TOWNSHIP OF MONTCLAIR v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 1040

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0028-08T30028-08T3

TOWNSHIP OF MONTCLAIR,

Plaintiff-Respondent,

v.

COMMUNICATIONS WORKERS OF

AMERICA, AFL-CIO, LOCAL 1040,

Defendant-Appellant.

_____________________________________________

 

Argued September 29, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-34-08.

Steven P. Weissman argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Weissman, on the brief).

Joseph M. Hannon argued the cause for respondent (Genova, Burns & Vernoia, attorneys; Mr. Hannon, on the brief).

PER CURIAM

Defendant Communications Workers of America, AFL-CIO, Local 1040 (CWA) appeals from the trial court decision restraining arbitration of its grievance against plaintiff Township of Montclair (Township). CWA contends that the question of whether the grievance is arbitrable is for the arbitrator to decide. The trial court held that the question of arbitrability of the grievance was a question for the court and concluded that the grievance was not subject to arbitration.

In light of the recent Supreme Court decision of Amalgamated Transit Union, Local 880 v. New Jersey Transit Bus Operations, Inc., 200 N.J. 105 (2009), we reverse. The question of whether the grievance is subject to arbitration is a question for the arbitrator to decide.

I

We begin with the salient facts and procedural history. On January 2, 2007, the Township appointed Paul Brown to its newly created position of Production Manager - CATV for the Township's Manager's Office. The position was placed within CWA's collective bargaining negotiations unit. Brown's appointment was subject to the successful completion of a ninety-day probationary period. As part of the Township's policy, Brown underwent drug screening. When he tested positive for cannabinoid, the Township immediately terminated his employment. Brown denied that he abused drugs or alcohol and contended that he was never under the influence of drugs or alcohol when at work.

CWA filed a grievance, alleging that Brown had been terminated without just cause in violation of Article 6 of its collective bargaining agreement with the Township. The Township denied the grievance. CWA then filed for arbitration of the dispute in accordance with the grievance procedure in the collective bargaining agreement.

After an arbitrator was selected, the Township filed an order to show cause to restrain the arbitration, contending that Brown, as a probationary employee, was not "regularly employed" within the meaning of the collective bargaining agreement, and his grievance was not properly subject to arbitration under the terms of that agreement. In a cogent written opinion dated August 19, 2008, the trial court determined that it had the jurisdiction to determine whether the dispute was arbitrable and concluded that it was not. CWA has appealed to this court.

II

After the trial court issued its decision and while this appeal was pending, the Supreme Court issued its opinion in Amalgamated Transit Union, Local 880 v. New Jersey Transit Bus Operations, Inc., supra, 200 N.J. 105. That case effectively decides the issue before us.

In Amalgamated, a probationary employee of New Jersey Transit and member of the union was terminated during his probationary period for providing false information on his employment application. Amalgamated Transit Union, Local 880 v. N.J. Transit Bus Operations, Inc., supra, 200 N.J. at 109-10. The union filed a grievance due to the termination. Id. at 110. It sought arbitration in accordance with the provision in the collective bargaining agreement that permitted arbitration of any dispute or grievance "as to the interpretation, application, or operation of any provisions of this agreement." Ibid. The arbitration panel addressed the question of whether the termination of a probationary employee was subject to arbitration under the agreement. Id. at 111-12. The panel concluded that it was not. Ibid. While the trial court agreed with this decision, the Appellate Division reversed. Id. at 112. It determined that a court, not the arbitration panel, must decide whether the grievance was subject to arbitration. Id. at 112-13. It then interpreted the agreement to permit arbitration of the grievance. Id. at 113-14.

The Supreme Court reversed. It concluded that under the terms of the collective bargaining agreement, the arbitration panel, not the court, must decide whether a probationary employee could invoke the arbitration provision and grieve his termination. Id. at 119-20. In reaching this conclusion, the Court wrote:

[T]he CBA [collective bargaining agreement] clearly conferred that broadly stated power to interpret this CBA on the arbitrators. Thus, the CBA's arbitration provision granted to the arbitrators the authority to decide this question about their own jurisdiction. Any court looking at this CBA should have seen that it conferred broad interpretative power on the arbitrators and should have left the question for interpretation to the decision-makers designated by this CBA.

[Id. at 118.]

 
The collective bargaining agreement between the Township and CWA provides that its grievance procedure "constitutes the sole and exclusive method for resolving grievances between the parties covered by the [a]greement." It defines a grievance as "a dispute or complaint arising between the parties and concerning the application or interpretation of this agreement." Thus, similar to the collective bargaining agreement in Amalgamated, the collective bargaining agreement in this case provides that disputes over the interpretation of the agreement are subject to arbitration. Accordingly, the question of whether Brown, a probationary employee, may grieve his termination under the collective bargaining agreement is a preliminary question for the arbitrator to decide. Only if the arbitrator decides that question in favor of CWA, may the arbitrator then reach the merits of the dispute.

Reversed.

(continued)

(continued)

2

A-0028-08T3

October 19, 2009