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In re Belleville Education Association

Superior Court of New Jersey, Appellate Division

July 16, 2018

IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION and BELLEVILLE BOARD OF EDUCATION
v.
BELLEVILLE BOARD OF EDUCATION, Defendant-Respondent. BELLEVILLE EDUCATION ASSOCIATION, Plaintiff-Appellant,

          Argued September 13, 2017

          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).

          Before Judges Fuentes, Koblitz, and Suter.

          OPINION

          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 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"

          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 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.

         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 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 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:

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;I3A-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:

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 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 certification[2] in which he described the action and measures the School District has taken, as ...


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