April 21, 2008
MEDFORD TOWNSHIP BOARD OF EDUCATION, PLAINTIFF-RESPONDENT,
MEDFORD EDUCATION ASSOCIATION AND JAMES BAPTISTE, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-54-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2008
Before Judges Skillman, Winkelstein and LeWinn.
Defendant James Baptiste was employed by plaintiff Medford Township Board of Education (Board) as a custodian. Baptiste was not tenured in this position.
Baptiste had an individual employment contract covering the period from July 1, 2005 through June 30, 2006 under which the Board could terminate him at any time by giving fourteen days notice. The pertinent part of the employment contract stated:
It is hereby agreed by the parties hereto that this contract may at any time be terminated by either party giving to the other, in writing, fourteen (14) days notice of intent to terminate this contract.
Baptiste's employment relationship with the Board was also governed by a collectively negotiated agreement entered into between his union, defendant Medford Education Association (Association), and the Board. That agreement contained a provision prohibiting the discharge of any employee "without just cause" and subjecting any such employment action to the grievance procedures of the contract, which provided in pertinent part:
No employee recognized by this agreement shall be reprimanded, disciplined, reduced in rank or compensation, or deprived of any professional advantage without just cause. . . . Any such action asserted by the Board, or any agency or representative thereof, shall be subject to the grievance procedure[.]
The grievance procedure article of the agreement stated in pertinent part:
A grievance shall mean a claim by a grievant that a loss or injury has been incurred as a result of the misinterpretation or misapplication of the terms of this Agreement, and shall be subject to binding arbitration.
On February 6, 2006, the Board terminated Baptiste, effective immediately. The letter informing Baptiste of this personnel action enclosed a paycheck for what the Board described as "Two Week Notice -- Severance Pay[.]"
The Association filed a grievance challenging Baptiste's termination under the just cause provision of the collectively negotiated agreement, which the Board rejected. The Association then filed a request for arbitration with the Public Employment Relations Commission. The Board responded by filing this action to restrain the arbitration, claiming that the matter was not arbitrable because Baptiste had been terminated pursuant to the fourteen-day notice provision of his individual employment contract.
The case was brought before the trial court by order to show cause. After briefing and oral argument, the court concluded that Baptiste had been properly terminated in accordance with the fourteen-day notice provision of his individual employment contract and entered an order restraining the arbitration.
The Association appealed. We subsequently entered an order staying the appeal until the Supreme Court issued its decisions in Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Association, 192 N.J. 489 (2007) and Northvale Board of Education v. Northvale Education Association, 192 N.J. 501 (2007). After the Court decided Pascack Valley and Northvale, we granted the parties leave to file supplemental briefs addressing those decisions.
In Northvale, the Court affirmed the decision of the Appellate Division by an equally divided three-to-three vote. 192 N.J. at 501. Such a decision "is not entitled to any precedential weight." Abbamont v. Piscataway Twp. Bd. of Educ., 314 N.J. Super. 293, 301 (App. Div. 1998), aff'd, 163 N.J. 14 (1999). Therefore, in considering this appeal, we have focused upon Pascack Valley, which was decided by a unanimous vote.
Pascack Valley also involved a custodian who was terminated by the employer board of education in accordance with his individual employment contract, which was identical to the individual contract involved in this appeal except that it provided for fifteen, rather than fourteen, days notice of termination. 192 N.J. at 492-93. The employment relationship of the custodian involved in Pascack Valley, as in this case, was governed by a collectively negotiated agreement between the custodian's union and the employer board of education. Id. at 491-92. That agreement contained a provision prohibiting the discharge of any employee "without just cause" and subjecting any such employment action to the grievance procedures of the contract. Ibid. The grievance provision of the collectively negotiated agreement involved in Pascack Valley was almost identical to the one involved in this appeal except that it contained an additional sentence, which we consider to be dispositive of this appeal and therefore underscore:
No custodian . . . shall be disciplined, reprimanded, reduced in rank or compensation or deprived of professional advantage without just cause. Any such action asserted by the Board, or any agent or representative thereof, . . . shall be subject to the Grievance Procedure herein set forth. Any dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian . . . be subject to the Grievance Procedure. [Id. at 492 (emphasis added).]
In concluding that the custodian involved in Pascack Valley was entitled to pursue a grievance, including arbitration of his termination for disciplinary reasons, the Court characterized the underscored sentence as "expansive in its scope." Id. at 499. The Court observed that this provision "specified that 'any dismissal' of a custodian would be considered to be a disciplinary action subject to a just cause analysis, and it gave the custodian the option to pursue a grievance and arbitration of 'any dismissal.'" Ibid. Under this provision and another section of the collectively negotiated agreement that is also not included in the agreement between the Board and the Association, the Court concluded that:
[T]he parties agreed that, notwithstanding the terms of the individual contracts and the employer's unfettered right to terminate [the custodian] on fifteen days' notice, where plaintiff did so only as a surrogate for a disciplinary proceeding, the act of termination became an act of discipline that the parties had specifically negotiated and agreed would be grievable at the custodian's option. In so concluding, we see harmony between the terms of the individual contract rights and the CNA's grievance provisions, in particular as they relate to custodians.
Under these circumstances, the use of the individual contract's termination clause was not a termination for 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 section of the collectively negotiated agreement between the Board and the Association prohibiting discharge without just cause and subjecting any such employment action to the grievance procedures of the agreement did not contain the additional provision the Court found to be critical in Pascack Valley -- that "[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian . . . be subject to the Grievance Procedure." Id. at 492. In the absence of this provision or any comparable provision that confers upon an employee subject to an individual employment contract the right to grieve a termination in accordance with the terms of that contract, we conclude that the Board was entitled to terminate Baptiste on fourteen days notice without showing just cause or having its termination decision subject to the grievance procedures of the collective negotiating agreement.
Although Baptiste's termination was made effective immediately rather than on fourteen days notice and thus did not conform with the literal term of the termination provision of his individual employment contract, he was given two weeks severance pay upon his termination. Thus, the only difference between the terms of Baptiste's termination and a termination in strict conformity with his individual contract is that Baptiste received his last two weeks of compensation without being required to perform any work for those two weeks. Therefore, we are satisfied Baptiste was terminated in substantial conformity with the terms of his individual employment contract.
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