Unions Set to Continue Fight
By Walter Elliott
NEWARK – Members of the 11 municipal unions who had a Sept. 27 New Jersey Appellate Court ruling go against them, and upholding Mayor Ras Baraka’s mandatory COVID vaccination order, may not be flocking for inoculations quite yet,
Union leaders, who can appeal to the N.J. State Supreme Court and/or go back before the Public Employee Relations Commission, have more than expressed their disappointment with Appellate Judges Robert J. Gilson, Jose L. Fuentes and Katie A. Gummer’s ruling.
The ruling gives the Baraka Administration the green light to enact Municipal Executive Order-21-0008, first signed by the Mayor Aug. 10. The order gives all municipal employees 30 days to take full COVID vaccinations and show proof thereof. Those who do not show such proof would be subject to unpaid leave and ultimate firing.
That 30-day period clock, which was Aug. 16 – Sept. 16, may not be running should the unions file with SCONJ and/or PERC.
Several of the unions who went to the appellate panel Sept. 22 for injunctive relief from Baraka’s order were going NJPAC here prior to the Phil Murphy (D-Rumson) / Jack Ciattarelli (R-Hillsborough) gubernatorial debate Sept. 28. They were going to protest how Gov. Murphy has implemented a state-level vaccination mandate.
Their demonstration was canceled hours before that 7 p.m. Tuesday debate start time.
First, news of union leaders talking with Baraka’s administrators about the mandate had leaked out that afternoon. Second, their demonstrations would be held too far away from Murphy and Ciattarelli’s line of sight.
MEO-21-0008 was first put on hold after PERC Administrative Director Christopher Leavey in Trenton made a ruled Aug. 31 that Baraka’s administrators need to negotiate terms and conditions of the vaccination with the unions.
The 11 unions – including Fraternal Order of Police Local 12 and Teamsters Local 97 – then sought for injunctive relief from the appellate court. Fuentes and Gummer agreed to hear from them and responding City of Newark hired attorney Matthew J. Giacobbe on an accelerated schedule Sept. 22.
The unions, as plaintiffs, questioned the mayor as having the authority to issue a mass vaccination order. Their attorneys also argued that vaccination policy needed to be negotiated.
Their objections included their not being consulted or advised before Baraka issued his order. MEO-21-0008 was drafted in consultation with health experts and was also signed by Corporate Counsel Kenyatta Stewart, Business Administrator Eric Pennington and City Clerk Kenneth Louis.
Newark’s attorney argued that the mayor was acting under a public health emergency declared by Gov. Murphy March 15, 2020 and particularly wanted to stem the Delta variant’s rising infection rates.
Giacobbe said that Baraka’s order includes religious or medical exemptions; the exempt are to take weekly COVID tests. He added that the Mayor had amended his order where the city will pay for tests and discuss discipline with the unions.
Judge Gilson, speaking for the appellate panel Sept. 27, took up 18 of their 28-page ruling to answer the two questions. The first question’s short-form answer is that the mayor has “the managerial prerogative to issue a COVID-19 vaccination mandate.”
Gilson, regarding the second question, opined that “the Unions have made no showing that they have the right to negotiate the implementation, timing or enforcement of that mandate. They have also failed to show the harm to City employees is greater than the harm to the City.”
The judge, however, granted the right for the city and the unions to negotiate matters the likes of whether members get the time and/or monetary compensation for taking the inoculations.
“The order contained so many nuances that are open to interpretation said Teamsters Local 97 attorney Kevin McGovern. It’s going to produce some unduly harsh results, even for people who try to comply with the order.”
Although courts seem to agree across the land that employees can be forced to take the vaccine or be fired, ruling its managerial prerogative,” said FOP Local 12 President James Stewart, “we feel the rights of the employee shouldn’t be something to ‘discuss later.’ “
The appellate ruling on Newark come two days after a State Superior Court-Paterson judge ruled in favor of Wayne Township in a similar challenge.
U.S. Federal Judge Zahid Quraishi, from his Newark bench Sept. 29, upheld Rutgers University’s vaccination mandate. Rutgers had directed that all persons who enter a university building be vaccinated. That mandate was challenged by the Children’s Health Defense Fund and 14 students.
