Zazzali Fagella Nowak Kleinbaum
A Professional Corporation
Zazzali Firm Obtains Multi-Million Dollar Settlement of Class Action Lawsuit on Behalf of Retirees of Hamilton Board of Education
In December 2017, Firm Partner Richard A. Friedman, with the assistance of Associates Genevieve M. Murphy-Bradacs and Marissa A. McAleer obtained a settlement of a class action lawsuit filed on behalf of retirees of the Hamilton Township Board of Education. The lawsuit alleged that the Board breached its contractual obligations to make cash payments in lieu of a prescription drug obligation to certain retirees, and in some instances to their dependents. The lawsuit argued that the Board violated the applicable contracts when it stopped making these payments, and that as a result, the Class Members were entitled to retroactive and prospective relief.
The Class was divided into subclasses of retirees, with the Zazzali Firm representing the subclasses of former Hamilton Township Education Association members and former Hamilton Township School Secretaries Association members, and with the subclass of administrators and supervisors being represented by Robert M. Schwartz, Esq. of the Schwartz Law Group.
On December 21, 2017, the Superior Court of New Jersey issued its Order of Final Approval, approving the proposed class settlement. The Board has agreed to pay $17,000,000 to members of all subclasses combined. This amount reflects retroactive and prospective relief to all members of the subclasses. Subclasses represented by the Zazzali Firm will receive a portion of the total payout in the amount of $13,000,000.
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.
Firm Partner Flavio L. Komuves Successfully Defeats Lawsuit Challenging the Legality of Union Release Time
In October 2017, the Superior Court of New Jersey, Chancery Division dismissed a lawsuit filed on behalf of two New Jersey taxpayers that challenged the release time provision in the collective negotiations agreement (CNA) between the Jersey City Education Association and the Jersey City School District. More specifically, in Rozenbilt v. Lyles, Dkt. No. HUD-C-2-17 (Ch. Div. Oct. 31, 2017), the Plaintiffs alleged that the release time provision in the CNA that allowed the union president and his/her designee to conduct union business and affairs on a full-time basis while being paid a teacher’s salary violated the “Gift Clause” of the New Jersey Constitution. The court disagreed with Plaintiffs, and agreed instead with the arguments of Defendants, the Jersey City Education Association and the school administration. The court agreed with Defendants that the Gift Clause is not violated if the money at issue is being used for a public purpose, and the release time provisions in the CNA “serve valid public purposes” as they “are implementations of a statutory right”, i.e., the right of public employees to form and join a union and have their collectively negotiated agreements administered and enforced by representatives of their choosing. Furthermore, much of the union officials’ work involved the conciliation of grievances, and peacekeeping and peacemaking efforts between administrators and teachers, all of which served a valid public purpose. In addition, the court found that the Jersey City School District retained sufficient control over the use of release time by released employees, such that there was no Constitutional violation.
The lawsuit was filed by a right-wing advocacy group on behalf of the Plaintiffs, one of whom was from Jersey City and the other was from Whippany. Mr. Komuves, on behalf of the Zazzali Firm, vigorously opposed the suit, and is pleased that the court agreed that paid union release time does not violate the Gift Clause of the New Jersey Constitution. The Zazzali Firm will continue to fight against any such attacks on the rights of unions and their members.
Firm Partner Colin M. Lynch Secures Multi-Million Dollar Arbitration Victory for Newark Teachers
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. To read more about this award, please see our blog post here.
Firm Partner Colin M. Lynch Obtains Dismissal of Tenure Charges Against Two Newark Teachers
In two recently issued arbitration decisions, Colin M. Lynch obtained dismissal of tenure charges against two teachers employed by the Newark Public Schools.
In the first case, the District sought removal of tenured teacher, D.C., based upon alleged inefficiency in her teaching performance during the 2013-14 and 2014-15 school years. The charges were brought pursuant to the TEACHNJ Act, which allows Districts to pursue tenure charges based upon two consecutive years of alleged ineffective and/or partially effective performance evaluations. D.C. challenged her termination on the grounds that the observations of her teaching performance taken during the 2013-14 school year demonstrated her performance was effective, notwithstanding a year-end annual evaluation rating her performance as partially effective. D.C. contended that the first observation taken that year, and the only one finding her partially effective, was arbitrary in that she was observed teaching a class to which she had not yet been assigned at the time and was unfamiliar with the students assigned to the class. She challenged her rating of ineffective for the 2014-15 school year on the basis that the District failed to properly score her Student Growth Objectives (“SGOs”) established in her Corrective Action Plan and that the District’s failure to do so was a material violation of the statutory and regulatory observation and evaluation procedures. Arbitrator Robert J. Simmelkjaer, in his Opinion and Award dated December 30, 2016, agreed, and dismissed the charges. Among other conclusions, the Arbitrator found that consideration of the first observation of D.C., during the 2013-14 school year and prior to the time period she was assigned to teach the class was arbitrary. In addition, the Arbitrator found the District’s failure to review and consider D.C.’s SGOs prior to issuing its annual evaluation at the conclusion of the 2014-15 school year rendered her evaluation rating for that school year arbitrary as well. Accordingly, Arbitrator Simmelkjaer dismissed the charges against D.C. and reinstated her with appropriate back pay benefits and seniority. A copy of the Decision may be found by clicking here.
The second case involved Newark Public Schools Teacher P.U. The District brought charges against P.U. contending that she demonstrated inefficient performance through partially effective evaluation ratings during the 2013-14 and 2014-15 school years. Immediately prior to the commencement of the hearing, P.U. filed a motion to dismiss contending that the District failed to comply with its discovery obligations under the Act. More specifically, P.U. noted that as of the last day prior to the scheduled hearing commencement date, the District had not responded to P.U.’s demand for answers to interrogatories. Moreover, P.U. noted that the District failed to provide complete summaries of witness testimony upon referral of the case to arbitration, as required by the TEACHNJ Act. Arbitrator Andree Y. McKissick agreed and dismissed the charge. A copy of the decision may be found by clicking here.
Firm Partner Paul L. Kleinbaum Obtains Injunction Preventing the City of Newark from Eliminating Traditional Health Insurance Plan
Firm Partner Paul L. Kleinbaum, with the assistance of Associate Marissa A. McAleer, obtained an Order from PERC enjoining the City of Newark from eliminating the Traditional Health Insurance Plan for its active and retired Fire Officers, Police Officers, and Firefighters. Mr. Kleinbaum represented the Newark Fire Officers Union Local 1860, IAFF, AFL-CIO. Local 1860 was joined by the Fraternal Order of Police, Newark Lodge No. 12 and the Newark Firefighters Union. The unions jointly filed an Unfair Labor Practice charge and sought interim relief on the grounds that the City, unilaterally and without negotiations, terminated the Traditional Plan and enrolled employees and retirees who were covered by the Traditional Plan in the Direct Access Plan unless another alternative plan was chosen. In addition to preventing the City from rescinding the Traditional Plan, the City was also ordered to create a fund to reimburse those employees and retirees who incurred additional costs because of the City’s elimination of the Traditional Plan.
Zazzali Firm Represents NJEA in Defeating State's Lawsuit Seeking to Compel NJEA Representatives' Attendance at SEHBC Meeting
In September 2016, Superior Court Judge Mary Jacobson dismissed with prejudice the State’s lawsuit seeking to compel NJEA representatives to attend a meeting of the SEHBC where the State intended to force a vote on moving all Medicare eligible retirees in the SEHBP to a Medicare Advantage plan. The NJEA was represented by Firm attorneys Robert A. Fagella, Esq. and Aileen M. O'Driscoll, Esq. An article regarding the case can be found here.
Appellate Division Reverses PERC Decision Which Negated an Over 35-Year History of Payment of Salary Steps in Expired Collective Negotiations Agreements
Firm partner Paul L. Kleinbaum and Associate Marissa A. McAleer represented amicus curiae, the New Jersey State PBA, in In re County of Atlantic and PBA Local 243. The Appellate Division overturned the recent reversal by PERC of over 35-years of agency case law and in doing so, held that a public employer cannot refuse to pay salary step increments after a contract has expired and before a new contract has been negotiated if it has done so in the past. The Zazzali Firm was joined by a number of other firms representing public sector unions, including the NJEA, FMBA, IFPTE, PFANJ and FOP, all of which argued for a reversal of PERC’s recent change in the dynamic status quo doctrine. In very strong and unequivocal language, the Court found that PERC undermined its legislative mandate and was not free to discard the doctrine it had applied for so many years. A copy of the Court’s decision can be found here.
Appellate Division Holds that Disability Retirees are Not Required to Pay Health Insurance Contributions
In Brick Twp. PBA Local 230 & Michael Spallina v. Twp. of Brick, issued on June 21, 2016, the Appellate Division held that law enforcement officers who retire on an ordinary or accidental disability pension, and who did not have twenty (20) years of pensionable service as of June 28, 2011 when Chapter 78 became effective, are not required to contribute toward their insurance coverage, provided that the collectively negotiated agreement mandates retiree health coverage. Firm Partner Paul L. Kleinbaum represented the State PBA as amicus curiae in the appeal, with the assistance of Firm Associate Marissa A. McAleer. The case is significant because it affects all public employees, not just law enforcement officers. Public employees who retire on an accidental or ordinary disability pension can now rest assured that they will not be required to make contributions towards the cost of their health insurance premiums, even if they did not have 20 years of pensionable service when Chapter 78 became effective. The key is that the applicable collective bargaining agreement must provide for employer-paid benefits at an employee’s retirement.
Firm Partner Colin M. Lynch Obtains Ruling that Newark Public Schools Broke the Law By Interfering with NJEA Convention Leave, Refusing to Provide Information Regarding Teacher Evaluations, and Blocking Union Access to School District Email
Firm partner Colin M. Lynch obtained a judgment on behalf of the Newark Teachers’ Union in the PERC case of State-Operated School District, City of Newark, Dkt. No. CO-2014-098 (October 20, 2015). The Newark Teachers’ Union (NTU) filed an unfair labor practice against the District, arguing that 1) the District violated the PERC Act by interfering with members’ NJEA convention leave by placing irrelevant requirements and restrictions on the taking of such leave; 2) the District violated the PERC Act by refusing to provide the names of teachers who received "ineffective" performance observations to the NTU; and 3) the District violated the PERC Act by blocking NTU access to the District's email system to communicate with members.
The parties filed cross-motions for summary judgment, and the Hearing Examiner assigned to the case agreed with the NTU that the District violated the PERC Act for the reasons stated above, and ordered that the District cease and desist from interfering with members’ exercise of their rights guaranteed to them by the PERC Act, and specifically ordered the District to stop placing restrictions on employees’ ability to attend the NJEA convention, to stop refusing to provide the NTU with names and addresses of unit employees receiving ineffective summative performance evaluations in 2013, and to stop blocking NTU representatives’ email access to unit employees. The Hearing Examiner’s decision is being transferred to the full Commission for consideration, and the parties may file exceptions to the Hearing Examiner’s decision. A copy of the PERC’s decision can be found here.