On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2936-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
Defendant Freehold Regional High School Custodial and Maintenance Association (Association) appeals from an August 19, 2011 trial court order permanently restraining arbitration, in response to an order to show cause filed by plaintiff Freehold Regional High School District Board of Education (Board). We affirm.
Briefly, in April 2010, the School District issued notices to several Association members, who were non-tenured contract employees, that the Board would not renew their contracts for the coming school year. According to the Association, when asked the reason for the non-renewals, the Board responded that these employees had the worst attendance records of any of its custodial staff. See Marlboro Twp. Bd. of Educ. v. Marlboro Twp. Educ. Ass'n, 299 N.J. Super. 283 (App. Div.), certif. denied, 151 N.J. 71 (1997) (finding that a school board had a non-arbitrable right not to renew a non-tenured employee's contract due to attendance problems). The Association also claimed that the employees whose contracts were not renewed had greater seniority than other employees whose contracts were renewed.
Invoking provisions of the 2009-2012 collective negotiations agreement (CNA or contract) between the Association and the Board, the Association filed a grievance, which eventually proceeded to arbitration before the Public Employment Relations Commission (PERC).
However, before the arbitration hearings commenced, the Board applied to the arbitrator for a temporary stay, which was granted, to allow the Board to file an action in the Law Division for a determination as to whether the matter was arbitrable. Before the trial court, the Association argued that in non-renewing these employees' contracts, the Board had in effect conducted a "reduction in force" and, in doing so, had violated a contract provision requiring that "layoffs" be conducted in reverse order of seniority. Finding that the CNA provision in question did not confer any tenure rights on the contract employees whose contracts were non-renewed, the trial court held that the issue of their non-renewal was not arbitrable under the terms of the CNA. This appeal followed.
Because this case was finally decided on a summary basis, without an evidentiary hearing, our review of the Law Division judge's decision is de novo, considering the factual record in the light most favorable to the non-moving party and according no special deference to the trial court's resolution of purely legal questions. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).*fn1
Determining whether a dispute is arbitrable is a matter of contract interpretation. Therefore, like the trial court, our first task is to determine what the parties agreed to arbitrate. The question of substantive arbitrability - that is, whether the contract involves something the parties agreed to arbitrate - is for the court to decide.
[I]f 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," then it is a matter of substantive arbitrability for a court to decide. On the other hand, if the question is simply one relating to "whether a party has met the procedural conditions for arbitration," it is a matter of procedural arbitrability which has traditionally been "left to the arbitrator."
[Pascack Valley Reg. H.S. Bd. of Educ. v. Pascack Valley Reg. Support Staff Ass'n, 192 N.J. 489, 496-97 (2007) (internal citations omitted).]
However, the court generally should not construe the provision of the contract on which the party claiming arbitration is relying, so long as, "on its face," it concerns the issue which is the subject of the grievance. Likewise, the court is not to consider the underlying merits of an otherwise arbitrable grievance. As we summarized the law:
The duty to arbitrate springs from contract, and the parties can only be compelled to arbitrate those matters which are within the scope of the arbitration clause of their contract. When there is a dispute as to whether a grievance falls within the terms of the arbitration clause of the contract, it is the duty of the courts to determine whether the matter is arbitrable. However, in determining whether a matter is arbitrable, the court is limited to ascertaining whether the party seeking arbitration is making a claim which, on its face, is covered by the contract and within the arbitration clause. The court may not, in any way, pass upon the merits of the actual dispute. If the arbitrator is found to have jurisdiction over a matter, the court must send it to arbitration, even though the court may think the dispute is patently frivolous.
[Clifton Bd. of Educ. v. Clifton Teachers Ass'n, 154 N.J. Super. 500, 503-04 (App. Div. 1977) (citations omitted).] Turning to the contract here, we find that Article III defines an arbitrable "Grievance" in pertinent part as "a claim by a member of the bargaining unit or the Union . . . based upon an alleged violation, misinterpretation or misapplication of the express terms of this Agreement." (emphasis added). That is what the parties agreed to arbitrate.
We are required by N.J.S.A. 34:13A-5.3 to construe this clause broadly, in favor of arbitration:
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 ...