## Facts

- A union petitioned the New Jersey Public Employment Relations Commission (PERC) to represent approximately twenty-eight attorneys working in the City of Newark’s Office of Corporation Counsel, excluding the Corporation Counsel and certain top deputies.
- The petition satisfied PERC’s showing-of-interest requirements through signed authorization cards.
- The City opposed certification, asserting the attorneys were excluded from collective negotiations as managerial executives, supervisors, or confidential employees and that attorney ethics and the judiciary’s authority to regulate the bar barred unionization.
- The union filed an unfair practice charge alleging that management attempted to intimidate attorneys to deter union support.
- After hearings, PERC ordered an election; a majority voted for representation, and PERC certified the union as exclusive representative.
- The City appealed, presenting the question whether non-supervisory municipal attorneys in the corporation counsel’s office may lawfully organize and bargain collectively.

## Issues

1. Whether PERC acted lawfully and reasonably in ordering an election and certifying a negotiations unit of non-supervisory municipal attorneys.
2. Whether the attorneys were excluded from collective negotiations as managerial executives, supervisors, or confidential employees under New Jersey public-sector labor law.
3. Whether the Rules of Professional Conduct prohibit government attorneys from joining a union or bargaining collectively due to duties of loyalty, confidentiality, and independent professional judgment.
4. Whether PERC’s certification impermissibly interfered with the New Jersey Supreme Court’s exclusive authority to regulate the practice of law.
5. Whether statutes or ordinances providing that municipal attorneys serve “at the pleasure” of the Corporation Counsel preclude unionization or collective negotiations.

## Decision

- The Appellate Division affirmed PERC’s election order and certification of the union.
- The court deferred to PERC’s labor-relations expertise and upheld its determinations as not arbitrary, capricious, or unreasonable.
- The court agreed that most attorneys in the proposed unit were not managerial executives and did not qualify as confidential employees merely because they performed legal work and exercised professional discretion.
- The court held that attorney ethics rules do not categorically bar union membership or collective negotiations by government attorneys; ethical duties remain binding.
- The court held that PERC’s representation decision concerned terms and conditions of public employment and did not intrude on judicial control over attorney admission, discipline, or ethical regulation.
- The court held that “serve at pleasure” employment provisions may affect job-security rights but do not, by themselves, eliminate statutory rights to organize and bargain.

## Legal Principles

- Courts generally defer to PERC’s unit determinations and certification decisions unless they are arbitrary, capricious, or unreasonable.
- “Managerial executive” status requires responsibility for formulating or directing the effectuation of management policies; professional discretion and litigation-related input do not alone establish managerial status.
- “Confidential employee” exclusion applies when job duties require access to the public employer’s labor-relations strategy or confidential negotiations information.
- The Rules of Professional Conduct apply to government attorneys regardless of collective representation; union membership does not excuse duties of loyalty, confidentiality, and independent judgment.
- PERC may extend collective-negotiations rights to attorney-employees without regulating the practice of law, so long as it confines itself to public employment representation and bargaining matters.
- At-will or “pleasure” appointment status does not automatically preclude unionization or bargaining over wages, hours, and other terms and conditions of employment.

## Conclusion

The court upheld PERC’s certification of a bargaining unit of Newark’s non-supervisory municipal attorneys, holding they were not categorically excluded as managerial or confidential employees and that neither attorney ethics rules, judicial authority over the bar, nor “serve at pleasure” provisions bar their right to unionize and engage in collective negotiations.


City of Newark v. Ass’n of Gov’t Att’ys, 346 N.J. Super. 460, 788 A.2d 776 (App. Div. 2002)