Public employees face a day of reckoning in Newark

A Superior Court judge in Newark is expected to hear arguments today in a labor dispute that has implications for the future of all public employee unions.  Although the case deals only with the Newark Teachers Union (NTU),  the central issue—the so-called “management prerogative” of the state—could affect tens of thousands of other public employees.

At the core of the dispute is whether  a public employer—in this case, the Newark public schools run for the Christie Administration  by Christopher Cerf—can overturn 40 years of negotiated practice to decide unilaterally and without bargaining the provider of prescription drug benefits.

Cerf, contending he is acting “for the children” to save money, decided on his own to award the prescription program to Benecard Services, a company founded by former Republican senatorial and gubernatorial candidate Douglas Forrester and recommended by the even more politically connected insurance broker Connor Strong, owned by George Norcross  III who, although the Democratic political boss of South Jersey, is a close ally of Christie.

The provider now is GPP, but at stake is more than just the provider. Also at stake is the future of an entity known as the Supplemental Fringe Benefits Fund (SFBF), established in 1972 after several years of rancor between the NTU and the district—rancor that included a 61-day strike.

Under the terms of the agreement—which has been included in all NTU contracts for nearly 45 years—the SFBF hires the benefit providers. It is jointly overseen by the union and the school district.

Cerf has argued that, not only does he have the power to ignore the fund’s decisions, he also doesn’t have the power to allow the fund to make those decisions. His lawyers say relying on the fund is “ultra vires,” or beyond his powers.

No previous power running the schools—whether a locally elected or appointed board or the state—has challenged the fund’s operation.  Because of the share in decision-making it gives the union, the SFBF is important to the NTU, a labor organization that, like many public employee unions, has been weakened by the Christie administration and Democratic leaders—like Senate President (and gubernatorial candidate) Steve Sweeney—who oppose the power of public unions.

John Abeigon, the NTU president, said his union was willing to negotiate a provider but that Cerf simply imposed his own decision—a decision that will go into effect Monday unless Judge Donald Kessler stops Cerf.

Union allies, like Newark school board member Antoinette Baskerville-Richardson, oppose Cerf’s decision. She called it “union-busting” and said Cerf acted “like a child” when he couldn’t get his way through negotiations.

But the school board has no power;  the district has been state-operated since 1995. And, despite vague promises of eventual local control offered by Christie, the board certainly won’t get control in time to save the SFBF.

Perhaps more ominous has been the silence of Newark Mayor Ras Baraka. The NTU—and other public employee unions–provided Baraka, a former high school principal,  with substantial financial and organizing support in his under-dog race in 2014. Baraka’s opponent, charter advocate Shavar Jeffries,  received about 10 times the money Baraka did—but the unions provided the difference in manpower.

Now, Baraka and Cerf have become political allies. The mayor, while calling for a brief moratorium on charter expansion, has announced joint initiatives with Cerf and praised the state-appointed administrator. Baraka has dropped his opposition to the so-called “One Newark” enrollment plan—a plan he vowed to end if he became mayor. A plan that imposed hardship on many children during the recent snowstorm because of their need to travel far from their neighborhoods to attend school.

Kessler could issue a decision as early as today. What must be troubling for the union is that the judge declined to issue an immediate injunction against Cerf’s decision when the NTU’s suit was filed last week. The judge now has come to the very last day to act—Benecard Services already has sent out informational materials to some 4,000 union members.

If Cerf wins, the ability of public employee unions to negotiate their benefit packages may be severely curtailed. The doctrine of “management prerogative”  could be broadly expanded. Public employee unions will be in trouble.