On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, C-74-02.
Before Judges Pressler, Axelrad, and Hoens.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Cresskill Education Association (Association), the collective bargaining representative for the school district's employees, appeals the Chancery Division judgment restraining arbitration of a grievance challenging the decision of the Cresskill Board of Education (Board) not to renew the annual employment contract of a non-tenured school custodian, Robert DeMarco. On appeal, the Association argues that the trial court exercised jurisdiction greater than that given in the collective negotiations agreement (CNA) in restraining the arbitration. It further contends the lack of prohibitive language in the CNA and the lack of public policy restraint indicate that arbitration should be allowed under these circumstances. The Association also claims the trial court erred in its analysis of relevant case law and ignored other relevant case law, leading to an incorrect conclusion. Finally, the Association asserts the trial court erred in relying on DeMarco's individual employment contract which it contends was in conflict with the CNA.
We are not persuaded by the Association's arguments. After reviewing the record in light of the oral and written arguments of the parties, we affirm the grant of the final judgment substantially for the reasons articulated by Judge Gerald C. Escala in his well-reasoned written opinion of April 24, 2002.
On July 1, 1998, the Board, a public employer as defined by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, hired DeMarco as a public school custodian under a one-year renewable employment agreement. DeMarco's annual contract was subsequently renewed twice to include the 1999-2000 and 2000-2001 school years, and he was issued an annual employment contract for each school year. DeMarco's one-page employment contract states term, salary, employee requirements, and provides that it"may at any time be terminated by either party without cause by giving to the other 30 day's notice in writing of intention to terminate the same, [otherwise] the contract shall run for the full term named above. The contract may be terminated at anytime for good cause." None of these provisions conflicts with, limits, or constitutes a waiver of any provision in the CNA.
At all times relevant to this case, DeMarco was represented by the Association, which negotiated a CNA with the Board, on behalf of the janitors, commencing July 1, 1999 and ending June 30, 2002. The CNA does not contain any language, express or which could be implied, granting tenure or guaranteeing reemployment for janitors who work for the Board. According to Board Policy No. 4146,"Non-renewal of Non-tenured Support Staff Employment Contracts," the only rights to which non-tenured support staff members who are non-renewed are entitled are a written statement of reasons for the non-renewal and an opportunity to meet informally with the Board, provided the support staff person follows the prescribed timeliness. Nor does the CNA contain any provision conferring on the arbitrator the authority to settle arbitrability disputes.
Based upon a series of performance evaluations during the summers of l999 and 2000 noting problems with DeMarco's attitude, inefficiency in completing tasks outlined by his supervisor, and lack of cooperation with other employees, on August 23, 2000, superintendent Dr. Judith Weiss notified DeMarco in writing he would be terminated effective August 31, 2000, and would be given thirty days' pay in lieu of the thirty-day notification period required under his employment contract. The Association filed a grievance with the superintendent of schools on DeMarco's behalf on September 26, 2000, alleging the dismissal was"unjust and improper". Weiss denied the grievance. The Association then filed a grievance with the Board, which was denied on November 17, 2000. Consequently, the Association submitted the grievance to the New Jersey Public Employment Relations Commission ("PERC") for arbitration. In a decision issued May 30, 2001, the arbitrator concluded that although the Board had just cause to discipline DeMarco, because there was no progressive discipline, it did not have just cause to terminate him. The arbitrator reinstated DeMarco to his former position without back pay.
On June 6, 2001, Weiss notified DeMarco in writing that his contract for employment would not be renewed for the 2001-2002 school year. The letter also informed DeMarco he could request a statement of reasons for the non-renewal from the Board and an informal hearing before the Board. On June 12, 2001, Weiss informed DeMarco in writing that the Board determined it was not in the school district's best interests for him to return to work for the final month of the reinstated contract and the Board would compensate him for the time. Pursuant to DeMarco's request, on June 12, 2001 Weiss provided a written statement of reasons for his non-renewal, which were identical to the problems noted in previous performance evaluations, and the letter made particular reference to the June 2000 evaluation.
On June 28, 2001, the Association again filed a grievance with Weiss, this time alleging DeMarco's termination was disciplinary and without just cause. In denying the grievance in her letter of July 19, 2001, Weiss noted it was the Board's position that since the individual employment contract ends on June 30 of each year and a custodian does not acquire tenure, the non-renewal of the non tenured employee's annual contract is non-grievable. Weiss enumerated a list of reasons for DeMarco's non-renewal including problems listed in DeMarco's evaluations, negative reports from his former supervisors, and her own observations. In response, the Association filed a grievance with the Board, which was denied in writing on August 7, 2001, for substantially the same reasons previously set forth by Weiss. On August l7, 200l, the Association filed another request for arbitration regarding the"improper dismissal of Bob DeMarco."
The Board filed a verified complaint and order to show cause seeking to restrain the arbitration of the grievance. The Board argued the matter was not arbitrable predicated on the parties' CNA which does not confer a right of reemployment of school custodians. The Association took the position there is no specific language in the agreement precluding arbitration so the Board's decision not to renew DeMarco's contract is arbitrable. The parties agreed to hold the arbitration in abeyance pending the outcome of this litigation.
On April 24, 2002, Judge Escala issued a final judgment restraining arbitration of the grievance for improper dismissal, which is the subject of this appeal. He preliminarily found it was within the province of the court to determine whether the dispute was arbitrable because the parties' CNA did not contain an express contractual provision delegating the authority to resolve disputes over arbitrability to arbitrators. Moreover, he noted that our Supreme Court in Wright v. Board of Educ. of the City of East Orange, 99 N.J. 112, 119 (1985), interpreted N.J.S.A. 18A:17-2 as allowing the Board to deny tenure to custodians. Therefore, it was the parties' prerogative whether or not to negotiate a right of reemployment for custodians in their collective negotiations agreement. Accordingly, he concluded,"[i]n view of the court's holding in Wright, and the parties' failure to negotiate a right of reemployment,... the language of the collective negotiations agreement controls and... Mr. DeMarco has no right of reemployment."
In reaching his decision, the judge relied on Marlboro Township Bd. of Educ. v. Marlboro Township Educ. Ass'n., 299 N.J. Super. 283 (App. Div.), certif. denied, 151 N.J. 71 (1997), involving a grievance filed on behalf of a non-tenured bus driver whose annual employment contract was not renewed because he had been chronically absent from work. In Marlboro we held that the Board's decision not to renew the bus driver's annual employment contract did not constitute discipline, but was rather"a clearly enunciated contractual right not to renew, an issue we do not regard as arbitrable in these circumstances." Id. at 286. We declined"to insert judicially a tenure provision into a contract when it was not negotiated by the parties" noting that"even if we deemed ...