MT. HOLLY TOWNSHIP BOARD OF EDUCATION v. JUAN GONZALEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5579-05T35579-05T3

MT. HOLLY TOWNSHIP BOARD

OF EDUCATION,

Plaintiff-Respondent,

v.

MT. HOLLY TOWNSHIP EDUCATION

ASSOCIATION and JUAN GONZALEZ,

Defendants-Appellants.

____________________________________

 

Argued April 1, 2008 - Decided

Before Judges Skillman, Winkelstein and LeWinn.

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-66-06.

Steven R. Cohen argued the cause for appellants (Selikoff & Cohen, attorneys; Mr. Cohen, of counsel and on the brief; Carol H. Alling, on the brief).

James F. Schwerin argued the cause for respondent (Parker McCay, attorneys; Mr. Schwerin, on the brief).

PER CURIAM

Defendant Juan Gonzalez was employed by plaintiff Mt. Holly Township Board of Education (Board) as a custodian. Gonzalez was not tenured in this position.

Gonzalez had an individual employment contract covering the period from July 1, 2005 through June 30, 2006 under which the Board could terminate him at any time by giving fourteen days notice. The pertinent part of the employment contract stated:

It is hereby agreed by the parties hereto that this contract may at any time be terminated by either party giving to the other fourteen day's notice in writing of intention to terminate the same . . . .

Gonzalez's employment relationship with the Board was also governed by a collectively negotiated agreement entered into between his union, defendant Mt. Holly Township Education Association (Association), and the Board. That agreement contained a provision prohibiting the discharge of any employee "without just cause" and subjecting any such employment action to the grievance procedures of the contract:

No employee shall be discharged, disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantage or given an adverse evaluation of his/her professional services without just cause. Any such action asserted by the Board or any agent or representative thereof, shall be subject to the grievance procedure herein set forth.

Those grievance procedures culminate in arbitration at the final stage of the process.

On January 20, 2006, the Board terminated Gonzalez, giving him the fourteen days notice required under his individual employment contract. The pertinent part of the Board's letter to Gonzalez notifying him of this employment action stated:

As per the discipline hearing held this afternoon, your position as custodian/ maintenance for the Mt. Holly Township Public Schools is terminated effective February 3, 2006 in accordance with your employment contract.

The Association filed a grievance challenging Gonzalez's termination under the just cause provision of the collectively negotiated agreement, which the Board rejected. The Association then filed a request for arbitration with the American Arbitration Association. The Board responded by filing this action to restrain the arbitration, claiming that the matter was not arbitrable because Gonzalez had been terminated pursuant to the fourteen-day notice provision of his individual employment contract.

The case was brought before the trial court by order to show cause. After briefing and oral argument, the court concluded that Gonzalez had been properly terminated in accordance with the fourteen-day notice provision of his individual employment contract and entered an order restraining the arbitration.

The Association appealed. We subsequently entered an order staying the appeal until the Supreme Court issued its decisions in Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Association, 192 N.J. 489 (2007) and Northvale Board of Education v. Northvale Education Association, 192 N.J. 501 (2007). After the Court decided Pascack Valley and Northvale, we granted the parties leave to file supplemental briefs addressing those decisions.

In Northvale, the Court affirmed the decision of the Appellate Division by an equally divided three-to-three vote. 192 N.J. at 501. Such a decision "is not entitled to any precedential weight." Abbamont v. Piscataway Twp. Bd. of Educ., 314 N.J. Super. 293, 301 (App. Div. 1998), aff'd, 163 N.J. 14 (1999). Therefore, in considering this appeal, we have focused upon Pascack Valley, which was decided by a unanimous vote.

Pascack Valley also involved a custodian who was terminated by the employer board of education in accordance with his individual employment contract, which was identical to the individual contract involved in this appeal except that it provided for fifteen, rather than fourteen, days notice of termination. 192 N.J. at 492-93. The employment relationship of the custodian involved in Pascack Valley, as in this case, was governed by a collectively negotiated agreement between the custodian's union and the employer board of education. Id. at 491-92. That agreement contained a provision prohibiting the discharge of any employee "without just cause" and subjecting any such employment action to the grievance procedures of the contract. Ibid. The grievance provision of the collectively negotiated agreement involved in Pascack Valley was almost identical to the one involved in this appeal except that it contained an additional sentence, which we consider to be dispositive of this appeal and therefore underscore:

No custodian . . . shall be disciplined, reprimanded, reduced in rank or compensation or deprived of professional advantage without just cause. Any such action asserted by the Board, or any agent or representative thereof, . . . shall be subject to the Grievance Procedure herein set forth. Any dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian

. . . be subject to the Grievance Procedure.

[Id. at 492 (emphasis added).]

In concluding that the custodian involved in Pascack Valley was entitled to pursue a grievance, including arbitration of his termination for disciplinary reasons, the Court characterized the underscored sentence as "expansive in its scope." Id. at 499. The Court observed that this provision "specified that 'any dismissal' of a custodian would be considered to be a disciplinary action subject to a just cause analysis, and it gave the custodian the option to pursue a grievance and arbitration of 'any dismissal.'" Ibid. Under this provision and another section of the collectively negotiated agreement that is also not included in the agreement between the Board and the Association, the Court concluded that:

[T]he parties agreed that, notwithstanding the terms of the individual contracts and the employer's unfettered right to terminate [the custodian] on fifteen days' notice, where plaintiff did so only as a surrogate for a disciplinary proceeding, the act of termination became an act of discipline that the parties had specifically negotiated and agreed would be grievable at the custodian's option. In so concluding, we see harmony between the terms of the individual contract rights and the CNA's grievance provisions, in particular as they relate to custodians.

Under these circumstances, the use of the individual contract's termination clause was not a termination for reason other than one that falls, by agreement, within the terms of the CNA. Rather, it was an effort to use the individual contract to bypass the protections that the Board agreed in the CNA would apply to discipline of all employees. As such, it was the disciplinary measure of dismissal that the CNA specifically gave the custodian the right to grieve through the arbitration mechanism.

[Ibid.]

The section of the collectively negotiated agreement between the Board and the Association prohibiting discharge without just cause and subjecting any such employment action to the grievance procedures of the agreement did not contain the additional provision the Court found to be critical in Pascack Valley -- that "[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian . . . be subject to the Grievance Procedure." Id. at 492. In the absence of this provision or any comparable provision that confers upon an employee subject to an individual employment contract the right to grieve a termination in accordance with the terms of that contract, we conclude that the Board was entitled to terminate Gonzalez on fourteen days notice without showing just cause or having its termination decision subject to the grievance procedures of the collective negotiating agreement.

We also note that the "employee rights" article of the collectively negotiated agreement established a procedure under which any employee whose contract was terminated or not renewed could obtain a statement of reasons for the employment action by the Superintendent of Schools and a hearing before the Board of Education. This part of the agreement provided:

Any employee who does not receive a new contract or whose services are terminated or suspended or who is disciplined or reprimanded or who is reduced in rank or compensation shall within five (5) working days request in writing directed to the Superintendent a statement of reasons for the above mentioned. Said statement of reasons shall be given to the employee within seven (7) working days after the receipt of the request. In addition, the employee shall be granted a hearing before the Board of Education II the employee requests the same. Said request for a hearing shall be in writing and made within five (5) working days of the receipt at the statement of reasons. The Board shall hold its hearing at its regular board meeting unless the next regularly scheduled Board meeting is less than ten (10) days from the date the request for the hearing is received. In that event, the hearing shall be continued until the next following regularly scheduled Board meeting. The employee must be present at the hearing and shall have at his/her option the right to have a representative present. The Board of Education shall issue to the employee a written determination within seven (7) working days after the completion of the hearing. The above time limits set forth in this document may be altered by mutual consent of the parties. The Superintendent shall meet privately with all employees who will not be renewed or who are terminated, prior to official written notification.

 
Since this procedure applies both to terminations and to nonrenewals of employment contracts, which are expressly excluded from the definition of "grievance" under the agreement, an employee could invoke the rights provided thereunder even if the Board's employment action is not subject to the grievance procedures of the agreement.

Affirmed.

(continued)

(continued)

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A-5579-05T3

April 21, 2008