FIRE DISTRICT 1 OF THE TOWNSHIP OF WOODBRIDGE v. PUBLIC EMPLOYMENT RELATIONS COMMISSION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0407-08T30407-08T3

FIRE DISTRICT 1 OF THE TOWNSHIP OF WOODBRIDGE,

Plaintiff-Respondent,

v.

PUBLIC EMPLOYMENT RELATIONS COMMISSION,

Defendant,

and

IAFF, LOCAL 290, and CAPTAIN RICHARD FOERCH,

Defendants-Appellants.

________________________________

 

Argued: March 25, 2009 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-135-08.

Raymond G. Heineman argued the cause for appellants (Kroll Heineman, attorneys; Mr. Heineman, on the brief).

Maureen L. Goodman argued the cause for respondent (Palmisano & Goodman, P.A., attorneys; Ms. Goodman, on the brief).

PER CURIAM

Defendants International Association of Firefighters, Local 290, AFL-CIO (the union), and Captain Richard Foerch (Foerch) appeal from a judgment of the Law Division enjoining and restraining them from requiring plaintiff Fire District 1 of the Township of Woodbridge to submit to binding arbitration respect ing a dispute over minor discipline imposed on Foerch on the ground that the dispute is not subject to the grievance and arbitration procedures of the collective negotiation agreement (CNA) between plaintiff and the union. We reverse and remand the matter for binding arbitration.

On January 15, 2008, plaintiff issued a Preliminary Notice of Disciplinary Action to Foerch charging him with violating plaintiff's Rules and Regulations Ie, h, f; IIb; IVd, e, f, g(1); and N.J.A.C. 4A:2-2.3(a)(1), (2). The specifications were:

You had been directed to send the Fit Test machine out to be properly calibrated so it would be ready to service the [fire figh ters] on November 1. As of December 10, 2007 you had neglected to perform your duty in that regard and other officers were required to send the Fit Test machine to be calibrated.

The notice informed Foerch that he was required to notify plaintiff within five days if he desired a hearing and that it would be held on January 31, 2008, at 11:00 a.m. The proposed disciplinary action was a three-day suspension. Foerch requested a hearing, which was conducted on April 2, 2008.

The hearing officer issued a written decision in which he summarized the documentary evidence and testimony presented by both sides. He considered the CNA, a facsimile from Occupa tional Health Dynamics dated November 5, 2007, and letters from Craig Simmons and Foerch. Patrick Kenny and Chad Howell testi fied for plaintiff. Kenny testified that on April 6, 2007, he instructed Foerch in the presence of Howell to send out the Fit Test machine for calibration on November 1, 2007, in order to ensure its return by early January for "Super Saturday." He also explained to Foerch the importance to firefighter safety that masks are fitted tightly with a proper seal. Howell con firmed this testimony. As a reminder, Kenny forwarded a facsim ile from Occupational Health Dynamics strongly recommending such calibration.

Kenny learned from Lieutenant Minkler on December 10, 2007, that Foerch had not sent the machine out for calibration. He contacted Foerch on December 14, 2007, seeking an explanation. Foerch responded in writing that on December 6, 2007, he had read the facsimile notice and intended to send the machine out on his next tour of duty, December 10, 2007, but he had been out that day.

Foerch testified that he understood Kenny's remarks on April 6, 2007, to be a suggestion rather than an order and believed that November 1, 2007, was not a firm date. He received no written confirmation of the April 6, 2007, meeting and there was no written policy or procedure on calibration of the Fit Test machine. On December 6, 2007, he became aware of a facsimile notice suggesting the need to calibrate the machine and that he intended to do so during his next tour of duty, which because of illness became December 14, 2007.

The hearing officer found that plaintiff first became aware on December 10, 2007, that Foerch had not sent the machine out for calibration, making the January 14, 2008, Preliminary Notice timely under N.J.S.A. 40A:14-28.1. He con cluded that Foerch violated Rule Ie in that he failed to obey the April 6, 2007, direct, lawful, verbal order to send the machine out for cali bration by November 1, 2007. As a result, the hearing officer found that Foerch neglected his duty, contrary to Rules Ih and IVe (neglect of duty); failed to responsibly carry out an assignment, con trary to Rule IIb (responsibilities); did not take appropriate action nor respond to a lawful order, contrary to Rule IVd (general responsibili ties); and failed to perform his duty, con trary to Rule IVf (performance of duty). He dismissed the charges under Rules If and IVg (insubordination).

The hearing officer also found that the above violations of plaintiff's Rules and Regulations gave rise to violations of N.J.A.C. 4A:2-2.3(a)(1) (failure to perform) and N.J.A.C. 4A:2-2.3(a)(7) (neglect of duty). However, he found that the dis missal of the charges under Rules If and IVg required dismissal of the charge made under N.J.A.C. 4A:2-2.3(a)(2) (insubordination). He concluded that a three-day suspension was an appropriate penalty, to be served as determined by plaintiff.

On May 12, 2008, the union sent a Request for Submission of a Panel of Arbitrators to the Public Employment Relations Com mittee (PERC). On May 16, 2008, the PERC Director of Concilia tion & Arbitration submitted a panel of arbitrators to plaintiff and the union. On May 28, 2008, plaintiff wrote to the PERC Director advising him that the CNA did not provide for binding arbitration in disciplinary matters and that the appeal should be to the Merit System Board (MSB). It quoted Rule XVIIg, which provides, "Appeals from penalties imposed as a disciplinary measure may be taken as provided and Civil Service Law and N.J.S.A. 40A:14-147-151 inclusive." It argued that there was no provision for appeal to PERC, that appeals under N.J.S.A. 11A:2-15 of the Civil Service Law had to be made in writing within twenty days of the decision, and that appeals from discipline of five days or less were governed by N.J.S.A. 11A:2-16. As a result, plaintiff refused to select any arbitrators from the list provided.

Defendants responded to plaintiff's letter to the PERC Direc tor on June 2, 2008. They contended that discipline had been imposed under the reservation of management rights clause in CNA Article IV and that the grievance procedure of Article X, 1 and 2, provided for binding arbitration. It argued that Rule XVII "merely references that appeal may be taken as pro vided by Civil Service Law," which provides for arbitration of minor discipline. They requested that PERC designate an arbitrator from among their selected arbitrators.

On June 3, 2008, plaintiff responded, advising PERC that the matter related to discipline imposed on Foerch. Plaintiff stated that the dispute was not subject to the grievance and arbitration procedure of the CNA; rather, disciplinary action was governed by Rule XVIIg, which was not subject to binding arbitration.

On June 10, 2008, the Director advised both parties that plaintiff's objection was procedural in nature and that it was "not the function of the Division of Arbitration to pass judg ment on questions of procedure or arbitrability of a submitted grievance." As a result, he advised that "absent a mutual request to the contrary, the Commission's rules require the processing of the request for arbitration" and he extended the time for plaintiff to respond to the panel of arbitrators until June 20, 2008.

On or shortly after June 18, 2008, plaintiff filed the veri fied complaint in this action, seeking an injunction restraining PERC from requiring it to submit to binding arbitra tion; holding that appeal from the hearing officer's decision was time-barred; and affirming the hearing officer's decision. On July 2, 2008, the judge entered an order requiring defendants to show cause on August 11, 2008, why the relief sought in the verified complaint should not be granted, but the judge's deci sion on that application was not placed on the record until Sep tember 2, 2008. While the decision was pending, PERC appointed an arbitrator on August 18, 2008.

The judge noted that plaintiff had reported on the return date of the order to show cause that the MSB would not take jurisdiction of the appeal and that plaintiff argued that the union should have taken an appeal to the Superior Court where a de novo hearing would be conducted. The judge concluded that his decision turned on the interpretation of "Article XVIIg." He found as an undisputed fact that plaintiff had been covered by the Civil Service Act for fifteen years. He found that the discipline in question was defined as minor discipline. He con cluded that the parties had not agreed to binding arbitration with respect to minor discipline. The judge discussed appeals pursuant to N.J.S.A. 40A:14-147 to -151 and N.J.S.A. 40A:14-22, both of which provide for de novo review in the Superior Court. He concluded that the only reasonable interpretation of "Arti cle XVIIg" was that the parties agreed to de novo review of dis cipline in the Superior Court as provided in the Civil Service Act, relying on Romanowski v. Township of Brick, 185 N.J. Super. 197 (Law Div. 1982), aff'd, 192 N.J. Super. 79 (App. Div. 1983). Because even plaintiff initially thought that the appeal should be to the MSB, the judge refused to enter a judgment that the hearing officer's decision was final, but he did enter an injunction restraining defendants from prosecuting the PERC arbitration. This appeal followed.

Defendants argue on appeal that the judge failed to apply general principles of law governing the issue of substantive arbitrability, which favors arbitration as the preferred means for resolving disputes and construes agreements to arbitrate liberally to find arbitrability if reasonably possible. They contend that N.J.S.A. 34:13A-5.3 creates a presumption of arbi trability and argue that CNA Article IV, 1(c), limits plain tiff's right to impose discipline to "good and just cause according to law," thus incorporating disciplinary disputes within the terms of the CNA. As such, they contend that a dis pute over discipline falls within the definition of a grievance in CNA Article X, 1, which is "a complaint, a view or an opinion per taining to conditions or relationship between an employee and a superior."

Further, defendants point out that N.J.S.A. 40A:14-150 and N.J.S.A. 40A:14-22 do not apply to plaintiff and predate the amendment to N.J.S.A. 34:13A-5.3 creating a presumption of arbi trability. They contend that the judge erred in relying on Rule XVIIg of plaintiff's Rules and Regulations rather than constru ing and applying the CNA. They urge that N.J.A.C. 4A:2-3.1(d) requires arbitration of minor discipline disputes, such as here, and that the common law writ of certiorari recognized in Romanowski is inapplicable where contractual or administrative remedies are available.

Plaintiff, on the other hand, argues that there was no agree ment in the CNA to arbitrate appeals of disciplinary deci sions, which are not grievances. Further, it asserts that no statute mandates arbitration of minor discipline and, thus, appeal must occur through de novo review by the Law Division under Romanowski.

We begin our review of these issues by considering relevant provisions of the CNA. The management-rights clause in Article IV, 1(c), reserves to plaintiff the right "[t]o suspend, demote, discharge or take disciplinary actions for good cause and just cause according to law." Article X sets forth the procedures governing grievances and 1 thereof provides:

A grievance is a complaint, a view or an opinion pertaining to conditions or rela tionship [sic] between an employee and a supe rior or between an employee and another employee regarding employment. Grievances are con cerned with work conditions, light, heat, sanitary facilities, safety, type and loca tion of work assignments, workload and attitude of superiors.

The four-step grievance procedure contained in Article X, 2, requires at step one that the potential grievance be dis cussed between both parties within fifteen days of the alleged incident. If the grievance is not resolved by step one, the parties proceed to step two in which the grievance is to be sub mitted to the employer in writing within thirty days of the date the grievance occurs or within fifteen days of the date the aggrieved employee becomes aware of the grievance. If the answer at step two does not resolve the grievance, the employee or union representative at step three may apply for arbitration so long as the application is made within fifteen days of the receipt of the step-two answer. Under step four, arbitration, the collective bargaining agreement provides:

If the grievance has not been settled through the grievance procedure, then the employee or the UNION may request PERC, in accordance with the rules and regulations, to appoint an Arbitrator who shall have its full power to hear and determine the dispute between the parties. The Arbitrator shall have the authority to hear and determine the grievance, and his decision shall be final and binding on all parties. The cost of arbitration shall be born equally by both parties. The Arbitrator shall have no right to vary or modify the terms and conditions of the agreement.

The grievance procedure also provides in Article X, 3, that "[a]ny employee who chooses to proceed pursuant to Article XXIV of this agreement, waives his right to proceed through the grievance procedure of Article X including Arbitration." Article XXIV governs protection of rights and 1 thereof provides:

Appeal from Discharge or Suspension. A discharged or suspended employee must notify the local union in writing within five (5) days of his desire to appeal such discharge or suspension. Notice of appeal from dis charge or suspension must be made to the employer within ten (10) days. Nothing herein shall be construed to deny an indi vidual employee his right under State Laws and regulations (Title 40A:14[-]22).[]

The management-rights clause in Article IV, 1(d), addresses the promulgation of Rules and Regulations by the Board of Fire Commissioners (Board) for the operation of the department. The parties agreed that the Board would consult with the union during its consideration of them. The Rules and Regulations attached to the verified complaint with the CNA govern the duties and responsibilities of firefighters in many respects.

Rule XVII governs disciplinary actions and provides that department members, regardless of rank, are subject to discipli nary action, setting forth the criteria for establishing the elements of a violation and the penalties that may be assessed against a disciplined employee. Rule XVIIe provides for a dis ciplinary hearing "[c]onsistent with Civil Service Law, and the rules and regulations which govern the department within a rea sonable time after a disciplinary complaint has been made to the full Board of Fire Commissioners." Rule XVIIf requires that formal charges be given to the employee, that the employee enter a plea of not guilty, guilty, or remain mute. Where a plea of guilty is not entered, the rule requires a formal hearing and decision.

Rule XVIIg provides: "Appeals from penalties imposed as a disciplinary measure may be taken as provided and [sic] Civil Service Law and N.J.S.A. 40A:14-147-151 inclusive." The penal ties subject to this provision range from an oral reprimand to removal from office and include any suspension. The judge's decision here was based on his interpretation of this rule, which he referred to as "Article XVIIg."

"[C]ontract interpretation is a question for judicial reso lution." Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 155 (1978). "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." Ibid. However, on appeal, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twn. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The judicial determination of arbitrability is dependent upon the finding that two con ditions have been met. The first is that the subject of the dispute is a matter which is negotiable as a term and condition of employment . . . . [T]he next inquiry is whether it was in fact negotiated and whether a dispute in respect thereof is cov ered by the negotiated arbitration provision of the contract. Finally, these determina tions must be made in light of the strong public policy favoring arbitration of labor disputes.

[Neptune City Bd. of Educ. v. Neptune City Educ. Ass'n, 153 N.J. Super. 406, 409 (App. Div. 1977) (citations omitted).]

In making such a determination, we are "limited to ascer taining whether the party seeking arbitration is making a claim which, on its face, is covered by the contract and within the arbitration clause." Clifton Bd. of Educ. v. Clifton Teachers Ass'n, 154 N.J. Super. 500, 504 (App. Div. 1977) (citations omitted). "[A]n agreement relating to arbitration should be read liberally 'to find arbitrability if reasonably possible.'" J. Baranello & Sons, Inc. v. City of Paterson, 168 N.J. Super. 502, 507 (App. Div.) (quoting Moreira Constr. Co. v. Twp. of Wayne, 98 N.J. Super. 570, 576 (App. Div.), certif. denied, 51 N.J. 467 (1968)), certif. denied, 81 N.J. 430 (1979). "[A]n order to arbi trate 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." Singer v. Commodities Corp. (U.S.A.), 292 N.J. Super. 391, 405 (App. Div. 1996) (internal quotations & citation omitted).

These principles infuse, but do not necessarily control, the interpretation of the CNA. Plaintiff is a public entity and its relationship with its employees is governed by the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39. Plaintiff also became a civil service employer in 1993 and the rights of its employees are governed by the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. Thus, the CNA must be construed with reference to these laws.

The Employer-Employee Relations Act created PERC, which in pertinent part was charged with making "policy and establish[ing] rules and regula tions concerning employer-employee relations in public employ ment relating to dispute settlement [and] grievance procedures." N.J.S.A. 34:13A-5.2. Importantly to the interpretation of the CNA before us, section 7 of the Employer-Employee Relations Act provides in pertinent part as follows:

Public employers shall negotiate writ ten policies setting forth grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agree ments, and administrative decisions, includ ing disciplinary determinations, affecting them, provided that such grievance and dis ciplinary review procedures shall be included in any agreement entered into between the public employer and the repre sentative organization. Such grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes. Except as otherwise provided herein, the procedures agreed to by the parties may not replace or be inconsis tent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the disci pline of employees with statutory protection under tenure or civil service laws, except that such procedures may provide for binding arbitration of disputes involving the minor discipline of any public employees protected under the provisions of section 7 of P.L. 1968, c. 303 (C. 34:13A-5.3), other than public employees subject to discipline pur suant to R.S. 53:1-10.[] Grievance and disci plinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement. For the purposes of this section, minor discipline shall mean a suspension or fine of less than five days[] unless the employee has been suspended or fined an aggregate of 15 or more days or received more than three suspensions or fines of five days or less in one calendar year.

[N.J.S.A. 34:13A-5.3.]

In rejecting arbitrability of a decision not to renew a teacher's contract, the Supreme Court observed that it "never 'adopted' in full the 'Steelworkers Trilogy'[]; specifically we have not endorsed a presumption in favor of arbitrability for the public sector." Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 203 (2004). In response to this statement, the Legislature amended N.J.S.A. 34:13A-5.3 to add the following language: "In interpreting the meaning and extent of a provision of a collec tive negotiation agreement 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." L. 2005, c. 380, 1 (eff. Jan. 12, 2006). The Supreme Court acknowl edged that the Legislature had thus overruled its holding in Camden. Board of Ed. of Borough of Alpha v. Alpha Educ. Ass'n, 190 N.J. 34, 48 (2006).

We turn now to the impact of the Civil Service Act on the statutory and regulatory framework. At the time this dispute arose, the Civil Service Act was administered by the Department of Personnel (DOP) and the MSB. L. 1986, c. 112. Rules that had been prom ulgated by the DOP pursuant to the Civil Service Act are found in Title 4A of New Jersey Administrative Code, N.J.A.C. 4A:1-1.1 to :10-3.2. See N.J.A.C. 4A:1-1.1 (establishing a personnel sys tem for the effective delivery of public services pursuant to Title 11A). The DOP was made up of the Commissioner of Person nel and the MSB. L. 1986, c. 112, 11A:2-1; N.J.A.C. 4A:1-3.1. The MSB was responsible, among other things, to render final administrative decisions on appeals. L. 1986, c. 112, 11A:2-6; N.J.A.C. 4A:1-3.3(a)(2).

Chapter 2 of Title 4A governed appeals, discipline and separations pur su ant to the Civil Service Act. N.J.A.C. 4A:2-1.1 to -6.2. Sub chap ter 2 governed major discipline, N.J.A.C. 4A:2-2.1 to -2.12, and subchapter 3 governed minor discipline and grievances, N.J.A.C. 4A:2-3.1 to -3.7. "Minor discipline is a formal writ ten reprimand or a suspension or fine of five working days or less." N.J.A.C. 4A:2-3.1(a). However, "[t]his subchapter shall not apply to local service, where an appointing authority may establish procedures for processing minor discipline and grievances." N.J.A.C. 4A:2-3.1(d). Thus, municipal employees were not entitled to the review of minor discipline by the MSB which was provided by N.J.A.C. 4A:2-3.7(a).

Effective June 30, 2008, the Legislature created the Civil Service Commission, L. 2008, c. 29, 1, abolished the DOP, L. 2008, c. 29, 78, and the func tions, powers and duties of the MSB were contin ued and transferred to the Civil Service Commission, L. 2008, c. 29, 77. The Civil Service Commission is empowered, after a hearing, to "render the final administrative decision on appeals concerning permanent career service employees," including a "[s]uspension or fine as prescribed in N.J.S.A. 11A:2-14." N.J.S.A. 11A:2-6. The Civil Service Act requires preliminary notice of discipline and an opportunity for a hearing prior to imposition of discipline. N.J.S.A. 11A:2-13. Following the hearing, the employee is to receive written notice of the decision. N.J.S.A. 11A:2-14.

If the appointing authority determines that the employee is to be removed, demoted or receive a suspension or a fine greater than five days, the employee shall have a right to appeal to the Civil Service Commission. The suspension or fine of an employee for five days or less shall be appealable if an employee's aggregate number of days sus pended or fined in any one calendar year is 15 days or more. Where an employee receives more than three suspensions or fines of five or less days in a calendar year, the last suspension or fine is appealable.

[Ibid. (emphasis added).]

Such appeals are made to the Civil Service Commission. N.J.S.A. 11A:2-15.

Where an appeal is from a suspension of five days or less, as here, the Civil Service Act provides as follows:

If a State employee receives a suspen sion or fine of five days or less, the employee may request review by the Civil Service Commission under standards and pro cedures established by the Civil Service Commission or appeal pursuant to an alter nate appeal procedure where provided by a negotiated contract provision. If an employee of a political subdivision receives a suspension or fine of five days or less, the employee may request review under stan dards and procedures established by the political subdivision or appeal pursuant to an alternate appeal procedure where provided by a negotiated contract provision.

[N.J.S.A. 11A:2-16 (emphasis added).]

Thus, the Civil Service Act does not provide for review by the MSB of a municipal employee's suspension of five days or less nor did it do so prior to the 2008 amendments. Such a sus pension is either reviewed under standards and procedures estab lished by the political subdivision or it is appealed pursuant to an applicable CNA. Initially, we must determine whether the Rules established by plaintiff provide standards and procedures for review of minor discipline.

Rule XVIIg obviously has an error in the language. The phrase "as provided and Civil Service Law and N.J.S.A. 40A:14-147-151 inclusive" might be construed to mean "as provided herein and Civil Service Law and N.J.S.A. 40A:14-147-151 inclu sive" or to mean "as provided in Civil Service Law and N.J.S.A. 40A:14-147-151 inclusive." Because the Rules do not provide therein for any appeal, we must construe the phrase to mean "as provided in Civil Service Law" and the referenced statute.

The reference to N.J.S.A. 40A:14-147 to -151, however, is obviously an error because those are statutory provisions that apply to municipal police departments, not municipal fire departments. The companion provisions governing municipal fire departments are found at N.J.S.A. 40A:14-19 to -22. N.J.S.A. 40A:14-22 provides for review of disciplinary action in the Superior Court. Even if the Rules referred to the statutes gov erning municipal fire departments, those statutes would not gov ern the appeal from this disciplinary action because N.J.S.A. 40A:14-22 specifically exempts civil service fire departments from review de novo by the Superior Court. We, therefore, con clude that the reference to N.J.S.A. 40A:14-147 to -151 is a nullity that cannot be remedied by treating it as a reference to N.J.S.A. 40A:14-19 to -22 because plaintiff is a civil service municipal fire department and that Rule XVIIg only provides for appeal "as provided in Civil Service Law." Of course, the Civil Service Act does not provide for review of minor discipline, although the Rule correctly references the Civil Service Act as providing for review of disciplinary action where the major discipline is concerned.

We are led to this conclusion because N.J.S.A. 34:13A-5.3 requires that negotiated disciplinary review procedures "shall be included in any agreement entered into between the public employer and the representative organization" (emphasis added) except where the Civil Service Act provides a disciplinary review procedure. Although Article IV, 1(d), of the CNA provided that plaintiff would consult with the union while it was considering "the code book of rules and regulations," nothing in the CNA incorporated the Rules into it generally, nor did it specifi cally incorporate the appeal procedure in Rule XVIIg. Thus, even if Rule XVIIg could be construed to provide for review of minor discipline in the Superior Court, as the judge did here, it cannot overcome a contrary provision in the CNA itself. Indeed, the CNA itself provides in Article 1, 5: "If there is a conflict between the general rules and regulations of the Department, and this agreement, the terms and provisions of this contract shall apply, to the extent that the same is permitted by law."

In deciding whether the CNA provides for review of minor dis cipline, we "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 inter pretation." Standard Refinery Union, Inc. v. Esso Standard Oil Co., 31 N.J. Super. 548, 552 (App. Div. 1954). In public-sector employment disputes, "a court should not deliver by fiat what was not obtained through negotiation." Camden Bd. of Educ., supra, 181 N.J. at 200. Because review of minor discipline is negotiable as a term and condition of employment by virtue of N.J.S.A. 34:13A-5.3, we need only determine "whether it was in fact negotiated and whether a dispute in respect thereof is governed by the negotiated arbitration provi sion of the contract." Neptune City, supra, 153 N.J. Super. at 409. To answer those queries, we read the arbitration provision before us liberally, J. Baranello, supra, 168 N.J. Super. at 507, and deny arbitration only if we can say "with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute," Singer, supra, 292 N.J. Super. at 405 (internal quotations & citation omitted). "When analyzing the reach of the CNA's language, we look only to the face of the contract." Cam den Bd. of Educ., supra, 181 N.J. at 202. However, in public-sector employment, as here, we must now presume arbitrability. N.J.S.A. 34:13A-5.3.

 
With these principles in mind, the definition of grievance in the CNA, "a complaint, a view or an opinion pertaining to conditions or relationship between an employee and a superior," is sufficiently broad to encompass a dispute over the minor discipline imposed here. We certainly cannot state with posi tive assurance that arbitration of minor discipline is not cov ered by Article X of the CNA. Based on the record before us, the presumption of arbitrability was not overcome by plaintiff. Thus, it is required by the CNA to arbitrate the dispute over the propriety of the three-day suspension imposed upon Foerch. We reverse and remand this matter for entry of an order compel ling arbitration. The issue of procedural arbitrability raised by plaintiff, i.e., whether the appeal was timely and whether steps one and two of the grievance procedure were satisfied, is for the arbitrator. Pascack Valley Reg'l High School Bd. of Educ. v. Pascack Valley Reg'l Support Staff Ass'n, 192 N.J. 489, 497 (2007) (citing Standard Motor Freight, Inc. v. Local Union No. 560, Int'l Brotherhood of Teamsters, 49 N.J. 83, 96-97 (1967)).

Reversed and remanded.

This latter regulatory violation was not charged in the Preliminary Notice of Disciplinary Action.

The judge struck PERC from the caption and from the provisions of the order to show cause, although there is no order dismissing it from the action in the record on appeal.

No transcript of any proceedings prior to the September 2, 2008, decision were filed and, thus, we do not know what arguments were made by the parties on the return of the order to show cause.

This statute governs review of disciplinary action in municipalities which are not governed by civil service. It has no application here because the position occupied by Foerch was granted civil service status in 1993. Thus, no "rights" are preserved by Article X, 1.

This statute governs discipline of the New Jersey State Police.

We have determined that this term, "less than five days," was a drafting error and have construed it to mean "five days or less" to harmonize it with the analogous appeal procedures of the Civil Service Act, N.J.S.A. 11A:2-14 to -16. County of Monmouth v. Commc'ns Workers of Am., 300 N.J. Super. 272, 295 (App. Div. 1997).

United Steelworkers of Am. v. Am. 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. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); see also AT&T Techs. v. Commc'ns Workers of Am., 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (reaffirming the vitality of the Steelworkers Trilogy).

We note, however, that as of the date of this opinion, the MSB continues to operate under the rules and regulations promulgated by the DOP, which in relevant part remain consistent with the Civil Service Act, as amended in 2008.

Major discipline was defined by the DOP as termination, disciplinary demotion, and a suspension or fine of five days or more. N.J.A.C. 4A:2-2.2(a).

(continued)

(continued)

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June 25, 2009