Representing the Newark Teachers Union, Local 481, AFT, AFL-CIO (“NTU”), Firm Partner, Colin M. Lynch, successfully arbitrated the Newark Public Schools’ failure to comply with its obligations under its 2012 collective negotiations agreement.
At issue were numerous requirements of the Agreement, including payment of retroactive salary longevity payments to teachers and staff reaching longevity during the two-year period between expiration of the prior Agreement and the 2012 Agreement; payment of retroactive salary to those on a leave of absence or retiring during the period following the expiration of the prior Agreement; bonus payments to teachers completing “approved programs” of higher education during the life of the Agreement; and the District’s failure to use agreed upon “Peer Validators” to review and consult with the Superintendent for increment withholding determinations for educators receiving “partially effective” performance evaluations. On nearly every grievance, the Arbitrator found in favor of the NTU.
With respect to retroactive longevity, the Arbitrator found that the District violated the parties’ Agreement and past practice by denying retroactive longevity pay to NTU members. In reaching his conclusion, the Arbitrator noted that despite denying that it agreed to pay retroactive longevity, the District produced and distributed informational materials for purposes of encouraging ratification of the Agreement that confirmed it agreed to pay retroactive longevity. The Arbitrator also noted that the Agreement incorporated the terms of the prior expired Agreement, which mandated payment of longevity pay. The District’s conduct was also at odds with the parties’ past practice. The value of the longevity payments is estimated at between 1.5 and 1.8 million dollars.
As to retroactive salary payments, the Arbitrator found that the District breached the Agreement by failing to pay retroactive salary payments (on a pro-rata basis) to employees on a leave of absence during the period between contracts. The failure to pay the retroactive salary to those on leave also violated the parties’ past practice. However, the Arbitrator found for the District on the issue of payment of retroactive salary payments to retirees, citing the fact that the retroactive salary payments differed from past practice in that here, the retro salary payments were paid via one time lump sum payment, rather than a percentage salary increase.
The Arbitrator also found that the District failed comply with its obligations under the Agreement to form a “consultative committee” to review and approve graduate and other educational programs for which teachers could receive bonus payments of up to $20,000. Rather than form the proper committee, the District at first delayed committee formation and then unilaterally formed its own self-serving committee which, approximately two-years after signature of the Agreement, approved on only a single program run not by any New Jersey State colleges or universities (such as Rutgers, William Patterson, Montclair State, etc.), but rather a virtually unknown private institution with deep ties to the Charter School industry. As such, the Arbitrator found the District failed to implement the Agreement in good faith and, as a remedy, required the District to form the proper committee and allow teachers participating in and completing programs of higher education to submit their completed programs for approval and an award of bonus payments.
Lastly, the Arbitrator found that the District Superintendent violated the Agreement when she selected her own administrators to review salary increment withholding determinations for teachers rated partially effective, rather than use the Peer Validators as defined by the Agreement, which excluded “current administrators” of the District. While there was no financial remedy attached to his portion of the award, the Arbitrator barred the District’s practice going forward.
The Arbitrator did rule in favor of the District on two other issues. One was whether performance bonuses available under the Agreement must be paid during the school year in which they are earned, or whether said payments may be delayed. The Arbitrator found that the Agreement provided for payment during the school year, but excused the District’s non-compliance due to uncertainties surrounding the first year of implementation of the requirement. The Arbitrator also found in favor of the District on an issue relating to the starting salaries of a limited group of teachers under the Agreements’ salary schedule.
Of note, the Arbitrator flatly rejected the District’s specious argument that by filing the grievances at issue, the NTU was attempting to “repudiate” the Agreement and that the NTU had bargained in bad faith. However, in light of the numerous grievances sustained by the Arbitrator, he implicitly found that it was not the NTU which attempted to repudiate the agreement and negotiate in bad faith, but rather, the District.
It is anticipated that the Arbitrator’s Opinion and Award could ultimately involve payments to NTU members exceeding three million dollars. A copy of the Opinion and Award may found HERE.
©2017 Zazzali, Fagella, Nowak, Kleinbaum & Friedman. Blog 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.