On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-109-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Defendant Pleasantville Education Association (PEA) appeals from a November 20, 2008 order, which granted the request of plaintiff the Pleasantville Board of Education (Board) to vacate an arbitration award, thus denying plaintiff's request to confirm the award. The arbitration hearing was held to review the PEA's challenge to a reduction in force (RIF) notification, ordered by John Deserable, appointed as the state monitor of the Pleasantville School District (the District), pursuant to the School District Financial Accountability Act (Act), N.J.S.A. 18A:7A-55 to -60. The RIF terminated twenty-two non-tenured special education aides. Defendant argues the trial court erred in vacating the arbitration award. We affirm.
The PEA and the Board are parties to a 2004-2007 Collective Negotiation Agreement (the agreement), which commenced in July 2004 and remained in effect until June 2007. In Article 3, the agreement contained a specific multi-step grievance procedure to be followed in the event of an "alleged . . . violation of th[e] [a]greement."
During the 2006-07 school year, the District employed ninety-one special education aides. The PEA asserts the Board notified all ninety-one aides of their proposed continued employment for the 2007-08 school year. In March 2007, Deserable was appointed by the Commissioner of Education to "provide direct oversight of [the Board's] business operations and personnel matters[.]" N.J.S.A. 18A:7A-55(a). In May 2007, the District's Superintendent and Deserable recommended the RIF to reduce the District's overall expenditures. See N.J.S.A. 18A:28-9. Despite the proposed layoffs, the District would continue to satisfy the requirements of the Individuals with Disabilities Act, 20 U.S.C.A. § 1400, which regulates the number of aides a school district must provide in its special education programs.*fn1
The Board rejected the RIF recommendation. Relying on N.J.S.A. 18A:7A-55(b)(5), Deserable ignored the Board's resolution and implemented the RIF, advising the aides their employment would terminate on August 23, 2007.*fn2
On behalf of the aides, the PEA filed a verified complaint and order to show cause in the Law Division on August 27, 2007, seeking to restrain Deserable from participating in the Board's closed sessions and challenging Deserable's authority to terminate the aides. The PEA acted as the majority representative of the affected employees, as allowed by Article 3.H of the agreement. As such, the PEA also challenged the RIF by instituting grievance proceedings under the agreement, asserting there was no "just cause" for termination of the aides.*fn3
The grievance was first presented to the Superintendent, who denied the PEA's request. The matter was next heard by the Board, which reversed the Superintendent's denial and ordered reinstatement of the aides. Deserable exercised his statutory authority by declaring the Board's action "null and void." Two days later, at the PEA's suggestion, the aides reported to work. The Assistant Superintendent told them to "go home" as they had not been reinstated.
The PEA then initiated the fourth step in the contractual grievance procedure and filed a request with the Public Employees Relations Commission (PERC) for commencement of binding arbitration to settle the dispute, as provided in Article 3.C.5(a) of the agreement. The parties to the arbitration were the PEA and the Board. PERC appointed Frank Cocuzza as the arbitrator.
Meanwhile, in the Law Division matter, Judge Armstrong, in a March 5, 2008 written opinion, dismissed the PEA's complaint, which she interpreted as a constitutional challenge to Deserable's appointment as a monitor under the Act. Judge Armstrong found the appointment constitutional and transferred the matter to the Department of Education (Department) for "whatever departmental disposition, if any, may be appropriate." The record contains no information showing further action was pursued before the Department.
On April 30, 2008, Cocuzza conducted the arbitration hearing. The PEA and the Board stipulated the issue for determination as follows:
Did the District and/or the school administration have just cause for the termination of the 22 Aides (List attached) for the 2007-2008 school year ...