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Teacher strikes in New Jersey have been illegal since 1968, yet teachers continue to strike. In those 32 years, judges have routinely issued back-to-work orders and imposed fines, yet those court orders have been ignored, and fines have been rescinded or reduced after strikes were settled and teachers returned to class. But that may be changing. Judges are getting tougher. Last November Superior Court Judge Martin Greenberg imposed a record-setting $300,000 fine against teachers who walked out in Jersey City, and would not rescind a penny. On Dec. 4, the union representing teachers in Hamilton Township ponied up $500,000 for its eight-day walkout to start the school year in September. And while Superior Court Judge Anthony Parrillo did back down on his original imposition of more than $2.2 million in fines, lawyers on both sides say the unprecedented $500,000 that he extracted from the union raises the bar dramatically, particularly in light of the size of the Hamilton district: one-third that of Jersey City’s. Like Judge Greenberg, Parrillo played hardball by drilling down beyond the unions to the individual teachers. In his order, Greenberg said Jersey City teachers who weren’t back in class by his deadline would be considered to have quit their jobs and would be effectively fired. Greenberg was following an approach taken in the 1980s by Superior Court Judge Reginald Stanton against teachers at the Sussex County Vo-Tech High School. For his part, Parrillo ordered that individual teachers be fined $300 for every day that they stayed out in violation of his injunction. He also ordered that secretaries pay $50 out of their pockets for every day that they honored the picket line. In each case the coercion worked. A settlement was quickly reached, and the unions buckled on the fines without exercising the right to litigate the levy based on ability to pay. But the larger questions are these: Will such hefty fines alone, absent individual penalties, have any chilling effect on future walkouts? And if not, is there any solution to this ongoing brinkmanship and mockery of court orders, with all sides losing, short of new legislation? The answer to both questions seems to be no. That’s because the fines are not being paid by the local unions, but by their parent, the powerful New Jersey Education Association, and possibly to a lesser degree, the National Education Association. BIG BUCKS BAKE SALES? Judge Parrillo, without mentioning the NJEA, makes clear in his Oct. 31 final order on the fine that the Hamilton Township Education Association lacks the cash to pay, saying it will have to come from “external funding sources.” Unlike the Jersey City union, the Hamilton local, with close to 1,100 teachers, produced its books to the court during discovery to bolster its argument that it lacked the ability to pay. The Jersey City Education Association had refused to open its books, forfeiting its right to argue an inability to pay. Under Franklin Twp. v. Quakertown, 274 N.J. Super. 55 (App. Div. 1994), the fines are not to be for punishment, but as a coercive measure. Franklin says the fine should “sting” but not “destroy” the striking public sector union. Two sources say that the HTEA’s financials showed that the union had only about $190,000 in its coffers, with most of that coming from the NJEA, which collects dues and returns a small portion to each local. Yet Parrillo whacked the union with $500,000 even while reiterating that the fine “appears to be far more than what preliminary proofs indicate the HTEA could afford to pay if left solely to its own resources.” In the Jersey City strike last spring, the head of the New Jersey Education Association, Thomas Favia, acknowledged that the NJEA would pay the $300,000 fine, even as NJEA officials said the local would pay. Similarly, during the Hamilton Township strike in September, the president of the HTEA, Fred Schwartz, told the Trenton Times, when asked if the NJEA would cover the fines, “They told me, ‘Don’t worry.’ “ The NJEA usually acknowledges that it helps its local affiliates during strikes, providing field representatives, manpower for rallies and negotiators from its core of “uniserve” representatives. However, the 150,000-member NJEA, considered by many to be the state’s most powerful and richest union, has long been reluctant to acknowledge that it pays the fines of its striking locals from its statewide dues. The NJEA routinely says it also helps striking locals with voluntary contributions from teachers statewide, adding that the locals also run fund-raisers and bake sales. NJEA spokeswoman Karen Joseph reiterated that position during the Hamilton strike when asked how the HTEA could pay the $500,000. “I’m guessing: is participate in some fund-raising activities. NJEA members understand in their own way what a large number this is, and they will, in their own ways, help them out. They’ll make donations and have fund-raisers.” Likewise, after the Jersey City Education Association paid $300,000, plus interest, Joseph, along with local union lawyers and leaders, said the fine would be paid mostly from fund-raisers, donations by members and bake sales. But the lawyer who represented Jersey City’s school board, David Corrigan, of Little Silver’s Murray, Murray & Corrigan, said, after checking with school officials, “The district has no knowledge of any fund-raisers being conducted at all to pay the fine. While it could have happened, certainly they didn’t do it in a publicized fashion. If in fact they did it, there’s no evidence they did it.” The lawyer for the JCEA, Philip Feintuch of Jersey City’s Feintuch, Porwich & Feintuch, did not return a phone call. But JCEA President Favia, when asked if there were any fund-raisers to help pay the fine, said, “No.” Asked about bake sales, he laughed and said, “No.” Favia again acknowledged that it’s the NJEA who pays, but he says the payments come from a special fund, called by some union lawyers the “distress fund.” Five NJEA members interviewed by the Law Journal regarding fund-raisers or requests for donations from teachers around the state to help pay fines said they know of no such fund-raising efforts. NJEA spokeswoman Joseph, asked to comment on Parrillo’s opinion indicating the NJEA will pay the fine from dues, said, “Unfortunately I’m not in a position to comment.” She also declined comment when asked if the NJEA does in fact pay the fines, acknowledging that the organization’s position “is a matter of legality.” Three lawyers for school boards say the NJEA won’t acknowledge picking up the fines because they could then be routinely named as a defendant in school strike cases for aiding and abetting the defiance of the courts’ back-to-work orders. INDIVIDUAL ACCOUNTABILITY In the Hamilton strike, the board, represented by Dennis DeSantis, pushed hard for individual fines against the teachers, secretaries and staff. DeSantis, of Trenton, N.J.’s Destribats, Campbell, DeSantis, Magee & O’Donnell, told the judge that board members believed that unless teachers are actually sanctioned personally, they would continue to defy the back-to-work order, and that individual accountability is needed to stop such strikes. But the lawyer for the HTEA, Arnold Mellk of Princeton, N.J.’s Wills, O’Neill & Mellk, made it clear that the union could not accept individual fines, and would fight them to the point of demanding separate hearings for the 1,450 employees of the district. “You better get the Trenton Armory for trials,” Mellk said he told the court. Parrillo initially bought the argument of the board, ordering individual fines of $300 a day, and $50 a day for secretaries, in his preliminary injunction against the HTEA shortly after the strike began. He said his goal was full compliance with his order. This was in addition to his fines of $100,000 per day for the HTEA, and $25,000 a day for the secretaries’ association and the Mercer County Buildings Trade Council, whose members work in the district. Parrillo prepared a seven-page financial disclosure questionnaire to determine each teacher’s ability to pay. Ultimately, when the strike settled, the teachers returned to class, and Parrillo held his hearing on what penalties to impose for violation of his back-to-work order for the final six days of the strike; the judge then backed off. After remitting three of the eight strike days for reasons unrelated to ability to pay, the judge noted that each teacher had been sanctioned $1,500 for five absent days. In response to the union’s argument that each teacher had the right to a separate determination of his or her ability to pay and the right to appeal, Parrillo concluded that such battles would rekindle the tensions of the bargaining and would again place the board and union “at polar ends of the issue” as they would be “locked in litigation.” Parrillo dropped the individual fines, noting the record-setting size of the $500,000 against the HTEA, the fact that teachers would pay something indirectly through their union dues and fees, and the fact that teachers did have their pay docked for the first two days of the walkout. Board attorney Michael Paglione, who handled the fine phase of the case, told the judge how disappointed he was with the flip-flop, saying, “You have to understand, my board gave me direction and that direction was individual accountability … . It wasn’t so much the money … . It was whether the teachers who violated the law would do it again.” Paglione, of the Trenton firm of Paglione & Massi, said later that he recommended that the court order the board to deduct the fines from teacher pay checks, which would have prevented the NJEA from bailing out its members. Parrillo also cited two other reasons for not sanctioning individuals. First, he said the union and its leaders were the most blameworthy. Second, he said some teachers would no doubt be pressured or intimidated into not crossing the picket lines, with no way of knowing the real intent of any teacher. He further chastised the board for never using any of its powers to punish teachers, in effect asking the court to do its dirty work. Taking all factors into consideration, Parrillo wrote in his 10-page opinion that his final order “preserves the dignity of the law and makes abundantly clear the point that the law cannot be violated with impunity.” But in the end Parrillo also expressed the frustration of the limits of the present system of dealing with strikes, given the obvious fact that all the leverage is on the side of the board so long as teachers have no legal strike powers. He wrote: “For those who remain less than satisfied with this result … let me just say that this may well reflect the reality that judicial remedies, with their built-in due process protections and insistence on fundamental fairness, can never really guarantee that public employees will never again flout the law by absenting themselves from their mandated duties. “So long as the law continues to lack any means by which to resolve collective bargaining issues that are at an impasse — for instance, through mandatory, binding arbitration — unions will continue to rely on the standard excuse for disregarding the prohibition against striking — that unless the unions strike, the boards … will remain obdurate in … bargaining. “In a word, the dilemma begs a legislative — not judicial — response.”

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