Zazzali, P.C.

DECEMBER 2022

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Zazzali Firm Wins Precedential New Jersey Earned Sick Leave Law Decision On Behalf of More Than 100 Union Workers

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Associate Raymond M. Baldino, Esq., with the assistance of firm Partner Colin M. Lynch, Esq. won what appears to be the first “mass action” lawsuit in New Jersey under the 2018-enacted Earned Sick Leave Law (“ESLL”) in William Cano and Raymond Bonelli v. County Concrete Corp, MRS-L-001365-19 (October 28, 2022). The ESLL provides workers with a mandatory minimum number of sick days as well as other forms of leave, including for family member illness, domestic violence, and school-related events for a child. 

 

Following a bench trial, the Superior Court of New Jersey, Morris County, issued a decision finding that concrete industry employer, County Concrete Corporation, deprived all of its truck drivers of leave under the Act. All of the workers will be entitled to an award equal to 40 hours of ESLL leave per year plus treble damages. The decision was also significant because the Court rejected the employer’s defense that the employees already have Vacation leave available, through collective bargaining agreements established with their union Teamsters Local No. 863.  The Court held that the Act cannot be so construed to reduce or diminish other benefits already available through collective bargaining. 

 

The decision, though unpublished, is an important milestone in many respects.  Defendant, whose drivers deliver redi-mix concrete, were found not to meet the “construction industry” exemption available under the Act, because they are mere material suppliers. The case also represents the first time a “mass action,” or an action brought on behalf of multiple workers, was brought under the ESLL.  The Court clarified that notice and opt-in will be required post-judgment to ensure that the workers’ due process rights are addressed. It also constituted a first decision of how the ESLL’s strict requirements regarding Notice and Recordkeeping work.  The Court found that the employees had not been provided Notice as required under the Act of the novel rights available under the ESLL, and that therefore had been deprived of leave because workers cannot exercise rights of which they are not aware. Further, the Court also found that Defendant, whose records were found to be inadequate to document ESLL leave, violated the Act and gave rise to a presumption that all workers had been deprived of ESLL leave.    

 

The total damages to be awarded for denial of available leave could exceed $700,000, plus reasonable attorney costs and fees. 

 

The Zazzali Firm stands ready to assist both Unions and individual claimants in navigating the requirements of the ESL, as well as enforcing their rights under the Act.

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NOVEMBER 2022

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Firm Associate Albert J. Leonardo, Esq. Successfully Challenges Board of Education’s Unilateral Reduction In The Hours Worked Threshold For Eligibility For Health Insurance Benefits

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Mr. Leonardo recently obtained a Decision on behalf of the Ridgefield Education Association on May 26, 2022 from the New Jersey Public Employment Relations Commission finding that the Ridgefield Board of Education violated the Employer-Employee Relations Act (“Act”), specifically, subsection 5.4a(5) and, derivatively, subsection 5.4a(1), when it unilaterally announced a change to the eligibility requirement for unit members to receive health insurance benefits. See Ridgefield Bd. of Ed., 49 NJPER P2, P.E.R.C. No. 2022-45.

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Association members were participants in the School Employees Health Benefits Plan, (“SEHBP”). Under the governing law, in order to be eligible for participation in the SEHBP, an employee of the Board must have full-time status based upon the average number of hours worked per week as established by Board policy. The designation of what constitutes “full-time” status is by law mandatorily negotiable, provided that designation is at least an average of 25 hours per week. The Commission has long held that the level of health insurance coverage is mandatorily negotiable and may not be changed unilaterally by an employer. Unilateral changes in health insurance coverage violate the duty to negotiate in good faith.

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Nonetheless, on August 1, 2019, the Board unilaterally increased the work-hours per week requirement for Association unit members’ eligibility for health insurance coverage from the Board. The Charge filed by the Association alleged the Board’s action was contrary to a past practice by which employees working at least 25 hours per week were eligible for health insurance coverage; and, constituted unilateral changes to terms and conditions of employment, in violation of the Act. 

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The Commission granted the Association’s motion for summary judgment. The Commission found that the Board violated subsection 5.4a(5) of the Act and, derivatively, subsection 5.4a(1), when it unilaterally announced, through its Superintendent’s August 1, 2019 email to the Association, a change to the eligibility requirement for unit members to receive health insurance benefits The Commission noted that it has consistently held that statutes or regulations authorizing public employers to exercise discretion in setting eligibility requirements do not preempt or preclude negotiations over how that discretion must be exercised, as long as the negotiated provision meets or exceeds the minimum requirement set by statute or regulation. In this case, the Commission found that N.J.S.A. 52:14-17.26(c)(2) and N.J.A.C. 17:9-4.6(a) are preemptive only to the extent that parties may not negotiate a number less than 25 as the hours per week an employee must work in order to be considered a “full-time” employee eligible for health benefits. The statute and regulation otherwise provide discretion for an employer to establish a threshold of 25 hours or more. By unilateral increasing the threshold to 32 hours or more, without negotiations with the Association, the Board violated its duty to negotiate the terms and conditions of employment.

The case makes clear the importance of public employee representatives remaining vigilant in monitoring employee eligibility requirements for employer-provided health insurance benefits, and that statutory, regulatory, and contractual rights are available to ensure that health benefits are not unilaterally modified or eliminated by a public employer.

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SEPTEMBER 2022

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Appellate Court Rejects Agency Decision Requiring Retired Superintendent of Schools to Reimburse Salary Earned in Post-Retirement Employment

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In an unpublished opinion argued by Firm attorney Kathleen Naprstek Cerisano, Enid Golden v. Board of Trustees, Teachers’ Pension and Annuity Fund, 2022 N.J. Super. Unpub. LEXIS 1343, Docket No. A-0784-20 (July 26, 2022), 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 required a retired Superintendent of Schools to remit the entire salary she had earned for serving in a ten-month position as Interim Superintendent of Schools following her retirement from another school district. The Court noted that the agency decision had adopted the factual findings of the Administrative Law Judge (ALJ) regarding the circumstances of her retirement from one school district, her requested change in her retirement benefit level, and her subsequent post-retirement employment with another school district for a 10-month period, as permitted by N.J.S.A. 18A:66-53.2(b). More specifically, the ALJ concluded that Superintendent reasonably believed her July 1, 2014 retirement was “due and payable” and thus effective when she received her first pension check in the amended amount on August 1, 2014. She subsequently entered into an agreement with the new school district to serve as Interim Superintendent for the 2014-15 school year; about two (2) months later the district informed the Division of Pensions of her employment through submission of a Division form entitled “Notification of Employment After Retirement.” Nevertheless it was almost sixteen (16) months before the Division of Pensions inquired about this employment and another sixteen (16) months before it contacted the retired Superintendent with its determination that her July 1, 2014 retirement was not “bona fide” because she returned to employment less than 30 days after the TPAF Board officially approved the change in her retirement option. The ALJ concluded that the Division of Pensions was dilatory in responding to the Notification form and that equitable considerations restricted the TPAF Board’s right to reimbursement.

 

Recognizing that the agency’s determination adopted the ALJ’s findings of fact and conclusions of law, the Court concluded that equitable principles and the doctrine of “turn square corners” preclude the Division of Pensions and TPAF Board from benefitting from the delays which effectively increased the amount it claimed the Superintendent owed when the demand for reimbursement was finally made. It therefore held that they were equitably estopped from claiming more than the earnings the Superintendent had received from her post-retirement employment before the school district submitted the Notification form.

 

Although the decision is unpublished, and therefore not binding upon a future court, it is nonetheless important for reaffirming the requirement that state-run pension boards have an obligation to make terms and conditions consistent and clear and not conduct itself in a manner that gives it a bargaining or litigation advantage over its members.

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JULY 2022

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Firm Wins Victory for AFSCME Before the Appellate Division in Decision Affirming Dismissal of Complaint in Alleged Breach of Employment Contract Action  

 

Firm partner Paul L. Kleinbaum and Associate Sheila Murugan secured a victory before the Superior Court, Appellate Division, in Harrell v. AFSCME Council 63, Docket No. A-2832-20, 2022 N.J. Super. Unpub. LEXIS 1319. On July 21, 2022, the Appellate Division affirmed the trial court’s grant of the summary judgment dismissal of plaintiff’s complaint.

 

Plaintiff had been employed by AFSCME Council 71, one of four statewide district councils, as Executive Director. Plaintiff retired when the four district councils were dissolved as a result of a statewide reorganization and plaintiff’s position was eliminated. During her employment, Council 71 passed a severance policy providing for specified severance payments, including in the event of the consolidation or restructuring of Council 71.

 

The trial court found that AFSCME Council 63 did not breach its employment contract with plaintiff and granted AFSCME’s summary judgement motion. Although she did not allege this in the complaint, plaintiff further argued that the severance policy constituted an enforceable contract which AFSCME had breached. The trial judge rejected this argument. On appeal, plaintiff abandoned her breach of contract claim and limited her claim to whether she was contractually entitled to enforce the alleged Council 71 severance pay policy.

 

The Court agreed with the trial judge that plaintiff was not entitled to severance pay. It held the AFSCME administrator who implemented the reorganization acted within his constitutional authority when he informed plaintiff that the Council 71 severance policy had not been properly adopted and was null and void. Further, it noted that the policy created a severe financial liability for the Council 71 that it could not meet. The Court agreed that the administrator possessed the constitutional authority to revoke the policy in order to preserve the right and interests of local union members. Accordingly, the Court affirmed the summary judgment dismissal of plaintiff’s complaint.

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SEPTEMBER 2020

 

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 and Associate Craig A. Long 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.

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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.

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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.​

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JULY 2020

 

Zazzali Firm Wins Victory Before Third Circuit in Precedential Decision Securing Labor Arbitration Enforcement Rights

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Firm partner Edward H. O’Hare, with the assistance of associate Raymond M. Baldino, 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.  

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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.

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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. 

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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.

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2019

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Teacher Disabled in Accident Coaching Extracurricular Softball Eligible for Accidental Disability Benefits

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On June 3, 2019, in unpublished decision 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), 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.  

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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.

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Unexplained, Internally Inconsistent Factual Findings in Final Agency Decision Constitutes "Arbitrary and Capricious" Decision-Making

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On May 28, 2019, in an unpublished decision argued by Firm attorney Jason Sokolowski (Jenny Stankowski v. Board of Trustees, Public Employees’ Retirement System, Docket No. A-0450-17T2 (App. Div. May 28, 2019), 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 a 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. 

 

Zazzali Firm Obtains Appellate Division Decision Holding that Vote to Raise Superintendent's Salary was Unlawful​

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In March 2019, 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 NLRB Decision Successfully Argued by Zazzali Firm​​

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Firm partner Kenneth Nowak obtained a decision from the Third Circuit upholding a decision issued by the National Labor Relations Board finding that 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​

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Firm partner Richard A. Friedman, with the assistance of Associate Alvina Swati, won an Arbitration Award protecting union members’ Chapter 78 contributions for dental insurance premiums. 

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​

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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.

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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.

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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.

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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.

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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.

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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.”

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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 Firm Obtains Decision Granting Reinstatement of Health Insurance Coverage for Teaching Staff Member

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Firm partner Richard A. Friedman and Kathleen Naprstek Cerisano, 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.

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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.

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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.

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2018

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Zazzali Firm Wins Tenure Case on Behalf of Tenured Teacher for Alleged Inefficiency in a Position She was Not Legally Permitted to Hold

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Firm partner Richard A. Friedman, with very substantial assistance from Associate Marissa A. McAleer, Associate Kaitlyn E. Dunphy, and Partner Flavio L. Komuves, 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). The case has a long and complicated procedural history, spanning several years and several forums. Suffice it to say that the tenure charges brought against Ms. Pugliese were based upon her alleged inefficiency for the 2010-2011 and 2011-2012 school years.

 

During those years, Ms. Pugliese was assigned to teach departmentalized, middle-school social studies. However, she was not highly qualified as a departmentalized social studies teacher under the No Child Left Behind Act (which was in effect during those school years), and her certification did not permit her to teach departmentalized social studies. Despite those facts, the District assigned her to that position, which she was not legally permitted to hold, and then terminated her tenured employment due to her alleged inefficiency in that position.

 

The Appellate Division held that Ms. Pugliese could not be evaluated for inefficiency in the social studies position because she “was not certified, authorized, qualified or ‘highly qualified’ to teach middle school social studies, and had no content knowledge in social studies.” As a result, her “assignment to that position was contrary to the law”, and tenure charges could not be brought against her for alleged inefficiency in that position.

 

In addition, the Appellate Division agreed with Ms. Pugliese that because the law in effect at the time that the tenure charges were brought against her required that she be given a 90-day period of substantial assistance by the District to improve her performance prior to tenure charges being filed, and the District failed to provide such assistance, the tenure charges against Ms. Pugliese had to be dismissed.

 

The Zazzali Firm is pleased to advise that Ms. Pugliese has been returned to work effective September 4th, after enduring four (4) trips to the Appellate Division and waiting six (6) years for this decision. She will also be receiving back pay and benefits for those six (6) years during which the tenure charges were being challenged. The Firm is thrilled that it could achieve a successful outcome for Ms. Pugliese, and that it was able to right the wrong against her – namely, that she was charged with inefficiency in a position she never should have been assigned to in the first place, and that she was not given the full period of time under the law to improve her performance when the quality of her performance was challenged as inefficient, especially in an unlawful assignment.

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Zazzali Firm Protects Union Members' Right to Vested, Deferred Compensation Under Union Contract

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In Barila v. Bd. of Ed. of Cliffside Park (App. Div. July 10, 2018), Firm partner Richard A. Friedman 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.

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Zazzali Firm Successfully Challenges Conduct of Two State Health Commissions Before New Jersey Supreme Court

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In In re SEHBC’s Implementation of I/M/O Philip Yucht, Firm Partner Flavio L. Komuves argued before the Supreme Court on behalf of amicus curiae New Jersey Education Association (NJEA), with Firm Partner Richard A. Friedman and Associate Marissa A. McAleer 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. 

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Firm Partner Flavio L. Komuves Wins Appellate Case Restoring Voting Rights to Camden Parents and Educators

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Firm Partner and election law attorney Flavio L. Komuves 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.

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Zazzali Firm Wins Major Victory in 120-Day Rule Case

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Firm Partner Richard A. Friedman and Jason E. Sokolowski, Of Counsel to the Firm, with the assistance of Firm Associates Marissa A. McAleer and Kaitlyn E. Dunphy 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.

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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.

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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.

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Firm Partner Kenneth I. Nowak Wins Case Before the NLRB Concerning Union Dues Deductions

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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 Firm Obtains Dismissal of Inefficiency Tenure Charges Brought Against a Newark Public School Teacher

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In a victory for the Newark Teachers’ Union, Firm Associate Genevieve M. Murphy-Bradacs, 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. 

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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.

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