The state Supreme Court will soon decide the legality of “release time,” the long-standing practice that allows public workers to receive public salaries and benefits for time working for their labor unions.

The case argued before the Supreme Court is specific to the Jersey City schools, which through the district’s labor contract pays for the union president and vice president to work full-time for the local, rather than in a classroom.

Leon Dayan, an attorney for the Jersey City Education Association, said release time has been allowed since the 1970s in New Jersey and is a common feature of American labor contracts.

“Release time is bargained over. It’s not given away. A gift is something given away for free,” Dayan said.

“These sorts of provisions advance labor relations. They advance harmonious labor relations. And there’s no reason to upset them,” he said.

Christine Lucarelli-Carneiro, general counsel for the state Public Employment Relations Commission, said public employers aren’t required to agree to provide release time but that it is allowed. She said PERC has found it provides benefits to both management and employees.

“And those benefits come in the way of dispute resolution at the earliest possible stage, which is more efficient and it’s less costly to the employer,” she said. “Other benefits that factor into that weighing test is improved communication between employers and employees, which results in greater productivity and greater morale.”

Lucarelli-Carneiro said an appeals court erred in ruling against the Jersey City release time program by ignoring a negotiability balancing test that has been followed for over 40 years.

“That time-honored test has been applied by this court several times, has been applied by the appellate courts numerous times and has been applied by the commission countless times,” she said.

Jonathan Riches of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute said those alleged benefits are speculative and indirect.

He said release time hasn’t been specifically authorized by the Legislature. He said that especially in this instance, where the two employees devote all their time to union work, the district has no meaningful controls or accountability for their work – even less than it would for an independent contractor.

“The release time provisions at issue do not serve a public purpose because they benefit the private interests of a labor union, not those of the board or the broader public. And they are not directly related to the functions of government. They’re directly related to the union’s operations,” Riches said.

Mark Miller, who at the time of the court arguments in October was senior and managing attorney for the Pacific Legal Foundation, which represented Americans for Prosperity New Jersey, said the arrangement is “a gift, it’s a giveaway, to the unions” that violates the state constitution’s gift clause, which prohibits public resources from being given to private parties.

“When this money is handed over for teachers who don’t teach, there has to be a way for management to control them,” said Miller, now general counsel to South Dakota Gov. Kristi Noem. “And that concept, that somehow management of the school board would control the union, turns labor law on its head, and I think in New Jersey it would be front-page news if management were to discipline a labor leader.”

“Money is being handed out to teachers who don’t teach, and that’s exactly why the taxpayers here are unhappy – that their tax money is being handed over to unions,” he said.

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Dayan said there’s no limit to the legal theory of those opposing release time. He said there’s a similar leave clause in the contract that’s not being challenged – a "no-docking" provision applicable to teachers who are called out to assist in a grievance – that would have far-reaching effects.

“I think the only reason perhaps it was not challenged is because it is so ubiquitous that it would have revealed that the plaintiffs are really trying to work a revolution in labor relations here and upset decades of practice in this state and other states,” Dayan said.

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