IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION and BELLEVILLE BOARD OF EDUCATION
BELLEVILLE BOARD OF EDUCATION, Defendant-Respondent. BELLEVILLE EDUCATION ASSOCIATION, Plaintiff-Appellant,
September 13, 2017
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
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
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
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).
Judges Fuentes, Koblitz, and Suter.
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
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.
simplest and most direct way to address the issues raised by
the parties in these appeals is to proceed chronologically.
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"
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
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
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
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.
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.
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."
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.
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
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.
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.
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.
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.
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]."
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.
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.
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] . . . ."
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, " attached as Appendix A to its June 25,
2015 final order and decision.
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 in which he
described the action and measures the School District has
taken, as ...