In an unpublished decision issued on June 11, 2014, the New Jersey Superior Court, Appellate Division affirmed the ruling of a chancery judge which had restrained an attempt by a local union to arbitrate the non-renewal of a custodial employee. The decision, Glassboro Board of Education v. Glassboro Educational Support Professions Association, represents a continuation of precedent established by earlier decisions in matters involving the Pascack Valley, Camden, Marlboro, and Cresskill boards of education. The case was tried in the Chancery Division and argued in the Appellate Division by Cameron R. Morgan, Esq. of Parker McCay P.A. The union has appealed the ruling to the Supreme Court of New Jersey, which is currently deciding whether or not to hear the case.

This case once again reminds boards of the importance of precise language in the collective negotiations agreement and the need to avoid bargaining away the discretion they have in the area of employment decisions. In the Glassboro case, the custodian was non-renewed for excessive absenteeism and had been previously warned by his supervisor. The union filed for arbitration and the board sought to restrain it. Both parties acknowledged that non-renewals are a negotiable subject that could be included as arbitrable in a collective negotiations agreement. The question was whether the Board actually did agree in the contract to subject non-renewal decisions to arbitration.

The Appellate Division rejected the union’s assertion that all disputes are subject to arbitration or that the arbitrator himself should be the one to determine whether the contract included non-renewals as arbitrable. In rejecting those arguments, the Appellate Division reaffirmed the established principle that the court determines whether the language of a collective negotiations agreement facially permits arbitration on a negotiable subject, such as non-renewals. In addition, the court refused to lend credence to the union’s argument that a non-renewal for disciplinary reasons is different than a non-disciplinary non-renewal, since the rights of an employee non-renewed for disciplinary infractions should rise no higher than those of a blameless employee who is non-renewed for other reasons. Unless the contract contains language requiring arbitral review of a non-renewal decision, a non-renewed employee does not have the right to arbitration.

The Appellate Division also rejected the union’s argument that the language of the collective negotiations agreement mandated arbitration. There were two relevant provisions within the contract, one which provided that employees would “not be arbitrarily discharged or suspended” and subjected any such action to the grievance procedure and arbitration. The other portion of the contract, the management rights clause, stated that the board had “the right to employ and assign personnel,” but did not contain any explicit language regarding non-renewal.

The board argued that, when it comes to current staff as opposed to new hires, the board’s “right to employ,” as set forth in the management rights clause, could have no other meaning than the right of the board to non-renew current employees. The Appellate Division agreed, holding that this language in the management rights clause affording the board the “right to employ” meant that the “board retained the right to decide whom to employ, which includes its exercised discretion to determine whom not to employ.” As such, the court held the board had not agreed to subject non-renewals to arbitration.

This case may be viewed as a union effort, albeit an unsuccessful one, to chip away at a board of education’s ability to non-renew employees by seeking to subject that determination to arbitration in the absence of any language in a collective bargaining agreement requiring it. While the issue of arbitration over whether there was “just cause” for non-renewal remains a negotiable subject, these cases will continue to turn on the specific language of the collective negotiations agreement and whether the parties actually did agree to subject that decision to arbitration.

Boards should keep in mind that a different case, with different contract language, could very easily bring a different result. However, this decision reaffirmed the principle that such cases do not automatically go to arbitration in the absence of contract language providing for it. Boards of education should be diligent in protecting their ability to non-renew employees without invoking arbitrable review.