BURLINGTON COUNTY INSTITUTE OF TECHNOLOGY v. BURLINGTON COUNTY INSTITUTE OF TECHNOLOGY EDUCATION ASSOCIATION
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1465-14T2
BURLINGTON COUNTY INSTITUTE OF
TECHNOLOGY,
Plaintiff-Appellant,
v.
BURLINGTON COUNTY INSTITUTE OF
TECHNOLOGY EDUCATION ASSOCIATION,
Defendant-Respondent.
Argued June 16, 2015 – Decided June 30, 2015
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 negotiations
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recommendation, the Board rescinded by resolution Furtaw's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."
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BCIT's verified complaint alleges that on June 28, 2013,
the Association filed a grievance on Furtaw's behalf.1 On
December 26, 2013, the Association also filed a request for
submission to a panel of arbitrators with the Public Employment
Relations Commission (PERC).2 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.
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
1
No copy of the grievance is included in the appendices.
2
PERC is not involved in this appeal.
3 A-1465-14T2
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
4 A-1465-14T2
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
5 A-1465-14T2
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.
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