaced or covered by any other material.
If employees have any question concerning this Notice or compliance with its provisions. they may communicate
directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ
08625-0429 (609) 984-7372
APPENDIX "A"
32 A-5104-14T3