In re City of Newark and Newark Police Superior Officers Ass’n, ___ N.J. Super. ___ (App. Div. 2021). [Disclosure: My firm, Lite DePalma Greenberg & Afanador, LLC, represents the City of Newark in certain matters but had no involvement in this particular case].
As Judge Gilson noted in his opinion for the Appellate Division today, many levels of government have mandated that their employees be vaccinated against COVID-19. An Executive Order of the City of Newark imposed such a requirement on employees of the City. Unions contested that Executive Order by filing unfair labor practice charges with the Public Employment Relations Commission (“PERC”) and seeking to enjoin implementation of the Executive Order. PERC ultimately allowed the City to implement the vaccine mandate but required the City to “expeditiously negotiate in good faith upon demand all mandatorily negotiable impacts of its prerogative to mandate full vaccinations against COVID-19” as set forth in the Executive Order.
The City and the unions appealed to the Appellate Division, and that court scheduled briefing and heard oral argument on an expedited basis. Today, the court upheld that part of PERC’s ruling that upheld the City’s power to issue the vaccine mandate but reversed the requirement that any aspect of the mandate be negotiated.
The question of whether the City had the power to impose a vaccine mandate was, Judge Gilson said, a question of law that would be reviewed de novo. In the course of a detailed discussion, he observed that “[w]hen a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations.” He cited Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Sadlock v. Carlstadt Bd. of Educ., 137 N.J.L. 85 (Sup. Ct. 1948), for that principle.
The unions argued that in those cases, the governmental authority acted pursuant to enabling statutes. Judge Gilson said that “[t]he City has not cited to any statute or regulation authorizing the City or Mayor to establish a vaccination mandate. Nevertheless, the City has a well-recognized right to hire or direct its workforce. [Citation]. That right, coupled with the clear national and state public policy to combat the health threats posed by COVID -19, supports the City’s authority to implement a vaccination mandate. In that regard, our Supreme Court has recognized that the COVID-19 pandemic is an extraordinary situation justifying extraordinary responses,” citing New Jersey Republican State Comm’n v. Murphy, 243 N.J. 574 (2020). Accordingly, the Appellate Division upheld PERC’s ruling that “the City has a managerial prerogative to implement its vaccination mandate.”
But the panel reversed the requirement that the City negotiate over the mandate. The unions had failed to show that the mandate violated the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -55, and nothing in the unions’ contracts forbade the City from issuing a vaccine mandate in the current extraordinary circumstances. “While we do not construe the language concerning the right to hire and determine qualifications for employment to expressly authorize a city or municipality to impose a mandatory vaccination requirement, that language supports the City’s authority to impose a mandatory vaccination requirement in a public health emergency. Moreover, no provision or language in the Unions’ current contracts expressly prohibits the City from imposing a vaccination mandate.”
Judge Gilson applied a three-part Supreme Court test stating that a subject is negotiable only when: “(1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy.” He concluded that “[i]n the context of a public health emergency, negotiating procedures for the implementation of a COVID-19 vaccination mandate, or the enforcement or timing of the mandate, would interfere with the managerial prerogative.”
Finally, applying abuse of discretion review, the Appellate Division ruled that the unions had not satisfied the four-pronged test for injunctive relief set out in Crowe v. DeGioia, 90 N.J. 126 (1982). They had failed to demonstrate three of those criteria: likelihood of success on the merits (for the reasons discussed above), a balance of harms that tips in favor of the party seeking restraints and against the opposing party (“Delaying the implementation of a COVID-19 vaccination mandate puts people who have contact with unvaccinated people at greater risk and is a harm the City has a right to protect against,” and most of the unions’ members had already been vaccinated anyway), and the public interest (for the same reasons regarding the balance of hardships). The case was remanded to PERC for further proceedings consistent with today’s opinion.