On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Burlington County, Docket No. C-120-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
Defendant Lenape District Support Staff Association (Association) appeals from a January 28, 2009 order granting plaintiff's, the Lenape Regional High School District Board of Education (Board), request to stay arbitration of an employee's grievance submitted by the Association as the employee's representative. Emily Capella, the District Superintendent (Superintendent), informed Michael Gallagher, a non-tenured custodial staff employee, his contract for employment would not be renewed. On Gallagher's behalf, the Association filed a grievance alleging Gallagher's "termination" violated the dismissal procedure set forth in the collective negotiated agreement (CNA) between the Board and the Association. The Board filed a complaint seeking to restrain the arbitration of Gallagher's grievance.
The Chancery judge determined Gallagher's non-renewal fell outside the terms of the CNA and, therefore, was not grievable. As requested by the Board, the court entered summary judgment, permanently restraining the arbitration and dismissing the Association's counterclaim.
On appeal, the Association argues the court erred in applying N.J.S.A. 18A:27-4.1(b) to this matter and ignored the contractual "job security provision" of the CNA. The Association seeks reversal and an order providing for the arbitration of Gallagher's grievance. For the reasons discussed, we affirm.
The facts relevant to our review, presented in a light most favorable to defendant, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. The Association and the Board negotiated the CNA, which commenced in July 2005 and remained in effect until June 2008. Custodial and maintenance employees hold support staff positions covered within the labor unit represented by the Association and subject to the CNA. Article XI.B.2 of the CNA set forth the procedure to be followed prior to the dismissal of custodial employees who have completed a ninety-day probationary work period and "received a written unsatisfactory evaluation in the performance of [their] job assignment." That section provides progressive stages aimed at allowing the employee to improve performance and also states: "Dismissal for job performance shall follow the above procedure. It is specifically understood that the Board has the right and responsibility to take any action deemed necessary in retention and/or non-retention, in matters other than job performance."
Additionally, Article VI contained a specific multi-step grievance procedure for resolution of disputes between the parties under the CNA. Steps three to five of this procedure required the parties to submit the dispute to the Superintendent, the Board and thereafter to binding arbitration.
On January 1, 2007, the Board, at the request of a prior Superintendent, approved Gallagher's hiring as a Shawnee High School custodian. Pursuant to N.J.S.A. 18A:27-1, -3, Gallagher and the Board executed two employment contracts: one for the remaining fiscal year, expiring on June 30, 2007; and the second for the following school year, terminating on June 30, 2008.
On May 5, 2008, the Superintendent wrote to Gallagher, giving him notice his contract would not be renewed for the 2008-2009 school year. Gallagher requested a "statement of reasons," pursuant to N.J.S.A. 18A:27-4.1(b), and was informed his contract was not renewed due to "failure to demonstrate the qualities and attributes of a responsible custodian."
Gallagher appeared before the Board on June 18, 2008, to seek reinstatement. The statute explains "[t]he purpose of the appearance shall be to permit the staff member to convince the members of the board to offer reemployment." N.J.S.A. 18A:27-4.1(b). Thereafter, the Superintendent wrote to Gallagher stating she would not take action as a result of his presentation to the Board.
On June 30, 2008, Gallagher's final day of employment, the Association filed a grievance with the Superintendent pursuant to Article IV.B of the CNA, which states:
No employee who has completed his probationary service . . . shall be suspended, terminated, or reduced in compensation without just cause or as may be modified by Article XI. Any such termination, suspension, or reduction in compensation ...