Opinion
DOCKET NO. A-5276-12T1
06-11-2014
GLASSBORO BOARD OF EDUCATION, Plaintiff-Respondent, v. GLASSBORO EDUCATIONAL SUPPORT PROFESSIONALS ASSOCIATION, Defendant-Appellant.
Keith Waldman argued the cause for appellant (Selikoff & Cohen, P.A., attorneys; Mr. Waldman, of counsel and on the brief; Stacey C. Schor, on the briefs). Cameron R. Morgan argued the cause for respondent (Parker McCay, P.A., attorneys; Mr. Morgan, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Gloucester County, Docket No. C-21-13.
Keith Waldman argued the cause for appellant (Selikoff & Cohen, P.A., attorneys; Mr. Waldman, of counsel and on the brief; Stacey C. Schor, on the briefs).
Cameron R. Morgan argued the cause for respondent (Parker McCay, P.A., attorneys; Mr. Morgan, of counsel and on the brief). PER CURIAM
Defendant Glassboro Education Support Professionals Association (Association) appeals from a June 3, 2013 Chancery Division order granting the summary judgment motion filed by plaintiff Glassboro Board of Education (Board). The Board filed a complaint to restrain arbitration of a grievance initiated by the Association on behalf of its members, alleging discharge when his one-year contract of employment was not renewed.
On appeal, the Association maintains the motion judge erred, arguing the terms of the collective negotiating agreement (CNA) between the Board and the Association, covering the three-year period of July 1, 2010 to June 30, 2013, required arbitration of the employee's grievance. Alternatively, the Association argues the CNA's terms were ambiguous, requiring the arbitrator to resolve whether the nonrenewal was a discharge as defined by the CNA.
We have considered the arguments presented in light of the record and applicable law. We reject the Association's arguments and affirm.
The facts are not in dispute. By letter dated April 25, 2012, the Board informed William Bentancur, a nontenured custodial staff employee, his employment contract would not be renewed for the 2012-2013 school year because of excessive absences. Earlier, Bentancur's supervisor had warned him of his excessive absences, noting he had used 11.5 sick days between April 1, 2011 and March 21, 2012. By the end of the school-year, Bentancur had exceeded the allowed number of sick days by three.
On Bentancur's behalf, the Association filed a grievance pursuant to Article V, Section B of the CNA, claiming the Board "arbitrarily discharged [] Bentancur . . . without just cause and failed to evaluate [him]." Article V, Section B discusses rights of employees, other than "probationary employees," providing employees "shall not be arbitrarily discharged or suspended. Any such action shall be subject to the grievance procedure set forth in Article IV to the extent such action is legally arbitrable." Further, Article IV of the CNA contained a specific multi-step grievance procedure, designed "to secure, at the lowest possible level, resolution of differences concerning interpretation of work conditions grievable" under the CNA. The CNA defined "grievance" as "a claim by an employee or the Association based upon the interpretation, application or violation of this Agreement affecting terms and conditions of employment governing an employee . . . covered by this Agreement."
Bentancur was not a probationary employee.
Walter S. Pudelko, school business administrator and Board secretary, denied the Association's grievance. Pudelko's response informed the Association that the Board had not "discharged" Bentancur; rather, his employment was "non-renewed" in conformance with Board Policy 4146. "Non-renewed" is a term of art found in N.J.S.A. 18A:27-4.1. Consistent with the statute, Policy 4146 stated:
N.J.S.A. 18A:27-4.1 provides in relevant part:
Notwithstanding the provisions of any law, rule or regulation to the contrary,
a. A board of education shall appoint, transfer or remove a . . . non-certificated . . . employee only upon the recommendation of the chief school administrator and by a recorded roll call majority vote of the full membership of the board. The board shall not withhold its approval for arbitrary and capricious reasons.
b. A board of education shall renew the employment contract of a . . . non-certificated . . . employee only upon the recommendation of the chief school administrator and by a recorded roll call majority vote of the full membership of the board. The board shall not withhold its approval for arbitrary and capricious reasons. A nontenured . . . employee who is not recommended for renewal by the chief school administrator shall be deemed nonrenewed. Prior to notifying the . . . employee of the nonrenewal, the chief school administrator shall notify the board of the recommendation not to renew the . . . employee's contract and the reasons for the recommendation. An . . . employee whose employment contract is not renewed shall have the right to a written statement of reasons for nonrenewal . . . and to an informal appearance before the board. The purpose of the appearance shall be to permit the staff member to convince the members of the board to offer reemployment.
The Board will renew the employment contract of a nontenured support staff member only upon the recommendation of the Superintendent and by a recorded roll call majority vote of the full membership of the Board. The Board will not withhold its approval for arbitrary and capricious reasons. A nontenured support staff member who is not recommended for renewal by the Superintendent is deemed nonrenewed.
The Association appealed Pudelko's adverse determination to Dr. Mark J. Silverstein, Superintendent of Schools, who also denied the grievance, invoking the Board's "managerial prerogative and the rights reserved in Article III of the [CNA] . . . to non-renew contracts of employment." The Association then filed a request to submit Bentancur's grievance to binding arbitration before the Public Employment Relations Commission (PERC). The Board responded by filing a complaint and order to show cause in Superior Court to permanently enjoin arbitration of the alleged grievance. See Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ, 78 N.J. 144, 155 (1978) (permitting a party to seek court review of whether an employee's dispute is within the scope of an agreement to arbitrate). The Board maintained its decision not to renew Bentancur's employment was not grievable or subject to arbitration.
Article III of the CNA details the Board's management rights stating:
The adoption of policies, rules, regulations, and the right to employ and assign personnel, and to determine the methods, means and personnel necessary to maintain and operate the school district, and the use of judgment and discretion in connection therewith, by the Board shall be limited only by the specific and express terms of this Agreement, and then only to the extent such specific and express terms are in conformance with the [l]aws and Constitution of the State of New Jersey and of the United States.
The motion judge considered the parties' respective positions during a summary hearing. In an oral opinion, she noted the issues turned on contract interpretation and concluded Bentancur was neither disciplined nor discharged as defined in the CNA. Rather, she determined the Board exercised its right to "employ" personnel by declining to extend a new contract to Bentancur, a decision that was neither arbitrary nor subject to arbitration. The judge stated:
I find that "employ" means employ or not renew or renew, all of those things are encompassed within the word "employ[]." And that's certainly demonstrated by their policy and regulation which mirrors the statute 18A that we've been talking about.Applying the Supreme Court's holding in Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Ass'n, 192 N.J. 489 (2007), which "rejected the notion of granting [a]rbitration of a non-renewal where no provision of the CNA would expressly support it," the judge found Bentancur had no right to seek arbitration. The Association's appeal of the summary dismissal ensued.
Second, the [CNA] contains a narrow [a]rbitration [c]lause in Article IV-M. "The [a]rbitrator cannot usurp the functions of the Board, namely, the reserved right to non-renew an employee at the end of the [c]ontract."
On appeal, the Association argues arbitration is favored, particularly here where the Board engaged in discipline without just cause and because sufficient ambiguity exists regarding whether the managerial right to employ includes what it calls discharge through nonrenewal. In our review, we accord no deference to the trial court's legal conclusions and review such matters de novo. City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010).
"New Jersey law encourages the use of arbitration to resolve labor-management disputes[,]" N.J. Tpk. Auth. v. Local 196, 190 N.J. 283, 291 (2007), as arbitration is the vehicle by which meaning and context are given to a CNA. Linden Bd. of Educ. v. Linden Educ. Ass'n, 202 N.J. 268, 276 (2010). The Legislature's preference for arbitration is expressed in the amendment to N.J.S.A. 34:13A-5.3, effective January 12, 2006, which states "doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration."
However, we reject the Association's suggestion that all disputes are arbitrable. Rather, notwithstanding this preference to arbitrate public employment disputes, a court must first determine whether the claim at issue is substantively governed by the provisions of the CNA. Amalgamated Transit Union v. N.J. Transit Bus Operations, Inc., 200 N.J. 105, 115 (2009) (citing Standard Motor Freight, Inc. v. Local Union No. 560, 49 N.J. 83, 96 ( 1967)). See also Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148-49 (App. Div. 2008) ("'[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'") (quoting AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 655 (1986)).
If the question is "whether the particular grievance is within the scope of the arbitration clause specifying what the parties have agreed to arbitrate, then it is a matter of substantive arbitrability for a court to decide." Pascack Valley, supra, 192 N.J. at 496 (citation and internal quotation marks omitted). See also Amalgamated, supra, 200 N.J. at 115 ("[A]bsent clear expression in the contract to the contrary," that determination "is a function for the court, not the arbitrator[.]") (citation and internal quotation marks omitted). The court merely "ascertain[s] whether the party seeking arbitration is making a claim which, on its face, is covered by the contract and within the arbitration clause." Bd. of Educ. of Twp. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J. Super. 379, 384 (App. Div. 1990) (citing Jersey Cent. Power & Light Co. v. Local Union No. 1289, etc., 38 N.J. 95, 104 (1962)). Once the judge determines the particular grievance, on its face, requires arbitration, "'[w]hether the moving party is right or wrong is a question of contract interpretation for the arbitrator. . . . '" Amalgamated, supra, 200 N.J. at 115, (quoting United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68, 80 S. Ct. 1434, 1346, 4 L. Ed. 2d 1403, 1407 (1960)).
We now apply these principles to the facts presented in this matter. The Association correctly identifies the CNA contained a provision prohibiting an employee's discharge "without just cause" and subjects any discharge action to the grievance procedures enumerated in the contract. However, the Board never stated Bentancur was discharged. Contrary to the inference sought by the Association, the nonrenewal of employment at the expiration of the contractual term is not a disciplinary termination event. Pascack Valley, supra, 192 N.J. at 492-93. As a nontenured custodial employee, Bentancur had no right to automatic renewal of his contract. Id. at 492 (citing N.J.S.A. 18A:27-4.1b).
The Association also asserts Bentancur was discharged without just cause, and it maintains arbitration was required under Article V, Section B. This argument also is unfounded.
Discharge is not synonymous with nonrenewal. Id. at 493. The facts of this care are unlike the circumstances described in Pascack Valley. The custodian in Pascack Valley was discharged mid-year, a circumstance the court found to be "the disciplinary measure of dismissal" that triggered grievable arbitration. Id. at 499. The Court specifically acknowledged this holding was "not intend[ed] to imply that [the Board] could not have waited until the end of the annual term and opted not to renew [the custodian's] contract." Ibid. Here, Bentancur's one-year contractual term concluded, and the Board chose not to renew his employment, obviating any consideration of Article V's discharge provisions.
Turning to the remaining challenge, the Association suggests it was error to conclude the Board's reservation of the right to "employ," set forth in Article III, also included the right not to renew. The Association argues the right to hire stands alone and a right not to renew cannot merely be read into the reserved right to employ. In this regard, the Association challenges what it characterizes as an impermissible interpretation of the language of the CNA, a matter specifically reserved to the arbitrator by the definition of grievance in Article IV, Section A. We disagree.
Our review of the express terms of the CNA discerns no ambiguity or doubt that the Board did not agree to arbitrate nonrenewals and, more importantly, the Board retained the right to decide whom to employ, which includes its exercised discretion to determine whom not to employ. See N.J.S.A. 18A:27-4.1 (requiring the Superintendent's approval for renewal and if same is not obtained, the employee is deemed nonrenewed). Further, in Article III of the CNA, the Board agreed to "be limited only by the specific and express terms" of the agreement. No provision in the CNA allows nonrenewals to be reviewed in arbitration.
This interpretation of the CNA is guided by N.J.S.A. 18A:27-4.1, which we conclude is not inconsistent with the Legislature's pronouncement favoring arbitration, set forth in N.J.S.A. 34:13A-5.3. In fact, the amendment to N.J.S.A. 34:13A-5.3 did not alter prior precedent that held: absent specific mention in the CNA, nonrenewal of an expired fixed-term contract of a nontenured employee is not subject to arbitration.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION