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Freehold Regional High School District Board of Education v. New Jersey Education Association

May 8, 2009

FREEHOLD REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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