ESP unions’ dogged determination literally pays off

By Christy Kanaby 

It’s widely known throughout the state that NJEA’s educational support professionals (ESPs) are also known as essential school personnel. This was never truer than during the COVID pandemic. As educators scrambled to move to remote learning in response to the state of emergency declared through Gov. Phil Murphy’s executive order, districts were left to decide which personnel would remain in the buildings and what their roles would be. 

Like many of their colleagues around the state, members of the East Orange Educational Support Professional Association (EOESPA) and East Orange Maintenance Association (EOMA), collectively composed of custodians, maintenance and security personnel, remained in the school buildings to disinfect and maintain them as the pandemic raged on. And—like many of their colleagues—they deserved to be paid for their selfless work.  

Each of the EOMA and EOESPA’s bargaining units have a clause in their respective contracts that addresses compensation for work completed in a declared state of emergency, which supersedes any other contract language on overtime. So, in March 2020, when New Jersey’s public schools shut down, these three groups continued to work and continued to be paid, as per the contract. 

“When we were directed to return to work during the pandemic, the death tolls and hospitalizations were very high,” recalled Lynnette Joyner, EOESPA president. “All the custodians were terrified, afraid and stressed, not just for our lives, but for the lives of loved ones we lived with. We didn’t want to bring in any germs, so many of us had to quarantine in our homes.” 

But in June 2020, the East Orange School District informed EOESPA and EOMA members that, beginning that July, they would no longer receive state-of-emergency pay and instead would receive their normal compensation. The district claimed that “…no one thought an extended state of emergency would occur” in the wake of the executive order.  

“As ESPs, we are used to working under different conditions. We signed up to be security and maintenance professionals, knowing that we were working in difficult or even dangerous situations,” said Mark Richards, EOMA president. “No one could have predicted working during a pandemic. We had struggles, and we showed up.” 

EOESPA President Lynnette Joyner on the job in East Orange.

Protecting contractual provisions 

Working with NJEA Field Representative Jim McGuire and NJEA network attorneys Sanford Oxfeld, Esq. and Randi April, Esq., EOESPA and EOMA filed grievances on behalf of their bargaining units, as each has different language on overtime pay, but all three grievances were bundled with the same complaint: the district must honor the contract.  

The East Orange Board of Education balked at the grievances, claiming that since schools weren’t closed in the summer and fall of 2020, it was no longer necessary to pay individuals more for the same work. However, NJEA’s, EOESPA’s and EOMA’s position was clear: regardless of the board’s feelings, the state of emergency was still in effect, and no students were present. 

“To have the district unilaterally decide they will no longer pay these employees what they were owed is unacceptable,” said McGuire. “With the state of emergency still in full effect, so is the contract language that outlines how they will be paid during such time.”  

The grievance worked its way through the contractual process and eventually went to arbitration at the end of 2020, with Jack Tillum assigned as the arbitrator. Tillum ruled in the unions’ favor and, in January 2021, awarded the following decision: 

  • Custodians’ group, as per its contract, will receive two-and-a-half times their salary rate.
  • Security group, as per its contract, will receive time and a half. 
  • Maintenance group, as per its contract—which specifically states that if the state of emergency is declared by the governor, no overtime is awarded—will receive only their regular hourly rate. 

In all, roughly $4 to 5 million was awarded to these members, as all worked during COVID. 

Stall tactics ensue 

Unfortunately, the board of education began to stall and refused to pay EOESPA and EOMA members what they were owed, despite many legal letters and meetings between the parties. In June 2021, NJEA filed a “Continuing the Arbitration Award,” which seeks a judge’s certification to enforce the award. The judge who heard the case agreed with the entire arbitrator’s decision and ordered the district to pay—but the board of education still refused to comply. 

The stalemate continued, and, in the summer of 2022, NJEA filed a civil contempt charge, which is filed when one party fails to adhere to an order from the court, further injuring the other party’s rights. In this filing, NJEA demanded all fines to be enforced and paid by the BOE, and the prevailing party’s attorney fees to also be paid. This matter was heard by a different judge, who ruled the BOE in contempt of court. The ruling held, however, that no fees would be imposed, provided the BOE paid the EOESPA and EOMA members by September 2022.  

Additional shortcomings exposed 

Finally, after nearly two years of fighting this matter, the district finally began to comply and, on Sept. 8, 2022, representatives from EOESPA, EOMA, NJEA, the district and the board of education met. At that meeting, the district provided a list of members who were retroactively paid, as per the award. Upon review of the list, Joyner noted that—despite the district’s business administrator and board attorney stating they “…will certify that the list is consistent with the award, the contract and the district’s accounting procedures”— several anomalies were apparent, including:  

  • The list did not include anyone who worked during the pandemic but had since left the district or retired, despite the award stating all would be paid. 
  • Even though the district’s summer school did not run during the pandemic, the district tried to claim that this period should not count toward time worked and the award stipulations. 
  • The district used the incorrect base salary formula to calculate the monies owed. 
  • The board of education acknowledged there are no official records of who worked where and when throughout the pandemic, claiming problems with its card swipe system. 

“My reaction was that it was all very bittersweet. I couldn’t enjoy the fact that we had achieved justice when I knew the numbers were inaccurate,” said Joyner. “According to my own calculations, the amount I received was incorrect, and a fellow custodian who had perfect attendance most school years was not given any money, nor were two of his co-workers. I could only assume after those discoveries that others were incorrect as well.” 

On Oct. 6, 2022, a mediator was brought in to address these anomalies, and all parties began to compare attendance records. At that meeting, the board of education offered to use whichever attendance records would be most beneficial to members. Less than a week later, additional checks were issued to members, but they were sporadic, still inaccurate and not fully compliant with the award. 

When enough is enough 

Following the distribution of the additional checks, the board’s attorney informed NJEA that the district would not comply with the order, and the previous payments would be the only monies paid. The district then filed a motion to quash the award, while NJEA filed a motion to enforce the penalties. 

In March 2023, the matter went to court, and the judge again found the board in contempt. This time, however, the judge ruled to enforce the penalties and ordered the district to pay NJEA’s attorney fees. Additionally, the judge considered sanctions against individual board members for their role in disregarding the order.  

The judge wasn’t the only one upset. EOESPA and EOMA members were outraged, as they had spent the last three years dealing with the board’s unwillingness to honor the collective bargaining agreement—only to have the district and board of education blatantly disregard the law and multiple rulings in the union’s favor. Some individuals even began to seek private action, with one EOMA member filing a complaint with the Essex County courts to compel the district to pay his outstanding back compensation, which was estimated at $11,000. 

“At this point, we fully learned that we are hardworking people who are not appreciated by our school district leaders,” declared Joyner. 

Patience paves a path to justice 

Despite the ongoing delays, the end is in sight for EOESPA and EOMA members. The local unions, NJEA and district representatives met in June with Bob Glasson, an arbitrator from the Public Employment Relations Commission (PERC), and it was agreed that his ruling would be final. Both sides were given until Aug. 1 to provide the appropriate documentation to support the amount of monies still owed, with Glasson set to render a decision by late August. As of press time, no decision has been issued, but Richards offered the following advice to ESPs statewide. 

“The fact that we still haven’t been fully paid for our sacrifices is a disgrace,” Richards said. “But I hope other ESPs can learn from this experience to never give up. It can be exhausting to fight for things that you shouldn’t have to fight for, but you need to just keep going and stay focused.”