                           NOT FOR PUBLICATION WITHOUT THE
                         APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3371-15T2

ELIZABETH BOARD OF EDUCATION,

        Plaintiff-Respondent,

v.

ELIZABETH EDUCATION
ASSOCIATION,

     Defendant-Appellant.
_______________________________

              Argued March 28, 2017 – Decided           August 16, 2017

              Before Judges Reisner and Sumners.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Union County, Docket No.
              C-118-15.

              Gail Oxfeld Kanef argued the cause for
              appellant (Oxfeld Cohen, PC, attorneys: Ms.
              Kanef, of counsel and on the brief).

              Daniel J. McCarthy, argued the cause for
              respondent (Rogut McCarthy LLC, attorneys; Mr.
              McCarthy, on the brief).


PER CURIAM

        Defendant Elizabeth Education Association (the Association)

appeals      from    a     Law   Division   order    permanently     restraining
arbitration, in response to an order to show cause by plaintiff

Elizabeth Board of Education (the Board).            We affirm.

      The salient facts are not in dispute.              During the 2012-13

school year, Charles Scheuermann was employed by the Board under

a   one-year   contract   as   a    non-tenured,     non-certified       Network

Technician.    On May 6, 2013, the Board's Superintendent of Schools

notified Scheuermann that his contract would not be renewed for

the 2013-14 school year based upon a reduction in force (RIF) due

to budgetary constraints.           Four months later, the Association

filed a grievance on behalf of Scheuermann alleging that the Board

"violated Article IV, Section H, and any other pertinent articles

[of   the   parties    collective    bargaining      agreement    (CBA)],       by

dismissing [] Scheuermann from his position in violation of the

RIF/Recall contract language."              Although Scheuermann obtained

other employment sometime in February 2014, and his retained

private counsel sought to negotiate a financial settlement with

the Board for his non-renewal, the Association still pursued its

grievance through arbitration.

      After an arbitrator was selected, but before a hearing took

place,   the   Board   filed   an   order    to   show   cause   and    verified

complaint with Law Division to restrain arbitration.                   The trial

judge decided the matter on a summary basis, without an evidentiary

hearing, and issued an order and letter decision granting the

                                      2                                  A-3371-15T2
relief requested.     She determined there was no provision of CBA

that gave the Association the right to challenge the non-renewal

of Scheuermann's contract through the grievance process.                The

judge further determined that Article IV (H) of the CBA, which

authorizes the formation of a joint committee comprised of the

parties'    representatives     to   establish    layoff    and     recall

procedures, did not apply because the parties failed to respond

to her request to advise her on whether a committee was formed.

     Before us, the Association argues that Article IV (H) applies

regardless of whether a joint committee was established because

Scheuermann was laid off and the article provides that a layoff

dispute is subject to expedited arbitration.       The Association also

contends that under Article III's definition of grievance, it can

have an arbitrator determine if Scheuermann's non-renewal violates

Board policy, the CBA, or an administrative decision. In addition,

the Association maintains that the judge essentially held that the

parties    cannot   negotiate   binding   job   security   for    contract

employees, which is contrary to Articles III and IV (H).

     As this case was decided on a summary basis, our review of

the 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.

                                     3                             A-3371-15T2
Co., 202 N.J. 369, 383 (2010); Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995).

     Whether        a    labor    dispute   is   arbitrable      is   a   matter    of

interpreting the parties' contract.                   Therefore, like the trial

judge,   we    must       first   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 does not

consider      the       underlying    merits     of     an   otherwise    arbitrable



                                            4                                A-3371-15T2
grievance.      See Clifton Bd. of Educ. v. Clifton Teachers Ass'n,

154 N.J. Super. 500, 503-04 (App. Div. 1977).

      We first address the Association's argument that it can file

a   grievance    regarding   Scheuermann's   non-renewal   pursuant    to

Article III.      An arbitrable grievance is defined in Article III

as follows:

           A "grievance" shall mean a complaint by an
           employee(s) or by the Association that there
           has been an inequitable, improper or unjust
           application, interpretation or violation of
           Board   policy,   this   Agreement,   or   an
           administrative decision, except that the term
           "grievance" shall not apply to:

           Any matter for which a specific method of
           review is prescribed and expressly set forth
           by law or any rule or regulation of the State
           Commissioner of Education; or

           A complaint of a non-tenured teacher which
           arises by reason of his/her not being
           reemployed; or

           A complaint by any certified personnel
           occasioned by appointment to or lack of
           appointment to, retention in or lack of
           retention in any position for which tenure
           either is not possible or not required.


In accordance with N.J.S.A. 34:13A-5.3, we must 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.

                                    5                           A-3371-15T2
            Doubts as to the scope of an arbitration
            clause shall be resolved in favor of requiring
            arbitration.

     We    conclude   that,   even   giving   a   broad   definition   of   a

grievance in Article III, the clear language of the article does

not afford the Association the right to grieve Scheuermann's non-

renewal.    The article's exclusionary language bars a grievance

where there is a manner of review set forth in law, such as here.

As a non-tenured school employee whose contract is not renewed,

N.J.S.A. 18A:27-4.1 (b) provides Scheuermann a very limited right

to appeal the non-renewal:

            A nontenured officer or employee who is not
            recommended for renewal by the chief school
            administrator shall be deemed nonrenewed.
            Prior to notifying the officer or employee of
            the nonrenewal, the chief school administrator
            shall notify the board of the recommendation
            not to renew the officer's or employee's
            contract    and    the    reasons   for    the
            recommendation. An officer or employee whose
            employment contract is not renewed shall have
            the right to a written statement of reasons
            for nonrenewal pursuant to section 2 of
            P.L.1975, c.132 (C.18A:27-3.2) 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.

Accordingly, any alleged violation of this statute would be subject

to the Commissioner of Education's jurisdiction under Title 18A,

and would not fall within the authority of the CBA.



                                     6                             A-3371-15T2
     While we agree with the Association that the formation of a

joint committee does not dictate application of Article IV (H),

there is no merit to the Association's contention that the article

authorizes the arbitration of Scheuermann's dispute over his non-

renewal.   Article IV (H) provides:

           Layoff and Recall: the parties agree to
           establish a joint committee composed of equal
           representatives . . . . The committee shall
           review and establish a procedure of layoff and
           recall of bargaining unit members not covered
           by a statutory schedule for layoff and recall
           in the teachers', custodians' and cafeteria
           contracts. The parties agree that seniority
           shall be the method utilized for such new
           provision, that an employee shall enjoy a
           maximum of five (5) years on a recall list,
           that if any individual is recalled to
           employment at the Board and declines an offer
           of reemployment, said individual shall be
           removed from a recall list, that a dispute on
           the   application    of   the    layoff/recall
           provisions shall be subject to expedited
           arbitration   before   a   mutually   selected
           arbitrator, and the arbitrator shall not have
           the authority to award back pay but shall be
           limited in authority to ordering a different
           employee be recalled or placed on layoff.

Article IV (H) does not apply to the present situation because

Scheuermann was not laid-off.    As our Supreme Court has stated,

"the term 'layoff,' . . . 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."

Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 200 (2004).


                                 7                          A-3371-15T2
Scheuermann worked through the end of his 2012-2013 contract.             As

a non-tenured staff member, he had no right to re-employment for

the next school year.     Thus, non-renewal of his contract due to

budgetary   constraints   did   not   constitute   a   layoff   under   the

provisions of the CBA.

    Affirmed.




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