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 Pascack Valley Regional High School Board of Education v.Pascack Valley Regional Support Staff Association, A-96-05, also filed today]
The members of the Supreme Court being equally divided, the judgment of the Appellate Division is affirmed.
Plaintiff Northvale Board of Education ("the Board") hired Patricia Lenart to work as a part-time secretary and part-time social studies teacher. The parties executed an employment agreement from October 14, 2003, to June 30, 2004. The contract provided, in part, that either party could terminate it on sixty (60) days written notice. On receiving complaints from parents and students concerning Lenart's performance as a teacher and from parents, teachers, and other secretaries regarding her work as a secretary, Eugene Harris, the school principal, observed Lenart in the classroom. He rated her satisfactory in only two of twenty-five evaluative categories. After meeting with Lenart, Harris recommended to the superintendent of schools that Lenart be terminated pursuant to the 60 days' notice provision in the employment agreement. The superintendent approved the recommendation. Lenart was advised that her last day of employment would be January 23, 2004.
Defendant Northvale Education Association ("the Association"), the collective bargaining representative for teachers and secretaries employed by the Board, filed a grievance on Lenart's behalf. It asserted that she had been discharged without "just cause" in violation of the applicable Collective Negotiations Agreement (CNA) and that the action was subject to the grievance procedure and arbitration as set forth in the CNA. The grievance was denied, and the Association requested that the matter be submitted to arbitration. The Board then commenced an action in the Chancery Division to enjoin the arbitration. In a written decision, the trial court held that the grievance and arbitration procedures in the collective bargaining agreement did not apply to the mid-contract termination of a non-tenured employee and enjoined the arbitration.
The Association and Lenart appealed the order enjoining arbitration. In an unpublished per curiam opinion, the Appellate Division affirmed the order restraining arbitration. The panel found no inconsistency between the CNA and the notice provision of the employment agreement, concluding that the agreements operated independently of each other and that the Board could choose to terminate the employee on 60 days' notice without needing to demonstrate "good cause" or "just cause." In short, the grievance and arbitration provisions of the CNA did not apply to the Board's action and neither did binding arbitration.
The Supreme Court granted the Association's petition for certification and also granted leave to the New Jersey Education Association and the New Jersey School Boards Association to appear as amici curiae.
HELD: The members of the Supreme Court being equally divided, the judgment of the Appellate Division is AFFIRMED.
JUSTICE HOENS filed a separate, CONCURRING opinion, in which JUSTICES LaVECCHIA and RIVERA-SOTO join, stating that the matter 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 such employees nonetheless have the right to pursue grievance arbitration if their contracts are terminated in the middle of a contract term.
When the parties have not included any provision in the collective negotiation agreement that clearly creates a right to challenge a mid-term termination through a grievance proceeding, the terms of the individual contract, otherwise in accordance with applicable statutory provisions, are enforceable as written. The Board's decision to terminate Lenart's contract in accordance with the terms of her separate annual contract of employment was in reality a disciplinary action and therefore within the grievance and arbitration clause of the CAN. It was a matter of substantive arbitrability and thus was properly for the judge, and not the arbitrator, to decide.
Although the individual contract permitted the Board to discharge Lenart on sixty days' notice without cause, there is no interference between that term of her contract and the CNA's just cause language. Read in harmony, the CNA would permit discharge, based on an assertion of just cause, without any notice to the employee. The individual contract, on the other hand, would permit termination of the contract, without any assertion of cause, but only on sixty days' notice to the employee. Given the absence of a statutory right to arbitrate a mid-contract termination on notice, school boards have the inherent power to terminate a non-tenured employee pursuant to the notice terms of an individual employment contract without providing the employee a hearing or an opportunity to arbitrate.
The language of the CNA makes plain that neither the Board nor the Association contemplated that a grievance procedure would apply to a termination of a contract in the middle of its term. To conclude otherwise would, in effect, be creating for the employee a contract better than the one negotiated.
JUSTICE LONG filed a separate, DISSENTING opinion, in which JUSTICES ALBIN and WALLACE join, stating that Lenart was terminated for cause and that her termination was therefore facially governed by the just cause provision of the CNA, which provides for an arbitration remedy. There is a statutory presumption in favor of public sector arbitration. Any approach that favors an individual contract over a conflicting and superseding collective bargaining provision undermines the goals of collective negotiations and cannot be countenanced. At the very least, doubt has arisen regarding the scope of arbitrability. That doubt must be resolved in favor of arbitration.
The judgment of the Appellate Division is AFFIRMED.
JUSTICE HOENS filed a separate concurring opinion in which JUSTICES LaVECCHIA and RIVERA-SOTO join. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES ALBIN and WALLACE join.
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
JUSTICE HOENS filed a separate, concurring opinion, in which JUSTICES LaVECCHIA and RIVERA-SOTO join. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES ALBIN and WALLACE join.
JUSTICE HOENS, concurring.
In November 2003, Patricia Lenart, a part-time teacher and part-time secretary at Northvale High School, was advised that the Superintendent of Schools had approved a recommendation to terminate her one-year employment contract in accordance with its sixty-day notice provision. Defendant Northvale Education Association filed a grievance on her behalf, which was denied by plaintiff Northvale Board of Education. When defendant attempted to submit the matter to arbitration, plaintiff filed a complaint in the Chancery Division. There, the court entered an order enjoining arbitration, which order was affirmed by the Appellate Division.
This matter 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 must 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.
In our view, where the parties have not included any provision in the collective agreement that clearly vests an employee subject to an individual employment contract with a right to challenge a mid-term termination, on notice, of the contract through a grievance proceeding, the terms of the individual contract, otherwise in accordance with applicable statutory provisions, are enforceable as written.
The facts are not in dispute. Plaintiff is a public school board of education and, therefore, a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39 (the Act). Defendant is a public employee representative under the Act, performing as "the exclusive and sole representative for collective negotiations concerning the terms and conditions of employment" for certain school employees, including teaching staff and secretaries.
Patricia Lenart is a union member whose rights are governed by the collective negotiations agreement (CNA) entered into by defendant. In October 2003, plaintiff hired Lenart to work as a part-time secretary for the school principal, Eugene Harris, and as a part-time social studies teacher. Because she was a non-tenured employee, Lenart, in accordance with plaintiff's previously promulgated policy, signed an individual employment contract. That contract contained the following termination-on-notice provision:
The parties hereto covenant and agree that anything to the contrary notwithstanding this contract may at any time be terminated by either party giving to the other sixty (60) days notice in writing of intention to terminate the same, but in the absence of any such ...