June 29, 2012
WARREN COUNTY TECHNICAL SCHOOL BOARD OF EDUCATION, PLAINTIFF-RESPONDENT,
WARREN COUNTY TECH EDUCATION ASSOCIATION ON BEHALF OF ROSAMARIA PONTORIERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Warren County, Docket No. C-16021-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically June 13, 2012
Before Judges A. A. Rodriguez and Reisner.
Defendant Warren County Tech Education Association (Association) appeals from a December 8, 2011 order permanently restraining arbitration and dismissing the Association's counterclaim against plaintiff Warren County Technical School Board of Education (Board).
The case concerns a grievance filed by a non-tenured teacher, whose employment was terminated on sixty days notice on November 18, 2009, in the middle of the 2009-10 school year. The Association requested a statement of reasons for the dismissal, and the chief school administrator responded with a letter citing the teacher's "insubordination, ineffective classroom performance, inappropriate behavior and demeanor dealing with students and faculty, chronic tardiness and violations of district policy."
The Association demanded arbitration before the Public Employment Relations Commission (PERC), which scheduled the matter for arbitration without deciding whether the matter was grievable or arbitrable. The Board then filed an order to show cause in the Chancery Division seeking to enjoin the arbitration. Both sides agreed the question was whether the mid-term dismissal of a non-tenured teacher was arbitrable.
Relying on Amalgamated Transit Union, Local 880, 200 New Jersey Transit, 200 N.J. 105, 115 (2009), Judge Allison Accurso reasoned that the issue was whether "the reluctant party, here the [B]oard, did agree to arbitrate the grievance," which in this case was a non-tenured teacher's mid-term dismissal. She considered that Article III of the collective negotiated agreement (CNA), governing the grievance procedure, appeared to specifically exclude "a decision by [the] supervisor or Chief School Administrator to request dismissal of a (non-tenured) teacher." The judge reasoned that this exclusion was broader than the one at issue in Mount Holly Township Board of Education
v. Mount Holly Township Education Association 199 N.J. 319, 323 (2009), which excluded from arbitration the non-renewal of a non-tenured employee's contract, as opposed to any dismissal of a non-tenured employee. In that case a non-tenured employee successfully sought arbitration of a mid-contract termination.
The judge also considered that, unlike the contract in Mount Holly and similar cases, the CNA here did not contain a clause specifically entitling all employees to file grievances over a termination for cause. Instead, in the CNA, the Board specifically reserved to itself its managerial prerogative to "suspend, demote, discharge, or take other disciplinary action against employees." Hence, the judge looked to the grievance section of the contract, and concluded that it excluded non-tenured employees from the grievance process. She also considered that the non-tenured teachers' individual contracts specifically allowed the Board to terminate the contracts on sixty days notice.
The judge rejected the Association's argument that the language in the grievance section of the CNA meant only that issues concerning termination of non-tenured teachers must begin with an appeal to the Board and proceed from there to arbitration, rather than going through several lower levels of internal appeals first.
On this appeal, the Association argues that the judge read the CNA too narrowly, and that Article III deems a grievance over the mid-term termination of a non-tenured teacher to be of such importance that the matter must go immediately to the Board, which would be the highest step in the grievance process before arbitration. We disagree.
As Judge Accurso correctly reasoned, to determine whether a dispute is substantively arbitrable, the court must look at the contract to see what matters the employer agreed to arbitrate. Amalgamated, supra, 200 N.J. at 115; Pascack Valley Reg. H.S. Bd. of Educ. v. Pascack Valley Reg. Support Staff Ass'n., 192 N.J. 489, 496-97 (2007). In this case Article III, the grievance section of the CNA, sets forth a five-level grievance and arbitration procedure; level four is a grievance to the Board and level five is arbitration. However, Article III(A), which defines the term "grievance," specifically states as follows:
A decision by [a] supervisor or [a] Chief School Administrator to request dismissal of a (non-tenured) employee shall not be subject to the procedures set forth below, such a request to be referred without delay to the Board. [Emphasis added.]
We acknowledge that "[d]oubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration." N.J.S.A. 34:13A-5.3. However, the language of this arbitration clause is not ambiguous. The term "such a request" clearly refers to a supervisor's or administrator's request to the Board for its approval of a non-tenured teacher's dismissal. See N.J.S.A. 18A:27-4.1a (a board shall remove a non-tenured teacher "only upon the recommendation of the chief school administrator"). It does not refer to the Association's filing of a grievance to the Board under level four of the grievance procedure.
Consequently, we agree with Judge Accurso that the grievance procedure set forth in Article III does not apply to the termination of a non-tenured teacher. See Amalgamated, supra, 200 N.J. at 122 n. 5; Northvale Bd. of Educ. v. Northvale Educ. Ass'n, 192 N.J. 501, 514-15 and n. 6 (2007). Since the Board did not agree to arbitrate dismissals of non-tenured teachers, the judge properly enjoined arbitration. The Association's arguments on this point are without sufficient merit to warrant further discussion here, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Accurso's opinion.
We also agree with the Board's argument that if the teacher wished to challenge the Board's decision terminating her employment for education-based reasons, her remedy was to file an appeal with the Commissioner of Education. "If such a complaint [by a non-tenured teacher] cannot by the terms of the operative contract be resolved by means of arbitration, then its ultimate disposition should follow the course applicable to any other controversy or dispute, namely, by successive appeals to the Commissioner of Education and the State Board of Education." Winston v. Board of Education, 125 N.J. Super. 131, 141 (App. Div. 1973), aff'd o.b., 64 N.J. 582 (1974); see N.J.S.A. 18A:6-9. Judge Accurso therefore correctly dismissed the Association's counterclaim seeking to litigate the merits of the non-renewal in the trial court.
© 1992-2012 VersusLaw Inc.