FIRM PARTNER, COLIN M. LYNCH, ESQ., SPEAKS AT THE 2021 NEW JERSEY ADMINISTRATIVE LAW FORUM
Mr. Lynch recently participated in a panel at the recent New Jersey Administrative Law Forum conducted virtually by NJICLE on December 14, 2021. Mr. Lynch, along with co-panelists, the Hon. David Finch, ALJ and Greggory J. Franklin, Esq. of the firm, Cleary, Giacobbe, Alfieri & Jacobs, LLC, discussed the Civil Service’s so-called “rocket-docket” governing procedure for expediated administrative hearings concerning police and firefighter terminations, as well their judicial, public employee and public employer perspectives on the expediated termination procedures. For questions on this and or other public sector labor law topics, Mr. Lynch and the Zazzali Firm stand ready to assist you.
FIRM PARTER, COLIN M. LYNCH, ESQ., SPEAKS AT THE 43RD ANNUAL NLRB CONFERENCE, ARTHUR EISENBERG LABOR SYMPOSIUM
Mr. Lynch recently participated in a panel at the most recent 43rd Annual NLRB Conference held on November 19, 2021, which was conducted both virtually and in-person at the New Jersey Law Center. Co-panelists were Region 22 Senior Trial Attorney, Saulo Santiago, and Crystal S, Carey, Esq. of the firm, Morgan, Lewis & Bockius. Among the topics discussed by Mr. Lynch and his fellow panelists were practicing before the Board in the age of COVID, as well as the potential impact of the “PRO Act” passed by the House of Representatives, substantially expanding Union and employee rights under the National Labor Relations Act. For questions on these or other Labor Law topics, Mr. Lynch and the Zazzali Firm stand ready to assist you.
FIRM ASSOCIATE ALBERT J. LEONARDO, ESQ. SUCCESSFULLY CHALLENGES BOARD OF EDUCATION'S FINDING OF AN ACT OF HARASSMENT, INTIMIDATION OR BULLYING AGAINST TEACHER
Mr. Leonardo obtained a Final Decision from the New Jersey Commissioner of Education on April 9, 2021 reversing the finding of the Fort Lee Board of Education that a teacher committed an act of harassment, intimidation or bullying (“HIB”) against one of his students in Klapach v. Fort Lee Board of Education, Bergen County, Agency Dkt. No. 79-4/20.
The teacher was accused of reading part of a parent’s confidential e-mail to one of his classes following a conflict between him, the student and the parent regarding the student’s behavior with a substitute while the teacher was absent. The student’s mother e-mailed the teacher and alleged that he was misinformed by the substitute about her daughter’s behavior. The student discovered that the teacher had read part of the e-mail and refused to go to his class. After the student and her parents informed administrators about the incident, the student was immediately removed from the teacher’s class and an HIB investigation was initiated pursuant to the Board’s HIB Policy. At the conclusion of its investigation, the Board determined that the teacher committed an act of HIB. The Board, however, failed to articulate how any distinguishing characteristic (such as race, religion, or any other characteristic) of the student motivated the teacher’s actions in its investigation findings report. The teacher appealed internally before the Board and the Board, unsurprisingly, affirmed its own decision.
As a decision on an allegation of HIB, the Board’s decision was subject to the requirements and mandates of the Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-14, over which the Commissioner has appellate jurisdiction. The Act defines an HIB violation to include four elements: (1) the conduct must be reasonably perceived as being motivated by an actual or perceived enumerated characteristic or other distinguishing characteristic, (2) the conduct must substantially disrupt or interfere with the rights of other students or the orderly operation of the school, (3) one of three criteria regarding the effect of the conduct must be satisfied, and (4) the conduct must take place on school grounds, at a school-sponsored function, on a school bus, or off school grounds as provided for in N.J.S.A. 18A:37-15.3.
An appeal was filed with the Commissioner. The matter was then transferred to the Office of Administrative Law. At the outset, the Office of Administrative Law noted that the applicable standard of review for decisions of boards of education are highly deferential. As an exercise of the Board’s discretionary authority, the Board’s decision is entitled to a presumption of correctness unless the teacher is able to establish that it was arbitrary, capricious or unreasonable. Nonetheless, both the Judge and the Commissioner agreed that the Board’s findings were arbitrary and unreasonable because they failed to satisfy the statutory requirements to support a finding of an act of HIB against the teacher.
The OAL’s Initial Decision recommended reversal of the Board’s decision because it failed to establish how the teacher’s conduct could have reasonably been perceived to be motivated by any distinguishing characteristic of the student. The Judge rejected the Board’s arguments that the student’s challenge to the teacher’s authority was a distinguishing characteristic. The Commissioner adopted the Judge’s decision. The Commissioner held that the student’s “challenge” to her teacher’s authority did not distinguish her in the manner required by the Act. Further, while the Commissioner acknowledged there was a conflict between the teacher and the student and the student’s parent, it did not come within the statutory definition of bullying. As such, the Commissioner held that the Board’s finding was arbitrary and unreasonable because it failed to articulate the requisite motivation by the teacher to establish an HIB violation. Additionally, the Commissioner agreed with the teacher that the Board should be ordered to rescind and expunge all references to the HIB investigation and findings from the teacher’s personnel file and expanded the scope of the remedy to include that affirmative action by the Board.
The decision reaffirms that teachers, like students, have a due process right to challenge a school district’s findings of acts of HIB. Additionally, the decision clarifies and reinforces the Act’s requirement that a distinguishing characteristic of the student must at minimum reasonably be perceived as the motivation of the alleged perpetrator. And the school district’s investigation must identify the characteristic(s) at the time it concludes its investigation and issues its findings. The appeal mechanism is an important safeguard against school districts that misuse, misapply or overreach with their HIB policies when the conduct at issue does not fall within the ambit of the district’s HIB policy or the Anti-Bullying Bill of Rights.
Congratulations to Firm partners, ROBERT A. FAGELLA, ESQ. (Super Lawyer 2005-2021) PAUL L. KLEINBAUM, ESQ. (Super Lawyer 2007-2021) and COLIN M. LYNCH, ESQ. (Super Lawyer 2020-2021), who were named to New Jersey Lawyers Magazine's 2020 list of Super Lawyers in the field of Labor and Employment Law. The Super Lawyers list is issued by Thomson Reuters who selects attorneys using independent research, peer nominations and professional achievement. Only 5% of all nominations are selected as Super Lawyers. The process underlying the selection process for Super Lawyers may be found at www.superlawyers.com/about/selection_process.html.
BEST LAW FIRM*
The Firm is also pleased to announce that US News and World Report/Best Law Firms has again selected the firm as a “Regional Tier One Best Law Firm” in the labor law – union category. The list is issued by U.S. News & World Report L.P.
*No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
ZAZZALI FIRM WINS VICTORY BEFORE THE NEW JERSEY SUPERIOR COURT, APPELLATE DIVISION, IN DECISION AFFIRMING THAT CHAPTER 78 DOES NOT PREEMPT NEGOTIATIONS OVER DENTAL PREMIUMS MID-CONTRACT
Firm partner, Richard A. Friedman, Esq., and associate Craig A. Long, Esq., secured a victory before the Superior Court, Appellate Division, in In re Matawan-Aberdeen Reg'l Bd. of Educ., 2020 N.J. Super. Unpub. LEXIS 1505 * (App. Div. 2020), which affirmed the holding by the New Jersey Public Employment Relations Commission (“PERC”) that L. 2011, c. 78 (“Chapter 78”) did not preempt negotiations over the shift in dental insurance premium costs when the Board of Education passed these costs onto its employees after it decided, mid-contract, to replace the employees' public health insurance provider with a private health insurance provider.
The issue on appeal was whether PERC had correctly determined that the Board was required to negotiate with members of the Matawan-Aberdeen Education Association (“Association”) over the cost of dental premiums when the Board left the School Employees' Health Benefits Plan ("SEHBP") for a private plan, which required Association members to pay the full cost of dental premiums. The parties’ collective negotiations agreement in effect at the time stipulated that the Board would pay the full cost of members’ dental premiums for the duration of the agreement. PERC held that, notwithstanding its earlier holdings that Chapter 78 preempted negotiations over a mid-contract change in the level of benefits, the issue turned on the fact that the Board had left the SEHBP voluntarily. More specifically, the Board’s unilateral choice to change carriers is mandatorily negotiable and legally arbitrable when it impacts the allocation of dental insurance premiums.
The Court agreed and held that the language of statutory preemption contained in Chapter 78 is irrelevant where the change in health insurance providers was voluntary and non-mandated. In that circumstance, the dispute over dental premiums becomes mandatorily negotiable and legally arbitrable. Although PERC had previously held that Chapter 78 preempted negotiations over mid-contract changes in the level of healthcare benefits, the agency in this case properly departed from its earlier decisions to frame the issue on appeal more narrowly, that is, whether an employer's voluntary choice to change carriers is mandatorily negotiable and legally arbitrable when it impacts the allocation of dental insurance premiums. The icing on the cake is that the decision went unchallenged by the Board, which agreed to compensate members for the costs of their dental premiums.
ZAZZALI FIRM WINS VICTORY BEFORE THIRD CIRCUIT IN PRECEDENTIAL DECISION SECURING LABOR ARBITRATION ENFORCEMENT RIGHTS
Firm partner Edward H. O’Hare, Esq., with the assistance of associate Raymond M. Baldino, Esq., scored a major victory before the Third Circuit in Teamsters Local Union No. 177 v. United Parcel Services, Docket No. 19-3150 (July 16, 2020), which affirmed the mandatory right to confirm an arbitration award in a labor dispute. The Third Circuit issued a published written opinion with extended reasoning addressing the issue, which is the subject of a split among the Circuit Courts of Appeals. https://www2.ca3.uscourts.gov/opinarch/193150p.pdf
The split before the Circuit Courts concerned whether an arbitration award obtained by a union may be confirmed in federal court, making the award a final, enforceable judgment, in the absence of a claim of an existing and active violation of the award. Although the Federal Arbitration Act states the Court “shall” confirm the award and make it a judgment, not all federal courts have agreed that an application for confirmation must be heard in the absence of an active dispute, finding a lack of “standing” to confirm in absence of an active “case or controversy” under the U.S. Constitution. The question is important for labor unions because, once they have secured an arbitration award to protect members’ rights, the additional step of converting the decision to a final judgment makes it enforceable.
In Teamsters Local 177, the Court addressed the issue for the first time, and rejected the position of the First Circuit which held that a party does not have standing, or the right to be heard in court, if they are seeking to confirm an arbitration award that the other side says it does not dispute. The Third Circuit accepted O’Hare’s arguments and followed the Second Circuit’s lead, that the application to confirm is a proceeding that “merely makes what is already a final arbitration award a judgment of the court” and therefore must be heard. The Court was also persuaded by the facts of the case, which showed that management had repeatedly violated the award in the time after it was entered, despite taking the position in Court that it did not dispute the award.
The decision contains some of the most extensive reasoning and discussion on the subject yet appearing in an opinion, and was a major victory for Zazzali’s client, and unions, who seek to confirm labor arbitration awards in the Third Circuit.
Managing partner Robert Fagella has been named as a 2020 Super Lawyer for the 11th consecutive year. Firm partner Paul Kleinbaum has again been selected as a 2020 “Super Lawyer” in the area of labor and employment law. The Super Lawyers list is issued by Thomson Reuters. The process underlying the selection process for Super Lawyers may be found at www.superlawyers.com/about/selection_process.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
The Firm is pleased to announce that US News and World Report/Best Law Firms has again selected it as a “Regional Tier One Best Law Firm” in the labor law – union category. The list is issued by U.S. News & World Report L.P. The process underlying the selection process for US News and World Reports can be found at https://bestlawfirms.usnews.com/methodology.aspx. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
The Firm is also pleased to announce that it has received an “AV highest ethical standards“ rating From Martindale Hubbell for the 25th consecutive year. The ratings are issued by Martindale Hubble. The process underlying the ratings process for Martindale Hubble can be found at https://www.martindale.com/ratings-and-reviews/consumers/. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
Lastly, Firm Partner Colin Lynch has been named the Treasurer of the labor law section of the New Jersey Bar Association. Colin has also been selected as a member of the Essex County fee arbitration committee for 2020.
FIRM PARTNER COLIN M. LYNCH, ESQ. APPOINTED TO DISTRICT V-A FEE ARBITRATION COMMITTEE
The Firm is pleased to announce that on August 26, 2019, by way of Order of the Supreme Court of New Jersey, Mr. Lynch was appointed to the District V-A Fee Arbitration Committee which cover the Essex County – Newark Vicinage. Members of the Committee assist in the resolution of attorney fee disputes between law firms and their respective clients. They serve at the pleasure of the Supreme Court for a four-year term.
ZAZZALI LAW WELCOMES ALBERT LEONARDO, ESQ. AS AN ASSOCIATE WITH THE FIRM
Mr. Leonardo joins the firm with an extensive background in the areas of labor and employment law. He is a graduate of Seaton Hall Law School and New York University. The Firm is pleased to welcome him to the team.
UNEXPLAINED, INTERNALLY INCONSISTENT FACTUAL FINDINGS IN FINAL AGENCY DECISION
CONSTITUTES “ARBITRARY AND CAPRICIOUS” DECISION-MAKING
In a decision argued by Firm attorney Jason Sokolowski, Jenny Stankowski v. Board of Trustees, Public Employees’ Retirement System, Docket No. A-0450-17T2 (Superior Court of New Jersey, Appellate Division, May 28, 2019), in an unpublished decision, the Superior Court of New Jersey, Appellate Division, reversed and remanded for further consideration a final agency decision by the Board of Trustees of the Public Employees’ Retirement System (PERS Board) to reject the initial decision and recommendation of an Administrative Law Judge (ALJ), and deny accidental disability retirement benefits to a school custodian who suffered injury to her back in a traumatic workplace accident. Contrary to the findings of the ALJ, the PERS Board found Respondent’s expert orthopedist to be more persuasive than Petitioner’s expert, and concluded that the custodian did not suffer any disability from the accident. Significantly, however, the PERS Board did not disturb the ALJ’s finding that the custodian had credibly testified about the nature and extent of her back pain, that precluded her from work and participation in other life activities she had enjoyed before the accident. The PERS Board also did not explain it’s acceptance of Respondent’s expert’s conclusions over those of Petitioner’s expert, or the clinical findings of multiple other treating physicians. In an appeal briefed and argued by Jason Sokolowski, the injured custodian successfully argued that the Board was obligated to explain its internally inconsistent findings, and absent such an explanation, the final agency decision was “arbitrary and capricious” and subject to reversal. Because, at a minimum, the Board’s finding that the custodian’s injury had not left her disabled was inherently inconsistent with it’s acceptance of the ALJ’s contrary findings concerning the custodian’s pain and physical limitations, based on her lay testimony, the appellate panel remanded the case back to the Board for further consideration of whether the custodian was totally and permanently disabled, and if so, whether her disability qualified her for either accidental or ordinary disability.
Although the decision is unpublished, and therefore not binding upon an future court, it is nonetheless important for reasserting the requirement that state-run pension boards must “state with particularity the reasons” for rejecting ALJ findings based on expert witness testimony and ensure internal consistency between credited facts established through lay and expert testimony.
TEACHER DISABLED IN ACCIDENT COACHING EXTRACURRICULAR SOFTBALL ELIGIBLE
FOR ACCIDENTAL DISABILITY BENEFITS
In Thomas Mulcahey v. Board of Trustees, Teachers’ Pension and Annuity Fund, Docket No. A-5146-16T2 (Superior Court of New Jersey, Appellate Division, June 3, 2019), in an unpublished decision, the Superior Court of New Jersey, Appellate Division reversed a final agency decision by the Board of Trustees of the Teachers’ Pension and annuity Fund (TPAF), that denied accidental disability retirement benefits to a high school teacher who also coached the high school’s extra-curricular girls’ varsity softball team, after he was disabled in a traumatic accident while supervising an after-school practice. The TPAF Board contended that because the injury occurred while coaching an extra-curricular activity, for which the teacher was paid a separate non-pensionable stipend, and not during “regular and assigned teaching duties,” the permanently disabled teacher was ineligible for accidental disability benefits. In an appeal argued by Richard Friedman and briefed by Mr. Friedman and Edward Suarez, the disabled teacher successfully argued that the holding of New Jersey Supreme Court in Kasper v. Bd. of Trs., Teachers’ Pension & Annuity Fund, 164 N.J. 564 (2000), a case in which Mr. Friedman and Mr. Suarez also collaborated, made clear that “a teacher qualifies for accidental disability benefits if he ‘is on premises controlled by the employer and [his] injury is causally connected, as a matter of common sense, to the work the employer has commissioned.’” Because the teacher was supervising the girls’ varsity softball practice under a coaching agreement with the school district, and “in conformity with the District’s objectives,” at the time of the traumatic accident, there could be no reasonable question that his disabling injury “was causally connected , as a matter of common sense, to work the employer ha[d] commissioned,” and therefore he was eligible for accidental disability benefits.
Although the decision is unpublished, and therefore not binding upon any future court, it is nonetheless important because it reaffirms that state-run pension fund members eligible for accidental disability retirement benefits do not lose their eligibility when they accept work assignments from their employers that may be different – and compensated differently - from their regular assigned duties.
ZAZZALI FIRM OBTAINS APPELLATE DIVISION DECISION HOLDING THAT VOTE TO RAISE SUPERINTENDENT’S SALARY WAS UNLAWFUL
Zazzali Firm, with the assistance of Associate Raymond M. Baldino, successfully argued that a 2017 vote to raise the salary of benefits of the Wall Township Board of Education’s Superintendent was unlawful because it failed to provide the 30-day public notice required under the law, and ordered that a new vote be held by the District that conforms with the notice requirements.
The 30-day notice rule was created to ensure greater public transparency in altering the compensation of Superintendents. Although 30-day notice is not required when voting on a new contract offered to a Superintendent as a renewal contract at the end of his/her term, Wall Township made changes to the Superintendent’s contract during the Superintendent’s unexpired term, claiming no notice was required if the Board and Superintendent mutually agreed to cancel the old contract and enter into a purportedly new one. The Appellate Division agreed with the arguments of the Zazzali Firm that Wall Township’s actions were required to follow the 30-day notice requirement under these facts, and ordered that a new vote be held.
THIRD CIRCUIT ENFORCES DECISION OF THE NLRB THAT WAS SUCCESSFULLY ARGUED BY ZAZZALI FIRM
Firm Partner Kenneth Nowak, Esq., obtained a decision from the Third Circuit upholding a decision issued by the National Labor Relations Board finding against the Employer violated the LMRA by unilaterally changing the commencement date for dues deductions and failing to deduct dues. The Employer argued that the Union had no right to dues deductions because it did not provide adequate Beck notice and because dues deductions cannot begin until a union-security provision is made valid by a fully executed agreement (the Employer argued that since the contract was not fully executed at the time dues deductions were to commence, it had no obligation to deduct dues). The Third Circuit rejected all of these arguments and affirmed the Board decision that the Employer violated the law by making a unilateral change in the date dues deductions were to commence, and in failing to provide the dues deductions to the Union. The Board ruled that the dues were to be paid by the Employer directly, and not reimbursed by the employees.
ZAZZALI FIRM PROTECTS RAMSEY EDUCATION ASSOCIATION MEMBERS’ DENTAL PREMIUM SHARING DEDUCTIONS UNDER CHAPTER 78 AND UNION CONTRACT
Chapter 78 provides two different cost of coverage requirements for the ‘premium or periodic’ sharing: the first provision provides for employers who participate in the SHBP or SEHBP, the “cost of coverage” includes only the cost of medical and prescription coverage. By contrast, the second provision provides that for employers who do not participate in the SEHBP or the SHBP, the “cost of coverage” includes health care, prescription, dental and vision, as well as any other health care benefit. There was a dispute between the Board and the Association as to which benefits are included in the cost of coverage where an employer provides medical and prescription coverage as an SEHBP participant but provides dental coverage through a private carrier. The Arbitrator rejected the Board’s argument and agreed with the Association and concluded that if an employer is an SEHBP participant, then there can be no premium sharing for dental. The Arbitrator further found that the Board violated the parties’ Agreement by requiring employees to pay a premium share percentage on the $750 deductible for dental coverage that the Board was required to pay.
The Arbitrator also concluded that the Association timely filed its Grievance once it became aware of the wrongful dental deductions from employees’ paychecks.
To remedy the Board’s statutory and contractual violation, the Arbitrator ordered the Board to immediately cease and desist from including dental insurance premiums in an employee’s premium sharing contribution under Chapter 78 and to make whole and reimburse all affected employees for any premium sharing deductions assessed for dental coverage under Chapter 78 since January 1, 2013.
ARBITRATION AWARD PROTECTS RETIREES' PRESCRIPTION BENEFITS
Representing the Newark Fire Officers Union, Local 1860, IAFF, Firm Partner, Paul Kleinbaum, won an arbitration award protecting the level of benefits enjoyed by the union’s Retirees. Local 1860 successfully challenged Newark’s’ attempt to implement a new prescription drug plan for retirees which imposed more burdensome eligibility requirements than the plan that was in existence.
Preliminarily, the Arbitrator rejected Newark’s timeliness argument - that the Grievance was not timely filed. The Arbitrator found that the City’s “tactical decision” not to respond to Local 1860’s Grievance was fatal to its timeliness argument. The Arbitrator also found that the City waived its right to assert a defense of timeliness of the Grievance because the City only raised this issue once Local 1860 already filed for arbitration.
The contractual language gave Newark the right to change carriers as long as the new plan was “substantially similar benefits but no less than those presently in effect.” The Arbitrator concluded that this language meant that the change in benefits to a new provider had to be “at least equal to” those of the existing provider.
In comparing the two prescription plans, the new one by Navitus and the existing one by Horizon, the Arbitrator credited the testimony of Local 1860’s expert. The Arbitrator properly noted that the 2016 Horizon booklet which was in effect when the retirees were covered by the Horizon plan was the appropriate contract in comparing the benefits with the 2018 Navitus plan. The Arbitrator rejected the City’s reliance on the 2018 Horizon Master Contract because the City could not show that the 2018 Horizon plan was in effect in 2016. The Arbitrator also drew an adverse inference from the City’s failure to provide the 2016 Horizon documents, despite numerous requests by Local 1860.
With respect to the level of benefits in each prescription plan, the Arbitrator found Local 1860 clearly proved that the Navitus plan’s restrictions governing formulary drugs and quantity limits were not in the 2016 Horizon plan. The Arbitrator also found that the Navitus plan, unlike the Horizon plan, “implemented a rigorous step-therapy program which prevents the Retirees from receiving certain drugs unless the Retirees first partake in various therapeutic steps.” As a result, the Arbitrator agreed with Local 1860 that these hurdles under the Navitus plan were neither at least equal to nor even substantially similar to the benefits under the Horizon plan.
The Arbitrator further rejected the City’s argument that despite the increased administrative hurdles that some Retirees faced in securing their prescription, there was no evidence that any Retiree was ultimately denied coverage. The Arbitrator found that the imposition of certain administrative requirements that negatively impact a participant’s ability to secure benefits constitutes a substantial change in benefits. The Arbitrator concluded that the change to Navitus and the additional requirements imposed on the Retirees, had a “direct impact on the ability of the retirees to easily secure their prescriptions and that the changes imposed by Navitus altered the benefits of the Retirees in a material way.”
To remedy the City’s contractual violation, the Arbitrator ordered the City to restore the previous level of benefits provided under the Horizon 2016 plan.
ZAZZALI LAW FIRM OBTAINS DECISION GRANTING REINSTATEMENT OF HEALTH INSURANCE COVERAGE FOR TEACHING STAFF MEMBER
Firm Partner Richard A. Friedman, Esq. and Kathleen Naprstek Cerisano, Esq., Of Counsel to the Firm, recently obtained a favorable decision from the Superior Court of New Jersey, Chancery Division, ordering the reinstatement of health insurance coverage for a teaching staff member employed in a part-time (.6) position in which she works 21 hours per week, as well as reimbursement for alternative health insurance coverage obtained after the school district refused to enroll her.
The teaching staff member was eligible for health insurance coverage through the School Employees Health Benefits Program (SEHBP) when the Act was amended in May 2010 to require eligible employees to now work at least 25 hours per week. Although both parties agreed that she was “grandfathered” when the law was changed, the school district claimed that a leave of absence that she subsequently took was a “break in service,” and that she was no longer eligible for health insurance coverage through the SEHBP.
In concluding that the leave of absence did not affect her eligibility for health insurance coverage, the Court cited cases holding that an employee on a leave of absence still remains an employee. It noted that the collective negotiations agreement between the Board and the local education association provided for extended leaves of absence like the one she had taken, and that it also specifically provided that any teacher on an approved leave of absence was entitled, upon his or her return, to receive all of benefits to which she was entitled at the time the leave of absence began. Most importantly, although the Act requires that the employee be continuously eligible for coverage to retain the “grandfathered” status, the court agreed with our position that the Act also permits the employer to provide her with paid coverage during her leave of absence; therefore she remained continuously eligible for health insurance coverage under the SEHBP Act.
ZAZZALI FIRM RANKED IN "BEST LAW FIRMS" BY U.S. NEWS AND WORLD REPORT AND BEST LAWYERS
The Zazzali Firm is pleased that it was included in U.S. News and World Report and Best Lawyers' "Best Law Firm" rankings for 2018. The Firm was ranked as a "Tier 1" firm in the Labor Law - Union category, and a "Tier 2" firm in the Employment Law - Individuals category. The process underlying the selection process for these rankings may be found at https://bestlawfirms.usnews.com/methodology.aspx. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
FIRM ATTORNEYS SPEAK AT TEAMSTERS' SEMINAR
Firm partners Robert A. Fagella and Edward H. O’Hare were featured speakers at a shop steward seminar sponsored by Teamsters Local 177, a 10,000 member labor union representing employees primarily in the package delivery and warehouse industry. Speaking to about 150 stewards and business agents in Atlantic City, Messers. Fagella and O’Hare discussed a wide variety of topics, including the grievance and arbitration process and the legal and contractual obligations of shop stewards. Zazzali firm attorneys are available to speak at seminars, conferences and other organizational and educational events, including executive board and membership meetings.
ZAZZALI LAW WELCOMES ALVINA SWATI, ESQ. AS AN ASSOCIATE WITH THE FIRM
Ms. Swati joins the firm with an extensive background in the areas of labor and employment law. She is a graduate of Rutgers University School of Law, and she clerked for the Honorable L. Grace Spencer, Superior Court of New Jersey, prior to joining Zazzali. The Firm is pleased to welcome her to the team.
FIRM ASSOCIATE, RAYMOND BALDINO, ESQ., TO SPEAK AT ICLE DEFAMATION LAW SEMINAR
Raymond Baldino, Esq. will speak in NJSBA Panel “Nuts and Bolts of Defamation Law” to be held on October 26, 2018 at 9 AM to 1 PM in the New Jersey Law Center, New Brunswick. The panel will provide an overview of defamation law to members of the bar, a topic that is unfamiliar to many practitioners because seldom seen in practice, but which poses issues in a wide range of business and employment contexts. Topics of interest to the labor and employment law community will include: the limits of disciplining employee speech on social media, the intersection between defamation law and providing negative job references, and the protections afforded anonymous online speech. The panel is hosted by the New Jersey State Bar Association Media Law Committee, of which Mr. Baldino is a member. Speakers will include the state’s media and defamation law experts, as well as practitioners in the fields of employment law and commercial law.
ZAZZALI FIRM WINS TENURE CASE ON BEHALF OF TENURED TEACHER FOR ALLEGED INEFFICIENCY IN A POSITION SHE WAS NOT LEGALLY PERMITTED TO HOLD
Firm Partner Richard A. Friedman, Esq., with very substantial assistance from Associate Marissa A. McAleer, Esq., Associate Kaitlyn E. Dunphy, Esq., and Partner Flavio L. Komuves, Esq., successfully challenged the termination of tenured teacher Felicia Pugliese by the Newark School District in Pugliese v. State-Operated School District of the City of Newark (App. Div. Aug. 28, 2018). READ MORE
- LAW DIVISION UPHOLDS AND CONFIRMS MULTI-MILLION DOLLAR ARBITRATION VICTORY FOR NEWARK TEACHERS
In October 2017, firm partner, Colin M. Lynch, successfully arbitrated several grievances filed by the Newark Teachers Union, Local 481, AFT, AFL-CIO (“NTU”) against the Newark Public Schools concerning the School District’s failure to comply with its obligations under its 2012 Collective Negotiations Agreement. The Opinion and Award, issued by Arbitrator James Mastrianni, found the District breached the 2012 Agreement by failing to pay retroactive longevity and retroactive salary payments; failing to form the “Consultative Committee” to review and approve graduate and other educational programs for which teachers could receive a bonus payment of up to $20,000; and failing to consult with Peer Validators prior to denying advancement on salary guides for teachers receiving partially effective performance evaluations.
Following the Arbitrators Opinion and Award, the District defied the Award requiring the NTU to pursue confirmation of same in Superior Court. In turn, the District sought to vacate the Opinion and Award. Notwithstanding the District’s challenge to the Award, the Honorable Keith E. Lynott, J.S.C., ruled in favor of the NTU and confirmed Arbitrator Mastrianni’s award in full, holding that on each grievance addressed by Arbitrator Mastrianni, his conclusion fell well within the standard of “reasonably debatable” necessary to sustain and confirm an Arbitration Award and Order. A copy of the Order and Opinion of Judge Lynott confirming Arbitrator Mastrianni’s Opinion and Award may be found here.
ZAZZALI LAW WELCOMES RAYMOND M. BALDINO, ESQ. AS AN ASSOCIATE WITH THE FIRM
Mr. Baldino joins the firm with an extensive background in the areas of journalism, First Amendment issues, and OPRA. He is a graduate of Rutgers University School of Law. The Firm is pleased to welcome him to the team.
ZAZZALI FIRM PROTECTS UNION MEMBERS’ RIGHT TO VESTED, DEFERRED COMPENSATION UNDER UNION CONTRACT
In Barila v. Bd. of Ed. of Cliffside Park (App. Div. July 10, 2018), Firm Partner, Richard A. Friedman, Esq., successfully obtained a ruling from the Appellate Division that Association members could not be retroactively deprived of their vested right to deferred compensation, through negotiations between the Board of Education and their Union.
In Barila, the parties’ contract from 2012-15 provided that as of the 2009-10 school year, for unit members who were employed for at least ten (10) years with the District and retired under the TPAF or were employed at least twenty-five (25) years with the District, their unused, accumulated sick leave would be paid pursuant to a specific formula. The contract expired on June 30, 2015. The Plaintiffs in this case were teachers employed by the District before July 1, 2015, and had worked at least ten (10) years for the District as of July 1, 2015.
The successor contract, that went into effect on July 1, 2015, modified the calculation for payment of unused sick time by, in part, reducing the maximum compensation payout. The Plaintiffs filed a complaint, alleging that they were unlawfully retroactively divested of their accumulated unpaid sick leave that accumulated prior to July 1, 2015. The trial court agreed, and the Appellate Division affirmed.
First, the Appellate Division rejected the District’s jurisdictional argument that PERC was the appropriate forum to address this dispute. The court disagreed, holding that this was not a scope of negotiations issue, and therefore exclusive jurisdiction did not lie with PERC, and that individual employees and retirees whose right to deferred compensation was violated could pursue their claims in court.
The Appellate Division then addressed the merits of the case, and held that the right to accumulated sick leave that vested under contracts in effect prior to July 1, 2015 could not be retroactively negotiated away. It is a form of deferred compensation, and the contract that went into effect on July 1, 2015 was improperly applied to divest Plaintiffs retroactively of their right to that earned compensation. In so ruling, the Court held that this could not be agreed to by the Union, at least without the affected employees’ consent.
ZAZZALI FIRM CONGRATULATES FIRM PARTNER, COLIN M. LYNCH, ESQ, FOR HIS ELECTION TO THE POSITION OF RECORDING SECRETARY OF THE LABOR SECTION OF THE NEW JERSEY BAR.
At the annual meeting of the New Jersey State Bar Association in Atlantic City, New Jersey, Firm Partner, Colin M. Lynch, was elected to the position of Recording Secretary to the Bar’s Labor Section. Mr. Lynch had previously served as a member of the National Labor Relations Board Committee and most recently served as co-chair of the Section’s Legislative Committee.
ZAZZALI FIRM AWARDS SCHOLARSHIP AT THE NTU'S 20TH ANNUAL HALL OF FAME DINNER
On behalf of the Zazzali Firm, Partners Colin M. Lynch, Esq. and Robert A. Fagella, Esq. presented an Albert Shanker Scholarship Award to Newark Academy Student, Adebisi O. Adetoye. Ms. Adetoye's mother is a member of the NTU and employed with the Newark Public Schools. Ms. Adetoye was accepted to and plans to attend Muhlenberg College with plans to study Political Science and Neuro-Science. The Zazzali firm wishes Ms. Adetoye the best in her future studies and congratulates all Shanker Scholarship award winners.
ZAZZALI LAW FIRM SUCCESSFULLY CHALLENGES CONDUCT OF TWO STATE HEALTH COMMISSIONS BEFORE NEW JERSEY SUPREME COURT
In In re SEHBC’s Implementation of I/M/O Philip Yucht, Firm Partner Flavio L. Komuves, Esq. argued before the Supreme Court on behalf of amicus curiae New Jersey Education Association (NJEA), with Firm Partner Richard A. Friedman, Esq. and Associate Marissa A. McAleer, Esq. participating on the brief. In an earlier case, involving a single employee, the state appeals court decided that the State Health Benefits Commission and School Employees Health Benefits Commission had under-reimbursed certain behavioral health service providers for their services. The two commissions then decided to issue system-wide reimbursements to all members who had been shorted. However, in providing notice to members of their entitlement to reimbursement, all the Commissions did was provide a link on the Division of Pensions and Benefits webpage, and a letter to certifying officers and other administrators. Members were not provided any help in making reimbursement claims (assuming that they were able to even learn of their rights to do so). On appeal, the Appellate Division held that the notice was sufficient, in that it was not arbitrary, capricious, or unreasonable. The Supreme Court agreed to hear the case, and the Zazzali Firm was granted permission to appear on behalf of the NJEA as amicus curiae. The Firm argued that the notice provided was insufficient as a matter of law, and that individualized notice was required to be provided to members. The Supreme Court held that significant questions existed regarding the notice actually provided, and as a result, a hearing was necessary to obtain that information before the Court could determine whether the notice was legally sufficient. As a result, the matter was reversed and remanded for a hearing to determine the adequacy of the notice provided.
FIRM PARTNER FLAVIO KOMUVES WINS APPELLATE CASE RESTORING VOTING RIGHTS TO CAMDEN PARENTS AND EDUCATORS
Firm Partner and election law attorney Flavio Komuves, Esq., recently won a unanimous appellate ruling restoring franchise rights to Camden voters. Under a 2010 law, Camden’s electorate was given the right to decide whether, going forward, its Board of Education should be elected by the people, or whether Board members should be picked by the City’s mayor. When the Chris Christie administration took over operations of the School District, however, school administrators decided that the voters should be stripped of their right to choose the elected or appointed status of their school board. In an April 24, 2018 opinion, a three-judge panel of the Appellate Division rejected the administration’s arguments, holding that the denial of voting rights was a violation of the New Jersey Civil Rights Act. Election laws, said the court, must be interpreted “to allow the greatest possible scope for public participation in the electoral process,” and Camden’s actions violated that principle. The appeals court has directed a Camden judge to decide the exact date on which the residents’ long-denied election, to determine whether the Board of Education will be elected by the people or picked by the City’s mayor, will be held.
ZAZZALI FIRM WINS MAJOR VICTORY IN 120-DAY RULE CASE
Firm Partner Richard A. Friedman, Esq., and Jason E. Sokolowski, Esq., Of Counsel to the Firm, with the assistance of Firm Associates Marissa A. McAleer, Esq., and Kaitlyn E. Dunphy, Esq., recently obtained a favorable decision from the Superior Court, Appellate Division in two cases, Pugliese v. State-Operated District of the City of Newark and Chavez v. State-Operated District of the City of Newark, which were consolidated for one opinion. In both cases, the Newark School District filed tenure charges against teachers employed by the District, seeking their dismissal from employment, at which time they were suspended without pay. The tenure charges were initially sustained against both teachers via arbitration awards, but when challenged on appeal, those awards were reversed and remanded by the Appellate Division for further proceedings.
In the meantime, the teachers filed petitions with the Commissioner of Education, asserting that pursuant to applicable education law, they were entitled to back pay from the 121st day of their respective suspensions until that time when an arbitrator issued a valid award on remand. The Commissioner denied the petitioners, and the teachers appealed. The Superior Court, Appellate Division, agreed with the teachers and found that the purpose of the 120-day rule was to alleviate the financial hardship on teachers awaiting a decision on tenure charges. Since the initial arbitration awards were reversed and transmitted for new decisions on remand, they were not final and did not terminate the teachers' entitlement to paid suspensions.
As a result, those teachers are entitled to back pay from the 121st day of their suspensions until the date the final, valid arbitration awards were issued in both cases. In fact, a second arbitration award was rendered in each case, which was unfavorable to the teachers, and the award in the Pugliese case is currently on appeal before the Appellate Division. Thus, each teacher is entitled to payment from the 121st day following initial suspension until the date of the second arbitration award. And, of course, in Pugliese if the teacher prevails in her appeal before the Appellate Division of the second arbitration award, then she will be entitled to back pay for the entire period, from suspension to reinstatement.
The Appellate Division’s decision in this matter is published and therefore binding precedent for future matters.
FIRM PARTNER, KENNETH I. NOWAK, ESQ., WINS CASE BEFORE THE NLRB CONCERNING UNION DUES DEDUCTIONS
In County Concrete Corp. and Local 863 IBT, the NLRB affirmed the decision of the ALJ, holding that the employer violated the Act by making a unilateral change in the dates for the deduction and payment of union dues. The Employer had drafted the contract, the Union had signed it, but the Employer had not and asserted there was no binding agreement until it signed it. The Employer refused to remit dues pursuant to the agreed-upon date because it claimed the employees had not been given their Beck notice, so the Employer unilaterally changed the date for dues deductions to commence until after it believed Beck notice was fully provided, and then signed the contract after missing two months of dues deductions. The ALJ found that there was a binding contract when the Union signed the written agreement, and concluded that the employer violated the Act by unilaterally changing the date for dues deductions, and failing and refusing to remit dues payments to the union. The Board affirmed, but observed that the ALJ was wrong in stating that there was a binding agreement only when the Union had signed a written agreement. Rather, the Board took a broader view and said the binding agreement occurred when there was a meeting of the minds on the terms of the agreement. The Board also rejected the argument that the failure to provide Beck notice precluded the deduction of dues, and ruled that the employer should have deducted the dues, and the proper amount of dues would be determined later. Significantly, as a remedy, the ALJ and Board ordered that for the dates the employer did not take dues deductions from employees and remit those dues to the union, the Employer, rather than the employees, had to pay those dues to the union. The NLRB affirmed the ALJ’s decision in relevant part. The NLRB and ALJ’s decision can be read HERE.
ZAZZALI LAW WELCOMES CRAIG A. LONG, ESQ. AS AN ASSOCIATE WITH THE FIRM
Mr. Long joins the firm with an extensive background in the areas of higher education, public employment, land use, public bidding, and affordable housing. He is a graduate of Rutgers University School of Law, where he was an Editor of the Rutgers Law Review. The Firm is pleased to welcome him to the team
FORMER CHIEF JUSTICE JAMES ZAZZALI SELECTED TO CHAIR GOV. MURPHY'S JUDICIAL NOMINATIONS PANEL
Former Chief Justice James R. Zazzali, Esq., Of Counsel to the Firm, has been selected by Gov. Murphy to Chair a panel on judicial nominations. Gov. Murphy created a seven-member advisory panel to advise him on future judicial nominations. He did so pursuant to his execution - along with the State Bar - of the Hughes Compact, under which governors have historically agreed to hold off on nominations of judges, justices and prosecutors until the panel deems them qualified. Gov. Christie implemented a revised version of the Hughes Compact, but Gov. Murphy has rejected that revised version and has also focused on the panel's makeup by increasing geographic, racial, and ethnic diversity. The seven-member panel includes five retired Supreme Court justices, including former Chief Justice Zazzali.
ZAZZALI LAW FIRM OBTAINS DISMISSAL OF INEFFICIENCY TENURE CHARGES BROUGHT AGAINST A NEWARK PUBLIC SCHOOL TEACHER
In a victory for the Newark Teachers’ Union, Firm Associate GENEVIEVE M. MURPHY-BRADACS, ESQ., representing a Newark Public Schools Teacher, successfully obtained summary dismissal of the inefficiency charges instituted against her by the Newark School District via motion to dismiss. The Firm argued that the school District’s failure to provide the teacher with a corrective action plan by October 31 and its utilization of observations that occurred prior to the provision of that corrective action plan was in clear violation of applicable law. Arbitrator Arnold Zudick agreed, finding that a hearing was unnecessary to determine that the District failed to comply with the regulatory prerequisites for instituting inefficiency charges and that this failure “materially affected the Respondent’s 2016-2017 Summative Evaluation.” A copy of the Arbitration Opinion and Award may be found by clicking HERE.
This win follows a string of victories for Ms. Murphy-Bradacs in connection with tenure charges brought by the State-Operated School District of Newark.
In February 2016, Ms. Murphy-Bradacs successfully obtained summary dismissal of inefficiency charges instituted against another Newark Public Schools Teacher via motion to dismiss. The Firm argued that the school District’s failure to provide the teacher with at least three observations, the minimum number required by law; provide the teacher with a pre-conference, as required by law; and failure to observe the teacher at least once per semester, as required by law, required dismissal of the tenure charges. Arbitrator Tia Denenberg agreed, finding that the teacher’s “2013-2014 annual summative evaluation fell short of the statutory requirements in three distinct respects” and that “the District clearly did not carry out the obligatory steps prescribed by law.” A copy of the decision can be found HERE.
And in March of 2015, Ms. Murphy-Bradacs was successful in having tenure charges alleging inefficiency against another Newark Public School Teacher dismissed as well following a three-day hearing. Ms. Murphy-Bradacs argued that the District’s failure to provide Newark Public Schools Teacher R.W. with an announced observation with a pre-conference; it’s decision to observe R.W. on the day she returned from a medical leave; and R.W.’s multiple involuntary assignments, which included an assignment to teach as class she was not properly certified to teach, required dismissal of the charges. Faced with overwhelming evidence that it had failed to comply with the procedures set forth in the TEACHNJ Act, the District attempted to file amended charges after the hearing pursuant to Section 8 of TEACHNJ Act in attempt to rehabilitate its Section 25 tenure charges. The Firm argued that defective Section 25 charges could not be “converted” to Section 8 charges, particularly after the hearing had already been held. Arbitrator Tia Denenberg agreed, and issued a decision dismissing the original and the amended charges. A copy of the decision can be found HERE.
©2018 Zazzali, Fagella, Nowak, Kleinbaum & Friedman. News is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the Zazzali Law Firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of the Zazzali Law Firm.