Opinion
DOCKET NO. A-3035-14T1
02-02-2016
EGG HARBOR TOWNSHIP BOARD OF EDUCATION, Plaintiff-Appellant, v. EGG HARBOR TOWNSHIP EDUCATION ASSOCIATION, Defendant-Respondent.
Cooper Levenson, P.A., attorneys for appellant (Gerard W. Quinn and Andrew D. Linenberg, on the brief). Selikoff & Cohen, P.A., attorneys for respondent (Steven R. Cohen, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-86-14. Cooper Levenson, P.A., attorneys for appellant (Gerard W. Quinn and Andrew D. Linenberg, on the brief). Selikoff & Cohen, P.A., attorneys for respondent (Steven R. Cohen, of counsel and on the brief). PER CURIAM
Plaintiff Egg Harbor Board of Education, which is charged with overseeing the public school system in Egg Harbor Township, appeals from a January 28, 2015 order denying its application to restrain arbitration of grievances filed by defendant Egg Harbor Township Education Association, on behalf of two fixed-term, non-tenured employees, who were not retained. In the same order, the judge granted defendant's request to compel arbitration of the employees' grievances and ordered the parties to proceed in accordance with the voluntary arbitration rules promulgated by the New Jersey Public Employment Relations Commission (PERC).
Prior to filing this matter, plaintiff initiated proceedings before PERC to restrain binding arbitration of the employees' grievances. On August 14, 2014, PERC denied plaintiff's request and found defendant's grievances could implicate issues of job security, which were collectively negotiable and could be arbitrable. Plaintiff did not appeal from PERC's final decision. Rather, it thereafter initiated this summary action, seeking injunctive relief and a declaratory judgment.
On appeal, plaintiff argues the judge erroneously concluded an arbitrator should determine whether the employees' challenges fell within the scope of issues subject to the grievance process set forth in the parties' collective negotiated agreement (CNA). Plaintiff contends the Superintendent of Schools' decision not to renew employment contracts of the subject employees is a non-grievable managerial decision. Defendant refutes this assertion and maintains the two employees were wrongfully terminated, an event the CNA gives them the right to challenge in arbitration. Following our review, we reverse in part and affirm in part.
Generally, "[i]n public sector labor relations in New Jersey, courts use the terms 'collective negotiation' and 'collective negotiations agreements' rather than 'collective bargaining' and 'collective bargaining agreements[,]'" a term found in the federal Labor Management Relations Act, 29 U.S.C.A. §§ 141 to 187. Troy v. Rutgers, 168 N.J. 354, 359 n.1 (2001) (citing N.J. Tpk. Emps. Union v. N.J. Tpk. Auth., 64 N.J. 579, 581 (1974)). In our opinion, we follow this nomenclature notwithstanding record references to "collective bargaining agreement" or the acronym "CBA."
Defendant is the duly recognized negotiating agent and the exclusive and sole representative for collective negotiations concerning the terms and conditions of employment for plaintiff's school district employees. Plaintiff, on behalf of the school district, and defendant, on behalf of the represented district employees (including teachers, paraprofessionals, secretaries and custodians), executed a CNA for the period beginning July 1, 2009 through June 30, 2012. The terms of the CNA govern, among other things, employee rights and privileges, hours, salaries, benefits, procedures for the termination of employment, and the grievance process for employees who challenge plaintiff's determinations invoking "the interpretation, application, or violation of [the CNA]."
L.D., a paraprofessional assigned as a teacher's aide, and Y.J., a custodian, were non-tenured district employees hired for a fixed-term ending on June 30, 2012. The Superintendent of Schools recommended plaintiff not renew L.D. and Y.J.'s employment.
Regarding L.D.'s employment, plaintiff insisted the contract was merely "non-renewed" for the 2012-2013 school year, on the recommendation of the Superintendent. Defendant disagrees, noting plaintiff and L.D. executed a written contract for the 2012-2013 school year; however, on July 9, 2012, plaintiff notified L.D. her "employment contract for renewal was rescinded" and she would be paid through June 30, 2012. Once informed her contract was rescinded, L.D. took no further action.
The record reflects L.D. and plaintiff executed a contract on May 10, 2012. On May 18, 2012, L.D. was informed allegations were filed stating she verbally and physically assaulted students in a classroom. The New Jersey Department of Children and Families Institutional Abuse Unit investigated the accusations and found, although L.D. had some physical contact with students, the allegations of abuse were unsubstantiated. Thereafter, L.D. was notified her contract was rescinded.
When Y.J.'s employment contract was "non-renewed" by the Superintendent of Schools for the 2012-2013 school year, he requested and appeared before plaintiff. Thereafter, plaintiff voted to accept the Superintendent's determination and did not extend a contract of employment to Y.J. for the 2012-2013 school year. Y.J. did not appeal this decision to the Commissioner of Education.
Defendant invoked Article III, paragraph D, section five, of the CNA, demanding plaintiff commence binding arbitration of the two grievances. On behalf of L.D., defendant asserted dismissal was without just cause, in violation of Article IX of the CNA. Regarding Y.J., described as a "long-term employee[,]" defendant invoked the grievance procedure, asserting termination was disciplinary in nature because he was informed of the non-renewal "well beyond" the date plaintiff historically informed employees their contracts would not be renewed.
In response, plaintiff petitioned PERC to conduct a "scope of negotiations" determination. Specifically, plaintiff sought to restrain arbitration of its decision not to renew L.D. and Y.J.'s employment contracts asserting this was an exercise of its managerial prerogative, which is non-negotiable.
Without consideration of the merits of each grievance, PERC concluded the disputes fell within the legal scope of negotiability stated in the CNA. PERC stated "we have repeatedly declined to restrain binding arbitration over terminations and non-renewals of school custodians and support staff employees." However, PERC concluded the issue of "whether [plaintiff] has agreed to arbitrate contractual disputes involving the non-renewal of its teacher's aides and custodians[]" fell outside the scope of its jurisdiction, as determined by Ridgefield Park Education Ass'n v. Ridgefield Park Board of Education, 78 N.J. 144 (1978). PERC denied plaintiff's request to restrain arbitration in its written August 14, 2014 opinion, which plaintiff did not appeal.
On December 16, 2014, plaintiff filed this complaint, pursuant to Rule 4:52-1, seeking judicial review of whether the CNA permitted the grievance to be arbitrated. Plaintiff argued the claims fell outside the scope stated in Article III, paragraph D, section five, which expressly limited arbitration to grievances "based upon an allegation that there has been a violation of the express written terms of the locally negotiated [CNA]." Plaintiff emphasized its decision "to determine which non-tenured staff members to employ and not employ, including the decision to non-renew non-tenured fixed-term employees" was a permissible exercise of "managerial prerogative" in accordance with N.J.S.A. 18A:27-4.1(b), which fell outside the stated scope of grievable determinations. Plaintiff sought an order declaring the filed grievances were "neither grievable, arbitrable, nor subject to negotiations" and "permanently enjoining [defendant] from pursuing arbitration" of the non-renewals.
Defendant filed a counter-claim, seeking an order mandating arbitration. Oral argument was held on January 23, 2015, and the motion judge issued a fourteen-page written opinion on January 28, 2015.
Plaintiff appeals from the final order of the Chancery Division that memorialized the judge's conclusions, arguing the judge erred in denying its request to restrain and granting defendant's request to compel arbitration. The question for review is whether the court may determine the scope of arbitrability of disputed issues, which PERC had previously ruled fell within the scope of negotiations. Prior to our discussion of the facts presented in the instant matter, we recite those principles guiding our review, specifically identifying the respective and distinct roles of PERC and the courts when examining the arbitration of public employment disputes.
We first consider whether plaintiff has a right to judicial review of the issue previously considered by PERC. We conclude it does.
PERC is charged with administering the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.2, and has primary jurisdiction to determine "whether the subject matter of a particular dispute is within the scope of collective negotiations." Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 155 (citing N.J.S.A. 34:13A-5.4(d)). PERC's role is to make a threshold determination of whether the disputed matter is something the parties can legally negotiate and make subject to arbitration. N.J.S.A. 34:13A-5.4(d). PERC may not interpret contracts; "contract interpretation is a question for judicial resolution." Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 155.
The judiciary's role in determining substantive arbitrability has been explained this way:
"[T]here remains a distinction between questions of substantive arbitrability, to be resolved by a court, and questions of procedural arbitrability, which generally fall within the scope of the arbitrator's authority." Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support Staff Ass'n, 192 N.J. 489, 496 (2007). "Therefore, 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, then it is a matter of substantive arbitrability for a court to decide." Id. at 496 (internal quotations omitted).
When one party claims that a given dispute is arbitrable under the contract and the other party resists arbitration, the party desiring arbitration should seek an order from the Superior Court compelling arbitration. Where the trial judge determines that the real controversy is not one of contractual arbitrability, but rather concerns the propriety of the parties negotiating and
agreeing on the item in dispute, he [or she] should refrain from passing on the merits of that issue.
[Id. at 153-54 (citation omitted).]
That is, it is the Court's function to determine whether the CNA involves a matter the parties agreed to arbitrate. In large part, "[t]he scope of arbitrability is generally coextensive with the scope of negotiability." Teaneck Bd. of Educ. v. Teaneck Teachers Ass'n, 94 N.J. 9, 14 (1983) (citing Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 160).
In public-sector collective negotiations, employment issues fall into one of two categories: "'mandatorily negotiable terms and conditions of employment' and 'non-negotiable matters of governmental policy.'" [Teaneck Bd. of Educ., supra, 94 N.J. at 14]. A three-part test applies in determining whether an issue is negotiable:
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the
government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.
[Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 404-05 (1982).]
See also Borough of Keyport v. Int'l Union of Operating Eng'rs, Local 68, 222 N.J. 314, 334-35 (2015) (reaffirming three-part test announced in Local 195).
[Office of Emp. Relations v. Commc'ns Workers, 154 N.J. 98, 113 (1998) (second alteration in original).]
Therefore, even if a dispute is found to "intimately and directly affect[] the work and welfare" of the employee, additional consideration must be given to whether any "statute or regulation" would have preempted negotiation of the disciplinary review procedure and whether the arbitration award will significantly interfere with a managerial prerogative. Borough of Keyport, supra, 222 N.J. at 334-35 (internal citation omitted).
For example, a public employer is authorized to negotiate disciplinary review procedures, including providing the use of binding arbitration for terminations of employment of non-tenured employees prior to the end of their contracts. See Office of Emp. Relations, supra, 154 N.J. at 114. Whether the CNA includes such procedures must be determined.
In a different context, the Supreme Court has recently declared the three-part test set forth in Local 195 to represent "the indisputable test guiding our analysis in scope of negotiations matters[.]" Borough of Keyport, supra, 222 N.J. at 336. When examining challenges to collective negotiation arbitrations, the Court reiterated
although "public employees have a legitimate interest in . . . collective negotiations" in respect of issues affecting the terms and conditions of their employment, "the scope of [collective] negotiation[] in the public sector is more limited than in the private sector." [Local 195, supra, 88 N.J.] at 401. Unlike a private employer, a public employer, as government, has "the unique responsibility to make and implement public policy." Id. at 401-02 (citing Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J. 78, 86 (1981); State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 67 (1978)). Public policy, the Court explained, properly is determined through the political process, by which citizens hold government accountable, and not through collective negotiation. Id. at 402 (citing Ridgefield Park Educ. Ass'n[, supra,] 78 N.J. [at 163]).As to the third prong, "the government's managerial prerogative to determine policy[,]" the Court stated:
[Borough of Keyport, supra, 222 N.J. at 333 (first and second alterations in original).]
[n]eatly summed up, a matter's negotiability turns not "on the talismanic application of labels such as 'terms and conditions of employment' or 'managerial prerogatives[]' [but r]ather, the inquiry focuses on the extent to which collective negotiations will interfere with the establishment and effectuation of governmental policy." [Local 195, supra, 88 N.J.] at 420 (Handler, J., concurring and dissenting).
[Borough of Keyport, supra, 222 N.J. at 334-35 (second and third alteration in original).]
Here, PERC's denial of plaintiff's request to restrain binding arbitration of the alleged "terminations and non-renewals of school custodians and support staff employees" did not examine whether the CNA included an agreement to arbitrate such decisions or a provision that precluded arbitral review because the issue was a managerial determination. "Questions concerning whether subjects are mandatorily negotiable should be made on a case-by-case basis." Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 378 (App. Div. 2012) (quoting Troy, supra, 168 N.J. at 383). See also Bd. of Educ. of Englewood v. Englewood Teachers Ass'n, 64 N.J. 1, 7 (1973) (noting distinctions between negotiable and non-negotiable subjects can be uncertain and requiring them to be decided on a case-by-case basis). The threshold question of whether the agreement to arbitrate encompasses the matters presented by defendant must be determined, and that issue is reviewable by the court.
To answer this question, we must examine the provisions of the CNA. Plaintiff argues no term governs its decision not to retain a non-tenured employee. Defendant counters suggesting, as did PERC, the matter is one of job security, which is a collectively negotiable matter subject to grievance review under the CNA. We highlight the applicable CNA provisions.
The first is Article IX, paragraph C, applicable to paraprofessionals, such as L.D., which provides:
No employee shall be disciplined, reprimanded or reduced in rank or compensation without just cause. Any such action asserted by the Board of Education or any agent or representative thereof, shall not be made public and shall be subject to the Grievance Procedure herein set forth.Second, applicable to paraprofessionals' seniority and job security is Article XIV, which includes paragraph F:
A terminated non-tenured employee shall receive thirty (30) calendar days notice or thirty (30) calendar days pay in lieu of notice, plus accumulated vacation except for instances of theft, drunkenness, fighting, drug influence or moral turpitude which shall be subject to the grievance procedure.Also, Article XV, paragraph A, provides such employees shall not be "reduced in rank or job classification without just cause nor shall they be reprimanded, suspended or dismissed without just cause."
Similar, but separate provisions discuss the seniority and job security of custodians in Article XIII. Paragraph D, entitled "NONTENURE DISMISSAL[,]" identifies the procedure for "discipline involving the suspension of an employee" and "discipline involving the discharge of an employee." Also, Article XIV states "[e]mployees shall not be reduced in rank or job classification without just cause."
Absent from the CNA is a mandate for a non-renewal determination to be based on just cause or a provision conferring upon an employee the right to grieve plaintiff's non-renewal-retention decision. See Mt. Holly Twp. Bd. of Educ. v. Mt. Holly Twp. Educ. Ass'n, 199 N.J. 319, 330-33 (2009) (distinguishing CNA provisions mandating arbitration of any termination decision from agreements without such requirements).
Further, the CNA contains Article VI, stating plaintiff "is forbidden" from waiving "any rights or powers granted by law." (emphasis added). Apt to this mandate is N.J.S.A. 18A:27-4.1, which governs a board of education's non-renewal personnel actions, stating in pertinent part:
Notwithstanding the provisions of any law, rule or regulation to the contrary,
. . . .
b. A board of education shall renew the employment contract of a . . . non-certificated officer or employee only upon the recommendation of the chief school administrator and by a recorded roll call majority vote of the full membership of the board. The board shall not withhold its approval for arbitrary and capricious reasons. A nontenured . . . employee who is not recommended for renewal by the chief school administrator shall be deemed nonrenewed. Prior to notifying the . . . employee of the nonrenewal, the chief school administrator shall notify the board of the recommendation not to renew the . . . employee's contract and the reasons for the recommendation. An . . . employee whose employment contract is not renewed shall have the right to a written statement of reasons for nonrenewal . . . and to an informal appearance before the board. The purpose of the appearance shall be to permit the staff member to convince the members of the board to offer reemployment.
[(emphasis added).]
Thus, unless altered by the express terms of a CNA, "the act of non-renewal remains a prerogative of the Board pursuant to N.J.S.A. 18A:27-4.1." Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 201-02 (2004), superseded in part by amendments to N.J.S.A. 34:13A-5.3. See also Pascack Valley, supra, 192 N.J. at 492, 497-98 (holding non-renewal of an untenured, contract employee is usually non-arbitrable); Cresskill Bd. of Educ. v. Cresskill Educ. Ass'n, 362 N.J. Super. 7, 13-14 (App. Div. 2003), certif. denied, 181 N.J. 546 (2004). The statute defines the administrative review process, permitting an aggrieved employee to challenge a decision as arbitrary and capricious, to request to appear before the board and to appeal a board's decision to the Commissioner of Education. See N.J.S.A. 18A:6-9. See also N.J.A.C. 6A:3-1.3(d).
"L. 1996 c. 115 § 4 (N.J.S.A. 34:13A-5.3 (1996)) . . . emphasizes that courts 'shall be bound by a presumption in favor of arbitration' in interpreting collective bargaining agreements." Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 275 (2010).
The Legislature has adopted specific provisions addressing termination of tenured custodians. See N.J.S.A. 18A:17-3. However, the statute specifically excludes employees "appointed for a fixed term" as is the case with Y.J. Ibid.
The trial judge adopted "[d]efendant's analysis . . . of the presumption of arbitrability," suggesting the legislative enactment of N.J.S.A. 34:13A-5.3 has changed the law of the substantive arbitrability. Specifically, defendant argues when determination of the issue is uncertain or in the absence of a specific clause in the CNA reserving plaintiff's right in respect of non-renewal of non-tenured employees' contracts, the presumption favoring arbitration applies. See Mt. Holly Twp. Bd. of Educ., supra, 199 N.J. at 333 (discussing the adoption of N.J.S.A. 34:13A-5.3.) We disagree with the overbroad generalization mandating arbitration of grievances attacking a board of education's non-tenured employee retention decision.
In Mt. Holly, the Court concluded the board's mid-year decision to terminate the employment of a custodian, following disciplinary proceedings where he was found to have struck a fellow employee, in accordance with the terms of his individual employment contract, conflicted with the CNA's just cause provisions, making the dispute subject to arbitration. Mt. Holly Twp. Bd. of Educ., supra, 199 N.J. at 322-23. --------
N.J.S.A. 34:13A-5.3 requires: "In interpreting the meaning and extent of a provision of a [CNA] 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." Although "New Jersey law encourages the use of arbitration to resolve labor-management disputes[,]" N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 291 (2007), and promotes arbitration as the preferred vehicle by which meaning and context are given to a CNA, Linden Bd. of Educ., supra, 202 N.J. at 276, the matter must first be one subject to grievance under the CNA.
Defendant suggests boards of education are required to include a reservation clause preserving the right to exercise managerial authority, already granted by the Legislature. We conclude decisions of non-renewal of non-tenured employees, akin to reducing the workforce, do not remain subject to mandatory negotiation. See Borough of Keyport, supra, 222 N.J. at 341-42; Pascack Valley, supra, 192 N.J. at 492, 497-98. The presumption of arbitrability for public employees adopted in N.J.S.A. 34:13A-5.3 does not eviscerate a board's statutory authority to determine whether to retain non-tenured, contract employees upon the expiration of their terms. See N.J.S.A. 18A:27-4.1 (governing board's non-renewal of non-tenured contract employees).
Our conclusion is grounded on well-settled precepts. "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." Clifton Bd. of Educ. v. Clifton Teachers Ass'n, 154 N.J. Super. 500, 503 (App. Div. 1977); Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148-49 (App. Div. 2008). Absent a clear expression in the contract, the determination of whether the stated grievance falls within the scope of arbitration rests with the court. Amalgamated Transit Union v. N.J. transit Bus Operations, Inc., 200 N.J. 105, 115 (2009).
Here, we cannot permit a non-tenured employee, whose employment is not renewed, to claim a disciplinary motive and invoke the grievance procedure of a CNA, which does not otherwise permit such an action. To the extent the trial judge's conclusions are interpreted to allow arbitration of any grievance attacking a statutory non-renewal decision as touching on job security, it cannot be upheld.
We now examine the facts surrounding plaintiff's employment determinations regarding the two employees. It is important to note the judge, like PERC, did not distinguish between the different situations expressed in the grievances filed by L.D. and Y.J. These factual distinctions differentiate the ultimate result.
Plaintiff extended a new contract for the upcoming school year to L.D., as required by N.J.S.A. 18A:27-10.2, which establishes the procedure for re-employment of paraprofessionals. The statute provides:
On or before May 15 in each year, a paraprofessional continuously employed since the preceding September 30 . . . shall receive either:
(1) a written offer of a contract for employment from the board of education for the next succeeding year providing for at least the same terms and conditions of employment but with such increases in salary as may be required by law or policies of the board of education; or
(2) a written notice from the chief school administrator that employment will not be offered.
[N. J.S.A. 18A:27-10.2(b)(1),(2) (emphasis added).]
On May 10, 2012, both L.D. and plaintiff's president executed a written contract for re-employment for the 2012-2013 school year. Months later, on July 9, 2012, plaintiff issued a notice to L.D. informing her "the employment contract for renewal was rescinded" effective June 30, 2012. This decision followed on the heels of a disciplinary review of a child protective services agency's investigation of alleged abusive conduct.
We reject plaintiff's contention this was a non-renewal decision. By executing a new agreement with L.D., as provided by N.J.S.A. 18A:27-10.2(b)(1), plaintiff could not attempt to retroactively relabel its change in position as a non-renewal under N.J.S.A. 18A:27-10.2(b)(2). The revocation of a valid employment contract, carrying the extension of reemployment, which is not part of a reduction in force, falls within Article IX, paragraph C's provision, stating "any dismissal or suspension shall be considered a disciplinary action and shall, at the option of the employee, be subject to the Grievance Procedure." Arbitration of this grievance must proceed.
Y.J.'s grievance is dissimilar from L.D.'s. We find no support for the trial judge's finding there was a factual dispute regarding the circumstances surrounding plaintiff's employment decision regarding Y.J.
After receiving a recommendation from the Superintendent of Schools, plaintiff properly issued notice to Y.J. informing him his employment would not be renewed. Y.J. was granted an opportunity to address plaintiff. He chose not to pursue further administrative relief as permitted and did not file an appeal to the Commissioner of Education.
Defendant's claim characterizing Y.J.'s non-renewal of employment, which issued after May 15, as a disciplinary decision requiring good cause is unfounded. Defendant admits the May 15 date imposed by N.J.S.A. 18A:27-10.2 does not apply to custodians and we reject the argument the date was presumed to apply based on past practices. No facts show plaintiff's decision not to retain Y.J. resulted from a grievable disciplinary determination. See Pascack Valley, supra, 192 N.J. at 492-93 ("[E]mployees whose contracts are not renewed. . . . are then considered 'nonrenewed' rather than terminated or dismissed."). Further, no provisions of the CNA allow arbitrable review of a decision not to retain an employee in Y.J.'s circumstance. The good cause requirements applicable to custodians address discharge or dismissal only. It is clear "discharge" or "dismissal" is not synonymous with "non-renewal." Ibid. The exercise of a public employer's right not to renew the employment of non-tenured employee will not be second- guessed as a pre-text for discipline. Id. at 497-98. As a result, we find Y.J.'s claim, on its face, is not covered by the CNA grievance provisions and is therefore not subject to arbitration. Ibid.; Marlboro Twp. Bd. of Educ. v. Marlboro Twp. Educ. Ass'n, 299 N.J. Super. 283, 286-87 (App. Div.), certif. denied, 151 N.J. 71 (1997); Bd. of Educ. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J. Super. 379, 384 (App. Div. 1990), aff'd, 126 N.J. 300 (1991).
In summary, we affirm the legal conclusion that L.D. has set forth a claim subject to the grievance provisions of the CNA and the order requiring the matter to proceed to arbitration is affirmed. However, the failure to recognize, as not arbitrable, plaintiff's proper exercise of its statutorily authorized managerial prerogative not to renew the fixed-term, non-tenured employment contract of custodian Y.J., pursuant to N.J.S.A. 18A:27-4.1(b), was error. That provision of the order must be reversed.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION