The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's decision in City of Newark v. Newark Police Superior Officers' Ass'n (written by Judge Robert Gilson and joined by Judges Jose Fuentes and Katie Gummer):
We hold that the City has a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate…. Consequently, we affirm the portion of the PERC Order that held that the City had a managerial prerogative to implement its COVID-19 vaccination mandate.
We reverse and vacate the restraints PERC placed on the City, including the requirement to negotiate the Negotiable Terms. The restraints imposed on the City under these circumstances impermissibly interferes with the City's managerial prerogative to protect the health and safety of all its employees and the City residents with whom those employees come into contact. If necessary, the City and Unions can negotiate who will pay the cost of testing without interfering with the City's prerogative, but those negotiations can take place after the mandate is implemented….
The 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. 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….
The Unions maintain that the [New Jersey Employer-Employee Relations] Act requires the City to negotiate the vaccination mandate before it is implemented. They rely on N.J.S.A. 34:13A- 5.3, which states: "Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established." Sections 5.4(a)(1) and (5) of that Act prohibit public employers from:
"(1) [i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act…. (5) [r]efusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative." …
The Unions' arguments ignore the well-established law that negotiations of managerial prerogatives are not required if the negotiations significantly interfere with the public employer's ability to set 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." …
In 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…. Delaying, even on a temporary basis, the timelines for implementing the vaccination mandate undercuts the effectiveness of the mandate.
The Unions focus on the impact of the mandate to some of their members who have chosen not to be vaccinated. That focus, however, ignores the impact their "choice" has on coworkers and their families who have been vaccinated. Just as importantly, it ignores the impact on people with whom unvaccinated City employees come into contact. City police officers and firefighters go to or into homes, businesses, and public places daily where they encounter City residents. Indeed, all public employees interact with members of the public in a variety of settings and circumstances. Many of those residents are children under the age of twelve who do not have the option of getting vaccinated at the current time. Given the scientifically undisputed risk of spreading this deadly virus, the City has the right to protect the public….
There are many actions that we take as a society to protect the common good. Sometimes the protection of the many requires an individual, especially a public servant, to act for the public good. The Unions have not cited any facts that would support the purported rights of what appears to be a minority of City employees to pose a risk to coworkers and City residents. The people they are committed to serve, in particular, the aged who are among the most vulnerable to COVID-19, and children who currently cannot be protected by a vaccine, are placed at greater risk by unvaccinated City workers….
We also reject the Unions' contention that their members have a "strong interest in privacy" that is somehow being impacted by the mandate. The Executive Order requires proof of vaccination. Such proof can be submitted on a confidential basis, and there has been no showing that privacy issues will be impacted. Here again, the City and Unions can discuss those concerns, but such discussions cannot hold up the vaccination mandate.
The Unions have also cited to bills pending in the Legislature that would prohibit discrimination against individuals who have not received a COVID-19 vaccine. Those bills are not currently law; existing laws and executive orders strongly support the City's COVID-19 vaccination mandate….
Thanks to Keith Kaplan for the pointer.