School Law
Schools and Labor Law
Public employees in New Jersey have a constitutional right to organize and to present "grievances and proposals" to their public employers through representatives of their own choosing. N.J.Const. (1947), Art. I, par. 19.
Collective Bargaining: Mandatory and Non-Mandatory Matters
Matters of concern to public employees can only be one of two things: 1. both “mandatorily negotiable terms and conditions of employment or [2.] non-negotiable matters of governmental policy." Ridgefield Park Ed. Ass'n v. Ridgefield Bd. of Ed., 78 N.J. 144, 162 (1978). Matters that are not subject to negotiations with a public employer are called “non-mandatory.”
How does a court decide the scope of negotiations and balance the inherent management prerogative with welfare of public employees? The “role of the courts in a scope of negotiations case is to determine, in light of the competing interests of the State and its employees, whether an issue is appropriately decided by the political process or by collective negotiations.” In re IFPTE Local 195, 88 N.J. 393, 402 (1982).
Efficiency and Economy
Efficiency and economy are inherently management prerogatives. Teacher jobs and stipends often are unilateral eliminated by the school board. Elimination of department chairs by state colleges for “consolidation was [held] not a proper subject of either arbitration or mandatory negotiation under N.J.S.A. 34:13A-5.3.” Dunellen Board of Education v. Dunellen Educational Ass'n., N.J. 17, 31 (1973). Dissolving teaching positions was also held not subject to arbitration if the action of “the board was for reasons of economy.” Maywood Board of Education v. Maywood Educational Ass'n., 168 N.J. Super. 45, 52 (App. Div. 1979).
A school district may not terminate the jobs for the sole purpose of subcontracting non-union work. They must reinstate any employee if he or she were to “to show a reason for her termination other than economy and efficiency.'” In re Bridgewater, 95 N.J. 235, 246 (1984). The Employer-Employee Relations Act prohibits discharge or adverse action based on the union activity or membership of a worker. See N.J.S.A. 34:13A-1 et. seq. The burden of proof rests with the terminated employee. In “the absence of any direct evidence of anti-union motivation a prima facie case must be established by showing that the employee engaged in protected activity, that the employer knew of this activity, and that the employer was hostile toward the exercise of the protected rights.” Id.
Subcontracting is Non-Mandatory
“Neither the Constitution nor the Civil Service laws require that all State functions be carried out by civil service employees.” In re IFPTE Local 195, 88 N.J. at 405. It is true the sub-contracting can cause the loss of union jobs and "[n]othing more directly and intimately affects a worker than the fact of whether or not he [or she] has a job." State v. State Supervisory Employees Ass'n, 78 N.J. at 84. N.J. 393, 405. However, it “is a matter of general public concern whether governmental services are provided by government employees or by contractual arrangements with private organizations.” Local 195, 88 N.J. at 407. That which “distinguishes the State from private employers is the unique responsibility to make and implement public policy.” In re IFPTE Local 195, 88 N.J. 393, 401-02 (1982). The decision to contract and subcontract jobs is a non-negotiable choice of management.
Collective bargaining agreements, nevertheless, often require discussions with employee representatives before outsourcing jobs. A "public employment contract may include a provision reciting an agreement by the State to discuss decisions to contract or subcontract whenever it becomes apparent that a layoff or job displacement will result, if the proposed subcontracting is based on solely fiscal considerations. In such situations, the public would clearly benefit from suggestions by public employees directed toward improving economy or efficiency. While the public employees have no right to negotiate on the ultimate decision to subcontract, they may have a procedural right to present their position on the economic issue. Thus, for example, they could seek to show the employer that the employees are willing to perform the same job at a price competitive with the private replacements.” Local 195, 88 N.J. at 409.
Disciplinary Procedures are Mandatory
Employees in general have a federal Weingarten right of unionrepresentation during any kind of disciplinary hearing.1 This standard applies to New Jersey public employees.2
Disciplinary procedures are a mandatory subject of negotiation according N.J.Stat.Ann. 34:13A-5.3.3 Negotiations over disciplinary procedures for misconduct or other non-evaluative purposes are mandatory. 4 Negotiations over teacher evaluations is non-mandatory and illegal. State law requires that “[d]isputes involving the withholding of an employee's increment by an employer for predominately disciplinary reasons shall be subject to the grievance procedures established pursuant to law and shall be subject to the provisions of section 8 of this act.” N.J.S.A. 34:13A-26. On the other hand, job performance is “plainly a subject of essential inherent managerial prerogative . . . [that] cannot be negotiated away by agreement . . . .” Jersey City v. Jersey City Police Officers' Benevolent Ass'n., 179 N.J. Super. 137, 138 (App.Div. 1981).
Job Performance Evaluation is Non-Mandatory
Arbitration over the withholding of increments for poor job performance is a non-negotiable matter. Hence, it is illegal.
The courts and the Public Employee Relations Commission (PERC) do not have a clear line over when withholdings are based on job performance and when they are disciplinary and subject to arbitration. In general, “withholdings based on poor instructional skills or disciplinary techniques, inability to maintain classroom control, and inappropriate in-class remarks or conduct are predominately related to the evaluation of teaching performance. Withholdings based on excessive absenteeism, violation of administrative procedures, or some out-of-class interactions with students have been found to be disciplinary.”5
The cases show that withholding of increments based strictly on poor evaluations are not subject to collective bargaining arbitration. In Readington Bd. of Ed. v. Readington Ed. Ass'n, PERC 95-038, PERC restrained binding arbitration of a salary increment when the withholding was from a poor evaluation rather than disciplinary. In Shamong Township Bd. of Ed. v. Shamong Township Educational Ass'n., PERC 2005-14 the school board dismissed a non-tenured teacher mid-year due to inefficiency as detailed by a poor evaluation. Although, the board was under no obligation to renew the contract for the following year, dismissal during the contract year, while under contract, without any arbitration, would have left the teacher with no administrative recourse.
In Mansfield Tp. Bd. of Ed. and Mansfield Tp. Ed. Ass’n, P.E.R.C. No. 96-65, PERC allowed the school board to withhold the increment of a special education teacher due to insubordination and a failure to communicate with the self-contained classroom teacher. The Appellate Division reversed since the incidents were not raised in the annual evaluations, which were generally good. App. Div. Dkt. No. A-4966-95T1 (3/17/97).
State law provides the proper procedure for withholdings due to poor evaluations is to appeal to the Commissioner of Education rather than the collective bargaining agreement. “If the reasons for a withholding relate predominately to an evaluation of teaching performance, the withholding must still be appealed to the Commissioner of Education.” N.J.S.A. 34:13A-27. The Commissioner of Education has the authority over all matters of school law including withholding of increments and salaries of teachers.6
In one case, a board of education unilaterally reduced pay ignoring the negotiated incremental scale, even though it acted under legislative authority. The Commissioner ruled in favor of the teachers and the New Jersey Supreme Court upheld his decision. “As to teachers having tenure the subsequent reduction was illegal.” Board of Ed. City of Trenton v. State Bd. of Ed. 17A.2d 817, 818 (1941). An across-the-board reduction of pay is a mandatory subject of negotiation. Decisions pertaining to pay arise out of the forecast of costs. The faculty and staff have a right to participate as this “directly affects the work and welfare of public employees.”
The cases that allowed arbitration did so for reasons other than poor individual teacher evaluations. Either the board fired a teacher in middle of a contract year, did not include the disciplinary issues in its evaluations, or unilaterally reneged on a collective bargaining agreement. On the other hand, a collective bargaining agreement with language that implies a requirement for arbitration over incremental withholding for poor teacher evaluations is illegal.
Standards for Hiring are Non-Mandatory
A Board of Education may promote more rigorous standards for hiring and promotion. For example, a preference for administrators with certification in mathematics or the language arts, or both, is implemented to secure more efficient management. The board should argue that the standards are a non-mandatory subject of negotiations. The “primary object and the purpose of the civil service law is to secure for government, state, county and municipal, efficient public service in all its many functions." Park Ridge v. Salimone, 21 N.J. 28, 44 (N.J. 1956).
The Supreme Court developed a three-step inquiry to determine when a matter is negotiable:
“First, a subject is negotiable only if it intimately and directly affects the work and welfare of public employees. Second, an item is not negotiable if it has been preempted by statute or regulation. Third, a topic that affects the work and welfare of public employees is negotiable only if it is a matter ’on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of government policy.’” Wright v. Bd. of Ed. of City of E. Orange, Essex Co., 99 N.J. 112, 118 citations omitted.
Granted that standards for hiring and promotion intimately affects workers, negotiations over the standards will “significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of government policy.” A board of education reserves the determination over the standards for hiring and promotion. They are “non-negotiable matters of governmental policy."
As for the second prong, more rigorous standards are not pre-empted by state law setting minimum qualifications for teaching and administrative jobs. Support can be found in N.J. Stat. Ann. 11A:4-14 setting minimum qualifications for office.7
Wright dealt with minimum and maximum standards, immediate tenure or no tenure for fixed term contract, for custodians under N.J.S.A. 18A:17-3. The Wright Court considered the negotiated three-years standard permissible because it did not significantly interfere with public policy.
On the other hand, rigorous standards for promotion and hiring standing alone are an “exercise of inherent management prerogatives pertaining to the determination of government policy.” Id. at 118.
By contrast, negotiations over procedures for hiring and promotion rather than the standards for hiring and promotion are mandatory. A BOE should post “notices of such vacancies and positions shall set forth qualifications for and duties of the positions.” Jersey City 218 N.J. Super. at 177.
In Jersey City, the collective bargaining agreement applied to a list of employees otherwise qualified for promotion and for notice of positions. Notice was served when the board of education implemented an Affirmative Action hiring policy inconsistent with the collective bargaining list. PERC ruled in favor of the board. Notice is First Amendment combined with the Due Process Clause of the Fourteenth Amendment. The board of education was not bound by the collective bargaining agreement of whom to hire as long as notice was properly served to implement its policy. Although the board originally negotiated over the policy before it implemented its Affirmative Action hiring practice, those negotiations were over seniority and matters pertaining to job security rather than management standards of job performance.
Of course a Union can require notice of promotions, as notice of all new jobs require notice. “For example, negotiation could occur on the issue of adequate notice to employees that they are going to be laid off. We have held that, although substantive policy decisions may be non-negotiable matters, procedural aspects of the decision are negotiable. State v. State Supervisory Employees Ass'n, 78 N.J. 54, 90-91 (1978). Negotiation about the procedures for terminating employees will not significantly interfere with the underlying policy determination. How to implement notice is a negotiable terms and conditions of employment, but not those “substantive policies decisions” that affect the quality of public education.
Tenured and Non-Tenured Teachers
N.J.S.A. 18A:60-2 provides that no “person employed in a teaching capacity, so under tenure, shall be dismissed or subjected to a reduction in salary except for inefficiency, incapacity, conduct unbecoming a teacher, or other just cause.” A non-tenured teacher, on the other hand, is under “an at-will employment contract [which] does not create a protected property interest in one's job." Goodmann v. Hasbrouck Heights Sch. Dist., 275 Fed. Appx. 105, 108 (3d Cir. N.J. 2008). However, even a teacher without tenure is entitled to “receive the terms and conditions of employment provided to teaching staff members in the employing district under the collective bargaining agreement including, but not limited to, salary, sick leave, and health insurance benefits.” N.J.S.A. 18A:27-4a. The non-tenured teacher is entitled to the same procedures for discipline developed in the collective bargaining agreement.
Finally, the Wright Court was careful to distinguish custodian tenure under N.J.S.A. 18A:17-3 from teacher tenure. “The teachers' tenure statute speaks in the imperative, providing that all teachers shall have tenure after three years of employment. A teacher's statutory right to tenure cannot be altered by contract and boards have no discretion to deny a teacher tenure if he is reemployed after three years of service.” Wright 99 N.J. at 122.