Camden Bd. of Educ. v. Alexander

854 A.2d 342

181 N.J. 187

CAMDEN BOARD OF EDUCATION, Plaintiff-Appellant and Cross-Respondent, v. Nelson ALEXANDER; Juan Diaz; Herminio Febres; David Sims; Lawrence Hackett; James Bradley; Wesley Conston; William Hedgebeth; Andre Moody; Angel Pagan; Ernesto Santiago; Larry Williams; Derek Copeland; Robert Hawkins; Charles Smith and Communications Workers of America, AFL-CIO, Defendants-Respondents and Cross-Appellants.

Supreme Court of New Jersey.

Argued September 8, 2003.

Decided August 12, 2004.

Thomas M. Toman, Jr., New York City, argued the cause for appellant and cross-respondent (Murray & Murray, attorneys; Mr. Toman and Karen A. Murray, of counsel and on the briefs).

Steven P. Weissman, Somerset, argued the cause for respondents and cross-appellants (Weissman & Mintz, attorneys). John J. Burns, Assistant Counsel, argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, General Counsel, attorney). Steven R. Cohen argued the cause for amicus curiae New Jersey Education Association (Selikoff & Cohen, attorneys; Carol H. Alling, on the brief).

John J. Burns, Assistant Counsel, argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, General Counsel, attorney).

Steven R. Cohen, Mount Laurel, argued the cause for amicus curiae New Jersey Education Association (Selikoff & Cohen, attorneys; Carol H. Alling, on the brief).

Justice LaVECCHIA delivered the opinion of the Court.

The Camden Board of Education (Board) voted not to renew certain custodians and mechanics (defendants) at the conclusion of the 1999-2000 school year. Defendants sought to arbitrate the non-renewal of their appointments under the grievance provision of the applicable collective negotiation agreement (CNA). The question before the Court is whether arbitration should be permitted.

I.

In enacting Title 18, the Legislature set up a scheme for the employment of school personnel. Included therein is N.J.S.A. 18A:27-4.1, which provides:

Notwithstanding the provisions of any law, rule or regulation to the contrary.

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b. A board of education shall renew the employment contract of a certificated or non-certificated officer or 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 non-tenured officer or employee who is not recommended for renewal by the chief school administrator shall be deemed nonrenewed. Prior to notifying the officer or employee of the non-renewal, the chief school administrator shall notify the board of the recommendation not to renew the officer's or employee's contract and the reasons for the recommendation. An officer or employee whose employment contract is not renewed shall have the right to a written statement of reasons for non-renewal pursuant to section 2 of P.L.1975, c. 132 (C.18A:27-3.2) 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 chief school administrator shall notify the officer or employee of the non-renewal pursuant, where applicable, to the provisions of section 1 of P.L.1971, c. 436 (C. 18A:27-10).

The parties agree that that statute does not preempt them from contractually granting greater protection to fixed-term employees by subjecting non-renewals to a just cause requirement, and submitting non-renewal grievances to binding arbitration. See also Wright v. Bd. of Ed. of City of E. Orange, 99 N.J. 112, 116, 491 A.2d 644 (1985) (holding that N.J.S.A. 18A:17-3 did not bar collective negotiations agreement providing tenure rights for fixed-term custodians). Thus, the question — can this matter be negotiated — is not in issue. This case is about whether the parties, in fact, did negotiate for arbitration to apply in this non-renewal setting.

As members of Local 1079 Custodial and Maintenance Employees of the Communications Workers of America, AFL-CIO (Union), defendants were protected by the CNA negotiated by the Union. The CNA's grievance provision, and two related provisions, follow:

Article III: Grievance Procedure

A. Definition

A "Grievance" shall mean a complaint by an employee or the Union that there has been to him/her a personal loss, injury or inconvenience because of a violation, misinterpretation, or misapplication of this Agreement.

B. Procedure

6. (a) The following procedure will be used to secure the services of an arbitrator: The Union will make a request to the Public Employment Relations Commission for a panel of arbitrators no later than 45 days after receipt of the Board's decision.

(b) The arbitrator shall limit himself/herself to the issue submitted to him/her and shall consider nothing else. He/she can add nothing to, nor subtract anything from, the Agreement between the parties or any policy of the Board of Education. The recommendations of the arbitrator shall be binding on the parties. Only the Board and the aggrieved and his/her representatives shall be given copies of the arbitrator's report and findings and recommendations. This shall be accomplished within (30) days of the completion of the arbitrator's hearings.¹

Article IV: Employee Rights

A. No employee shall be disciplined or reprimanded 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.

Article X: Board Rights

C. The Board, subject only to the language of this Agreement reserves to itself full jurisdiction and authority over matters of policy and retains the right, in accordance with applicable laws and regulations.

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b. to hire, promote, transfer, assign and retain employees in positions within the School District, and to suspend, demote, discharge or take other disciplinary action against employees.

Toward the end of the 1999-2000 school year, each defendant received from a supervisor a letter warning that due to excessive absenteeism, "disciplinary action maybe [sic] taken which may include but not be limited to not being recommended for reappointment for the 2000-2001 school year." Thereafter, on the recommendation of the chief school administrator, the Board voted on June 28, 2000, not to renew defendants' appointments. We note that the Board permitted defendants to appear and to be heard prior to its vote. See N.J.S.A. 18A:27-4.1b. Each defendant not renewed for the 2000-01 school year then sought to arbitrate the merits of his non-renewal under the CNA's grievance procedures.

Although the Board and Union agreed to waive the preliminary steps of the CNA's grievance procedure and to proceed directly to the arbitration stage of Article III, the Board nonetheless preserved the issue of arbitrability.² The Board sought to restrain the arbitrations, initially before the Commissioner of Education, and thereafter in Superior Court. This appeal comes to us by way of the Appellate Division's affirmance, with modification, of the Law Division's refusal to restrain arbitration. Camden Bd. of Educ. v. Alexander, 352 N.J.Super. 442, 450, 800 A.2d 250 (2002).³

The Appellate Division stated that although employees with fixed-term contracts have no right to continued employment (other than enjoyment of the protections provided by N.J.S.A. 18A:27-4.1), such employees "may also be entitled to arbitrate the termination of employment if the employer has negotiated a disciplinary review procedure which includes the right of an untenured employee to arbitrate a termination for misconduct." Id. at 447, 800 A.2d 250. Finding that to be the case here, the court allowed the arbitrations to proceed but shifted to the fixed-term employee the burden of initially proving "that the termination is a ploy by the employer to avoid the agreed disciplinary review procedures." Ibid. (citing OER, supra, 154 N.J. at 114-15, 711 A.2d 300). The panel commented that the warning letter sent to each defendant suggested an attempt by the Board to circumvent the grievance procedure of the CNA by "terminating [defendants] for cause without officially charging the[m] with misconduct." Id. at 449, 800 A.2d 250. Nonetheless, the court held that each defendant would be required to satisfy the above-described threshold to proceed to arbitration on the merits of the non-renewal. Id. at 450, 800 A.2d 250.

We granted the parties' respective petition and cross-petition for certification, 175 N.J. 77, 812 A.2d 1109 (2002), and now reverse.

II.

The New Jersey Constitution grants public employees "the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their choosing." N.J. Const. art. I, ¶ 19. Unlike private-sector employees, public employees are not given the right to "bargain collectively." Ibid. Public employees instead may engage in collective negotiations. N.J. State College Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25-26, 449 A.2d 1244 (1982). See generally Lullo v. Int'l Ass'n of Fire Fighters, 55 N.J. 409, 436-441, 262 A.2d 681 (1970) (discussing distinction between "collective bargaining" and "collective negotiation"). Twenty-five years ago we provided guidelines for courts grappling with the distinct inquiries engendered by public-sector employment disputes. State v. State Supervisory Employees Ass'n, 78 N.J. 54, 393 A.2d 233 (1978); Township of W. Windsor v. Public Employment Relations Comm'n, 78 N.J. 98, 393 A.2d 255 (1978). We resolved that the Public Employment Relations Commission (PERC), and not the courts, was the entity to determine whether, in a public-sector labor dispute, a specific subject is negotiable (the "scope-of-negotiations" determination). Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 153-56,...