Labor & Employment

Collective negotiated agreements (“CNAs”) delineate the terms and conditions of employment for many, if not the majority, of board of education employees.  They often dictate an employee’s rights and privileges, hours, salary, benefits, procedures for the termination of employment, and grievance procedures for challenging a board’s interpretation or application of the CNA.  On February 2, 2016, the Appellate Division in Egg Harbor Township Board of Education v. Egg Harbor Township Education Association, 2016 N.J. Super. Unpub. LEXIS 205 (App. Div. 2016) addressed the issue of whether the Egg Harbor Township Board of Education’s (“Board”) actions resulting in the discontinuation of employment of two members belonging to the Egg Harbor Township Education Association (“Association”) must be arbitrated.

L.D. was non-tenured teacher’s aide whose contract was slated to end on June 30, 2012.  On May 10, 2012, L.D. and the Board’s president executed a written contract for re-employment for the 2012-2013 school year.  However, on July 9, 2012, the Board rescinded the employment contract, purportedly due to allegations surfacing after May 10, 2012 that L.D. verbally and physically assaulted students in a classroom.  L.D. took no further action after her employment contract was rescinded.  Y.J. was a non-tenured custodian employed by the Board for the 2011-2012 school year.  The Superintendent non-renewed Y.J. for the 2012-2013 school year.  As a result, Y.J. requested and appeared before the Board, which accepted the Superintendent’s determination.  Y.J. did not appeal this decision to the Commissioner of Education.

The Association, on behalf of both employees, demanded arbitration of the two grievances pursuant to the CNA.  In response, the Board sought the New Jersey Public Employment Relations Commission (“PERC”) to restrain arbitration of its decision not to renew L.D. and Y.J.’s employment contracts asserting that these actions were non-negotiable managerial prerogatives.  The Board also relied on language from the operating CNA which limited arbitration to grievances “based upon an allegation that there has been a violation of the express written terms of the locally negotiated [CNA].”  PERC ultimately determined that whether the Board agreed to arbitrate disputes involving the non-renewal of its aides and custodians was beyond the scope of its jurisdiction.  As a result, the Board sought judicial review by the New Jersey Superior Court of whether the CNA allowed for arbitration of the grievances.  Relying on the general presumption of arbitrability, the trial judge found that both L.D. and Y.J.’s issues must be arbitrated.

However, the Appellate Division disagreed with the trial court’s reasoning and ultimately found that the Board’s decision regarding L.D. requires arbitration but not for Y.J.  Specifically, the Appellate Division rejected the Board’s argument that L.D. was non-renewed.  The Board’s revocation of the employment contract for the following school year, which had been previously offered to and accepted by Y.J., was interpreted as disciplinary action resulting in dismissal – action explicitly subject to the grievance procedure of the CNA.  Accordingly, arbitration of L.D.’s grievance must proceed.  In contrast, the Board’s action relating to Y.J. was purely a non-renewal and did not arise from a grievable disciplinary determination, which precludes arbitration.

Boards of education should be cognizant of whether the governing CNA expressly omits a mandate for a non-renewal determination to be based on just cause or a provision conferring upon an employee the right to grieve a non-renewal decision.  When seeking to non-renew an employee, which is generally a managerial determination, superintendents and boards of education should make sure that the action taken against the employee in question is purely a non-renewal and not subject to interpretation as a disciplinary action resulting in termination.

In an unpublished decision dated January 7, 2016, the New Jersey Appellate Division in Sheridan v. Egg Harbor Township Board of Education, 2016 N.J. Super. Unpub. LEXIS 10 (App. Div. 2016) vacated the trial court’s dismissal of a former employee’s discrimination complaint and remanded the matter for trial.  Plaintiff, a former custodian for the Egg Harbor Township Board of Education, alleged that the Board wrongfully terminated her on the basis of obesity in violation of the New Jersey Law Against Discrimination and subjected her to a hostile work environment due to her floor supervisor’s repeated disparaging remarks about the custodian’s weight.  In contrast, the Board posited that the custodian was discharged for non-discriminatory business reasons because she failed several portions of a fitness-for-duty examination (“FDE”) as authorized by N.J.S.A. 18A:16-2.  The Board also argued that any comments by the supervisor were benign and did not rise to the level of a hostile work environment.

In applying the three-step burden-shifting test set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for employment discrimination cases, the Appellate Division agreed with the trial court’s determination of the first step of the analysis that the custodian established a prima facie case of discrimination based on a protected class of perceived disability due to obesity.  With regard to the second step, a defendant must set forth a legitimate non-discriminatory reason for plaintiff’s discharge.  The Appellate Division also agreed with the trial court’s conclusion that the Board demonstrated legitimate reasons for requesting plaintiff to undergo a FDE due to signs of overextension and shortness of breath.

Unfortunately for the Board, the Appellate Division disagreed with the trial’s court analysis of the third-step regarding pretext.  That is, based on the record for summary judgment in a light most favorable to the non-moving party, the Appellate Division could not conclude whether the FDE fairly measured the physical skills needed for plaintiff to perform her daily tasks as a custodian.  Specifically, the job description against which the custodian was evaluated during the FDE was substantially different than the job description which existed at the time she was hired.  The difference amounted to the FDE evaluating her ability to perform specific tasks at twenty-five pounds heavier than in her official job description governing her duties.  As the Appellate Division cannot defer to a trial judge’s weight or assessment of the documentary record on a motion for summary judgment, it determined that a genuine issue of material fact exists which precludes summary judgment for the Board.

Moreover, the Appellate Division found questions of material fact as to whether plaintiff’s failure to complete certain portions of the FDE accurately assessed her ability to perform her actual day-to-day responsibilities, whether negative remarks were actually made to plaintiff about her obesity, and whether such comments were severe and pervasive.  Given these circumstances, the Appellate Division vacated the trial court decision granting summary judgment to the Board and remanded the case for trial.