The parties agree that that statute does not pre-empt them from contractually granting greater protection to fixed-term employees by subjecting nonrenewals to a just cause requirement, and submitting nonrenewal grievances to binding arbitration. This case is about whether the parties, in fact, did negotiate for arbitration to apply in this nonrenewal setting.
As members of Local 1079 Custodial and Maintenance Employees of the Communications Workers of America, AFL-CIO, defendants were protected by the CNA negotiated by the union. Articles IV and X of the CNA provide:
Article IV: Employee Rights
A. No employee shall be disciplined or reprimanded without just cause. Any such action asserted by the Board, or any agent or representative thereof, shall be subject to the Grievance Procedure [providing for arbitration] . . . .
Article X: Board Rights
C. The Board, subject only to the language of this Agreement[,] reserves to itself full jurisdiction and authority over matters of policy and retains the right, in accordance with applicable laws and regulations.
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b. to hire, promote, transfer, assign and retain employees in positions within the School District, and to suspend, demote, discharge or take other disciplinary action against employees.
Toward the end of the 1999-2000 school year, each defendant received from a supervisor a letter warning that due to excessive absenteeism, “disciplinary action maybe [sic] taken which may include but not be limited to not being recommended for reappointment for the 2000-2001 school year.” Thereafter, on the recommendation of the chief school administrator, the board voted not to renew defendants’ appointments. The board permitted defendants to appear and to be heard prior to its vote. See N.J.S.A. 18A:27-4.1b. Each defendant not renewed for the 2000-01 school year then sought to arbitrate the merits of his nonrenewal under the CNA’s grievance procedures.
Although the board and union agreed to waive the preliminary steps of the CNA’s grievance procedure and to proceed directly to the arbitration stage of Article III, the board nonetheless preserved the issue of arbitrability. The board sought to restrain the arbitrations, initially before the commissioner of the Department of Education, and thereafter in Superior Court. The Appellate Division affirmed, with modification, the Law Division’s refusal to restrain arbitration. 352 N.J. Super. 442, 450 (2002).
II. Unlike private-sector employees, public employees are not given the right to “bargain collectively.” N.J. Const. art. I, � 19. Public employees instead may engage in collective negotiations.
The issue here is whether the parties negotiated to provide for arbitration of the nonrenewal of fixed-term employees. That issue is a legal question of contract interpretation for a court to decide: has the CNA made this public-sector dispute substantively arbitrable?
The board may nonrenew a noncertificated employee for any reason that is not arbitrary or capricious. N.J.S.A. 18A:27-4.1. As long as the reason for nonrenewal is not arbitrary or capricious, the nonrenewal is both valid and unassailable. Absent a specific agreement to the contrary, 18A:27-4.1 governs the relationship between the parties.
As a general matter, legislative and other regulatory enactments are “a silent factor in every contract[, and p]arties in New Jersey are likewise presumed to have contracted with reference to the existing law.” Silverstein v. Keane, 19 N.J. 1, 13 (1955). In the public-sector employment context, however, statutory and regulatory provisions serve as more than mere “gap-fillers.” Where, as here, a statutory provision confers a prerogative on the public employer in respect of the nonrenewal of fixed-term staff, a waiver of that legislatively conferred prerogative should be unmistakable. Thus, the question is whether the CNA is specific enough to bring about, in effect, a waiver of the board’s authority under N.J.S.A. 18A:27-4.1b in respect of decisions concerning the renewal of its fixed-term employees.
III. A. The CNA’s language does not specifically include disciplinary nonrenewal, nor does it specifically exclude that subject. Defendants essentially argue that the contract provides that decisions not to renew would be rendered implicitly subject to a good-cause requirement by the inclusion of the word “discipline” in the CNA’s grievance provision; and that, therefore, any form of disciplinary nonrenewal should be subject to arbitral review. The board contends that such an interpretation rewrites the CNA, contravening the principle that there must be clear and unmistakable language in the contract that nonrenewals would be subject to arbitrator review before a waiver of the board’s rights under 18A:27-4.1b can be found. Stated differently, the CNA’s language must be more specific to override 18:27-4.1b.
In a matter closely resembling this appeal, the Appellate Division considered whether a fixed-term employee’s allegedly disciplinary nonrenewal was subject to arbitration because the pertinent collective negotiations agreement made “discipline” subject to arbitration. See Marlboro Twp. Bd. of Educ. v. Marlboro Twp. Educ. Ass’n, 299 N.J. Super. 283, 286-87 (holding that nonrenewal of bus driver who had excessive absences over long period was not subject to grievance procedure), certif. denied, 151 N.J. 71 (1997). The court held that it would not “rewrite” the contract to provide for arbitration in the context of the board’s right to nonrenew its fixed-term employee when clear language to that effect was not present in the collective negotiation agreement.
In another case, the Supreme Court of New Hampshire similarly held that grievance language employed in the collective agreement between a school board and union (specifically, a reference to “discipline” and “discharge” of employees) was not specific enough to override a New Hampshire statute giving the school board authority not to renominate probationary teachers. Appeal of Westmoreland Sch. Bd., 564 A.2d 419, 422-23 (1989).
Just as those courts determined in the above cases, it appears from a fair review of the language of the CNA that nonrenewals, disciplinary or not, were not implicitly made subject to arbitral review. The CNA’s language does not convey a clear waiver of the board’s rights in respect of nonrenewals conferred by 18A:27-4.1b. A waiver would have been accomplished had the agreement included specific language to that effect, such as that included in a public-sector negotiated agreement reviewed by the Supreme Judicial Court of Massachusetts that stated: “No teacher will be disciplined, reprimanded, reduced in compensation, suspended, demoted, dismissed or nonrenewed without just cause.” Sch. Comm. of Natick v. Educ. Ass’n of Natick, 666 N.E.2d. 486, 487 (1996). Having not included such language, despite all parties’ (the board and union) awareness of 18A:27-4.1b, this matter is not deemed arbitrable under the terms of this CAN.
To arrive at defendants’ interpretation of the CNA, either words must be added to it (i.e., “nonrenewed” in Article IV), or the contractual language (here, “discipline”) must be taken “too far out of context to conclude the parties intended to arbitrate this dispute.” Westmoreland, 564 A.2d at 423. The same goes for the term “layoff,” which connotes involuntary dismissal during the term of a contract, and is not applicable to the nonrenewal of a particular employee’s appointment at the end of a fixed term. Contractual language such as that used in Natick, 666 N.E.2d. at 487, was available to the parties; yet, their negotiated agreement does not include the necessary specificity to subject nonrenewal of fixed-term employees to arbitral review.
Held: Given the statutory backdrop against which the parties’ negotiation occurred, more was necessary to effectuate clearly and unmistakably a waiver of the board’s authority under N.J.S.A. 18A:27-4.1b. In this public-sector employment dispute, a court should not deliver by fiat what was not obtained through negotiation.
(Many of the decisions cited by the dissent do not involve, as here, the interplay of a collective negotiation agreement with a statute that speaks directly to the disputed action. Further, at least one of those decisions, Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass’n, 253 N.W.2d 536, 545 (Wis. 1977), supports the holding here, in that the grievance provision of the collective bargaining agreement included the terms “discharge and nonrenewal,” and, thus, specifically applied to a dispute over the nonrenewal of certain probationary teachers.
B. In addition, were the Court to presume that this CNA meant to allow a nonrenewed, fixed-term employee access to arbitral review based on a theory that the board’s determination not to renew the contract was a pretext for discipline. That access would bestow on the nonrenewed, 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. The poorly performing employee would have the benefit of a hearing on the “cause” for termination. A nondeficient employee, who could not allege a “disciplinary” motivation on the employer’s part, would not.
Notwithstanding that reasons pertaining to discipline or poor employment performance allegedly motivated the nonrenewal recommendation, the act of nonrenewal remains a prerogative of the board pursuant to 18A:27-4.1. Thus, although plaintiffs reasonably might contend that issuance of the warning letters was subject to being grieved, the act of nonrenewal itself, and the governing CNA language, does not make nonrenewal subject to arbitration. When analyzing the reach of the CNA’s language, the Court looks only to the face of the contract.
In sum, the board is entitled to depend on the authority the Legislature conferred on it, subject to constitutional limitations, unless its statutory right can be and, explicitly, has been negotiated away. Arbitration is a voluntary device. Requiring that nonrenewal be clearly and unmistakably subjected to arbitration under the terms of a collective negotiation agreement properly respects the board’s statutory prerogative over decisions concerning the nonrenewal of fixed-term contracts of employment.
IV. In the absence of a clear inclusion of acts of nonrenewal in the grievance procedure’s reach, the dissent contends that another principle requires that the Court assume in its analysis an intention to make nonrenewal subject to arbitral review. The dissent argues that an overriding presumption in favor of arbitrability, stemming from the “Steelworkers Trilogy, must provide a gloss to our implementation of the language agreed to by the parties. ” See United Steelworkers of Am. v. American Mfg. Co., 80 S.Ct. 1343 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 80 S.Ct. 1347 (1960); United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 80 S.Ct. 1358 (1960). These same principles later were reaffirmed in AT&T Technologies v. Communications Workers, 106 S.Ct. 1415 (1986). However, our Court never “adopted” in full the “Steelworkers Trilogy”; specifically it has not endorsed a presumption in favor of arbitrability for the public sector. Conversely, the Court expressly has approved such a presumption for private-sector bargaining.
Each of the decisions of the “Steelworkers Trilogy,” as well as AT&T, were all private-sector employment disputes. In that setting, the “Steelworkers Trilogy” enunciated four principles: (1) “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” AT&T, 106 S.Ct. at 1418; (2) the question of substantive arbitrability is “undeniably an issue for judicial determination . . . unless the parties clearly and unmistakably provide otherwise,” id. at 1418; (3) “in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims [including] determining whether there is particular language in the written instrument which will support the claim,” id. at 1419; and (4) “where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage . . . . Such a presumption is particularly applicable where the clause is . . . broad.’” Id. at 1419.
In Bloomfield, which this Court affirmed without discussion in a per curiam opinion, the Appellate Division delineated how the “Steelworkers Trilogy” principles should apply in a public-sector setting. The first three principles of Bloomfield functionally mirror the first three principles of the “Steelworkers Trilogy.” Notably absent from Bloomfield‘s articulation of the fourth principle of the “Steelworkers Trilogy” is the “presumption” of arbitrability, i.e., that an order to arbitrate the particular grievance should not be denied unless it may be said with positive reassurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. Bloomfield contains no such language. The Bloomfield court’s failure to adopt the presumption significantly reflects a decision not to harmonize fully New Jersey public-sector arbitration jurisprudence with federal private-sector arbitration jurisprudence.
The approach in Bloomfield, in that respect, coincides with that taken in other jurisdictions. Notable is the decision of the New York Court of Appeals in Board of Education of Watertown City School District v. Watertown Education Association, 710 N.E.2d 1064 (N.Y. 1999).
In this area of the law, cases are factually varied; thus, distinguishing features must be taken into consideration when assessing the value of out-of-state cases. For example, the dissent discusses at length Kaleva-Norman-Dickson School District No. 6 v. Kaleva-Norman-Dickson School Teachers’ Association, 227 N.W.2d 500, 501 (Mich. 1975), which dealt with a probationary teacher who was informed in writing by the local board of education that her contract would not be renewed for the following year. That decision involved an arbitration provision much more broadly worded than the one here. The decision also relied heavily on a presumption in favor of arbitrability. However, as discussed, such a presumption has not been adopted in the public sector, and certainly has not been applied in the context of a narrow arbitration provision in a public-sector collective negotiations agreement.
Thus, applying the second step in to public-sector contract arbitrability questions in this matter requires a court to assess the CNA’s language to determine whether it reasonably can be interpreted to have required nonrenewals to be subject to arbitrator review for good cause. The CNA’s inclusion of the word “discipline” in its grievance procedure does not support such an interpretation, and does not require arbitration of nonrenewals of fixed-term employees.
V. The board has the statutory right to renew, or not, a fixed-term employee for nonarbitrary and noncapricious reasons without being subject to review of that decision by an arbitrator. The CNA is silent about whether the parties intended the board to give up that statutory right. In such circumstances, the CNA did not effectuate a waiver of the board’s nonrenewal right.
The judgment of the Appellate Division is reversed, and the arbitrations are restrained. The arbitration award previously entered is vacated.
Chief Justice Poritz, Justice Verniero and Judge Petrella, temporarily assigned, join in this opinion. Justice Wallace did not participate.
Zazzali, J., dissenting, finds that the majority’s decision represents a departure from well-settled principles and, more troubling, amounts to a departure that steps backward in the otherwise commendable progress the Court has made in establishing fairness in labor-law jurisprudence.
I. Apart from the majority’s rejection of the past and the implications of its holding for the future, the Court denies to 15 Camden custodial and maintenance workers, who have labored for many years for their employer, their right to have a neutral third party decide whether they have a job, knowing full well that at least one arbitrator has determined that the board’s actions were, in fact, disciplinary and might have been undertaken in “bad faith.”
II. N.J.S.A. 18A:27-4.1 governs the appointment, transfer, removal or renewal of officers and employees. The statute does not preclude a board of education from providing employees with additional job protections, such as the right to arbitrate a disciplinary nonrenewal, or from permitting an arbitrator to restore an employee who has been nonrenewed in violation of a collective agreement.
Neither does 18A:16-1 pre-empt negotiating disciplinary nonrenewals or arbitration awards restoring employees who have been improperly disciplined. That statute vests the board with discretion in making its hiring decisions: “Each board of education, subject to the provisions of this title and of any other law, shall employ and may dismiss . . . such principals, teachers, janitors and other officers and employees, as it shall determine . . . .” It does not, however, restrict the board in the exercise of that discretion. Nor can it be said to set forth “expressly, specifically and comprehensively” the terms that may be included in the contracts of nonprofessional employees. Like 18A:27-4.1, N.J.S.A. 18A:16-1 does not preclude the board from affording employees greater job security, including the right to arbitrate a disciplinary nonrenewal, or to allow arbitrators to fashion remedies that restore employees to their former positions when the board improperly terminates an employee.
In short, just-cause protection for the disciplinary nonrenewal of nontenured, nonprofessional public school employees is not pre-empted by statute. Similarly, an arbitration award restoring an employee to his or her position held prior to the imposition of an inappropriate disciplinary penalty is not pre-empted by statute. Accordingly, there is no genuine scope-of-negotiations concern.
III. The majority correctly concludes that this appeal does not present any meritorious scope-of-negotiations issues. Despite its arguments about pre-emption, the board also concedes that negotiability is not at issue.
The question of a dispute’s substantive arbitrability is for the courts to decide. The limited role a court should play while performing a substantive-arbitrability analysis, in both the public and private sectors, is well established in New Jersey. Similarly, out-of-state jurisprudence resoundingly requires that courts considering the substantive arbitrability of public-sector labor disputes favor arbitration and avoid becoming entangled in the merits of arbitration grievances.
Despite the universal applicability of those settled principles, the majority has chosen, without expressing any sound reason for so doing, to eschew almost a half-century of labor jurisprudence and to create a new doctrinal framework for determining the arbitrability of public-sector grievances. The majority’s approach essentially inverts the present test of substantive arbitrability, creating a presumption against arbitration in the public sector absent a “clear[] and unmistakable[]” waiver of statutory authority. This result not only unnecessarily disrupts cardinal principles of labor arbitration, but also contravenes express public-policy determinations advanced by both the legislative and executive branches of government.
A. Article III of the parties’ agreement provides that a grievance shall include “a complaint by an employee or the Union that there has been . . . a personal loss, injury or inconvenience because of a violation, misinterpretation or misapplication of this Agreement.” That provision also provides for binding arbitration as the terminal step of the grievance process. Article IV requires that “[n]o employee shall be disciplined or reprimanded without just cause” and that all disciplinary actions “shall be subject to the Grievance Procedure . . . set forth [in the agreement].” Article XII mandates that all “[l]ayoffs shall be by inverse seniority, with the least senior employee to be laid off first.” The employees raise two distinct arguments with respect to those provisions.
Whether the discipline and grievance provisions in Article IV of the agreement cover disciplinary nonrenewals, whether the nonrenewal decisions of the board were intended to be a form of discipline, and whether the employees were disciplined without just cause are questions for the arbitrator because those questions require the interpretation and application of the contract and, thereby, go to the merits of the underlying dispute.
For similar reasons, arbitration must be permitted to proceed with respect to the alleged violation of Article XII. Because the employees’ complaint alleges a violation of Article XII, and because a violation of that provision would result in a “personal loss, injury or inconvenience” to the employees that is cognizable under the agreement’s grievance provision, that dispute must be submitted to arbitration. It remains for the arbitrator to decide whether the board’s actions constituted a layoff and, if so, whether the board’s reduction in force complied with the seniority provisions of Article XII.
In sum, applying the principles of the “Steelworkers Trilogy” adopted by case law, the Court’s role in this matter is to determine whether the parties agreed to submit disputes over alleged violations, misinterpretations or misapplications of Articles IV and XII to arbitration. Because there is no express exclusion or other forceful evidence suggesting that nonrenewal decisions are not covered by those articles or by the grievance provision of the agreement, the matter should be sent to arbitration. Under the “Steelworkers Trilogy,” determining this dispute’s arbitrability does not allow, much less require, the Court to even consider which party is correct with respect to whether nonrenewal decisions are encompassed within the just-cause provision of the agreement or if the board’s actions constituted a layoff. Those questions are for the arbitrator.
B. Bloomfield explicitly applied the principles of the “Steelworkers Trilogy” to public-sector employees. In this, New Jersey is not unique. In fact, the applicability of “Steelworkers Trilogy” principles to the public sector has been recognized by nearly all state courts that have considered the question.
Several states that have considered the question of substantive arbitrability in circumstances remarkably similar to this appeal have determined that arbitration must be permitted to proceed. The holdings in Kaleva-Norman-Dickson School District No. 6 v. Kaleva-Norman-Dickson School Teachers’ Ass’n, 227 N.W.2d 500, 501 (Mich. 1975); Peninsula School District No. 401 v. Public School Employees of Peninsula, 924 P.2d 13 (Wash. 1996); and Appeal of City of Nashua, School District # 42, 571 A.2d 902 (1990), illustrate how the present dispute should be resolved. In this appeal, a local board of education, acting in full accordance with its rights under the applicable educational statutes, decided not to renew several employee contracts. However, under a collective agreement reached between the board and the nonrenewed employees, the board agreed not to discipline any employee without just cause and to arbitrate any employee grievances regarding alleged “violation, misinterpretation or misapplication” of the collective agreement. When the employees alleged that their nonrenewals constituted discipline, and that they had been disciplined without just cause, a dispute arose regarding whether or not the agreement between the board and the employees covered nonrenewal decisions. In those circumstances, when there is no express provision excluding nonrenewal from the grievance provision of the collective agreement, time-honored and universally recognized arbitration principles that our courts have repeatedly embraced dictate that the Court adhere to the presumption in favor of arbitration and permit the employees’ grievances to proceed. It would then be the arbitrator’s task to determine if, in view of the agreement and all attendant circumstances, including the education laws, the parties agreed to subject disciplinary nonrenewal decisions to a just-cause requirement. To hold otherwise is to deny these employees the benefits of their collective agreement.
The majority’s alternative approach to the question of substantive arbitrability, one that creates a presumption against the arbitrability of a dispute in the public sector unless there has been a clearly expressed intent to abrogate an employer’s statutory rights, has been expressly rejected by New York. Bd. of Educ. of Watertown City Sch. Dist., 710 N.E.2d 1064 (N.Y. 1999).
Prior to today’s decision, New Jersey’s approach to public-sector arbitration was remarkably similar to that prevailing throughout the United States. Until today, a New Jersey court considering arbitrability was limited to determining whether the party seeking arbitration made a claim that, on its face, was covered by the agreement. The presumption lay in favor of arbitration. The majority, however, has chosen to take an opposite approach — effectively taking a step backward in modern arbitration practice — by creating a presumption against arbitration of labor disputes in the public sector.
C. The majority opinion suggests that 18A:17-3, which governs statutory tenure rights for janitorial employees, and 18A:27-4.1b, which concerns the respective roles of a local board and its chief school administrator making personnel decisions, establish the “relative positions” of the parties that must be considered when determining substantive arbitrability. Because custodial and maintenance employees hired for fixed-terms do not enjoy just-cause protection from nonrenewal under those statutes, the majority has denied arbitration. In other words, it has determined that the intent of the parties to arbitrate this grievance is not clear enough in the face of the board’s rights under Title 18A.
To achieve its result, the majority subverts the cardinal principles governing substantive arbitrability. Instead of starting from the presumptive position that disputes arising under arbitration clauses are arbitrable, the majority creates a presumption against arbitrability under collective negotiations agreements in the public sector. The majority posits that arbitration should be permitted only when express language in a collective agreement “clearly and unmistakably” demonstrates that the board has waived its statutory authority concerning nonrenewal. Although that approach is creative, the majority offers no sound reason for such a draconian departure from prior teachings.
Once the court determines that the party seeking arbitration makes a claim that on its face is within the scope of the contract’s arbitration clause, its inquiry is at an end; the underlying question whether the agreement provides the disputed protections presents a merits question that the parties have agreed to resolve through arbitration.
Whether framed as bringing a claim that is covered “on its face” by the contract or as bearing a “reasonable relationship” to the agreement, a dispute implicating the scope of an arbitration provision, and any ambiguity therein, must be resolved in favor of coverage.
To adopt the majority’s more stringent standard of review, one that demands “clear[] and unmistakabl[e]” proof of an intent to arbitrate a particular dispute, essentially requires the court to resolve the merits of the underlying claim. Such an approach to substantive arbitrability effectively casts arbitration law back to the 1940s, a time before arbitration was widely accepted and when courts were hesitant to allow arbitrators to play a role that had been typically reserved for courts, namely, contract interpretation. In short, the majority’s newly fashioned process of viewing agreements through the prism of existing statutory law is an attempt to discern the intent of the parties at the time they formed their agreement. Discerning that intent in this case, however, requires a court to delve impermissibly into the merits of the dispute and disrupts the settled expectations of the parties.
The parties have agreed that an employee’s complaint is arbitrable if it involves a claim of “personal loss, injury or inconvenience because of a violation, misinterpretation or misapplication of the Agreement” and that an arbitrator resolving that claim “shall limit himself/herself to the issue submitted to him/her and shall consider nothing else. He/she can add nothing to, nor subtract anything from, the Agreement between the parties or any policy of the Board of Education.” The employees have pointed to two separate provisions of the agreement, Articles IV and XII, alleging that the board caused them a personal loss or injury by violating, misinterpreting, and/or misapplying those provisions. In view of those claims, both of which undeniably bear a reasonable relationship to the contract, the majority’s determination that the employees have not made a claim on its face covered by the arbitration clause of the collective agreement, at the very least, strains credulity.
In addition, the majority’s reliance on Marlboro Township Board of Education v. Marlboro Township Education Ass’n, 299 N.J. Super. 283 (App. Div.), certif. denied, 151 N.J. 71 (1997), to justify its approach to the present dispute is misplaced. In that case, the board had expressly adopted a policy declaring that “annual renewal is a prerogative of the board” and the collective agreement between the board and the union provided that the board’s authority, including policies adopted by the board, was “limited only by the specific and expressed terms” of the agreement. Id. at 285. In the face of that language, the Appellate Division determined that the board’s decision to nonrenew a bus driver could not be reviewed under a collective agreement because the board had “exercised a clearly enunciated contractual right not to renew[.]” Id. at 286. In the present dispute, the board did not adopt such a policy or expressly reserve nonrenewal decisions from the grievance provisions of the collective agreement. Accordingly, the matter must be submitted to arbitration because the Court cannot state with positive assurance that the parties did not intend to subject disciplinary nonrenewal decisions to arbitral review.
Contrary to the majority’s suggestion, there is nothing incongruous about submitting the present dispute to arbitration in the face of the “narrow” language of the agreement’s arbitration clause. The majority’s misreading and misuse of that term requires additional clarification. The majority’s position, that the grievance is not arbitrable because there is no express provision of the agreement modifying (what it perceives to be) an overriding statutory scheme, is improper because it amounts to a determination of the merits of the dispute.
D. Policy considerations reinforce the view that arbitration should be permitted to proceed. Good policy combined with bedrock principles of collective negotiations and arbitrability all require that a neutral, third-party arbitrator should decide disputes when disagreements implicate the terms of a collective negotiations agreement. Otherwise, hard-won concessions attained by both employers and employees through collective negotiations will become little more than hollow rights.
IV. There is a more sensible and fair manner to resolve this dispute. Should they desire, the parties may exclude the nonrenewal of nontenured, nonprofessional employees from arbitration.
If, in the future, the parties wish to ensure that nonrenewal decisions are excluded from arbitration despite just-cause or similar protections against discipline, they could say so in no uncertain terms. The agreement need not specifically include nonrenewals in the arbitration clause in order for the matter to be arbitrable as a grievance. If the burden is placed on the parties to include every grievance that is arbitrable, there will be disputes, ad infinitum, that the subject matter of a particular grievance was not identified specifically in the contract.
In sum, applying the presumption in favor of arbitration while allowing parties to expressly exclude individual matters accommodates the interest of public employers and employees, and remains in concert with the applicable statutes, decisional law, and policy concerns. Under that approach, these janitors may or may not have been awarded back their jobs but at least they would have received precisely what the parties contracted for: a determination of their grievance by a neutral third party. Moreover, this board and future boards would have a roadmap to avoid the recurrence of this problem.
V. Finally, the majority reasons it would be “counterintuitive” to send this dispute to arbitration because a disciplinee should be accorded no greater rights than those accorded to a faultless nonrenewed employee. That statement warrants two observations.
First, although an agreement that requires an employer to grant a hearing to an employee when the employer has the right to fire an employee for no reason “may seem counter-intuitive,” the place to remedy “a bad deal” is at the bargaining table, not in court. Merely because a system of employee protections appears anomalous is no reason to conclude that the board did not agree to it.
Second, and more important, the majority’s concern has nothing to do with substantive arbitrability; the propriety of such a provision goes to the merits of this dispute. By effectively determining the protections that it believes the parties should and should not be allowed to negotiate, the majority has allowed the merits of this dispute to seep impermissibly into the determination of substantive arbitrability.
The majority has chosen to ignore the reality that the termination of these employees, in the context of a nonrenewal, may well be little more than a pretext for the imposition of a disciplinary penalty. To allow these 15 custodial and maintenance employees to lose their jobs after many years of service to their employer, to deny them the opportunity simply to be heard by a neutral arbitrator in the face of the board’s conduct, does more than repudiate precedent. It results in an injustice.
Justices Long and Albin join in this opinion.
— Digested by Steven P. Bann
[The slip opinion, including the dissent, is 88 pages long.]
For appellant and cross-respondent — Thomas M. Toman Jr. (Murray & Murray; Toman and Karen A. Murray on the briefs). For respondents and cross-appellants — Steven P. Weissman (Weissman & Mintz). For amici curiae: New Jersey School Boards Association — John J. Burns, Assistant Counsel (Cynthia J. Jahn, General Counsel); New Jersey Education Association — Steven R. Cohen (Selikoff & Cohen; Carol H. Alling on the brief).
