Camden Board of Education v. Alexander , 181 N.J. 187 ( 2004 )

Justice LaVECCHIA

delivered the opinion of the Court.

The Camden Board of Education (Board) voted not to renew certain custodians and mechanics (defendants) at the conclusion of the 1999-2000 school year. Defendants sought to arbitrate the non-renewal of their appointments under the grievance provision of the applicable collective negotiation agreement (CNA). The question before the Court is whether arbitration should be permitted.

I.

In enacting Title 18, the Legislature set up a scheme for the employment of school personnel. Included therein is N.J.S.A. 18A:27-4.1, which provides:

Notwithstanding the provisions of any law, rule or regulation to the contrary.

b. A board of education shall renew the employment contract of a certificated or 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 non-tenured 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 non-renewal, 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 non-renewal 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. The chief school administrator shall notify the officer or employee of the non-renewal pursuant, where applicable, to the provisions of section 1 of P.L.1971, c. 436 (C. 18A:27-10).

The parties agree that that statute does not preempt them from contractually granting greater protection to fixed-term employees by subjecting non-renewals to a just cause requirement, and submitting non-renewal grievances to binding arbitration. See also Wright v. Bd. of Ed. of City of E. Orange, 99 N.J. 112, 116, 491 A.2d 644 (1985) (holding that N.J.S.A. 18A:17-3 did not bar collective negotiations agreement providing tenure rights for fixed-term custodians). Thus, the question—can this matter be negotiated—is not in issue. This case is about whether the parties, in fact, did negotiate for arbitration to apply in this non-renewal setting.

As members of Local 1079 Custodial and Maintenance Employees of the Communications Workers of America, AFL-CIO (Union), defendants were protected by the CNA negotiated by the Union. The CNA’s grievance provision, and two related provisions, follow:

Article III: Grievance Procedure

A. Definition

A “Grievance” shall mean a complaint by an employee or the Union that there has been to him/her a personal loss, injury or inconvenience, because of a violation, misinterpretation, or misapplication of this Agreement.

B. Procedure

6. (a) The following procedure will be used to secure the services of an arbitrator: The Union will make a request to the Public Employment Relations Commission for a panel of arbitrators no later than 45 days after receipt of the Board’s decision.

(b) The arbitrator shall limit himselfdierself 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 recommendations of the arbitrator shall be binding on the parties. Only the Board and the aggrieved and his/her representatives shall be given copies of the arbitrator’s report and findings and recommendations. This shall be accomplished within (30) days of the completion of the arbitrator’s hearings.¹

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 herein set forth.

Article X: Board Eights

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.

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 on June 28, 2000, not to renew defendants’ appointments. We note that 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 non-renewal 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.² The Board sought to restrain the arbitrations, initially before the Commissioner of Education, and thereafter in Superior Court. This appeal comes to us by way of the Appellate Division’s affirmance, with modification, of the Law Division’s refusal to restrain arbitration. Camden Bd. of Educ. v. Alexander, 352 N.J.Super. 442, 450, 800 A.2d 250 (2002).³

The Appellate Division stated that although employees with fixed-term contracts have no right to continued employment (other than enjoyment of the protections provided by N.J.S.A. 18A:27-4.1), such employees “may also be entitled to arbitrate the termination of employment if the employer has negotiated a disciplinary review procedure which includes the right of an untenured employee to arbitrate a termination for misconduct.” Id. at 447, 800 A.2d 250. Finding that to be the case here, the court allowed the arbitrations to proceed but shifted to the fixed-term employee the burden of initially proving “that the termination is a ploy by the employer to avoid the agreed disciplinary review procedures.” Ibid, (citing OER, supra, 154 N.J. at 114-15, 711 A.2d 300). The panel commented that the warning letter sent to each defendant suggested an attempt by the Board to circumvent the grievance procedure of the CNA by “terminating [defendants] for cause without officially charging the[m] with misconduct.” Id. at 449, 800 A.2d 250. Nonetheless, the court held that each defendant would be required to satisfy the above-described threshold to proceed to arbitration on the merits of the non-renewal. Id. at 450, 800 A.2d 250.

We granted the parties’ respective petition and cross-petition for certification, 175 N.J. 77, 812 A.2d 1109 (2002), and now reverse.

II.

The New Jersey Constitution grants public employees “the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their choosing.” N.J. Const. art. I, ¶ 19. Unlike private-sector employees, public employees are not given the right to “bargain collectively.” Ibid. Public employees instead may engage in collective negotiations. N.J. State College Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25-26, 449 A.2d 1244 (1982). See generally Lullo v. Int’l Ass’n of Fire Fighters, 55 N.J. 409, 436—11, 262 A.2d 681 (1970) (discussing distinction between “collective bargaining” and “collective negotiation”).

Twenty-five years ago we provided guidelines for courts grappling with the distinct inquiries engendered by public-sector employment disputes. State v. State Supervisory Employees Ass’n, 78 N.J. 54, 393 A.2d 233 (1978); Township of W. Windsor v. Public Employment Relations Comm’n, 78 N.J. 98, 393 A.2d 255 (1978). We resolved that the Public Employment Relations Commission (PERC), and not the courts, was the entity to determine whether, in a public-sector labor dispute, a specific subject is negotiable (the “scope-of-negotiations” determination). Ridgefield Park Educ. Ass’n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 153-56, 393 A.2d 278 (1978). However, as noted by the parties and the Appellate Division in this ease, there is no “scope” question here. See Wright, supra, 99 N.J. at 122-23, 491 A.2d 644.⁴ The issue is whether the parties negotiated to provide for arbitration of the non-renewal 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? State v. State Troopers Fraternal Ass’n, 134 N.J. 393, 399-400, 634 A.2d 478 (1993); Ridgefield Park, supra, 78 N.J. at 153-55, 393 A.2d 278.

As in the review of public-sector arbitration awards,⁵ and in respect of questions concerning the scope of negotiations, New Jersey State College Locals, supra, 91 N.J. at 26, 449 A.2d 1244, legislative expressions of public policy affect our analysis in the present ’public-sector employment dispute. Here, N.J.S.A. 18A:27-4.1 creates its own dispute-resolution mechanism and standard of review governing non-renewal decisions pertaining to fixed-term staff; namely, the Board may non-renew a non-certifieated employee for any reason that is not arbitrary or capricious. Ibid. As long as the reason for non-renewal is not arbitrary or capricious, the non-renewal is both valid and unassailable. Ibid. Absent a specific agreement to the contrary, N.J.S.A. 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, 115 A.2d 1 (1955). In the public-seetor-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 non-renewal of fixed-term staff, a waiver of that legislatively conferred prerogative should be unmistakable. We have commented before that when a statutory provision has defining import, its application must be negotiated away clearly and unmistakably. Cf. Red Bank Reg’l Educ. Ass’n v. Red Bank Reg’l High Sch. Bd. of Educ., 78 N.J. 122, 140, 393 A.2d 267 (1978) (finding that “[t]he propriety of a contractual waiver of statutory rights is well-established in the private sector____To be given effect [in that setting], any such waiver must be clearly and unmistakably established, and contractual language alleged to constitute a waiver will not be read expansively”).⁶ 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.

To resolve the instant question of contract interpretation, we begin by noting that the CNA’s language does not specifically include disciplinary non-renewal, nor does it specifically exclude that subject. See, e.g., Hanover Twp. Bd. of Educ., PERC No. 99-7, 24 NJPER ¶ 29191 (1988), aff'd A-306-98T2 (1999) (SPA 1999) (restraining arbitration where board and association negotiated grievance procedure that specifically excluded “any matter for which [a] complaint related to the non-renewal or termination on notice of a non-tenure employee’s contract”)(internal quotation marks omitted). As might be expected, the parties disagree on the scope of the grievance language. 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 non-renewal 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 non-renewals would be subject to arbitrator review before a waiver of the Board’s rights under N.J.S.A. 18A:27-4.1b can be found. Stated differently, the CNA’s language must be more specific to override N.J.S.A. 18A:27-4.1b.

In a matter closely resembling the instant appeal, the Appellate Division considered whether a fixed-term employee’s allegedly disciplinary non-renewal 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, 690 A.2d 1092 (holding that non-renewal of bus driver who had excessive absences over long period was not subject to grievance procedure), certif. denied, 151 N.J. 71, 697 A.2d 544 (1997). The court held that it would not “rewrite” the contract to provide for arbitration in the context of the Board’s right to non-renew its fixed-term employee when clear language to that effect was not present in the collective negotiation agreement. Judge Landau stated for the panel:

The Board here did not purport to discipline Goldberg, nor is there any reason so to characterize its decision not to rehire her. It merely exercised a clearly enunciated contractual right not to renew, an issue we do not regard as arbitrable in these circumstances. We decline to insert judicially a tenure provision into a contract when it was not negotiated by the parties. See Standard Refinery Union v. Esso Standard Oil Co., 31 N.J.Super. 548, 552, 107 A.2d 513 (App.Div.1954) (“[C]ourt will not write a new contract for the parties or vary, enlarge, alter or distort its terms for the benefit of one to the detriment of the other under the guise of judicial interpretation.”). However, even if we deemed this to be a disciplinary termination, the rights of a similarly situated disciplinee should rise no higher than those of a faultless employee who had no right to reemployment.

Id. at 286-87, 690 A.2d 1092.]

In another ease, 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., 132 N.H. 103, 564 A.2d 419, 422-23 (1989). The court reasoned as follows:

The heart of the dispute between the parties is whether the school board is required to process a grievance concerning the nonrenewal of a probationary teacher’s contract, which the WTA alleges constitutes a discharge under Article 16 requiring just cause.

The overarching issue in the present case is whether the parties actually have negotiated to arbitrate, ... not whether they have the authority to do so----The board contends that the term discipline, as used in CBA Article 16, refers only to those situations where a teacher has violated one of its rules or regulations and that, because the board never contended that Hanson had violated a rule or regulation, she was not entitled to the procedural protection of discharge only for just cause. The board contends, rather, that Hanson’s nonrenewal was outside the scope of the CBA and covered only by RSA 189:14-a (Supp.1988). That statute requires school districts to provide written notice on or before March 31 to teachers who have taught in that district for one or more years that they will not be renominated or reelected. Id,:14-a, 1(a) (Supp.1988) —

In contrast, the WTA focuses not on the word discipline, but on the word discharge. It contends that Article 16 governs discharges, and that the term discharge is broad enough to include nonrenewals. The WTA reasons that because Black’s Law Dictionary (5th ed.1979) defines discharge as termination, id, at 416, and this court has treated a nonrenewal as a termination, see Appeal of Watson, 122 N.H. [664] at 667, 448 A. 2d [417] at 419 [1982], the term discharge encompasses the nonrenewals involved here. Article 16 therefore requires the board to have just cause before deciding not to renominate Hanson. The WTA further reasons that since all disciplinary complaints are subject to the grievance procedure, a discharge (¿a, non-renomination) is as well. Based on these arguments, the WTA asserts that it has raised a question of contract interpretation which, under Article 9, is sufficient to send the matter through the grievance procedure —

We disagree with the WTA’s reading of the CBA and hold that it is not susceptible of a reading which covers this dispute. The term discharge in Article 9 is clearly used in connection with disciplinary action taken for violation of the board’s regulations. The CBA provision states that “[a]n employee shall not be disciplined except for just cause.” (Emphasis added.) Although we agree with the WTA that as a general proposition, the term discharge may be broad enough to encompass non-renominations, in the context of this CBA the article does not use the word discharge in such a broad manner. Rather, the article refers to discharge only in the context of a violation of board rules. Viewed in this light, we can state with positive assurance that the CBA is not susceptible of a reading which would cover the asserted dispute____ The real issue here ... is whether the contracting parties have agreed to arbitrate a particular dispute. As we have stated before, “the extent of an arbitrator’s jurisdiction depends upon the extent of the parties’ agreement to arbitrate.” School Dist. #12 v. Murray, 128 N.H. [417] at 420, 514 A.2d [1269] at 1272 [1986]. [T]he WTA takes the contractual language of the CBA provision it relies on too far out of context for us to conclude that the parties intended to arbitrate this dispute.

[Id. at 421-23 (some citations omitted).]

Just as those courts determined in the above cases,⁷ it appears to us from a fair review of the language of the CNA that non-renewals, 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 non-renewals conferred by N.J.S.A. 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 non-renewed without just cause.” Sch. Comm. of Natick v. Educ. Ass’n of Natick, 423 Mass. 34, 666 N.E.2d 486, 487 (1996) (emphasis added). Having not included such language, despite all parties’ (the Board and Union) awareness of N.J.S.A. 18A:27-4.1b, we will not deem the instant matter to be arbitrable under the terms of this CNA. See also Morñs v. Bd. of Educ. of Laurel Sch. Dist., 401 F.Supp. 188, 205-06 (D.Del.1975) (holding that contract reference to “discipline” is insufficient to convey intent by school board to delegate to arbitrators its legislatively authorized discretion concerning contract renewal).

To arrive at defendants’ interpretation of the CNA, either words must be added to it (ie., “non-renewed” in Article IV), or the contractual language (here, “discipline”) must be taken “too far out of context [for us] to conclude the parties intended to arbitrate this dispute.” Westmoreland, supra, 564 A.2d at 428. The same goes for the term “layoff,” which connotes involuntary dismissal during the term of a contract, and is not applicable to the non-renewal of a particular employee’s appointment at the end of a fixed term. Contractual language such as that used in Natick, supra, 666 N.E.2d at 487, was available to the parties; yet, their negotiated agreement does not include the necessary specificity to subject non-renewal of fixed-term employees to arbitral review. Given the statutory backdrop against which the parties’ negotiation occurred, we hold that more was necessary to effectuate clearly and unmistakably a waiver of the Board’s authority under N.J.S.A. 18A:27-4.1b.⁸ In this public-sector employment dispute, a court should not deliver by fiat what was not obtained through negotiation.

B.

In addition, we note the counterintuitive result that is reached were we to presume that this CNA meant to allow a non-renewed, 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 non-renewed, 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 non-deficient employee, who could not allege a “disciplinary” motivation on the employer’s part, would not. As was observed in a setting similar to the matter at hand, “a disciplinee should be accorded no greater rights than those accorded to a faultless non-renewed employee.” Cresskill Bd. of Educ. v. Cresskill Educ. Ass’n, 362 N.J.Super. 7, 15, 826 A.2d 778 (App.Div.2003)(citing Marlboro, supra, 299 N.J.Super. at 286-87, 690 A.2d 1092).

In Cresskill, supra, although the individual involved was able to grieve disciplinary acts taken against him during the term of his appointment, 362 N.J.Super. at 14-15, 826 A.2d 778, the board’s later decision not to renew was not subject to arbitral review, notwithstanding that “the reasons cited by the superintendent for non-renewal ... were identical to the problems noted in previous performance evaluations and [were] the basis for [the employee’s] termination during the term.” Id. at 15, 826 A.2d 778. Similarly, defendants cite to the warning letter as proof that the non-renewal determinations actually constituted acts of discipline. That argument was rejected in Cresskill, and we likewise reject it. Notwithstanding that reasons pertaining to discipline or poor employment performance allegedly motivated the non-renewal recommendation, the act of non-renewal remains a prerogative of the Board pursuant to N.J.S.A. 18A:27-4.1. Thus, although plaintiffs reasonably might contend that issuance of the warning letters was subject to being grieved, see Cresskill, supra, 362 N.J.Super. at 15, 826 A.2d 778, the act of non-renewal itself is before us, and the governing CNA language does not make non-renewal subject to arbitration. When analyzing the reach of the CNA’s language, we look only to the face of the contract. Bd. of Educ. of Twp. of Bloomfield v. Bloomfield Educ. Ass’n, 251 N.J.Super. 379, 384, 598 A.2d 518 (App.Div.1990), aff'd o.b. 126 N.J. 300, 598 A.2d 517 (1991). See also Cresskill, supra, 362 N.J.Super. at 15, 826 A.2d 778 (examining legal question of contract arbitrability exclusively on contractual language; arbitration denied because non-renewal not included in grievance provision).

In that respect, we observe the slippery slope approached by the lower courts’ tacit approval of using supervisory letters alluding to “discipline” as the reason for requiring arbitration of a subsequent non-renewal of a fixed-term contract. We discern no benefit to parties to a fixed-term public employment contract expending time and resources strategizing how to, on the one hand, transform such letters into a justification for a subsequent arbitration about “discipline,” and, on the other hand, avoid the use of words in communications by supervisors that could be turned into a justification for a later arbitration of a nonrenewal based on an assertion that it concerned “discipline.” By requiring a clear relinquishment in a collective negotiation agreement of a board of education’s right not to renew an employee for any non-arbitrary or non-capricious reason, we avoid that type of maneuvering.

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 non-renewal 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 non-renewal of fixed-term contracts of employment. See Red Bank, supra, 78 N.J. at 140, 393 A.2d 267. Cf. Wright v. Universal Maritime Service Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 396, 142 L.Ed.2d 361, 371 (1998) (holding that waiver of statutorily conferred right in collective bargaining agreement must be “clear and unmistakable”).

IV.

In the absence of a clear inclusion of acts of non-renewal in the grievance procedure’s reach, the dissent contends that another principle requires that we assume in our analysis an intention to make non-renewal subject to arbitral review. The dissent argues that an overriding presumption in favor of arbitrability, stemming from the “Steelworkers Trilogy,”⁹ must provide a gloss to our implementation of the language agreed to by the parties. Indeed, the dissent begins with that presumption. See post at 209, 854 A.2d at 356 (stating that “[mjore recently, this Court unanimously adopted and applied the principles articulated in the “Steelworkers Trilogy” to arbitration in the public sector.” Bd. of Educ. of the Twp. of Bloomfield v. Bloomfield Educ. Ass’n, 126 N.J. 300, 598 A.2d 517 (1991), aff'g o.b., 251 N.J.Super. 379, 598 A.2d 518 (App.Div.1990)”). However, our Court never “adopted” in full the “Steelworkers Trilogy;” specifically we have not endorsed a presumption in favor of arbitrability for the public sector. Conversely, we expressly have approved such a presumption for private-sector bargaining. See, e.g., Standard Motor Freight, Inc. v. Local Union No. 560, Int’l Brotherhood of Teamsters, 49 N.J. 83, 96, 228 A.2d 329 (1967).

Each of the decisions of the “Steelworkers Trilogy,” as well as AT & T, the more recent U.S. Supreme Court decision that reaffirmed the principles therein set forth, 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, supra, 475 U.S. at 648, 106 S.Ct. at 1418, 89 L.Ed.2d at 655; (2) the question of substantive arbitrability is “undeniably an issue for judicial determination ... unless the parties clearly and unmistakably provide otherwise,” id. at 649, 106 S.Ct. at 1418, 89 L.Ed.2d at 656; (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 649-50, 106 S.Ct. at 1419, 89 L.Ed.2d at 656; 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 650, 106 S.Ct. at 1419, 89 L.Ed.2d at 656-57 (citation and internal quotation marks omitted) (emphasis added).

In Bloomfield, supra, 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:

[1] 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. Moreira Constr. Co., Inc. v. Wayne Tp., 98 N.J.Super. 570 [238 A.2d 185] (App.Div.1968), certif. denied. 51 N.J. 467, 242 A.2d 15 (1968); Wm. J. Burns, etc., Inc. v. N.J. Guards Union, Inc., 64 N.J.Super. 301 [165 A.2d 844] (App.Div.1960), certif. denied. 34 N.J. 464 [169 A.2d 742] (1961); Harsen v. West Milford Tp. Bd. of Ed., 132 N.J.Super. 365 [333 A.2d 580] (Law Div.l975).[2] When there is a dispute as to whether a grievance falls within the terms of the arbitration clause of the contract, it is the duty of the courts to determine whether the matter is arbitrable. Moreira Constr. Co., Inc. v. Wayne Tp., supra; Wm. J. Burns, etc., Inc. v. N.J. Guards Union, Inc., supra. [3] However, in determining whether a matter is arbitrable, the court is limited to ascertaining whether the party seeking arbitration is making a claim which, on its face, is covered by the contract and within the arbitration clause. The court may not, in any way, pass upon the merits of the actual dispute. Jersey Central Power & Light Co. v. Local Union No. 1289, etc., 38 N.J. 95, 104 [183 A.2d 41] (1962); United, Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343 [1347], 4 L.Ed.2d 1403 (1960).[4] If the arbitrator is found to have jurisdiction over a matter, the court must send it to arbitration, even though the court may think the dispute is patently frivolous. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S.Ct 1347 [1353], 4 L.Ed.2d 1409 (1960).

[Bloomfield, supra, 251 N.J.Super. at 384, 598 A.2d 518 (quoting Clifton Bd. of Educ. v. Clifton Teachers Ass’n, 154 N.J.Super. 500, 503-04, 381 A.2d 1226 (App.Div.1977)).]

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, ie., that “[a]n 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.” Warrior & Gulf, supra, 363 U.S. at 583, 80 S.Ct. at 1353, 4 L.Ed.2d at 1418. Bloomfield contains no such language. In fact, the word presumption, or any permutation thereof, does not appear in the Bloomfield decision, or in the Clifton decision from which the quoted passage in Bloomfield derives. The omission is telling. As the dissent suggests, the presumption of arbitrability taken from the “Steelworkers Trilogy” is perhaps the most important of the four principles. 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.¹⁰

Our 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, 93 N.Y.2d 132, 688 N.Y.S.2d 463, 710 N.E.2d 1064 (1999). In Watertown, the court dislodged a previous presumption against arbitration in the public sector that had been employed previously. Id. 688 N.Y.S.2d 463, 710 N.E.2d at 1069-70. Yet, in so doing, the court did not adopt simultaneously a presumption in favor of arbitrability. Id. 688 N.Y.S.2d 463, 710 N.E.2d at 1070. Rather, the court preserved its own Liverpool-approach, which asks a court to answer only two questions: Can the matter be negotiated?; If so, did the parties negotiate it? Id. 688 N.Y.S.2d 463, 710 N.E.2d at 1068-69 (citing Matter of Acting Superintendent of Schs. of Liverpool Faculty Ass’n v. United Liverpool Facullty Ass’n, 42 N. Y.2d 509, 399 N.Y.S.2d 189, 369 N.E.2d 746 (1977)). Although the court found that application of the Liverpool-approach often resulted in a finding of arbitrability, it nonetheless “preserve[d] the two-step ... analysis for judicial threshold consideration, free of any presumptions.” Watertown, supra, 688 N.Y.S.2d 463, 710 N.E.2d at 1070 (emphasis added).

Thus, the Watertown holding accords with Bloomfield, wherein we did not endorse a presumption in favor of contractual arbitrability for the public sector. Rather, we maintained a two-step analysis that requires determination first, whether a matter can be negotiated, and second, whether the parties, in fact, negotiated it. In respect of the latter, we assess the language contained in the arbitration provision negotiated by the parties, mindful of the relative positions of the public-sector parties when they come to the negotiating table.

In this area of the law, eases 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, 393 Mich. 583, 227 N.W.2d 500, 501 (1975), post at 221, 854 A.2d at 364, 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 in this case. The provision stated: “No teacher shall be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantage without just cause.” Id. at 503. The sweeping reference to being “deprived of any professional advantage without just cause,” arguably could include “non-renewals.” The decision in Kaleva also relied heavily on a presumption in favor of arbitrability. Id. at 504-06. However, as discussed, we have not adopted such a presumption in the public sector, and certainly have not applied such a presumption in the context of a narrow arbitration provision in a public-sector collective negotiations agreement. See also supra, note 10. Therefore, Kaleva is not easily transposed into our State’s publie-sector-arbitration jurisprudence; we do not find it persuasive.

Thus, applying the second step in our approach 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 non-renewals to be subject to arbitrator review for good cause. We hold that the CNA’s inclusion of the word “discipline” in its grievance procedure does not support such an interpretation. We decline to attribute to “discipline” an overly broad meaning that is not sensible in light of the relevant statutory provisions governing these parties. See N.J.S.A. 18A:17-3; N.J.S.A. 18A:27-41. The inclusion of the term “discipline” does not require arbitration of non-renewals of fixed-term employees.

V.

In conclusion, the Board has the statutory right to renew, or not, a fixed-term employee for non-arbitrary and non-capricious 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, we hold that the CNA did not effectuate a waiver of the Board’s non-renewal right. Accordingly, the judgment of the Appellate Division is reversed, and the arbitrations are restrained. The arbitration award previously entered in favor of defendant, Derek Copeland, is vacated.

1 Because Article III does not allow "any” or "all" disputes to be submitted to arbitral review, and prevents an arbitrator from adding to or subtracting from the terms of the CNA, it is described as "narrow." See Communications Workers of Am., Local 1087 v. Monmouth County Bd. of Soc. Servs., 96 N.J. 442, 449, 476 A.2d 777 (1983) (explaining that “language limiting the arbitrator's authority to the resolution of grievances arising out of the terms of the agreement and denying him the authority to add to, or subtract from, or modify its terms is typical of a narrow, as distinguished from a broad, arbitration clause").

2 This appeal is distinguishable from the posture of the appeal in State, Office of Employee Relations v. Communications Workers of America, AFL-CIO, 154 N.J. 98, 109-11, 711 A.2d 300 (1998)(OER), where the State waived the threshold issue of substantive arbitrability- Notably, the Court’s analysis and holding in that matter were limited by the deferential standard that pertains to review of "the validity of the arbitration award." Id. at 111, 711 A.2d 300.

3 The record reveals that only one arbitration (Derek Copeland’s) went forward during the pendency of the Appellate Division appeal.

4 Thus, Peninsula School District v. Public School Employees of Peninsula, 130 Wash.2d 401, 924 P.2d 13 (1996), cited by the dissent, does not provide persuasive support for the precise issue before us. Post at 223-24, 854 A.2d at 365. Peninsula essentially accords with our decision in Wright, supra, 99 N.J. at 122-23, 491 A.2d 644, in which we held that a school board could negotiate to provide greater protection to its janitorial employees than those mandated by statute. Peninsula, supra, 924 P.2d at 16-17, 19.

5 Our Court has underscored the special significance of public policy as a foundation that governs and circumscribes the decisions of public-sector arbitrators. OER, supra, 154 N.J. at 112, 711 A.2d 300; Communications Workers, supra, 96 N.J. at 448, 453, 476 A.2d 777; Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 217, 405 A.2d 393 (1979); New Jersey State Policemen's Benevolent Ass'n, Local 29 v. Town of Irvington, 80 N.J. 271, 288-93, 403 A.2d 473 (1979); City of Atlantic City v. Laezza, 80 N.J. 255, 268-69, 403 A.2d 465 (1979); cf. Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 429-32, 672 A.2d 1132 (1996) (noting that public policy concerns support use of heightened rigor in judicial review of public-sector arbitration awards); Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 364-65, 640 A.2d 788 (1994) (stating that "public policy demands that public-sector arbitrator, who must consider effect of decision on the public interest and welfare, issue a decision in accordance with (he law”).

6 The Court never reached the waiver issue in Red Bank, supra, because we held that the issue there involved a non-negotiable "term and condition of employment set by statute [that] may not be modified by negotiated agreement." 78 N.J. at 141, 393 A.2d 267.

7 The dissent points to City of Nashua School District # 42, 132 N.H. 699, 571 A.2d 902 (1990), however, that decision did not overturn Westmoreland’s analysis in respect of the contractual term “discipline” and whether it could render arbitrable a decision not to renominate a non-tenured employee. Rather, Nashua allowed arbitration to go forward on an alleged violation of the contract provision governing sick leave. Id. at 704-05, 571 A.2d 902. That said, the dissent of Justice Thayer, joined by then New Hampshire Supreme Court Justice Souter, raised a strong argument challenging the court's reasoning permitting arbitration in respect of that specific contract language. Id. at 706-08, 571 A.2d 902 (Thayer, J., dissenting).

8 We note that 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. State v. Public Safety Employees Ass'n, 798 P.2d 1281 (Alaska 1990); United Transp. Union v. S. Cal. Rapid Transit Dist., 7 Cal.App.4th 804, 9 Cal.Rptr. 2d 702 (1992); Bd. of Educ. of Town of Greenwich v. Frey, 174 Conn. 578, 392 A.2d 466 (1978); Bd. of Trs. of Cmty. Coll. Dist. No. 508 v. Cook County College Teachers Union, 74 Ill.2d 412, 24 Ill.Dec. 843, 386 N.E.2d 47 (1979); Cedar Rapids Ass’n of Fire Fighters v. City of Cedar Rapids, 574 N.W.2d 313 (Iowa 1998); Lewiston Firefighters Ass'n v. City of Lewiston, 354 A.2d 154 (Me.1976); Toledo Police Patrolman’s Ass’n v. Toledo, 127 Ohio App.3d 450, 713 N.E.2d 78, appeal not allowed, 83 Ohio St.3d 1474, 701 N.E.2d 381 (1998); Voss v. City of Oklahoma City, 618 P.2d 925 (Okla.1980); State System of Higher Educ. v. State College Univ. Prof'l Ass’n, 560 Pa. 135, 743 A.2d 405 (1999); School Comm. of the City of Pawtucket v. Pawtucket Teachers Alliance AFT Local 930, 120 R.I. 810, 390 A.2d 386 (1978). Further, at least one of those decisions, Joint Sch. Dist. No. 10 v. Jefferson Educ. Ass’n, 78 Wis.2d 94, 253 N.W.2d 536, 545 (1977), supports our holding, in that the grievance provision of the collective bargaining agreement included the terms "discharge and non-renewal," and, thus, specifically applied to a dispute over the non-renewal of certain probationary teachers.

9 United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Those same principles later were reaffirmed in AT & T Technologies v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986).

10 Although not necessary to our disposition, we mention only that several courts in jurisdictions that do apply the presumption in favor of arbitration from the “Steelworkers Trilogy” have not applied the presumption to narrow arbitration clauses such as the one before us. See, e.g., Trap Rock Indus. v. Local 825, Int'l Union of Operating Eng’rs, AFL-CIO, 982 F.2d 884, 888 n. 5 (3d Cir.1992) (observing that presumption in federal law favoring arbitration of private-sector labor disputes not applicable where matter involves narrow arbitration clause); Salary Pol'y Employee Panel v. Tennessee Valley Auth., 868 A.2d 872, 877-79 (6th Cir.1989) (TVA) (same); Teamsters Local 315 v. Union Oil Co., 856 F.2d 1307, 1311-15 & n. 6 (9th Cir.l988)(same); see generally Local No. 1710, Int'l Ass'n of Fire Fighters v. City of Chicopee, 430 Mass. 417, 721 N.E.2d 378, 388 (1999) (distinguishing “Steelworkers Trilogy” and AT & T (as well as dozens of other cases) that involved broad arbitration clauses, declining to apply presumption favoring arbitration to public-sector collective bargaining agreement containing narrow arbitration provision, and restraining arbitration). At least one federal court has questioned whether a presumption in favor of arbitrability should ever apply in the public sector. TVA, supra, 868 F.2d at 877.