State Probing Merits of Teachers' Suit Against Board

The head of the Wyckoff Education Association says she had no choice but to report what she believes to be an "unfair labor practice" to the New Jersey Education Association, which has since filed suit against the school board and its former president on the local union's behalf.

"It's one of those things where everyone knows the rules," said union president Kathy Bowers, an Eisenhower Middle School teacher.

Bowers and the NJEA objected to a letter to district staff drafted by former board President Dan Moynihan and posted April 23 to First Class, an internal e-mail system, that addressed  a request by the school board for teacher give-backs—a one-year salary freeze, a temporary reduction in wages and/or increased health-care contributions. The letter, which was removed after the district administration conferred with counsel, represented an attempt to negotiate outside of the union leadership, which would constitute an unfair labor practice under the Public Employment Relations Commission (PERC), Bowers said.

"When you have an association... everything has to go through the negotiation process," she said.

The suit has been assigned to a staff attorney at PERC, said Charles Tadduni, the commission's public information officer. The attorney will review the merits of the case and solicit the stances of the board and teacher's association. The case could be dismissed should PERC staff determine that the letter did not constitute an unfair labor practice. However, if staff decide the suit has merit, the case could proceed to a hearing.

Tadduni said there is no exact time frame by which staff must make a determination, but it's likely that a hearing, if necessary, could be set up within the next few weeks.

Moynihan and acting Superintendent Richard Kuder have said the letter was not an attempt to negotiate outside of the teachers' union. Rather, the goal was to provide the rank-and-file with information, letting them know "what had been transpiring and to alert them of their options," said Moynihan, who hoped the matter could be put to a vote by the full association membership.

Bowers said there has not been a general vote as "there's not enough information out there to put it out to a vote." The association president cited the unsettled nature of the state budget and the fact that a give-back wouldn't necessarily automatically trigger aid from the state in explaining her reluctance.

"There's too many unknowns to even open it up," she said.

While there hasn't been a union vote, she said she has discussed the issue with the rank-and-file. "I'm not making these decisions on my own."

The former president, who did not stand for re-election this year, penned a series of e-mails to Bowers starting March 24 in keeping with the state's request for teachers to freeze their salaries, possibly in exchange for restored state aid. The board and Wyckoff Education Association have not had formal discussions on give-backs, which the union would have to voluntarily agree to as the teachers are working under the terms of a contract that offers a 4.4 percent pay hike next school year.

Instead, Moynihan sent several e-mails during his last month in office asking for Wyckoff Education Association support. In correspondence dated March 30, Bowers says she has "mixed feelings" about the request but suggest putting it to a vote of the association. The union president goes on to praise Moynihan for keeping the "character of the Wyckoff educational system intact" after the loss of state aid, which triggered a series of cuts to the 2010-11 budget.

There would be no movement on talks, with two more e-mails sent by Moynihan on April 7 and April 22. After not receiving responses, Moynihan wrote his letter to staff, which was briefly posted on First Class following the budget defeat at the polls. Bowers was out of town at the time and replied to Moynihan on April 25, saying "there are too many unknowns to ask the staff to make any concessions for the 2010-2011 school year." She would address staff two days later, on April 27, letting them know about the lawsuit.

"Dan and I are good friends," she said. "I don't know why he didn't come to me first."

Since the April 27 e-mail, there hasn't been any discussion about give-backs with the reorganized school board (which features five new members), Bowers said. "I hated for them to start off this way."

It does not appear that talks will happen under the new leadership, either.

"It's not anything we're considering," she said. "It would affect too many teachers."

Bowers said that any give-backs now would "set us back at least two years," with the association negotiating from a reduced salary position when its contract expires next year.

"We've been below average for so long," she said. Freezing salaries would "throw us back down there."

Should the suit move to a PERC hearing, the proceeding would unfold much like a court setting, with the burden of proof on the teacher's association. Witnesses can be called to testify under oath, and evidence can be entered to the record. The assigned hearing examiner would have much of the powers of a judge in a court proceeding, with the power to issue a decision that can be appealed by the unsuccessful party. An appealed decision would then be heard by the full commission.

Moynihan and the school board are being represented by Jeffrey Merlino of  Lindabury, McCormick, Estabrook & Cooper of Westfield. Merlino has not returned calls for comment.