On appeal from the Teachers' Pension and Annuity Fund Board of Trustees, Docket No. TPAF 1-00450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
Petitioner Morris Hills Regional District Education Association*fn1 appeals from a Final Decision of the Board of Trustees of the Teachers' Pension and Annuity Fund (the Board or TPAF). The Board denied petitioner's claim for retroactive pension credits for the contract period from July 1, 2004 through June 30, 2007. During this three-year period, petitioner's employees worked up to three additional days each year beyond the contracted annual term of 183 days. The Board concluded that, by the statutory as well as contractual terms, the employees' work on these days was "extra work" for which they received "extra pay." Accordingly, the Board determined that the employees were not entitled to pension credits. We disagree and reverse.
The relevant facts are not in dispute. Petitioner and the Morris Hills Regional District Board of Education (Morris Hills BOE or BOE) are parties to a series of collective bargaining agreements (CBAs or, collectively, the agreement) setting forth various terms and conditions of employment. The agreement provides that the work year for Counselors, Child Study Team members, Student Assistance Coordinators (SAC), and English as a Second Language (ESL) teachers (collectively, the Provision 2*fn2 employees) may include additional days for which they earn per diem compensation. In October 2005, petitioner requested that respondent grant pension credit for the compensation received by the Provision 2 employees for additional days worked. At its December 1, 2005 meeting, the TPAF determined that the additional salary earned by these individuals was not creditable compensation for pension purposes. Petitioner appealed the Board's decision and successfully requested that the matter be transmitted to the Office of Administrative Law (OAL) for a hearing.*fn3
At the hearing, the following facts emerged. Section II, Article 16, Provision 1 of the agreement sets forth the in-school work year of teaching staff members employed on a ten-month basis. In Provision 2, the CBA details the work year of Counselors, Child Study Team members (i.e., school psychologist, school social worker and learning disabilities teacher-consultant), SACs and ESL teachers, described in the following language:
Counselors: Work up to five (5) days, i.e. two (2) days at the end of June after school closes and three (3) days during the last week in August prior to the opening of school at the rate of 1/2 of 1% per day.
Child Study Team: Work up to three (3) days during the months of July and/or August.
The days to be mutually scheduled with the district Director and paid at the rate of 1/2 of 1% per day.
SAC: Work up to five (5) days at the rate of 1/2 of 1% per day. Days to be mutually scheduled with the immediate supervisor during July or August.
ESL: Work up to five (5) days at the rate of 1/2 of 1% per day. Days to be mutually scheduled with the immediate supervisor during the last two weeks in August.
The Provision 2 employees were not mentioned in the 2004-2007 CBA due to the parties' oversight; the omission was an error. After the 2004-2007 contract was signed, in February 2005, Peter Lazzaro, a member of the Association who was also a guidance counselor, met with Robert Weakley, then-Director of Educational and Administrative Services for Morris Hills Regional, to discuss the omission. The parties corrected the omission through the execution of a side bar agreement. Weakley insisted on saying that the parties did not agree that the language used in the side agreement described work for which time was pensionable. Association representatives signed the agreement because their field representative informed them that the question of pensionability was a matter of statutory and regulatory interpretation rather than of the terms of the parties' contract.
Various members of petitioner addressed whether and to what extent the work described in Provision 2 was optional. Discussing the execution of the agreement, Lazzaro stated that management mandated that the Provision 2 employees work the extra days described in the section; "it was never an option." Lazzaro further noted, "the reality of it was that [these employees] were required to work five days, and the reasons were very clear. Because they were doing their regular work . and they needed these extra days [to] complete that work, and it was tied with what they do normally in their positions . . . ."
Deborah Stuby, a guidance counselor, regularly worked 188 days a year and was never given a choice whether to work the extra five days. Her supervisor and principal told her when she had to work the extra five days. The work she did on those five days was what she would "[n]ormally do during the course of the school year. It [was] not summer work . . . ." She noted that, in addition to these five ...