December 21, 2011
SALEM COMMUNITY COLLEGE, PLAINTIFF-APPELLANT,
SALEM COMMUNITY COLLEGE SUPPORT STAFF ASSOCIATION AND WILLIAM BROWN, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2011
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 or the President under governing laws and regulations as set forth in the laws of the State of New Jersey and the United States.
On April 20, 2009, in response to the Board's April 14, 2009 termination letter, the Association submitted a Level One grievance to Watkins on Brown's behalf, contending the "just cause" provision of Article IV-C was violated because "[t]he action taken by the Board . . . in terminating . . . Brown's employment is without cause and unwarranted." The Association sought Brown's reinstatement to his former position with no loss in pay. Brown's Level One, Two and Three grievances were denied, culminating in the Level Four grievance he filed with the Board on June 10, 2009. On June 26, 2009, the Board denied Brown's grievance, finding no violation of Article IV-C, and further finding that the decision to terminate Brown's employment was "not subject to the grievance/arbitration procedure."
On July 29, 2009, the Association filed with the Public Employees Relations Commission (PERC) a request for the appointment of an arbitrator. Shortly thereafter, PERC designated an arbitrator, and notified the parties accordingly. The College dismissed the scope of negotiations petition it had filed with PERC after the parties agreed that the College instead would file a complaint in the Law Division to resolve the issue of whether the Board's April 14, 2009 decision was arbitrable. The College's verified complaint alleged "[t]here has been no violation of the Agreement and Mr. Brown's termination of employment is not subject to the grievance/arbitration procedure." The College sought a declaratory judgment that Brown's termination was not a breach of the Agreement, and a judgment restraining arbitration of Brown's termination. The Association and Brown filed a verified answer and counterclaim seeking the dismissal of the College's complaint and the return of the case to arbitration before the arbitrator.
In the fall of 2010, the parties cross-moved for summary judgment. At the conclusion of oral argument on October 29, 2010, the judge granted the Association's and Brown's motion for summary judgment, thereby remanding the matter to arbitration. The judge also denied the Board's summary judgment motion. The judge reasoned:
The dispute in this case concerns whether, as a result of negotiation, a grievance on behalf of the particular employee lies within the scope of the arbitration clause, specifying what the parties have agreed to arbitrate, thereby raising issues of "substantive arbitrability."
Well, when I look at the contract, I don't see non-renewals covered as an arbitrable claim. . . . [But there is] a history of reprimands and then within a month's time and on the heels of those reprimands, [the Board issues] a non-renewal and it looks like they, arguably, you could say that [the Board is] using the non-renewal as an opportunity to now effectively discipline, terminate the guy and to remove him.
The question is, is a disciplinary non-renewal something that could be subject to arbitration, depending on what the collective bargaining agreement says?
And it seems to me that the presumption [in favor of arbitrability] of the statute [N.J.S.A. 34:13A-5.3] says that . . . if there's any question, . . . if you get to the point . . . where you're arguing and debating the pros and cons, that's not for you to do, that's for the arbiter.
If there's a material fact in issue that you have to decide between here, the use of the word termination by the Board and the President, then that's not for you to decide.
That really has to be something for the arbiter to decide. That the presumption, the effect of the presumption statute is to say you have to give all benefits of the doubt to the union.
It seems to me that this case comes down to the use of the word termination. What do they mean by that? What were they doing when they utilized that term consistently?
Never . . . used the term ["]we're not going to renew your contract.["] [Instead, the Board said] ["]We are terminating you.["] I have a [published] case that says termination is not synonymous with non-renewal. . . .
But when I have a case that actually says termination is not synonymous with non-renewal and I have consistent use of the word termination, and what does termination suggest to me? Discipline. And where do I see the word discipline or reprimand or those words? Well, it's in [the] contract.
And now . . . I'm back in the just cause provision that says you're entitled to arbitration and I've got a statute that says the presumption that if you have that situation, there is arbitration.
And if I have to decide, was this a termination or was it a non-renewal, now cases have told me you're in an arena you're not supposed to be in. That's for the arbiter to decide.
So in the final analysis, I think the Board . . . and the President created their own problem by use of the word terminate and that creates a material fact.
That once I say and I ask the question what does that mean, that tells me what the answer is; that this is an arbitrable case.
The judge signed a confirming order on October 29, 2010.
When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
On appeal, the Board argues that its decision not to renew Brown's employment for the 2009-10 school year is not subject to arbitration because the "just cause" provision in Article IV-C of the Agreement is silent on the right to arbitrate a determination of "non-renewal" for "a fixed term, non-tenured, non-certificated employee" such as Brown. The College contends that Brown was not disciplined, reprimanded or reduced in rank or compensation; therefore, the "just cause" provision was inapplicable and the matter should not be arbitrated.
The Association and Brown argue the "just cause" provision in the Agreement applies to the disciplinary termination of Brown's employment, and they are entitled to challenge his termination through arbitration. They contend that because the dispute over Brown's termination is subject to different interpretations under the Agreement, the matter should be subject to arbitration.
"Arbitration is a favored means of resolving labor disputes." Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support Staff Ass'n, 192 N.J. 489, 496 (2007) (citation and internal quotation marks omitted). "[F]or purposes of determining whether a particular dispute is arbitrable, there remains a distinction between questions of substantive arbitrability, to be resolved by a court, and questions of procedural arbitrability,*fn1 which generally fall within the scope of the arbitrator's authority." Ibid. Consequently, if the question to be decided is "whether the particular grievance is within the scope of the arbitration clause specifying what the parties have agreed to arbitrate," the matter is one of substantive arbitrability "for a court to decide." Ibid. (citation and internal quotation marks omitted).
"To determine a question about substantive arbitrability, a court need only decide 'whether the party seeking arbitration is making a claim which on its face is governed by the [CBA].'" Amalgamated Transit Union v. N.J. Transit Bus Operations, Inc., 200 N.J. 105, 115 (2009) (quoting Standard Motor Freight, Inc. v. Int'l Bhd. of Teamsters, 49 N.J. 83, 96 (1967)). As the Court observed in Amalgamated:
[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. . . . [T]he judicial inquiry . . . must be strictly confined to the question [of] whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. [Ibid. (emphasis omitted) (quoting Standard Motor Freight, supra, 49 N.J. at 96).]
Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator[.]'" Ibid. (quoting United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403, 1407 (1960)). Once the judge determines that the particular grievance, on its face, requires arbitration, the judge should go no further, and should not reach the merits of the controversy or interpret the provisions of the collective negotiations agreement. Id. at 118-19.
In 2006, the Legislature amended a portion of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -30 (the Act), by establishing a statutory presumption in favor of arbitration. In relevant part, the statute in question 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. [N.J.S.A. 34:13A-5.3 (emphasis added).]
It was this statute upon which the judge relied in ruling in favor of Brown and the Association.
In support of its argument that its April 14, 2009 letter terminating Brown's employment is not arbitrable, the Board relies in large part on Camden Board of Education v. Alexander, 181 N.J. 187, 190 (2004), in which the Court was presented with the question of whether certain custodians and mechanics employed by the Camden school district were entitled to arbitrate the "non-renewal of their appointment under the grievance provision of the applicable collective negotiations agreement[.]" Like the agreement at issue here, the collective negotiations agreement in Camden contained a "just cause" provision stating that no employee could be disciplined or reprimanded without "just cause," and that any challenge to such disciplinary action would be subject to the grievance procedure set forth in the parties' collective negotiations agreement. Id. at 192.
Toward the end of the school year, several employees were warned in writing that due to their excessive absenteeism, disciplinary action might be taken against them, "which may include but not be limited to not being recommended for reappointment for the [upcoming] school year." Ibid. Shortly thereafter, the school board voted not to renew the employees' contracts, causing the employees to seek to arbitrate the board of education's decision. Ibid.
The parties in Camden disagreed on the scope of the grievance language, as the collective negotiations agreement did not "specifically include disciplinary non-renewal, nor . . . specifically exclude that subject." Id. at 196. The employees and their labor union argued that decisions "not to renew" were included in the word "discipline" in the contract's grievance provision, and that their grievance was subject to arbitration, while the school board contended that because the contract did not have "clear and unmistakable language [specifying] that non-renewals would be subject to arbitrator review," the non-renewal decision was not arbitrable. Id. at 196-97.
The Court ruled in favor of the school board. Id. at 208. In concluding that the language of the applicable contract did not require submitting disciplinary non-renewals to arbitration, the Court reasoned that the school board was afforded the managerial prerogative of non-renewal by statute, N.J.S.A. 18A:27-4.1(b). Camden, supra, 181 N.J. at 199-203, 208. That statute, which is confined in its scope to local boards of education, and is not applicable to county colleges such as appellant here, specifically provides that a school board shall renew the employment contract of an employee only upon the recommendation "of the chief school administrator" and only after an affirmative vote of the full membership of the Board. N.J.S.A. 18A:27-4.1(b). The statute also provides that an employee who is not recommended for renewal "shall be deemed non-renewed" and shall be entitled only to a "written statement of reasons for non-renewal" of his or her contract. Ibid.
In concluding that the non-renewal of the employees' contract was not arbitrable, the Court rejected the employees' contention that the non-renewal of their employment was arbitrable because "the Board's determination not to renew the contract was a pretext for discipline." Camden, supra, 181 N.J. at 201. The Court observed that accepting such an argument "would bestow on the non-renewed, poorly performing employee, who claimed he or she was the subject of the supposed 'disciplinary' action, greater rights than those given a competently performing individual whose contract simply was not renewed." Ibid. The Court also pointed to the inherent unfairness of affording to the "poorly performing employee . . . the benefit of a hearing on the 'cause' for termination," while denying the "non-deficient employee, who could not allege a 'disciplinary' motivation on the employer's part," a similar right. Ibid. The Court observed that an employee being disciplined "should be accorded no greater rights than those accorded to a faultless non-renewed employee." Ibid. (citation and internal quotation marks omitted).
In the course of its opinion, the Court cautioned judges to avoid "the slippery slope" of relying too heavily on the phrasing of non-renewal letters. The Court stated:
[W]e observe the slippery slope approached by the lower courts' tacit approval of using supervisory letters alluding to "discipline" as the reason for requiring arbitration of the subsequent non-renewal of a fixed-term contract. We discern no benefit to parties to a fixed-term public employment contract expending time and resources strategizing how to, on the one hand, transform such letters into a justification for a subsequent arbitration about "discipline," and, on the other hand, avoid the use of words in communications by supervisors that could be turned into a justification for a later arbitration of a non-renewal based on an assertion that it concerned "discipline."
By requiring a clear relinquishment in a collective negotiation agreement of a board of education's right not to renew an employee for any non-arbitrary or non-capricious reason, we avoid that type of maneuvering. [Id. at 202.]
Relying upon the Court's admonition that judges should avoid the "slippery slope" created by an excessive reliance on the choice of words used by a board in its letter of non-renewal, ibid., the Board urges us to treat its April 14, 2009 letter of "termination" as the functional equivalent of a letter of non-renewal. Stated differently, the Board urges us to conclude that regardless of the nomenclature used, the Board was exercising its prerogative not to offer a non-tenured employee the opportunity of employment for the upcoming school year. The Board also argues that, as in Camden, id. at 202, 208, a decision not to renew an individual contract at the end of the contract year is not arbitrable even if the employee's conduct would have entitled the Board to impose a sanction of disciplinary termination. In essence, the Board relies on the Court's decision in Camden as support for its argument that the non-renewal of a contract at the end of the school year does not entitle the employee to file a grievance or proceed to arbitration even if the employee's disciplinary file would have justified the imposition of discipline.
Having carefully considered the Board's arguments, we reject its reliance on the Court's decision in Camden for two reasons, the first of which the Board recognized in its brief and during appellate oral argument. Specifically, the Board recognizes that Camden was decided before the 2006 statutory enactment of "a presumption in favor of arbitration," N.J.S.A. 34:13A-5.3. Indeed, the Court noted in Camden that it had never "endorsed a presumption in favor or arbitribility for the public sector." Id. at 203.
A second distinction between the Court's decision in Camden and the matter presently before us is the unequivocal statutory right afforded the local school board in Camden not to renew an employee's contract at the end of the school year, see N.J.S.A. 18A:27-4.1, a right not afforded the Board here. Recognizing this distinction, the Board argues that the provisions of Article XIV lead to the same result as the statute upon which the Court relied in Camden. We do not agree. Article XIV merely confers upon the Board the authority to "supervise and manage the college and its staff," "operate the College and . . . direct the Support Staff," and to "otherwise retain all rights, authority and discretion which are exclusively vested in the Board[.]" The general language of Article XIV falls far short of the highly-specific provisions of N.J.S.A. 18A:27-4.1 upon which the Court relied so heavily in Camden, supra, 181 N.J. at 202-03. For all of these reasons, and largely because of the subsequently-enacted statutory presumption of arbitrability for public employees, N.J.S.A. 34:13A-5.3, we deem the Court's opinion in Camden to be distinguishable.*fn2
The Board also relies on the Court's opinion in Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Association, supra, 192 N.J. at 498-99, in support of its contention that a mid-term termination of employment will generally be deemed a disciplinary termination that the employee has the right to grieve through the arbitration mechanism. The Board urges us to conclude that because Brown was terminated not in the middle of the term as in Pascack Valley, but instead at year's end, we should decline to endorse the trial judge's conclusion that Brown was subjected to a disciplinary termination and was consequently entitled to demand arbitration. While we do not disagree with the Board's implicit argument that a mid-year termination of employment is more likely than an end-of-year termination to be a disciplinary termination, we do not accept the Board's correlative suggestion that the timing of the Board's action regarding Brown is dispositive. Stated differently, we are unwilling to view in isolation the end-of-year timing of the Board's notice that it would not hire Brown for the upcoming academic year, nor are we willing to afford the timing of the Board's decision dispositive weight. In short, the Board's argument overstates the holding of Pascack Valley.
Finally, we deem unpersuasive the Board's contention that the judge's "obsession" with the Board's repeated use of the word "termination" led the judge to reach an erroneous result. We agree with Brown and the Association that the word "termination" is infused with a pejorative connotation that is absent from a "non-renewal" of an employee's appointment at the end of the fixed term.
Had the present dispute arisen before the enactment of N.J.S.A. 34:13A-5.3, we would have no hesitancy in concluding, as the Court did in Camden, supra, 181 N.J. at 201, that the non-renewal of the employment of a poorly performing employee such as Brown at the end of the academic year does not entitle the employee to arbitration where the labor contract limits arbitration to instances of "discipline, reprimand, [or] reduc[tion] in rank or compensation." But the enactment of N.J.S.A. 34:13A-5.3 has effected a marked change in the landscape of employer-employee relations.
The record demonstrates, and we cannot avoid noting that, prior to its decision to "terminate" Brown's contract, all of the College's actions were consistent with building a factual record that would, in any other context, serve as just cause for discipline. Notably, the College issued Brown an unsatisfactory annual performance evaluation on February 17, 2009, and less than a month later served him with a written reprimand when he arrived for work late and left early. Under such circumstances, there is merit to the claim advanced by Brown and the Association that the non-renewal of Brown's contract at the end of the academic year was motivated by a disciplinary animus and should consequently be viewed as a disciplinary termination.
At the same time, there is some validity to the College's claim that Article XIV of the Agreement vested the Board with the non-arbitrable managerial prerogative of terminating an at-will employee such as Brown at the end of the academic year for any reason short of racial or age discrimination, or the like.
Ultimately, the "just cause" provision of the Agreement could reasonably be susceptible to different interpretations, including an interpretation that it applies to a disciplinary termination -- because such termination would constitute "discipline" within the meaning of Article IV-C. Alternatively, the term "termination" could be deemed to lie outside the express language of Article IV-C. As a result of the differing interpretations -- both of which are valid -- then any doubts as to the scope of Brown's arbitral rights should be resolved in favor of arbitration, N.J.S.A. 34:13A-5.3, as the trial judge correctly determined.