                NOT FOR PUBLICATION WITHOUT THE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
