STATE OF NEW JERSEY, JUDICIARY v. PROBATION ASSOCIATION OF NEW JERSEY, PROFESSIONAL SUPERVISOR'S UNION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5864-04T55864-04T5

STATE OF NEW JERSEY, JUDICIARY,

Plaintiff-Respondent,

v.

PROBATION ASSOCIATION OF NEW

JERSEY, PROFESSIONAL

SUPERVISOR'S UNION,

Defendant-Respondent.

___________________________________

 

Argued May 22, 2006 - Decided June 23, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, Docket No.

MER-L-1174-05.

David I. Fox argued the cause for appellant

(Fox & Fox, attorneys; Benjamin Benson and Mr.

Fox, of counsel; Mr. Benson, on the brief).

Karen M. Selby, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Selby,

on the brief).

PER CURIAM

Defendant, Probation Association of New Jersey (PANJ), the bargaining representative of plaintiff Judiciary's professional supervisory employees, appeals from a June 30, 2005 order of the Law Division granting summary judgment to plaintiff, restraining a pending arbitration and declaring plaintiff's right, under its collective negotiation agreement (CNA) with defendant, to remove employees in certain positions without disciplinary, grievance or arbitration procedure, or any review for that matter. For the following reasons, we affirm.

By way of background, plaintiff and defendant entered into a CNA for the periods 2000-2004 and 2004-2008. The CNA in effect at all relevant times provided that disciplinary action (reprimands, suspensions, demotions and termination), would be imposed only for just cause. Upon receipt of a notice of proposed discipline, an employee could request a hearing; hearings of major discipline, which included demotion, were conducted by a hearing officer assigned by the Administrative Office of the Courts (AOC), who must be fair and impartial, and whose findings were appealable to the Merit System Board.

However, Article 9.8(a) provided:

The Judiciary has the non-reviewable right to remove employees in Team Leader and Supervising Probation Officer positions from those positions and said actions shall not be deemed to be discipline and subject to the disciplinary appeal procedure, grievance procedure and/or arbitration procedure. If a Team Leader or Supervising Probation Officer is removed from his/her position, pursuant to this provision, he/she will be permitted to return to his/her previously held career service title. If no prior career service title was held, the Judiciary will make good faith reasonable efforts to place the employee in another position.

Article 9.8(c) provided: "Disciplinary actions, as defined in 9.2 above are subject to the hearing provisions set forth in 9.6 above." Article 9.6(4) had a parallel provision: "Removal from positions of Team leader and Supervising Probation Officer [(SPO)], pursuant to 9.8 below are not subject to disciplinary hearing procedures."

According to Joseph Orlando, the Chief of the Labor and Employee Relations Unit in the AOC, Article 9.8, allowing management the "non-reviewable right" to remove Team Leaders and SPOs, derived from the Judiciary's objection in 1995, following court unification, to the inclusion of these titles in the Professional Staff Supervisory Unit. Orlando explained that the Judiciary challenged ballots cast by employees in these titles in an election to choose either defendant or the CWA as their exclusive representative.

In 1996, the parties settled this dispute in an "Agreement to Resolve Challenged Ballots". The Judiciary withdrew its objection to the disputed ballots, and the parties agreed that the "Judiciary has the non-reviewable right to remove employees from Team Leader and SPO positions (subject to law and future negotiations . . . .)" The settlement also provided for the return of removed Team Leaders and SPOs to their previous positions, if applicable, or their placement in another position. The 2000-2004 and 2004-2008 CNAs incorporated the "Agreement to Resolve Challenged Ballots."

In 1998, the Judiciary adopted the broad band system of classification in order to consolidate over 500 titles, used prior to unification, into approximately seventy titles. After negotiations between the parties, the Team Leader and SPO titles, together with four other titles, were consolidated into the new title of Court Supervisor 2 (CSS2), which is one of the eleven titles covered in the 2000-2004 agreement and the 2004-2008 agreement. Although Team Leader and SPO are no longer official titles, they are, according to Orlando, "commonly used in the Judiciary as functional titles, descriptive of the type of work that is performed . . . ."

Sandra Palermo was one of the employees whom plaintiff removed under Article 9.8 of the CNA. On March 25, 2004, the human resources division manager of the Superior Court, Bergen vicinage, informed Palermo that "management is exercising its non-reviewable right to remove you from the Court Services Supervisor 2 position". Palermo was returned to her prior position, Supervisor 1. She filed a grievance on April 4, 2004, complaining that she requested "a hearing on the discipline she received," under Article 9.6, "Hearing Procedure," of the CNA, but that a hearing was not scheduled. Palermo sought reinstatement to the position of CSS2. In a series of letters between the parties' attorneys in June, July and August 2004, defendant sought to pursue Palermo's grievance through each step and submit it to arbitration, and plaintiff asserted that Palermo was not entitled to the disciplinary or grievance procedure, because she was not disciplined, but removed in accordance with Article 9.8, with no right to review.

Consequently, plaintiff declined to process defendant's request for arbitration of Palermo's removal, maintaining that it had a non-reviewable right to remove employees from their positions under Article 9.8, and thus that "these matters are not arbitrable". Despite plaintiff's refusal to submit the Palermo matter to arbitration, on November 24, 2004, defendant selected an arbitrator, James Mastriani, from the panel of arbitrators listed in the CNA, and a tentative date for arbitration was scheduled. Prior thereto, in April 2005, plaintiff filed a Law Division complaint seeking both: (1) a declaratory judgment that its non-reviewable right to remove Team Leaders and SPOs, set forth in the parties' CNAs of 2000-2004 and 2004-2008, applied to the new title of CSS2; and (2) to enjoin defendant from pursuing arbitration to contest Palermo's removal from the title of CSS2.

On May 20, 2005, defendant filed a motion to dismiss the complaint and transfer the matter to the Public Employment Relations Commission (PERC) or the arbitrator, who, defendant claimed, had primary or exclusive jurisdiction over the subject matter. On June 1, 2005, plaintiff filed a notice of cross-motion for summary judgment.

Earlier on May 13, 2005, defendant had filed a petition with PERC requesting a determination that the non-reviewable removal clause was negotiable, and alleging that plaintiff had recently refused to continue negotiation of this issue. Defendant also sought a ruling from PERC that the grievance of Palermo's removal was arbitrable.

Plaintiff obtained summary judgment in the Law Division and an order was entered on June 25, 2005, restraining the pending arbitration. Defendant now appeals, arguing that the motion court erred in: (1) holding that it had subject matter jurisdiction over the dispute; (2) misinterpreting the CNA to allow non-reviewable removal as a substitute for discipline; and (3) refusing to defer to the arbitrator or PERC, because of the Judiciary's conflict of interest in ruling on discipline of its subordinates.

Defendant contends, as a threshold matter, that plaintiff's agreement to negotiate non-reviewable removal requires that the matter be transferred to PERC, because PERC has primary jurisdiction over matters involving the scope of negotiations. We reject this argument. Although PERC has jurisdiction to determine whether a matter is negotiable, the scope of negotiations is not in issue here since plaintiff concedes that discipline and removal are negotiable and its complaint does not request a "scope of negotiations" determination. Rather, the controversy here concerns whether the matter in dispute is arbitrable, which in turn requires interpretation of the parties' contract, uniquely for the court to decide.

Our Supreme Court explained the difference between negotiability and arbitrability in Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 155 (1978):

[C]ontract interpretation is a question for judicial resolution. Thus, where a party resists an attempt to have a dispute arbitrated, it may go to the Superior Court for a ruling on the issue of its contractual obligation to arbitrate. However, the issue of contractual arbitrability may not be reached if the threshold issue of whether the subject matter of the grievance is within the scope of collective negotiations is contested. In that event, a ruling on that issue must be obtained from PERC. . . . Where an item is within the scope of collective negotiations, and a court determines that the agreement contains a valid arbitration clause, the matter must proceed to arbitration.

[Id. at 155.]

The real issue here is whether the contracting parties have agreed to arbitrate the "disciplinary non-reviewable removal"

dispute. Specifically, the question is whether Article 9.8 of the contract provides a defense to plaintiff's removal of Palermo without following the disciplinary procedure set forth in Article 9. Of course, "'the extent of an arbitrator's jurisdiction depends upon the extent of the parties' agreement to arbitrate.'" Camden v. Alexander, 181 N.J. 187, 199 (2004) (quoting Appeal of Westmoreland Sch. Bd., 564 A.2d 419, 423 (N.H. 1989)). In other words, "'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'". Id. at 204 (quoting AT&T Technologies v. Commc'n Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 655 (1986)). Thus, the question of substantive arbitrability, dependent as it is on contract interpretation, is "'undeniably an issue for judicial determination . . . .'" Id. at 194, 204 (quoting AT&T, supra, 475 U.S. at 649, 106 S. Ct. at 1418, 89 L. Ed. 2d at 656)).

Contrary to defendant's argument, there is no threshold issue of whether the subject matter of Palermo's grievance is within the scope of negotiations. Plaintiff is not claiming that the grievance is not arbitrable because its subject, non-reviewable removal, is not negotiable. Rather, plaintiff is claiming that the grievance is not arbitrable because Article 9.8 expressly allows plaintiff to remove Palermo without following the disciplinary procedure set forth elsewhere in the CNA. Under the circumstances, the court clearly had jurisdiction to resolve the question of contract interpretation presented.

In Camden, for example, the defendants, school custodians and mechanics, who had been warned of possible disciplinary action because of excessive absenteeism, sought to arbitrate the non-renewal of their fixed-term appointments. Id. at 192. The board of education had the authority, under N.J.S.A. 18A:27-4.1, to non-renew the defendant-employees' fixed-term contracts, provided that the reasons for doing so were not arbitrary and capricious. Ibid. However, the CNA allowed arbitration for disciplinary action and gave the employees the right to discipline only for just cause. Ibid. The dispute arose because the CNA neither specifically included nor excluded disciplinary non-renewal. Id. at 196. Since it was undisputed that the parties could contractually create greater employee rights than afforded by the statute, the issue, framed by the Court, was not negotiability, but "whether the parties, in fact, did negotiate for arbitration in this nonrenewal setting." Id. at 191. Finding the question one of contract interpretation, the Court held that, under a fair reading of the CNA, "non-renewals, disciplinary or not, were not implicitly made subject to arbitral review." Id. at 199.

Here also, as noted, the issue is not negotiability, but whether the CNA did provide for the disciplinary procedure and arbitration for removal of Team Leaders and SPOs. Consequently, the judge properly assumed jurisdiction over this question of contract interpretation.

Defendant next contends that the court, having assumed jurisdiction, misconstrued Article 9.8 of the CNA to allow non-reviewable removal of Team Leaders and SPOs when removal is otherwise disciplinary. Defendant concedes plaintiff's authority to remove employees from these positions for non-disciplinary reasons, but maintains that when removal is disciplinary, plaintiff must follow disciplinary procedures. In support of its argument, defendant cites to extrinsic evidence of the parties' intent.

First and foremost, the parties' intent as expressed in the terms of the contract controls. "When the terms of a contract are clear and unambiguous, the court must enforce the contract as it is written; the court cannot make a better contract for the parties than the one that they themselves agreed to." Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004). Evidence of the surrounding circumstances is admissible not to change a contract, but only to interpret it, "if the intention of the parties is not to be gleaned from a reading of the instrument as a whole . . . ." Schnakenberg v. Gibraltar Sav. & Loan Ass'n, 37 N.J. Super. 150, 156 (App. Div. 1955).

Here, Article 9.8 of the CNA is clear and unambiguous on its face. Its meaning is plain. Plaintiff's right to remove Team Leaders and SPOs is "non-reviewable," not "deemed to be discipline," and not "subject to the disciplinary appeal procedure." We find the contractual right to non-reviewable removal clear and plainly enunciated and, therefore, we do not regard the dispute as arbitrable in these circumstances. Indeed to adopt a contrary interpretation, as defendant espouses, would bestow on similarly situated disciplinees greater rights than those of a faultless employee who, even defendant admits, has no right to review.

Lastly, defendant contends the arbitrability issue should not be decided by this State's Judiciary because of an inherent self-interest in the matter. We reject that argument as utterly without merit. R. 2:11-3(e)(1)(E). See In re P.L. 2001, Chapter 362, 375 N.J. Super. 485, 528 (App. Div. 2005), aff'd, 186 N.J. 368 (2006). Our independence and adherence to the Canons of Judicial Ethics, as well as the "Rule of Necessity", United States v. Will, 449 U.S. 200, 211-16, 101 S. Ct. 471, 479-80, 66 L. Ed. 2d 392, 405-06 (1980), preclude "'disqualification of the entire judicial system.'" In re P.L. 2001, Chapter 362, supra, 375 N.J. Super. at 529 (quoting N.J. State Bar Ass'n v. N.J. Ass'n of Realtor Bds., 118 N.J. Super. 203, 211 (Ch. Div. 1972)).

Affirmed.

 

The CNA distinguished between disciplinary hearings and grievances. The procedure for a contractual grievance (a "claimed breach, misinterpretation or misapplication of the terms of this Contract") consists of presentation of the grievance to: Step 1, the first level of supervision with authority to effect a remedy; Step 2, the Senior Manager/Trial Court Administrator; Step 3, the Labor and Employee Relations Unit of the AOC, and finally, arbitration. The arbitrator's decision is limited to a finding of facts, after a hearing, and "the interpretation and application of this Agreement".

(continued)

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A-5864-04T5

June 23, 2006