BERLIN BOROUGH BOARD OF EDUCATION v. BERLIN TEACHERS' ASSOCIATION

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4715-07T24715-07T2

BERLIN BOROUGH BOARD OF

EDUCATION,

Plaintiff-Respondent,

v.

BERLIN TEACHERS' ASSOCIATION,

Defendant-Appellant.

 

Argued April 21, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, C-55-08.

Steven R. Cohen argued the cause for appellant (Selikoff & Cohen, attorneys; Mr. Cohen, of counsel and on the brief; Keith Waldman, on the brief).

Mark H. Aronowitz argued the cause for respondent (Schwartz Simon Edelstein Celso & Kessler, attorneys; Allan P. Dzwilewski and Stefani C. Schwartz, of counsel; Ms. Schwartz and Mr. Aronowitz, on the brief).

PER CURIAM

Plaintiff, the Berlin Borough Board of Education (the Board), sought and received a permanent restraining order that prevented the Berlin Teachers' Association (the Teachers' Association) from arbitrating a dispute over whether the Board was obligated to provide health insurance benefits to teachers who worked between twenty and thirty-two hours per week. The Teachers' Association appeals, claiming that under the terms of the collective bargaining agreement (the CBA), it is entitled to advisory arbitration. We agree with the Teachers' Association and, consequently, reverse the order restraining arbitration.

On August 29, 2002, the Board passed a resolution increasing the minimum number of hours of work necessary for an employee to be eligible for health benefits from twenty hours to thirty-two hours per week. The Teachers' Association did not immediately challenge the resolution. In fact, not until October 3, 2007, did the Teachers' Association file a grievance, alleging that the resolution violated "the negotiated language in Article 11 [of the CBA]." That article provides insurance coverage for full-time teachers. The CBA does not, however, define "full-time" teacher.

The CBA defines a grievance in Article 3.

A "grievance" is a claim based upon an event or condition which affects the terms and conditions of employment of a teacher or group of teachers, including any complaint by an employee that there has been to him a personal loss or injury because there has been a violation, misinterpretation, misapplication, or infringement upon the provisions of this Agreement, or that there has been a violation, misinterpretation or misapplication of established Board policy or as a result of administrative decision pertaining to Board policy or this Agreement.

The CBA establishes a four-step grievance procedure, which culminates in a decision by the Board. If the aggrieved party disagrees with the Board's decision, it may request advisory arbitration. Here, after the Board rejected the Teachers' Association's grievance, the Teachers' Association sought arbitration, claiming that the Board's decision to change the threshold to qualify as a full-time employee was in derogation of the CBA.

The Board filed an order to show cause in the Chancery Division seeking to restrain the arbitration. The Teachers' Association responded with a cross-motion to dismiss the complaint. With the facts substantially undisputed, following oral argument on May 9, 2008, the trial judge granted the Board's application and permanently restrained the arbitration and denied the Teachers' Association's cross-motion. The court memorialized the decision in an order of that date.

A duty to arbitrate arises when two parties enter into a contract to resolve disputes through arbitration. Bd. of Educ. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J. Super. 379, 384 (App. Div. 1990), aff'd, 126 N.J. 300 (1991). That duty does not extend to disputes outside of the scope of the parties' contract. Clifton Bd. of Educ. v. Clifton Teachers Ass'n., 154 N.J. Super. 500, 503-504 (App. Div. 1977). "Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration." N.J.S.A. 34:13A-5.3.

Here, the CBA provided that any aggrieved party would have the discretion to pursue arbitration for unresolved grievances. So long as the Teachers' Association's claim meets the definition of a grievance under the CBA, the Board has a contractual duty to arbitrate.

The definition of grievance in the CBA is very broad. The CBA defines a grievance as "a claim based upon an event or condition which affects the terms and conditions of employment of a teacher or group of teachers." Although the CBA is silent as to who qualifies as a full-time employee, the question of who qualifies for insurance benefits under the CBA cannot be resolved without addressing that issue. Thus, increasing the number of hours to qualify for full-time teacher status to become eligible for medical benefits is "an event [affecting] the terms and conditions of employment of a teacher or group of teachers." A plain reading of the arbitration clause requires that the Teachers' Association be permitted to submit its grievance to arbitration.

Furthermore, under the terms of the CBA, the Board's past practices "shall continue to be so applicable during the term of [the CBA]." The case law also allows past practices to be a consideration in interpreting a collective bargaining agreement. See Hall v. Bd. of Educ. of Jefferson, 125 N.J. 299, 306 (1991); Bd. of Educ. of Woodstown-Pilesgrove Reg'l Sch. Dist. v. Woodstown-Pilesgrove Reg'l Educ. Ass'n, 164 N.J. Super. 106, 109-10 (App. Div. 1978) (board violated collective bargaining agreement in changing terms and conditions of employment by depriving teachers of a benefit of existence prior to adoption of collective bargaining agreement), aff'd, 81 N.J. 582 (1980). Thus, the Board's past practice of permitting teachers who work less than thirty-two hours per week to receive insurance benefits may affect the terms and conditions of employment, and may be a consideration in determining whether the Board's action was in derogation of the CBA.

The trial court acknowledged that it had "no way of knowing whether or not [the grievance should go to arbitration]." Nevertheless, the court determined that because the "four corners of the agreement" did not preclude the Board from unilaterally defining full-time teachers, the Teachers' Association had no right under the CBA to arbitrate that issue. The court's reading of the CBA was overly restrictive, and the court failed to apply the statutory presumption in favor of arbitration. See Bd. of Educ. of Alpha v. Alpha Educ. Ass'n, 190 N.J. 34, 48 (2006) (quoting N.J.S.A. 34:13A-5.3, the court observed that "in interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration.").

Also informing our decision is that the CBA provides for advisory arbitration, not binding arbitration. "Advisory arbitration does not give rise to the adverse consequences that might ensue were binding arbitration deemed permissible." Bd. of Educ. of Bernards v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 325 (1979). The advisory arbitrator's recommendations are not inimical to the public interest, but rather "constitute an additional source of information" from which the Board and the Teachers' Association may derive a benefit. Ibid.

The Board's remaining arguments in its brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that whether the Teachers' Association's grievance was filed out of time is a question for the arbitrator, not the court. Bd. of Educ. of Alpha, supra, 190 N.J. at 43 (whether teachers' association met the procedural conditions of collective bargaining agreement by filing a timely grievance was a question of procedural arbitrability, not substantive arbitrability, and was for the arbitrator to decide, not the court).

 
Given all of these considerations, and the presumption in favor of arbitration, we vacate the court's order restraining arbitration and direct arbitration in accordance with the terms of the CBA.

Reversed.

(continued)

(continued)

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A-4715-07T2

May 13, 2009