May 8, 2009
FREEHOLD REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION, PLAINTIFF-RESPONDENT,
NEW JERSEY EDUCATION ASSOCIATION AND MARYANN LIPMAN, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-373-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 9, 2008
Before Judges Wefing, Yannotti and LeWinn.
Defendants appeal from the March 2, 2007 order of the Chancery Division, which restrained arbitration of the Freehold Regional High School District Board of Education's (Board) decision not to renew Maryann Lipman's employment contract as a school bus driver. For the reasons that follow, we affirm.
The factual background may be briefly summarized as follows.*fn1 Lipman began her employment with the Board as a school bus driver on September 1, 1998. Her employment was governed by a contract that had to be renewed at the end of each school year. The contract was subject to a collective negotiated agreement (CNA) that reserved the Board's right to terminate its employees for just cause during the employment term. In addition, the Board had expressly adopted a policy conferring upon it the complete discretion not "to offer reemployment... [to] a support staff member who was not recommended for reemployment by the Superintendent," as authorized by N.J.S.A. 18A:27-4.1. The CNA provided a grievance procedure for disciplinary matters; however, neither Lipman's employment contract nor the CNA contained an arbitration clause.
Beginning in 1999, and continuing throughout Lipman's employment, the Board received complaints of her driving at high rates of speed, for which the Board gave her "repeated warnings." Despite these concerns regarding her speeding, Lipman received ratings of "satisfactory" on her performance reviews for the years 2000 through 2005. However, her June 8, 2005 performance evaluation stated that she needed to "[c]ontinue to monitor [her] speed to assure no further concerns are lodged."
Thereafter, a parent filed complaints with the Board regarding defendant's excessive speed on December 20 and 22, 2005 and January 3, 2006; this parent also filed a police report on December 22, 2005. On January 2, 2006, Christopher D'Arcy, the Board's Director of Transportation, informed Lipman that she was suspended with pay pending an investigation into the speeding allegations. At the conclusion of the investigation on January 23, 2006, D'Arcy told Lipman that she would be suspended without pay for five days because of her speeding. The New Jersey Education Association (Association) appealed the five-day suspension on Lipman's behalf, and the matter was referred to arbitration.
In April 2006, while that arbitration was pending, Lipman's performance review indicated that she needed improvement in many areas, including speeding and "[w]orking [r]elationships" with pupils and parents. On April 18, 2006, the Superintendent, James Wasser, informed Lipman that he would "not be recommending [her] for reappointment for the 2006/2007 school year." On April 25, 2006, the Board informed Lipman that her contract would not be renewed.
Lipman filed a written grievance on April 27, 2006, which the Board denied on May 4, 2006. On July 6, 2006, the Association filed a demand for arbitration of Lipman's non-renewal with the Public Employment Relations Commission (PERC) on the ground that she was terminated without cause. PERC assigned an arbitrator; however, this arbitration was delayed pending the outcome of the arbitration of Lipman's five-day suspension in January 2006.
On December 1, 2006, the Board filed an order to show cause in the Chancery Division to restrain arbitration of Lipman's non-renewal on the basis that "defendants are barred from arbitrating [non-renewal] decisions, because appointments to, and non-renewals of, non-certified, non-tenured positions are substantively and contractually not arbitrable." The Board claimed further that "defendants do not have a right to arbitrate the Board's decision not to renew the annual appointment of a school bus driver under the parties' contract or as a matter of exercising a statutory right."
In opposition, Lipman claimed that "disciplinary personnel actions, such as the non-renewal decision affecting [her], are appropriately submittable to binding arbitration under a broad 'just cause' contract provision."
The trial judge held that the CNA did not provide for arbitration of defendant's non-renewal, and that the statutory right to arbitration for disciplinary matters applied only during the term of the CNA. Because non-renewal was outside of the fixed term of the CNA, the judge concluded that the right to arbitration did not apply here. The judge noted that the CNA was clear and unambiguous and did not provide for arbitration in this instance, and that the only recourse for a non-renewed employee was the right to be informed of the reasons for the non-renewal.
On appeal, defendants present the following arguments for our consideration:
RECENT LEGISLATION AND JUDICIAL DECISIONS ESTABLISH THAT DISPUTES RELATING TO THE DISCIPLINARY NONRENEWAL OF CONTRACTS OF EMPLOYMENT AFFECTING SUPPORT STAFF, INCLUDING BUS DRIVERS, ARE APPROPRIATELY SUBMITTABLE TO BINDING ARBITRATION
SCHOOL SUPPORT STAFF WHO ARE INELIGIBLE FOR STATUTORY TENURE, INCLUDING SCHOOL BUS DRIVERS, ARE LEGALLY ENTITLED TO NEGOTIATE COLLECTIVELY FOR JOB SECURITY, INCLUDING A PROHIBITION AGAINST BEING DISCIPLINED WITHOUT JUST CAUSE
MARYANN LIPMAN IS COVERED BY A COLLECTIVE NEGOTIATIONS AGREEMENT THAT PROVIDES SUPPORT STAFF, INCLUDING BUS DRIVERS, WITH THE RIGHT TO ARBITRATE DISCIPLINARY ACTIONS INCLUDING THE NONRENEWAL OF AN EMPLOYMENT CONTRACT POINT IV: THE APPLICATION OF THE FOUR FACTORS CITED BY THE BOARD OF EDUCATION THAT ARE UTILIZED BY THE COURTS WHEN CONSIDERING APPLICATIONS TO RESTRAIN ARBITRATION MANDATE THE CONCLUSION THAT THE INSTANT MATTER RELATES TO THE DISCIPLINARY NONRENEWAL OF AN EMPLOYMENT CONTRACT THAT MAY BE THE SUBJECT OF BINDING GRIEVANCE ARBITRATION N.J.S.A. 18A:27-4.1(b) provides the remedies available to a non-tenured school employee whose contract is not renewed. The employee must be informed of the reasons for the non-renewal and must be given the opportunity to appear before the Board to argue for renewal. Nowhere in the statute is a non-tenured employee afforded the right to arbitrate non-renewal.
Here, the Board expressly adopted this statutory directive as a matter of policy. Appended to the parties' CNA is a document captioned "Policy 4146: Non-renewal of Non-tenured Support Staff Employment Contracts," which provides in pertinent part:
The Board will renew the employment contract of a non-tenured support staff member only upon the recommendation of the Superintendent and by a recorded roll call majority vote of the full membership of the Board. The Board will not withhold its approval for arbitrary and capricious reasons. A non-tenured support staff member who is not recommended for renewal by the Superintendent is deemed non-renewed....
The support staff member whose contract is not renewed has the right to a written statement for the reasons for non-renewal.
The Board will also provide any non-tenured support staff member with an opportunity to meet informally with the Board....
The Board is not required to offer reemployment or vote on reemployment after an informal hearing with a support staff member who was not recommended by reemployment by the Superintendent.
Defendants argue that N.J.S.A. 34:13A-5.3 creates a presumption in favor of arbitration. That statute provides:
In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration.
However, a court cannot write an arbitration clause into a contract where one does not exist. Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support Staff Assoc., 192 N.J. 489, 497-98 (2007). In Pascack, the parties' agreement provided that "non-tenured school employees may only be disciplined for just cause and... defined any dismissal as a disciplinary action subject to the grievance procedures at the employees' option...." Id. at 491.
By contrast here, the CNA has no such provision regarding the non-renewal of non-tenured employees such as Lipman. For this reason, we consider defendants' reliance upon N.J.S.A. 34:13A-5.3 to be misplaced. The statutory reference to the "scope of an arbitration clause" presumes such a clause appears in the agreement.
The fact that Lipman's five-day suspension in 2006 was arbitrable is not inconsistent with this conclusion. That suspension constituted an "imposition of... discipline... [that was] deemed to require binding arbitration[,]" pursuant to N.J.S.A. 34:13A-29(a). By contrast, despite defendants' assertions to the contrary, non-renewal is not a disciplinary action and, therefore, not subject to arbitration.
Any possible ambiguity is immediately resolved by reference to the Board's Policy 4146. That policy is consistent with N.J.S.A. 18A:27-4.1, which confers authority on the Board "not... to offer reemployment... [to] a support staff member who was not recommended for reemployment by the Superintendent." Here, the Superintendent of the school district, notified Lipman by letter dated April 18, 2002, that he would "not be recommending [her] for reappointment for the 2006/2007 school year." Consistent with the Board's Policy 4146, the Superintendent offered Lipman the "opportunity to meet informally with the Board," to discuss the "reasons for [her] non-renewal."
Defendants point to several provisions in the CNA which, they claim, support their argument that non-renewal is subject to arbitration, including: Article V, Section 3 (Employee Rights), which protects employees from "be[ing] reduced in rank or compensation without just cause"; Article XV, Section 1.A. (Seniority Job Security), which provides that a bus driver can only lose seniority if he or she "[r]esigns or is discharged for cause[,] irrespective of whether he/she is subsequently rehired by the school district"; and Article XVI, Section 3 (Conduct of Drivers), which requires transportation employees to attend ten hours of drivers' safety training and provides that "[f]ailure to comply will result in an employee not be recommended for rehire." Defendants assert that this last provision provides the "only... specific contractual basis for the non-renewal of a bus driver's contract."
We reject these arguments. The first two provisions cited pertain to discipline during the course of employment and not to non-renewal. Such disciplinary acts would trigger the grievance procedure in the CNA which, as noted, requires mandatory arbitration under N.J.S.A. 34:13A-29. Defendants' interpretation of the third provision is inconsistent with the Board's policy adopted pursuant to N.J.S.A. 18A:27-4.1, which preserves the Board's right not to renew non-tenured employees' contracts. Lipman was "non-renewed" at the end of her 2005-2006 contract; that termination did not constitute discipline in the course of her employment.
Defendants' remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).