by Steven R. Cohen, Esq.

NJEA has been a staunch advocate for the rights of its educational support professional (ESP) members for decades. One of the primary areas of focus has been ESP members’ job security rights. Utilizing a three-pronged strategy of legislation, litigation and arbitration, NJEA has vastly improved ESP members’ job protections.

Through its Government Relations and UniServ divisions, and its cadre of network attorneys, NJEA is constantly looking for ways to advance ESP members’ rights. One such opportunity recently presented itself in the Pleasantville School District in Atlantic County.

The Pleasantville superintendent of schools recommended that an instructional aide and security guard represented by the Pleasantville Education Association be terminated. The Pleasantville Board of Education rejected the superintendent’s recommendation. That should have been the end of the matter, and these two ESP members should have been returned to their jobs. Instead, a state monitor assigned to the Pleasantville School District by the New Jersey Department of Education overturned the board’s decision and terminated the two PEA members. PEA filed grievances on their behalf, alleging that they were terminated without just cause. When the grievances were denied, PEA filed for binding arbitration.

As unionized employees, ESP members have rights that nonunion employees do not have. However, your rights can only be protected and exercised by knowing what they are and vigorously pursuing them with the assistance of your local association and NJEA.

At the insistence of the state monitor, the school board filed a petition with the New Jersey Public Employment Relations Commission (PERC) to restrain arbitration of the two grievances. NJEA Network Attorney Steven R. Cohen represented PEA in the litigation before PERC.

Cohen argued that the Accountability Act, which created State monitors, restricted the monitor’s authority because the act states that they are “subject to the education, labor, and employment laws and regulations, including the ‘New Jersey Employer-Employee Relations Act,’ . . . and collective bargaining agreements entered into by the school district.”

PERC agreed with Cohen’s argument and denied the board’s request for restraint of the arbitration cases.

With the path cleared, PEA was able to take the firing of the instructional aide and security guard to arbitration. Presenting the case for the PEA, NJEA UniServ Representative Vincent Perna persuaded Arbitrator Susan Osborn that the two PEA members should not be terminated. Instead, Arbitrator Osborn imposed appropriate penalties, consistent with the law governing just cause.

Know the rules of your employment

These cases underscore the importance of ESP members’ familiarizing themselves with all board of education policies and work rules applicable to their jobs, as well as the provisions of the negotiated agreement.

ESP members should also familiarize themselves with any established practices in the workplace, commonly referred to as “past practices.” This is critical, as the New Jersey Supreme Court has determined that past practices are to be considered a part of the negotiated agreement, even if the negotiated agreement does not contain a past practice clause. In addition, the New Jersey Supreme Court has determined that an arbitrator may read progressive discipline concepts into a negotiated agreement—whether or not such language is explicitly stated in the agreement—when considering whether there is just cause for disciplinary action. In other words, you should always seek out your union representative to ensure that your rights are protected any time you face potential discipline.

As unionized employees, ESP members have rights that nonunion employees do not have. However, your rights can only be protected and exercised by knowing what they are and vigorously pursuing them with the assistance of your local association and NJEA.

Steven R. Cohen is partner and principal shareholder of the lawfirm Selikoff and Cohen, P.A. in Mount Laurel. Cohen is an NJEA network attorney.

Worried about discipline?

Your union is there for you!

ESP members facing disciplinary action should immediately request association representation to assist them in responding to district administrators.

ESP members are entitled to association representation whenever they are summoned to meetings where: (1) they are going to be questioned —this is sometimes referred to as an “investigatory interview,” and (2) there is a possibility that discipline may be imposed upon them.

ESP members who are disciplined—through the issuance of a letter of reprimand or imposition of a fine, suspension or termination—should immediately notify their association president and grievance chair to ensure that a timely grievance is filed. Every negotiated agreement contains timelines for the filing and advancement of a grievance, and there is often contract language which prohibits an untimely grievance from being advanced.

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