On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
[NOTE: This is a companion case to Northvale Board of Education v. Northvale Education Association, et al., A-97-05, also filed today]
This dispute requires the Court to consider circumstances it has left unanswered in recent decisions relating to non-tenured school employees whose employment rights are governed in part by individual contracts and in part by collectively negotiated agreements. In particular, the issue is whether, when the individual employment contracts provide that they may be terminated on notice and that the affected employees have no right to the automatic renewal of their individual contracts, the employees nonetheless have a right to pursue grievance arbitration if their contracts are terminated in the middle of a contract term based on facts that would ordinarily call for imposition of discipline.
Plaintiff Pascack Valley Regional High School Board of Education ("the Board") is a public employer within the meaning of the New Jersey-Employee Relations Act, N.J.S.A. 34:13A-1 to -39 (the Act). Defendant Pascack Valley Regional Support Staff Association ("the Association") is a public employee representative under the Act and is the exclusive employment bargaining representative for certain school personnel, including school custodians. The parties entered into a Collective Negotiations Agreement (CNA) for the period from July 1, 2002 through June 30, 2005, the terms of which are in issue in this litigation. In addition, the board entered into individual contracts of employment with a variety of employees, including custodians, who are not entitled to tenure rights. All of those individual contracts have terms of one year, and, as permitted by statute, the custodial employees have no right to renewal of the contracts.
In February 2004, the Board terminated Thomas Dombrowski, a high school custodian, pursuant to the terms of his individual employment contract. The Board based its action on a complaint that Dombrowski had repeatedly made inappropriate and racially offensive remarks to another custodian and students. The Association filed a grievance on Dombrowski's behalf pursuant to the CNA, asserting that his dismissal was not governed by the individual employment contract and that he had been terminated without just cause as required by the CNA. The grievance was denied, and the Association pursued arbitration. The arbitrator found that Dombrowski had in fact engaged in the behavior that formed the basis for the disciplinary action, faulted the Board for inadequacies in its publication of its affirmative action policies and in its training about those policies, and concluded that the Board had improperly used the individual contract termination clause to avoid the CNA's disciplinary protections. The arbitrator further found that there was just cause for discipline, but that termination was too severe a penalty. The arbitrator concluded that the termination should be modified to a sixty-day suspension without pay, and that his decision would have no bearing on the Board's decision in respect of Dombrowski's renewal the following year.
The Board moved in the Chancery Division to vacate the arbitrator's award. Granting that motion, the trial court concluded that the arbitrator had exceeded his authority because he had failed to enforce the terms of Dombrowski's individual employment contract. The Association appealed to the Appellate Division, which affirmed, concluding that the Board was entitled to exercise its termination right under the contract, that the decision to terminate was not grievable, and that the arbitrator therefore exceeded the scope of his authority by inquiring into the reason for the termination of the contract.
The Supreme Court granted the Association's petition for certification.
HELD: When the parties have agreed that non-tenured school employees may be disciplined only for just cause and have defined any dismissal as a disciplinary action subject to the grievance procedures at the employees' option, a mid-term contract termination imposed as punishment for behavior that would otherwise call for imposition of discipline falls within the collective agreement's definition of dismissal subject to the grievance procedures.
1. The Supreme Court recently set forth some of the general principles governing labor arbitration in the context of public schools and the preference for that method of resolving labor disputes. See Bd. of Educ. of Borough of Alpha v. Alpha Educ. Ass'n, 190 N.J. 34 (2006). The Court also has reiterated that, for purposes of determining whether a particular dispute is arbitrable, there remains a distinction between questions of substantive arbitrability, which are to be resolved by a court, and questions of procedural arbitrability, which generally fall within the scope of the arbitrator's authority. In addressing the relationship between CNA-protected grievance rights and individual employment contracts in the context of specific language of a CNA, the Court has rejected the assertion that a decision not to renew an individual contract, based on grounds that would also support imposition of discipline, was grievable. (Pp. 10-13)
2. The CNA provisions in this case demonstrate that the parties agreed that notwithstanding the terms of the individual contracts and the employer's unfettered right to terminate Dombrowski on fifteen days' notice, when the Board did so only as a surrogate for a disciplinary proceeding, the act of termination became an act of discipline, a subject that the parties had specifically negotiated and agreed would be grievable at the custodian's option. Under these circumstances, the use of the individual contract's termination clause was not a termination for a reason other than one that falls, by agreement, within the terms of the CNA. Rather, it was an effort to use the individual contract to bypass the protections that the Board agreed in the CNA would apply to discipline of all employees. As such, it was the disciplinary measure of dismissal that the CNA specifically gave the custodian the right to grieve through the arbitration mechanism. The Court does not, however, intend to imply that the Board could not have waited until the end of the annual term and opted not to renew Dombrowski's contract. (Pp. 13-16)
3. The CNA and the individual employment contract are not inconsistent. Prior to its decision to terminate the individual employment contract, all of the Board's actions were focused on establishing facts that would, in any other context, serve as just cause for discipline. In these circumstances, the Court concludes only that the Board, having agreed as a part of the CNA that matters of discipline would be subject to the grievance and arbitration clauses of that contract and having agreed that "any dismissal" of a custodian would be within the grievance clause, also agreed that grounds for dismissal would not support termination on notice of an individual contract in the middle of its term. The imposition of termination was a disciplinary decision that was substantively arbitrable. Viewed in that light, both the Chancery Division and the Appellate Division erred. (Pp. 16-17)
The judgment of the Appellate Division is REVERSED and the award of the arbitrator is REINSTATED.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS' opinion.
The opinion of the court was delivered by: Justice Hoens
In February 2004, Thomas Dombrowski, a high school custodian, was terminated from his position pursuant to the terms of his individual employment contract. Because he considered the termination to be discipline imposed on him for his use of racially offensive language directed to his co-workers and to high school students, he filed a grievance through the authorized bargaining representative. After the arbitrator concluded that termination was too harsh a penalty, the school board pursued an action in the Chancery Division. Both the Chancery Division judge and the Appellate Division concluded that the arbitrator exceeded his authority and upheld the termination.
This dispute requires us to consider circumstances we have left unanswered in our recent decisions relating to non-tenured school employees whose employment rights are governed in part by individual contracts and in part by collectively negotiated agreements. In particular, we address whether, although the individual employment contracts may be terminated on notice and although such employees have no right to the renewal of their individual contracts, they nonetheless have a right to pursue grievance arbitration if their contracts are terminated in the middle of a contract term based on facts that would ordinarily call for imposition of discipline.
We hold that, in the particular circumstances of this matter, where the parties have agreed that the non-tenured school employees may only be disciplined for just cause and have defined any dismissal as a disciplinary action subject to the grievance procedures at the employees' option, a mid-term contract termination imposed as punishment for behavior that would otherwise call for imposition of ...