On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3877- 01.
Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
At the conclusion of the 1999-2000 school year, plaintiff Camden Board of Education (the Board) voted not to renew the annual contracts of fifteen custodial/maintenance employees for the new school year. Defendants, the fifteen terminated employees whose contracts were not renewed, invoked the grievance/arbitration provisions of the collective bargaining agreement. In this appeal, we review an order which rejected the Board's application to restrain arbitration of the non- renewal of the fifteen contracts. We modify and affirm.
Custodial/maintenance employees of the Board are appointed on an annual basis from July 1 to June 30. Defendants Nelson Alexander, James Bradley, Derek Copeland, Wesley Coston, Juan Diaz, Herminio Febres, Lawrence Hackett, Robert Hawkins, William Hedgebeth, Andre Moody, Angel Pagan, Erineo Santiago, David Sims, Charles Smith and Larry Williams have been employed as custodians or mechanics by the Board for ten or more years. Four of defendants had fifteen or more years of service. Prior to the Board's decision not to renew defendants' contracts, all fifteen employees received similar letters warning that disciplinary action, including "not being recommended for reappointment," could be taken due to excessive absenteeism. On June 28, 2000, the Board decided not to renew the fifteen defendants' contracts for the 2000-01 school year. The Board, however, permitted a Donaldson *fn1 hearing for any employee who requested one.
Each defendant is a member of Local 1079 Custodial and Maintenance Employees of the Communications Workers of America, AFL-CIO (the Union). The Board and the Union entered a collective bargaining agreement. The agreement does not have express language providing for tenure, an automatic right to renew absent just cause, or a right to a hearing for non- renewal. The agreement does address, however, discipline and seniority. Article IV provides that no employee may be disciplined or reprimanded without just cause and disciplinary actions shall be subject to the grievance procedure outlined in the agreement. Article XII provides that layoffs shall be by inverse order of seniority.
The agreement defines a "grievance" as a "complaint by an employee or the Union that there has been . . . a personal loss, injury or inconvenience because of a violation, misinterpretation or misapplication of this Agreement." The agreement also recognizes that the Board retains full jurisdiction and authority over matters of policy and retains the right 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."
Following the June 28, 2000 vote by the Board not to renew defendants' contracts, the Union and the Board agreed to waive the preliminary steps of the contractual grievance procedure and to submit the terminations to arbitration. On March 31, 2001, the Board challenged the arbitrability of the grievance just prior to the first arbitration. Initially, the Board filed an application to restrain the arbitration with the Commissioner of Education, who transferred the matter to the Office of Administrative Law (OAL). The Administrative Law Judge denied the Board's application, the Commissioner affirmed the decision, and the first arbitration proceeded under protest of the Board.
On June 15, 2002, following the first scheduled arbitration, the Board filed a verified complaint in lieu of prerogative writs seeking a permanent injunction restraining the scheduled arbitrations. By order dated August 8, 2001, Judge Orlando denied the relief. In his oral opinion, Judge Orlando found:
In this case there are provisions for discipline. There are just cause employee rights as well as the grievance procedures which culminated an arbitration hearing. And, the employees should have the right to present that argument to an arbitrator to make a determination as to whether or not the scope of the rights afforded to the employees under the just cause provision, as well as whether the reason for the non-renewals is pretextual in terms of either being disciplined or a [ruse] to engage in a layoff.
I find to the same effect is the Hunterdon Central decision which was affirmed -- which was the Appellate Division's affirmance of a - a PERC decision. There as the Court noted, ... a School Board may agree to extend contractual tenure to a non-professional employee such as a bus driver by a promise to continue his or her employment absent just cause for termination or renewal. The question of whether the Board, in fact, did so is one for the arbitrator.
Judge Orlando also distinguished Marlboro Township Board of Education v. Marlboro Township Education Association, 299 N.J. Super. 283 (App. Div.), certif. denied, 151 N.J. 71 (1997), because there was a disciplinary warning, the Board had not reserved in the contract non-renewal as a prerogative of the Board, and the non-renewals departed from the seniority provisions governing layoffs. The Board appeals from the August 8, 2001 order.
N.J.S.A. 18A:17-3 provides that every public school janitor shall receive tenure, unless appointed for a fixed term. Here, it is undisputed that each defendant is governed by this statute and has been appointed for a fixed term. Tenure, however, may be conferred on a public school janitor by virtue of the express terms of the collective bargaining agreement. Wright v. Board of Educ. of E. Orange, 99 N.J. 112 (1985). An untenured employee 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 termination for misconduct. In such cases the untenured employee bears the burden of proof that the termination is a ploy by the employer to avoid the agreed disciplinary review procedures. Office of Employee Relations v. Communication Workers of Am., 154 N.J. 98, 114-15 (1998). When, however, the school board employee is appointed to a fixed contract subject to renewal each year and ...