Opinion
DOCKET NO. A-4690-14T3
05-16-2016
IN THE MATTER OF BELLEVILLE TOWNSHIP BOARD OF EDUCATION, Petitioner-Appellant, v. BELLEVILLE EDUCATION ASSOCIATION, Respondent-Respondent.
Schwartz Simon Edelstein & Celso, attorneys for appellant (Nicholas Celso, III, of counsel and on the briefs; Joshua I. Savitz and Patricia C. Melia, on the briefs). Oxfeld Cohen, P.C., attorneys for respondent Belleville Education Association (Samuel Wenocur, on the brief). Robin T. McMahon, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Frank C. Kanther, Deputy General Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2015-012. Schwartz Simon Edelstein & Celso, attorneys for appellant (Nicholas Celso, III, of counsel and on the briefs; Joshua I. Savitz and Patricia C. Melia, on the briefs). Oxfeld Cohen, P.C., attorneys for respondent Belleville Education Association (Samuel Wenocur, on the brief). Robin T. McMahon, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Frank C. Kanther, Deputy General Counsel, on the brief). PER CURIAM
The Belleville Township Board of Education (the Board) appeals from a scope of negotiations determination by the Public Employment Relations Commission (PERC), which declared as arbitrable certain portions of a grievance filed by the Belleville Education Association (the Association). We affirm.
I.
The underlying dispute involves Michael Mignone, a teacher in the Belleville School District since 2000, and a stipend baseball coach at Belleville High School (BHS) for approximately thirteen years. Mignone also serves as president of the Association, the local teacher's union. The Association represents a negotiation unit of certified teaching personnel and other non-supervisory employees. The Association and the Board are parties to a Collective Negotiations Agreement (the Agreement) effective from July 1, 2012, through June 30, 2015. Pursuant to the Agreement's grievance procedure, a grievance shall end in final and binding arbitration.
Prior to the 2013-14 school year, the Board regularly hired three high school baseball coaches: one for varsity, one for junior varsity, and one for the freshmen team. The varsity coach held the title of "head baseball coach," while the junior varsity and freshmen coaches were "assistant baseball coaches." In November 2013, the Board eliminated one assistant coach for all winter and spring sports programs, including baseball. Following this reduction in staff, "[t]he current coaching staff would be assigned to cover Freshman games given that their stipend titles are Head Coach and Assistant Coach, not Varsity, Junior Varsity and Freshman." Freshmen teams would practice with the junior varsity and varsity teams, play abbreviated schedules, and be coached by the junior varsity or varsity coach.
In December 2013, Mignone wrote to Athletic Director Thomas D'Elia expressing his interest in serving as a baseball coach again for the 2014 season. D'Elia rehired the previous year's head baseball coach, and informed Mignone there would only be one assistant baseball coach, rather than two as in previous years. Including Mignone, D'Elia received three applications for the assistant baseball coach position. The interviews were rescheduled due to a holiday and inclement weather, and no interview with Mignone occurred before D'Elia's coach recommendation was due to the Board. Ultimately, D'Elia recommended, and the Board rehired, the assistant baseball coach who had been the junior varsity coach the previous year.
According to Mignone, "[t]he duties and responsibilities of the two remaining BHS baseball coaches increased drastically. The coaches now had to combine the three BHS baseball teams for practice. The coaches' hours also increased because of the added responsibility associated with the reduction in BHS baseball coaches." Moreover, multiple baseball games had to be cancelled because the BHS baseball team could not find a paid coach to be present for the games.
Mignone also certified that the 2013-14 school year was the first time the BHS baseball team had site managers, a position paid by the Board. He claimed that the site managers assumed responsibilities previously handled by the BHS baseball coaches. "For instance, prior to the 2013-2014 school year, the BHS baseball coaches were responsible for giving vouchers to the umpires to ensure that the umpires got paid for the game. However, during the 2014 baseball season, the site managers handled that responsibility." Furthermore, site managers are not covered under the Agreement; there is no salary guide within the Agreement addressing the site managers' salaries. D'Elia certified that site managers are paid a flat fee per game, and had been used for other high school sports since the 2012-13 school year.
On February 7, 2014, the Association filed a Level 1 grievance asserting that the Board improperly failed to reassign Mignone to the assistant baseball position because it was targeting him for being president of the Association. As a resolution, the grievance requested the Board to hire Mignone as an assistant baseball coach. On February 19, 2014, D'Elia denied the Level 1 grievance, stating that Mignone was afforded the same opportunities as the other two candidates for the position.
On February 13, 2014, the Association filed a Level 2 grievance asserting that the decision not to rehire Mignone changes working conditions for the remaining two coaches who had to coach more players and three different competition levels. As a resolution, the grievance requested that the Board hire "a coach for every competitive level — freshman, junior varsity and varsity." On March 31, 2014, the Association demanded binding grievance arbitration, asserting "[the Board] violated contract language, administrative code and any other relevant article, statute or board policy when it failed to adequately staff coaching positions." An arbitration hearing was scheduled for October 7, 2014.
On May 21, 2015, PERC issued a decision restraining arbitration in part, and denying restraint of arbitration in part. PERC relied on N.J.S.A. 34:13A-23, a provision of the New Jersey Employer-Employee Relations Act, which specifically made assignment and retention of coaches mandatorily negotiable. PERC decided that the decision to rehire a different assistant baseball coach rather than Mignone was negotiable, and therefore was arbitrable. However, PERC decided that the Board's decision to eliminate one of the coach positions was not negotiable or arbitrable; therefore, the Association could not arbitrate the Board's decision not to reappoint Mignone to a third baseball coach position that no longer existed. PERC also found that the decision to use site managers for some baseball games — to deliver payment vouchers to the umpires — was not arbitrable because their work had not historically only been performed by coaches, and because the Board was entitled to reorganize the way it delivered services. As such, that decision was a managerial prerogative and not a violation of the "unit work rule."
PERC did find that a complaint about an increased workload for the remaining two baseball coaches concerned the terms and conditions of their employment and, hence, was arbitrable. Accordingly, the arbitration would be limited to the increased workload claim and the complaint about Mignone not being appointed to the one remaining assistant coach position. The Board appeals from that aspect of the decision.
II.
In this appeal, the Board seeks to characterize the grievance as whether it could eliminate a coaching position. However, PERC resolved that issue in the Board's favor. PERC required arbitration of whether the Board had to hire Mignone for the open assistant baseball coach position and, allegedly, the claim that he was not hired due to anti-union animus because he was an Association official. The Board argues that this claim should have taken the form of an unfair labor practice charge before PERC, rather than a demand for arbitration.
The Board also asserts that increasing the workload of the existing coaches was not negotiable because it was due to a financial decision to eliminate a position. It also argues that the contract does not provide for an extra stipend for extra work, and that the Association should have either asked to renegotiate the contract, or should have asked PERC to declare it an unfair labor practice to increase duties without increasing the stipend. The Board further claims that the Association failed to go through the proper grievance procedure on the extra work claim.
The Association argues that the matters in dispute fall squarely within N.J.S.A. 34:13A-23, which broadly makes disputes over coaching and similar positions negotiable and arbitrable. The Association also points out that the Board failed to raise the exhaustion of grievance issue before PERC. We agree with the Association.
"PERC's interpretation of [the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43], is entitled to substantial deference . . . unless its interpretations are plainly unreasonable, . . . contrary to the language of the Act, or subversive of the Legislature's intent." Tpk. Authority v. AFSCME Council 73, 150 N.J. 331, 352 (1997). We will not disturb a PERC decision "unless it is clearly demonstrated to be arbitrary or capricious." Jersey City v. Police Officers, 154 N.J. 555, 568 (1998) (citation omitted). Applying these standards, we find no basis in this record to disturb the agency's decision.
N.J.S.A. 34:13A-23, a 1990 amendment to the New Jersey Employer-Employee Relations Act, "classified disputes over extracurricular assignments as subject to negotiation and, hence, to arbitration if that was a procedure agreed to by the parties." Jackson Twp. Bd. of Educ. v. Jackson Educ. Ass'n ex rel. Scelba, 334 N.J. Super. 162, 166 (App. Div.), certif. denied, 165 N.J. 678 (2000). The enactment of N.J.S.A. 34:13A-23 changed previous rules of decision, by classifying issues bearing upon extracurricular assignments as mandatorily negotiable. See Mainland Reg'l Teachers Ass'n v. Bd. of Educ. of Mainland Reg'l Sch. Dist., 176 N.J. Super. 476, 483 (App Div. 1980), certif. denied, 87 N.J. 312 (1981). Accordingly, "[a]ll aspects of assignment to, retention in, dismissal from, and any terms and conditions of employment concerning extracurricular activities shall be deemed mandatory subjects for collective negotiations[.]" N.J.S.A. 34:13A-23. The statute "operates only after the board has made a decision not to renew [and] authorizes parties to have agreed on a neutral forum — here arbitration — for resolving disputes over whether the local decision-maker violated any law or contractual obligation in determining not to renew a teacher's extracurricular assignment." Jackson Twp., supra, 334 N.J. Super. at 172. For example, the arbitrator may consider whether certain statutory violations occurred, such as under the Law Against Discrimination, or whether any contractual protections were breached. Ibid.
Prior to 1990, "it had become established that appointments to and removals from extracurricular positions in public schools lay on the managerial-prerogative side of the negotiability divide and were, therefore, not subject to collective negotiations (or, hence, arbitrable)." Jackson Twp., supra, 334 N.J. Super. at 168.
Under this framework, the Association can arbitrate the decision not to hire its president, Mignone, as the assistant coach. Ibid. The issue of whether Mignone was at fault for not attending his interview can be raised before the arbitrator. In addition, a change in "compensation, workload, work hours, and leaves is a mandatorily negotiable term or condition of employment." Piscataway Twp. Educ. Ass'n v. Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 273 (App. Div.), certif. denied, 156 N.J. 385 (1998). Therefore, PERC properly ruled the Association could arbitrate whether the remaining coaches' workload changed. The Board points to its stipend schedule, which provides a fixed fee. The issue of whether the new arrangement has increased the hours for which that stipend is paid can also be raised before the arbitrator.
We briefly note that Mignone made the disputed claim that the remaining coaches' duties and responsibilities also increased. However, "terms and conditions of employment" does not include duties and responsibilities if they do not affect workload, hours, or compensation. See N.J.S.A. 34:13A-23. As PERC ruled, "it is the Board's non-negotiable managerial prerogative . . . to make the staffing determination that two coaches can perform the coaching duties for three baseball teams." While the Board had the right to reorganize the coaching staff, under N.J.S.A. 34:13A-23 it did not necessarily have the non-negotiable right to decide that the remaining staff should work more hours for the same stipend.
We emphasize that in deciding this case, we are not deciding the merits of the grievances, just whether PERC's decision was arbitrary, capricious, or unreasonable. --------
The Board's arguments about the arbitrator's potential remedies are premature. Moreover, the propriety of any remedy imposed by the arbitrator can be decided in a challenge to the arbitration decision pursuant to N.J.S.A. 2A:24-8. See Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 277 (2010); see also Port Auth. Police Sergeants Benevolent Ass'n v. Port Auth. of N.Y. & N. J., 340 N.J. Super. 453 (App Div. 2001) (holding that an arbitration award was properly vacated under N.J.S.A. 2A:24-8(d), because it exceeded the terms of the collective bargaining agreement). Finally, we decline to address the Board's argument that the Association did not follow the proper grievance procedure on the extra work claim as the Board failed to raise this issue before PERC. We ordinarily will not consider appellate arguments that were not presented to the agency. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION