STATE OF NEW JERSEY JUDICIARY v. PROBATION ASSOCIATION OF NEW JERSEY PROFESSIONAL SUPERVISORS UNION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

JUDICIARY,

Plaintiff-Respondent,

v.

PROBATION ASSOCIATION OF

NEW JERSEY, PROFESSIONAL

SUPERVISORS UNION,

Defendant-Appellant.

_________________________________

July 6, 2015

Argued February 4, 2015 Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-0074-13.

Lynsey A. Stehling argued the cause for appellant (Fox and Fox, LLP, attorneys; Daniel J. Zirrith, of counsel; Ms. Stehling, on the briefs).

Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief).

PER CURIAM

Defendant Probation Association of New Jersey, Professional Supervisors Union (Union) appeals the Chancery Division's October 11, 2013 order granting summary judgment to the New Jersey State Judiciary (Judiciary) and restraining an arbitration brought against it by the Union and one of its members. We affirm.

I.

We briefly describe the factual and procedural background of this matter, which we discern from the record on appeal.

On January 25, 2013, the Hudson Vicinage notified Susan Sant'Ana that she would be removed from her position as a probation team leader, effective the following day. She remained a Judiciary employee following the demotion. In removing Sant'Ana, the Judiciary relied on Article 9.8 of its Collective Negotiations Agreement (Agreement) with the Union, which provides, in part, that "[t]he 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."

On February 11, the Union and Sant'Ana filed a grievance which asserted that the Judiciary's action in removing her from her position violated Articles 2.1, 2.2, 7.6, 9 generally, 9.3, and 9.8. The grievance alleged that Sant'Ana's removal under Article 9.8 violated the terms of the Agreement because Sant'Ana was never given "a reason as to why she was being subjected to a 9.8 action." The grievance further alleged that the demotion was related to Sant'Ana's age, salary, and other protected characteristics, including protections regarding the use of medical leave. The Union maintained that "Article 9.8 was never intended to provide the Judiciary with the unfettered right to terminate an employee from their respective position. Instead, the intent of the provision was to provide the Judiciary with the non-reviewable right to transfer employees to different units and/or divisions for reasons deemed appropriate."

According to Sant'Ana, she had previously been discriminated against based on her union membership by her immediate supervisor, Vicinage Assistant Chief Probation Officer Latesha Parks. Sant'Ana had been working on an alternate workweek schedule for four years, with daily hours from 7:30 a.m. to 3:00 p.m. to accommodate visits to her hospitalized daughter. Sant'Ana was granted a continuation of the alternate workweek schedule for six months in February 2012. However, her request for an extension of that alternate schedule was denied in October 2012. When Sant'Ana attempted to resolve the issue with Parks, she became angry that Sant'Ana was accompanied by a Union representative and advised Sant'Ana that "everyone has a story" with regard to Sant'Ana's alternate workweek request. Sant'Ana also alleged that Parks commented that Union members' salaries were too high and that Parks was shocked that some probation officers' salaries were higher than those of management officials.

In the grievance, the Union and Sant'Ana sought, among other relief, compliance with the terms of the Agreement, and an adjustment in Sant'Ana's salary reduction not greater than five percent.1 The Union also sought to move the grievance directly to step two of the grievance process. The Human Resources Division manager responded on February 19, asserting that Sant'Ana's "removal [was] not subject to the grievance procedure and/or arbitration procedure" as provided in Article 9.8 of the Agreement.

On February 22, the Union submitted a letter to the Office of Labor and Employee Relations (Employee Relations) for the Administrative Office of the Courts, requesting that the grievance be moved to step three. On February 27, Joanne Watson, Chief of Employee Relations, responded that, because Sant'Ana's removal was non-reviewable and non-grievable under Article 9.8, her grievance would not be considered at step three. The Union and Sant'Ana then requested that the grievance be moved to arbitration.

On May 17, the Judiciary filed a one-count complaint in the Chancery Division, seeking temporary and permanent restraint of the arbitration on the grounds that it was precluded by Article 9.8. In response, the Union filed a motion to transfer the matter to the Public Employment Relations Commission (PERC) pursuant to Rule 4:6-2(a) or, in the alternative, to dismiss the Judiciary's complaint for failure to state a claim pursuant to Rule 4:6-2(e). The Judiciary filed a cross-motion for summary judgment.

The Chancery judge heard oral argument on October 11. The judge placed an oral decision on the record, including findings of fact and conclusions of law, explaining his reasons for denying the Union's motion to transfer or dismiss, and instead granting the Judiciary's cross-motion for summary judgment.

The judge determined that "an Article 9.8 removal is not subject to the grievance process and, therefore, not subject to arbitration." He observed that the terms of the Agreement were "unmistakably clear" in that regard. The judge also addressed the Judiciary's argument that the claim was barred based on the doctrine of collateral estoppel, inasmuch as the same legal issue had been decided against the Union in State of New Jersey Judiciary v. Probation Association of New Jersey, Professional Supervisors Union, No. A-5864-04 (App. Div. June 23, 2006) (Judiciary I) (slip op. at 1). The judge found that "the doctrine of collateral estoppel clearly applies to defeat [the Union's] argument in support of [the Judiciary's] motion for summary judgment." The implementing order was entered on October 11. This appeal followed.

II.

On appeal, the Union argues that the motion judge erred in finding that Article 9.8 barred Sant'Ana's grievance and that the matter should have been transferred to PERC. We disagree.

We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

In Judiciary I, we definitively determined that the language in Article 9.8 precluded review of the removal of a team leader under Article 9.8 through grievance or arbitration. Both the Union and the Judiciary are bound by that decision, even though it was not published. See Mantilla v. NC Mall Assocs., 167 N.J. 262, 267 n.1 (2001); R. 1:36-3. The motion judge correctly determined that the Union was collaterally estopped from re-litigating that issue in the trial courts. Although we are not bound by the opinion of another appellate panel, we see no basis to depart from the decision reached in that case. Because the judge correctly determined that Article 9.8 precluded the arbitration, he did not err in refusing to transfer the case to PERC.

The issue before us is limited to whether the demotion of a team leader pursuant to Article 9.8 can be grieved or arbitrated. The Judiciary does not argue that Article 9.8 allows it to demote team leaders for improper reasons2 or with impunity. Neither Article 9.8 nor our decision preclude Sant'Ana from bringing suit against the Judiciary on the basis that she was improperly demoted because she was a union member, or a member of a protected class under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, or a whistleblower under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, or on any other legal theory. In addition, to the extent Sant'Ana has claims concerning earlier unfair treatment, such as her supervisor's refusal to extend her alternate workweek schedule so she could care for her daughter, Article 9.8 does not bar her from pursuing her rights under the Agreement, assuming such action would be timely and does not raise the issue of the demotion.3 We hold only that the plain language of Article 9.8 precludes the Union and Sant'Ana from seeking relief from her demotion through a grievance or arbitration under the Agreement.

Affirmed.

1 The issue of salary reduction was resolved when Sant'Ana's salary was subsequently adjusted upwards.

2 In resolving the related unfair practice claims, PERC found that Article 9.8 did not permit the Judiciary to act for improper reasons.

3 We express no opinion with respect to the merits of any such potential claims.