Opinion
DOCKET NO. A-1465-14T2
06-30-2015
BURLINGTON COUNTY INSTITUTE OF TECHNOLOGY, Plaintiff-Appellant, v. BURLINGTON COUNTY INSTITUTE OF TECHNOLOGY EDUCATION ASSOCIATION, Defendant-Respondent.
Robert A. Muccilli argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Mr. Muccilli, of counsel and on the briefs). Steven R. Cohen argued the cause for respondent (Selikoff & Cohen, PA, attorneys; Mr. Cohen, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-25-14. Robert A. Muccilli argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Mr. Muccilli, of counsel and on the briefs). Steven R. Cohen argued the cause for respondent (Selikoff & Cohen, PA, attorneys; Mr. Cohen, of counsel and on the brief). PER CURIAM
Plaintiff Burlington County Institute of Technology (BCIT) appeals from an October 14, 2014 order denying summary judgment to restrain arbitration of a labor dispute with defendant Burlington County Institute of Technology Education Association (Association). For the reasons stated by Judge Karen L. Suter, we affirm. We add the following.
Because the issue BCIT raises is purely legal, and the pertinent facts undisputed, we will not detail at any length the events leading to this appeal. Essentially, BCIT employed Paul Furtaw as a custodian on an annual contract basis. On April 25, 2013, the BCIT Board approved its superintendent's recommendation to rehire Furtaw for the 2013-2014 academic year. When his contract was renewed, Furtaw was an employee under the 2012-2013 contract. The parties' collective negotiated agreement (CNA), in effect on the relevant dates, called for arbitration upon the filing of a grievance by an employee regarding the employer's disciplinary action (Art. XIV A(1)) or termination of employment (Art. XXI).
On May 3, 2013, another custodian alleged Furtaw threatened to kill him. As a result, on May 6, 2013, Furtaw was suspended with pay. On June 27, 2013, on the superintendent's recommendation, the Board rescinded by resolution Furtaw's employment for the coming academic year. The resolution "rescind[ed] the reappointment/renewal of employment . . . for the 2013-14 school year such that [Furtaw's] employment with BCIT will end at the conclusion of [his] current contract which expires on June 30, 2013."
BCIT's verified complaint alleges that on June 28, 2013, the Association filed a grievance on Furtaw's behalf. On December 26, 2013, the Association also filed a request for submission to a panel of arbitrators with the Public Employees Relations Committee (PERC). BCIT sought to restrain arbitration and thereafter filed a motion for summary judgment. After hearing oral argument, Judge Suter's thoughtful and cogent written denial followed.
No copy of the grievance is included in the appendices.
PERC is not involved in this appeal. --------
In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540. Rulings on questions of law are not entitled to particular deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
BCIT now argues, as it did before Judge Suter, that the definition of rescission found in Robert's Rules of Order (Robert's Rules), which BCIT adopted to govern the conduct of its affairs pursuant to N.J.S.A. 18A:54-20(f), makes rescission the legal equivalent of the nonrenewal of an employment contract. It is undisputed that the nonrenewal of an untenured, contract employee is usually nonarbitrable. Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support Staff Ass'n, 192 N.J. 489, 492, 497-98 (2007).
Robert's Rules explain rescission thusly:
By means of the motions to Rescind and to Amend Something Previously Adopted—which are two forms of one incidental main motion governed by identical rules—the assembly can change an action previously taken or ordered. Rescind—also known as Repeal or Annul—is the motion by which a previous action or order can be canceled or countermanded. The effect of Rescind is to strike out an entire main motion, resolution, order, or rule that has been adopted at some previous time.
[Henry M. Robert III et al., Robert's Rules of Order, § 35, p. 305 (11th ed. 2011).]
We begin with the judge's premise, that public policy in our State strongly favors arbitration. As embodied in N.J.S.A. 34:13A-5.3: "[d]oubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration." As the judge also noted, we first determine, regardless of the presumption, whether the claim falls within the CNA's provisions.
BCIT argues that under Robert's Rules, the Board's decision is equivalent to a "nonrenewal," not a termination or other disciplinary action subject to the grievance and arbitration mechanisms found in the CNA. We do not agree. Robert's Rules' non-legal language does not import a controlling definition on a question of law into a dispute.
Additionally, the common sense view of BCIT's action is that it cancelled Furtaw's existing contract because of the allegations against him, not that it failed to rehire him. The two decisions, cancellation and non-renewal, are entirely different in nature. Furtaw lost his 2013-2014 employment as opposed to never having been rehired.
Finally, the Restatement defines "rescission" as "an agreement under which each party agrees to discharge all of the other party's remaining duties of performance under an existing contract." Restatement (Second) of Contracts § 283 (1981); see also Cnty. of Morris v. Fauver, 153 N.J. 80, 96-97 (1998); Gillette v. Cashion, 21 N.J. Super. 511, 516 (App. Div. 1952) ("mutual assent" needed to rescind a contract). Rescission under Restatement terminology does not apply in this case as there was no mutual agreement by the parties to terminate the contract.
As Judge Suter reasoned:
Furtaw's employment contract was renewed — essentially an offer of employment — and then this offer was revoked by action of the Board. While N.J.S.A. [] 18A:27-4.1 provides that a "nontenured officer or employee who is not recommended for renewal . . . shall be deemed nonrenewed," it makes no provision for a rescission of a decision to not renew or its analogue: a revocation of a job offer.
Thus the precise issue before the [c]ourt is not whether a nonrenewal decision is arbitrable, but instead whether a decision to rescind a reappointment is a grievance as defined by the CNA. But the [c]ourt need not untie this Gordian knot; whatever doubt there may be about the applicability of the CNA's arbitration provision to the current unique circumstances easily triggers the presumption in favor of arbitration set forth in N.J.S.A. [] 34:13A-5.3.
BCIT's basic premise that a nonrenewal is the equivalent of the rescission of an awarded contract is fatally flawed. As a matter of law, BCIT was not entitled to summary judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION