On appeal from the Superior Court, Chancery Division, Bergen County.
Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired and temporarily assigned).
[168 NJSuper Page 498] The Board of Education, Township of Wyckoff (Board) appeals from an order confirming an arbitration award in favor of Wyckoff Education Association (Association) and dismissing the board's complaint which sought vacation of said award.
This case involves the nonrenewal of contracts of two nontenured teachers.*fn1 When the board decided not to renew those contracts the teachers filed a grievance, claiming that the board's actions violated the policies and procedures regarding teacher evaluation and, specifically, Article XVI of the collective bargaining agreement between the Association and the board concerning "Evaluation Process." The grievance ultimately came before an arbitrator who decided in favor of the teachers.
The arbitrator held: (1) as the Association conceded, it was the board's prerogative not to renew the grievant's contracts; (2) however, since the agreement between the parties provides a certain method of evaluation of probationary teachers, that procedure must be literally followed, and (3) since the board, after conducting its evaluations of the various nontenured teachers, provided that they should be "ranked" (i.e., in the order in which the school administrators deemed them to be least effective), this was a deviation from the evaluation procedure as outlined in Article XVI of the labor contract and constituted a violation thereof. The arbitrator directed that the teachers received the yearly amount of wages they would have received if they had been reemployed, less any money earned by way of mitigation.
We reverse. We conclude that to award the nontenured teachers the amount of wages they would have received if their contracts had been renewed, while at the same time recognizing that the board had the right not to renew them, amounts to compelling the board to pay damages for doing what it had the legal right to do. See Union Cty. Bd. of Ed. v. Union Cty. Teachers Ass'n , 145 N.J. Super. 435 (App. Div. 1976), certif. den. 74 N.J. 248 (1977).
We recognize that the Association contends that it did not grieve the right of the board not to renew the contracts*fn2
but rather did grieve the alleged violation of the "Evaluation Process" set forth in Article XVI of the contract. We conceive that to be a distinction without a difference. To seek damages for nonreappointment -- for whatever reason except denial of due process -- must nevertheless be based on a claim to a right of reappointment. See Winston v. South Plainfield Bd. of Ed. , 125 N.J. Super. 131, 143 (App. Div. 1973), aff'd 64 N.J. 582 (1974).
Moreover, Article IV, § 1 of the contract, concerning the "Grievance Procedure", expressly provides so far as pertinent:
The non-reappointment of a pretenure teacher is not subject to this grievance procedure. This does not preclude an appeal regarding due process in the reappointment procedure. [Emphasis supplied]
Thus it is that only denial of due process in the reappointment procedure is grievable. But the Association agrees in its brief:
In this contract the evaluation procedure is precisely designed to provide "due process" (i.e. notice and ...