On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-165-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Nugent.
The Salem County College Board of Trustees (College or Board) notified one of its employees, respondent William Brown, that the Board had decided to "terminate [his] employment as Campus Operations Specialist" at the conclusion of the 2008-09 academic year. Arguing that the refusal of further employment was a disciplinary termination -- in light of discipline the Board had imposed on him two months earlier -- Brown, and his labor union, respondent Salem Community College Support Staff Association (the Association), sought to arbitrate the April 14, 2009 non-renewal of Brown's employment. The Board resisted the arbitration, arguing that its decision not to renew Brown's employment at the end of the school year was a proper exercise of a managerial prerogative; and was not "discipline, a reprimand, or a reduc[tion] in rank or compensation" that entitled Brown to invoke the grievance procedures of the collective negotiations agreement (Agreement).
We conclude the motion judge was correct when he held that in light of the disciplinary action the Board imposed on Brown only two months before the April 14, 2009 letter of non-renewal, Brown was entitled to arbitrate the question of whether he was terminated without "good cause," especially in light of the statutory presumption that disputes arising under public sector collective negotiation agreements shall be submitted to arbitration. See N.J.S.A. 34:13A-5.3. We affirm.
Salem Community College is a publicly-funded institution of higher education. The Association is the sole and exclusive bargaining representative of the various support staff employees at the College. Brown was hired by the College on April 26, 1996, as a part-time Facilities Assistant, and was appointed as a full-time Campus Operations Specialist on May 1, 1998. Brown has never had a written employment contract with the College, and was not eligible for statutory tenure. From 1998 through 2008, Brown performed his duties to the satisfaction of his supervisor, and was charged with no disciplinary infractions.
However, on February 17, 2009, Brown's supervisor, Bruce Watkins, issued Brown an unsatisfactory annual performance evaluation. The document contained five possible ratings: "1," "poor"; "2," "fair"; "3," "average"; "4," "good"; and "5," "excellent." Of the twenty-two performance criteria contained in the evaluation, Watkins issued Brown a 1 ("poor") on two criteria, a rating of 1.5 ("poor" to "fair") on three others, a 2 ("fair") on five criteria, a 2.5 ("fair" to "average") on two others, and a 3 ("average") on five. Watkins issued a rating of "good" in only one category and circled "n/a" on the remaining four. In the comments section, Watkins wrote:
[Brown's] attitude change[d] when he was put on 2nd shift. I wanted him to make [a] list of repairs and turn them in to me by e-mail. I wanted e-mails at least twice a week with reports on how 2nd shift was going. [Brown] has the knowledge to do a great job but lacks the motivation to do so.
Two weeks later, on March 5, 2009, Watkins notified Brown that Brown had been late for duty on March 4, 2009. Watkins's memorandum, which was placed in Brown's personnel file, stated:
Please be aware your shift starts at 2:00 p.m. and ends at 11:00 p.m.
You clocked in at 2:33 p.m. on 3/4/09 and left at 10:00 p.m. with no lunch.
You are required to take a lunch unless mutually agreed upon by myself. If you could not take a lunch because you did not have coverage please call me in advance, or take your lunch break when you do have coverage.
By letter of April 14, 2009, the Board notified Brown of its decision to terminate his employment as Campus Operation Specialist effective June 30, 2009. The letter, which was signed by Board President Peter B. Contini, Ed. D., stated:
This is to inform you that at the April 14, 2009 meeting of the Salem Community College Board of Trustees my recommendation to terminate your employment as Campus Operation Specialist was approved effective June 30, 2009.
Article IV-C of the Agreement provides that a support staff employee such as Brown is entitled to file a grievance, and pursue binding arbitration, if the Board disciplined, reprimanded, or reduced the rank or compensation of the employee without "just cause." Article IV-C, also known as the "just cause" provision, states:
No employee shall be disciplined, reprimanded, reduced in rank or compensation without just cause. Any such action asserted by the Board, or any agent or representative thereof, shall not be made public and shall be subject to the grievance procedure herein set forth.
A different section of the Agreement, Article XIV, provides that the Board retains the authority to "supervise," "manage" and "direct" the support staff. Article XIV provides:
Subject to the provisions of this Agreement and except as expressly provided otherwise by this Agreement, the Board and the President reserve and retain full rights, authority and discretion in the proper discharge of their duties and responsibilities, to supervise and manage the College and its staff, to determine and administer College policy, to operate the College and to direct the Support Staff, and otherwise retain all rights, authority and discretion which are exclusively vested in the Board ...