As reported by the New Jersey Law Journal, the Superior Court of New Jersey, Appellate Division (“Appellate Division”) ruled that the State’s Public Employment Relations Commission (“PERC”) has near-exclusive jurisdiction over labor disputes between public workers and their employers. To this end, the three judge panel stated PERC has “exclusive jurisdiction to decide complaints arising under the New Jersey Employer-Employee Relations Act.” “We further hold that the Law Division does not have jurisdiction to enforce an order entered by PERC,” said Appellate Division Judge Jose Fuentes for the panel, joined by Judges Ellen Koblitz and Karen Suter. The Court also upheld a teachers’ union’s right to “engage in good faith 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.”

The Court’s ruling resolved two disputes between the Belleville Education Association, which represents the unionized school district employees in the township, and the Belleville Board of Education. The first dispute involved the Board’s decision, which dated back to January 2014, to issue radio frequency identification cards to every school employee and to install video cameras, with audio capabilities, in virtually all areas of the district schools, though no cameras were installed in restrooms, locker rooms or in the nurses’ office. The Board said both measures were to improve security. The Association complained about the installations of the cameras, saying it would improperly interfere with its members’ ability to discuss union matters.

PERC held that installation of the cameras was a condition that should have been negotiated between the Board and the Association. The Board appealed and the Appellate Division affirmed PERC’s determination. In affirming, the Court stated, “In our view, PERC’s thoughtful decision properly applied the test to strike a proper balance between the Board’s managerial prerogative and obligation to ensure the safety of students and staff, and the [Association’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.”  To this end, the Court agreed with at least one aspect of the Board’s reasoning. “The district has a prerogative, and a responsibility, to take the measures it deems appropriate to protect the safety of its students and staff, particularly in light of the numerous instances of public violence in our schools nationwide in recent past.”

The second issue involved the enforcement of a disciplinary matter. After an individual was disciplined, PERC modified the penalty. The individual then sought relief in the County Superior Court, but the trial judge dismissed the action, saying PERC had the authority to decided work-related matters. The Appellate Division agreed. “[PERC] had the exclusive authority to enforce its own orders and decisions,” the Court stated, adding 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.”

The Appellate Division’s ruling is noteworthy for New Jersey Public Safety Officers on several fronts. First, the negotiability of the impact of the installation of security cameras is quite significant.  Although this case involved cameras in a public school district, the installation of cameras in correctional facilities as well as the police departments and the resulting impact of the cameras on the officers was always a cause of concern.  This case seems to reinforce the notion that the “impact” of the cameras are negotiable, thereby allowing unions to address many concerns of their members.  Second, the notion that an employee cannot enforce a PERC order or decision in the Law Division is  somewhat troubling.  Quite simply, it is unclear as to what specific measures PERC can undertaken to enforce its own decision, whereas the Law Division always possessed sanctioning authority when an order is not complied with.  Nevertheless, we will continue to monitor the forthcoming case law regarding PERC’s powers to enforce one of its own orders and decisions going forward.

Please continue to check this blog periodically to ascertain important updates regarding issues affecting New Jersey Public Safety Officers.

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.