LENAPE REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION v. LENAPE DISTRICT SUPPORT STAFF ASSOCIATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5095-04T15095-04T1

LENAPE REGIONAL HIGH SCHOOL

DISTRICT BOARD OF EDUCATION,

Plaintiff-Respondent,

v.

LENAPE DISTRICT SUPPORT

STAFF ASSOCIATION,

Defendant-Appellant.

_________________________________________________

 

Argued April 4, 2006 - Decided July 12, 2006

Before Judges Payne and Sabatino.

On appeal from Superior Court of New

Jersey, Chancery Division, Burlington

County, C-134-03.

Keith Waldman argued the cause for

appellant (Selikoff & Cohen, attorneys;

Mr. Waldman of counsel and on the brief).

Arthur H. Jones, Jr., argued the cause

for respondent (Archer & Greiner, attorneys;

Mr. Jones and Susan S. Hodges, on the brief).

PER CURIAM

Defendant District Support Staff Association (union) appeals from an order of the trial court permanently enjoining the union from submitting to arbitration a breach of contract claim against the Lenape Regional High School District Board of Education, filed by the union on behalf of school custodian Louis Giannobile following the non-renewal of his employment effective June 2002. We reverse.

I.

Giannobile was hired by the Board of Education as a custodian in 1991 under a series of annual contracts in effect until the end of the 2002 school year. In 2001, Giannobile was cited for having brought a Civil War bayonet onto school property, failed to report graffiti in a boys' locker room that contained a threat to blow up the school, been insubordinate, and utilized a racial slur. These incidents formed, in varying degrees, the bases for disciplinary actions against Giannobile, who was issued a letter of reprimand dated November 15, 2001 and was placed on paid leave of absence commencing in December 2001. The union filed two grievances on Giannobile's behalf arising out of the disciplinary actions.

On April 25, 2002, while Giannobile remained on disciplinary leave of absence, and his grievances remained pending, Giannobile was notified by Superintendent of Education Daniel Hicks that Hicks had decided not to recommend renewal of Giannobile's contract for the 2002-03 year. Giannobile requested a written statement of reasons for the recommendation and an informal appearance before the Board of Education pursuant to N.J.S.A. 18A:27-4.1. In a letter to Giannobile dated May 10, 2002, Hicks stated that "the reason for your non-renewal of employment is your continued conduct unbecoming a school employee most recently evidenced by racial slurs you used when speaking to your supervisor during the [2001-02] school year." It is alleged that the School Board utilized the written memoranda that formed the basis for the disciplinary actions against Giannobile in informally discussing its non-renewal decision with him. It thus appears that the conduct that was the subject of the grievances also formed the basis for the Superintendent's non-renewal decision. That decision was not altered after the informal meeting with the Board. Giannobile's employment ended on June 30, 2002.

Ten months later, in a decision dated April 25, 2003, the arbitrator to whom the grievances on behalf of Giannobile had been referred sustained both grievances, finding that the disciplinary actions were not supported by the evidence. As a consequence, the Board was directed to remove the letter of reprimand from its records and not to rely upon it in any future personnel actions or decisions.

Following the non-renewal of Giannobile's employment contract, the union filed an additional grievance on his behalf, advancing the grievance to the stage at which a second arbitration would have occurred. At that point, however, the Board filed a verified complaint and order to show cause seeking to enjoin the arbitration. Although the court initially granted the union's cross-motion to dismiss the Board's complaint and compel arbitration, following the issuance of the Court's decision in Camden Bd. of Educ. v. Alexander, 181 N.J. 187 (2004), holding that the presumption in favor of arbitrability applicable in a private context did not apply to public sector labor contracts, the court granted the Board's motion for reconsideration and reversed its determination, thereby barring arbitration. This appeal followed.

While this matter has been on appeal, the Legislature amended N.J.S.A. 34:13A-5.3, governing public employees, to include the following language:

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.

[L. 2005, c. 380, 7 (effective January 12, 2006).]

At oral argument, the parties conceded the applicability of this statutory amendment to the present controversy pursuant to the time of decision rule. See, e.g., Phillips v. Curiale, 128 N.J. 608, 622-25 (1992); State of N.J. Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 498 (1983).

II.

The collective negotiations agreement (CNA) in effect between the Board of Education and the union has a number of provisions of relevance to this matter. Article IV, delineating the rights and privileges of covered employees provides in paragraph B that:

No employee who has completed his probationary service as indicated in Article XI shall be suspended, terminated, or reduced in compensation without just cause or as may be modified by Article XI. Any such termination, suspension or reduction in compensation shall be subject to the Grievance Procedure starting at Step 3.

Paragraph A of Article V, delineating the rights of the Board of Education, provides that it "reserves unto itself, all powers, rights, authority, duties and responsibilities conferred upon and vested in it by the Laws and Constitution of the State of New Jersey and of the United States." Paragraph B states that the Board's exercise of its powers "shall be limited only by the specific and express terms of this Agreement," and paragraph C provides that:

[n]othing contained herein shall be construed to deny or restrict the Board of its powers, rights, authority, duties and responsibilities under N.J.S.A. 18A or any other national, state, county, district or local laws or regulations as they pertain to education, except as specifically and expressly modified by this Agreement.

The CNA contains, in Article VI, a grievance procedure that concludes with binding arbitration. A grievance, as defined in that Article can consist of "any alleged violation" of the CNA or "any dispute with respect to its meaning or application." In describing the powers of the arbitrator, the Article states only that: "He shall have no authority to modify, add to, subtract from, or in any way whatsoever alter the terms or provisions of this Agreement," he shall be bound by relevant administrative and court decisions and statutes, and he shall render his findings of fact and conclusions of law in writing.

Article XI, captioned "Employee Dismissal Procedure," defines the term "as the right of certain employees to grieve dismissal or termination through the Grievance Procedure, Article VI of this Agreement." In paragraph B.2., it establishes a procedure for custodians that requires notification of a written unsatisfactory evaluation, a thirty-day cure period, and a demonstration of "apparent and completely acceptable" improvement within that period or dismissal may result. The procedure concludes with the following statement:

Dismissal for job performance shall follow the above procedure. It is specifically understood that the Board has the right and responsibility to take any action deemed necessary in retention and/or non-retention in matters other than job performance.

Giannobile's employment contract with the Board of Education specifically incorporates the provisions of the CNA and concludes:

It is hereby agreed by the parties hereto that this contract may be terminated pursuant to the provisions of the aforementioned agreement, and in the absence of any such provision, at any time by either party giving the other thirty (30) calendar days notice, in writing, of intentions to terminate the same, except during any probationary period or in matters other than job performance pertaining to the [employee], wherein [the employer] has the right and responsibility to take any action deemed necessary to terminate same.

III.

N.J.S.A. 18A:27-4.1 provides that a board of education shall renew the contract of a non-tenured employee only upon the recommendation of the chief school administrator, and an employee who is not recommended for renewal in this fashion shall be deemed non-renewed. The only remedy available to the affected employee arises from his right to be notified of the reasons for the reasons for non-renewal and consists of the right to appear informally before the board to contest those reasons and to seek an offer of reemployment. It is clear, however, that this statutory provision is not preemptive, but can be modified through collective negotiations. Wright v. Bd. of Educ. of City of E. Orange, 99 N.J. 112, 119 (1985); State v. State Supervisory Employees Ass'n, 78 N.J. 54, 81 (1978). If such modification has occurred, the modifying elements are enforceable. Ibid.

The dispute in this case concerns whether, as the result of negotiations, the grievance on behalf of Giannobile lies "within the scope of the arbitration clause specifying what the parties have agreed to arbitrate" thereby raising issues of substantive arbitrability. Standard Motor Freight, Inc. v. Local Union 560, Int'l Bhd. of Teamsters, 49 N.J. 83, 96 (1967). It is the court's function to determine questions of substantive arbitrability. Ibid. However, that function is limited solely "to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract." Ibid. In a public employment context, under current statutory law, a "presumption in favor of arbitration" exists, and "[d]oubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration." N.J.S.A. 34:13A-5.3.

In the present case, the Board contends that it possessed the absolute power pursuant to the CNA to decline to renew Giannobile's employment upon the recommendation of the Superintendent, regardless of the reason for the non-renewal. In support of that position, it relies on the reservation of rights contained in Article V, and it contends that the provisions with respect to progressive discipline and arbitration of grievances apply only to instances of "discharge" or "termination" and not to non-renewals. The union argues to the contrary that the Board's rights under Article V are specifically limited by the terms of the CNA, and that such a limitation appears in Article XI, which provides that "the Board has the right and responsibility to take any action deemed necessary in retention and/or non-retention in matters other than job performance."

We find that the language of the CNA in this case differs from the language at issue in Marlboro Twp. Bd. of Educ. v. Marlboro Twp. Educ. Ass'n, 299 N.J. Super. 283 (App. Div.), certif. denied, 151 N.J. 71 (1997), Cresskill Bd. of Educ. v. Cresskill Educ. Ass'n, 362 N.J. Super. 7 (App. Div. 2003), certif. denied, 181 N.J. 546 (2004) and Alexander, supra, 181 N.J. 187, the decisions upon which the Board principally relies. None of the contracts in those cases contained a limited reservation of power to the Board in matters of "retention and/or non-retention" that excepted "job performance."

Although we do not find a construction of that language as a contractual tenure provision to be required, we find that the language is susceptible to such a construction. At very least, we cannot say "with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Standard Motor Freight, supra, 49 N.J. at 96 (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409, 1417-18 (1960). We thus find that the motion judge was correct in his first decision to dismiss the Board's injunctive action and to refer the matter to arbitration.

In reaching this conclusion, we express no opinion on the merits of this dispute, which concerns both the extent of the Board's power to non-renew in light of purported restrictions found within the CNA and the substance of the grievance filed on Giannobile's behalf. That determination is not within our purview in this context. Bd. of Educ. of the Twp. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J. Super. 379, 384 (App. Div. 1990), aff'd o.b., 126 N.J. 300 (1991); see also United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403, 1407 (1960). If the arbitrator were to determine, following a consideration of relevant statutes, the CNA and the circumstances of its negotiation, that Article XI does not act to restrict the Board's power to non-renew, then the grievance must be barred. Communications Workers of Am., Local 1087 v. Monmouth Cty. Bd. of Soc. Servs., 96 N.J. 442, 450 (1984) (noting that when powers similar to those here have been granted to an arbitrator, that person must in the first instance determine the arbitrability of the dispute by ascertaining whether the right asserted arose out of the terms of the agreement) (citing Flinkote Co. v. Textile Workers Union, 243 F. Supp. 205 (D.N.J. 1965)). If the arbitrator finds to the contrary, then the grievance must be considered in light of the previous resolution of Giannobile's claims.

Reversed. Plaintiff's complaint is dismissed, and the matter is referred to binding arbitration.

 

The text mistakenly stated "2002-2003."

Most of the briefing in this case preceded the passage of amendments to N.J.S.A. 34:13A-5.3.

(continued)

(continued)

11

A-5095-04T1

July 12, 2006