AAUP’s injunction denied in court

Injunction to stop pre-arbitration sale of WCC struck down

By Megan Lupo

Mixed emotions rocked the courtroom as Judge Peter Sheridan rejected the motion for an injunction filed by Rider’s faculty union, citing its prematurity at the U.S. District Court in Trenton on Feb. 2.

Based on rulings of the U.S. Supreme Court, an injunction should not be granted to prevent some remote future injury that hasn’t happened, Sheridan explained in his closing statement.

Throughout the hearing, the parties divided themselves into rows, with the left side of the aisle seating approximately 10 professors in the American Association of University Professors (AAUP) from the Lawrenceville and Princeton campuses, and the right side seating representatives of the university’s administration.

Representing the AAUP, National Relations Labor Board attorney Kent Hirozawa argued, “The relief that we are seeking is an injunction to require the defendant to maintain the status quo in order to preserve the arbitrator’s ability, if he should find a violation, to award an effective remedy for that violation.”

When Sheridan questioned the term “status quo,” Hirozawa explained that the union’s desire for an injunction is to prevent Rider from taking “any irreversible step” toward selling or closing Westminster Choir College (WCC). An injunction would have prevented Rider from entering a final contract with a third-party buyer before the arbitration date of March 29.

The judge did not understand what Hirozawa meant by that and posed a hypothetical situation.

“Let’s say they entered into an agreement but they had resources to pay whatever would be owed to these professors. Isn’t that sufficient under the terms of their contract?” Sheridan asked.

Hirozawa responded, “This is about more than just the money.” The judge remained skeptical throughout Hirozawa’s arguments.

Hirozawa further disputed that the university’s decision to not send layoff notices to part-time WCC professors with preferred or priority status this past Oct. 31 was a breach of the contract, and that even if the part-time professors did not a sign contract for more than a one-year term, they are not “casual employees.”

Out of the part-time professors at Westminster, 26 of them have preferred or priority status that gives them rights under the collective bargaining agreement to not be laid off before full-time acting or visiting faculty, Hirozawa said. Eight of these professors have been teaching at Westminster for over 20 years, and 21 have been teaching for at least a decade.

Michael Lebowich, a partner in the Labor & Employment Law Department who represented the university, refuted by saying part-time professors are only bound to their preferred or priority status if the course they are supposed to teach is necessary, and that’s a year-to-year decision. There are no multi-year agreements, according to Lebowich.

“The union has been seeking an injunction not to stop a transaction that’s already been contracted for but to simply prevent us from entering into a contract. It is not until Aug. 31 when any individual would no longer be employed by Rider. We have a contractual obligation under the layoff laws to not lay anybody off until Aug. 31,” Lebowich said. “And so the arbitration hearing in this matter is scheduled for two days. We fully expect it to conclude by May 2. And by that context, there’s no immediate harm here – none at all to any individual in the AAUP.”

Hirozawa disagreed by quoting former Gov. Tom Kean’s sentiment over Westminster in his closing argument, “Experts suggest the property could bring in as much as $25 million, but Rider’s issues are so significant, those dollars would only be a stopgap measure in addressing the current crisis, while destroying Westminster as we know it.”

“There are precious few places in the nation and around the world where the music lives. Westminster Choir College is one of them, and it remains one of the central pillars upon which we have built the arts in New Jersey,” Hirozawa said.

Hirozawa concluded that not only will the public and state suffer from the closing of Westminster, but so will the faculty, as they will never have a job like the one they have again. For many, it would be the end of their careers.

Lebowich said the AAUP’s injunction request and most of Hirozawa’s arguments were premature and hypothetical concerns, as the university has not yet signed a term sheet or letter of intent, and no binding agreement has been reached.

“First of all, Westminster existed before Rider University, and they will exist thereafter,” Lebowich said. “And, in fact, from the very beginning, when the layoff notice was issued to the AAUP on Oct. 31, it was very specifically stated that the layoff notice was being given as a result of the potential acquisition agreement with the prospective partner, which has expressed a willingness to operate the Westminster Choir College at its current location and the desire to maintain its existing faculty.”

Lebowich said the AAUP’s fears are “unfounded,” and there is no need for an injunction.

When a contract is issued with the buyer, the union does not have the contractual authority to limit what the university can or cannot do with the agreement in terms of financial needs to lay off professors, Lebowich explained.

There will be two hearings in the upcoming months, one on March 29 and the other on May 2. There will be ample time for the arbitrator to make a decision, Lebowich noted.

Sheridan then mentioned two contradicting statements about the university’s financial status.

He said, “[Vice President for Finance Julie Karns] indicates that the university is in bad financial shape, and whereas [AAUP chief grievance officer Jeffrey Halpern], who’s not an accountant, argues that it’s doing much better. But, if I accepted Ms. Karns affidavit, then would there be a remedy for the professors, if there’s little money in the university?”

Lebowich responded, “There is not enough money in the university; there’s not no money.”

“This is a step in the direction that Rider needs to go, and if the union has the ability to interfere to take those steps, it won’t just impact the individuals who are at WCC. It will impact all of Rider University.”

After hearing both parties, Sheridan called for an hour in the chambers to contemplate whether or not to grant the injunction. When he came back into the courtroom, he announced that “the courts have noted a preliminary injunction is an extraordinary and drastic remedy.”

The judge based an injunction on four elements — “a plaintiff is likely to succeed on merits, denying the injunction would result in irreparable harm to the plaintiff, granting the injunction will not result in greater harm to the defendant and the injunction is in the public’s interest.”

The university has acted in “good faith,” as they have been upfront with the union and adhered to the contract by giving notice to the professors within the agreed time, according to Sheridan.

Sheridan reasoned that he is not of the authority to guarantee the professor’s their jobs for a long period of time, which he claimed is what music theory and composition professor Joel Phillips requested in his declaration.

“It’s between the Board of Trustees that govern the university and the professors through their collective bargaining agreement,” Sheridan said.

Phillips stated in his declaration the accomplishments and honors that WCC contributed to the arts and music culture, from performing at the New York World’s Fairs both in 1938 and 1964, to performing with the New York Philharmonic over 300 times and being the first choir to be featured on National Public Television’s series, “Live from Lincoln Center.”

Phillips said, “Westminster is a unique cultural institution, built on nearly a century of tradition, that occupies a singular place in the landscape of music and music education. If the Westminster faculty is laid off and scattered to the four winds, this national treasure will be gone forever.”

Although Sheridan accepted Phillips’ concern of irreversible injury to be credible, he said there would be greater harm to the university due to the institution’s financial suffering. The liquidation of WCC would help lessen the financial burden, the judge said.

Issuing the injunction would be improper at this time, and Sheridan said he based his decision on his confusion regarding the unclarity and speculative nature of the plaintiff’s request and what he would be enjoining to be enforced in the future.

The reaction to the verdict was split, with one representative of the university expressing contentment in moving forward, and one representative of the union expressing displeasure.

University spokeswoman Kristine Brown said that the university is still in the process of “working with a partner to finalize the term sheet. The term sheet is a non-binding document, which would then transition to the next step of a binding contract.”

Brown is unsure of when this next step would finalized, citing the complexity and unprecedented nature of the situation, but hoping it will be done in the near future.

Halpern, on the other side, is not in favor of the uncertainty of when the binding contract would be issued, which is a factor in whether the union would appeal or not.

“Part of what makes this difficult is the university keeps everything secret,” Halpern said. “Are we months and months and months away from them actually coming to some agreement? Are they a week away? So that’s part of why we came into court for an injunction.”

“If the university had said to us, ‘Look, we’re still in preliminary talks. We’ll give you insurances that we will not have entered into a binding contract with this person or group prior to the date of arbitration,’ we wouldn’t be here. They refused to do that.”

Halpern explained that in a layoff situation, the solution is for employees to get their jobs back, but the AAUP’s concern is that if the sale is in a binding contract, that is not guaranteed.

Halpern defended the AAUP’s stance that they did not ask for an infinite injunction or for the university to not take steps toward the sale, only an injunction on not making a binding agreement until “the arbitrator made his decision.”

Awaiting the March 29 hearing, Halpern said, “Contrary to what the judge said, Karns is not an accountant. She’s not a CPA, nor am I. I expect both parties will have – I know we will – expert witnesses to testify on the financial condition of the institution. I expect that they will, too. It’s the role of the arbitrator to weigh that, not the judge in an injunction, and he clearly was weighing that.”

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