WILLINGBORO BOARD OF EDUCATION v. WILLINGBORO EDUCATION ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLINGBORO BOARD OF EDUCATION,

Plaintiff-Appellant,

v.

WILLINGBORO EDUCATION ASSOCIATION,

Defendant-Respondent.

____________________________________

2015- DecidedJune 1, 2015

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-084-13.

Douglas M. Long argued the cause for appellant (Long, Marmero & Associates, LLP, attorneys; Kathleen M. Bonczyk, on the briefs).

Steven R. Cohen argued the cause for respondent (Selikoff & Cohen, PA, attorneys; Mr. Cohen, of counsel and on the brief).

PER CURIAM

Plaintiff, Willingboro Board of Education appeals from an order denying its application to vacate an arbitration award, N.J.S.A. 2A:24-7, resolving a grievance filed by defendant, the Willingboro Education Association, on behalf of middle and high school teachers in the Willingboro School District pursuant to the parties' collective negotiation agreement (CNA).1 On appeal, plaintiff maintains judicial confirmation of the arbitrator's award was erroneous, arguing (1) the arbitrator lacked jurisdiction over the matter; (2) the arbitrator incorrectly relied on a prior settlement agreement contrary to public policy; and (3) the award was procured through "undue means."

We have reviewed the arguments advanced and, in light of the record and applicable law, we affirm substantially based upon the twelve-page statement of reasons issued by Judge Karen L. Suter accompanying her January 16, 2014 order. R. 2:11-3(e)(1)(A). We add these comments.

Plaintiff's arguments are premised on the fact that when the arbitration commenced, the grievance referenced a CNA, effective from July 1, 2007 through June 30, 2010, which had expired. The parties remained bound by the prior terms, while they negotiated a successor CNA.2 The grievance challenged plaintiff's class scheduling for the 2012-2013 school year.

As background, the expired CNA stated teachers assigned to work a sixth period (equivalent to a 270 minute day) were entitled to additional compensation. A change in scheduling was first introduced for the 2011-2012 school year. At that time, rather than requiring five forty-five minute teaching periods, totaling 225 minutes per day, plaintiff implemented a new block scheduling format, assigning secondary school teachers two ninety minute blocks on one day and three ninety-minute blocks the next, which averaged to 225 minutes over the two-day span. This modification was not challenged by defendant.

Beginning with the 2012-2013 school year, however, plaintiff further modified the block class schedule, requiring all secondary school teachers to teach three ninety-minute blocks per day. Defendant responded by filing a grievance, asserting the new mandatory schedule violated the express terms of the 2007-2010 CNA because additional compensation was not provided for what was equivalent to working a sixth period.3

Following the CNA's outlined grievance procedure, defendant filed a formal demand for arbitration and proceedings commenced. While the matter was pending, a new CNA was adopted on December 10, 2012, made retroactively effective July 1, 2011 through June 30, 2014. Defendant did not amend the grievance to reference the newly negotiated CNA.4 The provisions in this agreement regarding the daily teaching periods and "compensation for the 6th additional assigned class beyond 5" did not change from those in the prior CNA.

Reviewing the issue, the arbitrator considered the terms set forth in the newly adopted CNA, effective July 1, 2011 through June 30, 2014, which plaintiff introduced during the proceeding. The provisions in the successor CNA addressing compensation for work beyond the traditional five period-225 minute day were unchanged from those of the prior CNA.

For the first time in its post-hearing briefs, plaintiff challenged the arbitrator's jurisdiction asserting defendant failed to properly reference the applicable CNA, negating his authority to consider defendant's claims. Rejecting plaintiff's jurisdictional challenge, the arbitrator concluded the erroneous contract date was an "inadvertent error" with "no practical consequences," and the parties knew and arbitrated the issues set forth in the original grievance. He sustained the grievance and awarded a remedy to defendant. Plaintiff filed its complaint to vacate the award challenging procedural and substantive arbitrability. Defendant filed a counterclaim to confirm the award.

In her statement of reasons, Judge Suter addressed each argument now raised on appeal. Clearly understanding the court's limited role in reviewing arbitration awards, see N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 554 (2006) ("[A] reviewing court may not substitute its own judgment for that of the arbitrator, regardless of the court's view of the correctness of the arbitrator's interpretation."), the judge discerned a "question of interpretation of a [CNA] is a question for the arbitrator" and "courts have no business overruling him [or her] because their interpretation of the contract is different." Weiss v. Carpenter, 143 N.J. 420, 433 (1996) (citation and internal quotation marks omitted).

She properly rejected plaintiff's claim of a substantive, rather than a procedural, jurisdictional defect and plaintiff's suggestion the arbitrator exceeded his powers by improperly considering terms of the newly ratified agreement. See Commc'n Workers v. Monmouth Cnty. Bd. of Soc. Servs., 96 N.J. 442, 450 (1984) ("[D]isputes that do not involve rights traceable to the agreement are beyond the jurisdiction of the arbitrator and therefore are not properly arbitrable."). Concluding the arbitrator's determination was not "beyond the scope of the particular grievance" and was based "upon the subject matter submitted," N.J.S.A. 2A:24-8(d), the judge found no basis to vacate the award. Further, she noted the arbitrator's decision not to require defendant's formal amendment of its grievance once the new CNA was ratified, was procedural and thus beyond judicial review. Also, the parties unequivocally understood the challenge centered on payment for teaching beyond the equivalent of five periods under the terms of the current CNA. See Standard Motor Freight, Inc. v. Int'l Brotherhood of Teamsters, 49 N.J. 83, 97 (1967) (holding "questions of procedural arbitrability, i.e., whether procedural conditions to arbitration have been met," are the province of the arbitrator not the courts).

Judge Suter also addressed plaintiff's claim the award was contrary to public policy because the arbitrator referenced a prior settlement between the parties. See Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007) (holding an award may be vacated "if it is contrary to existing law or public policy" (citation and internal quotation marks omitted)). However, under this exception an award will be vacated only when it "plainly violates a clear mandate of public policy." N.J. Tpk. Auth. v. Local 196, 190 N.J. 283, 294 (2007). See also Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994) (instructing courts to vacate awards under the public policy exception only in "rare circumstances").

Here, the arbitrator found the prior settlement of a similar issue was "instructive" on the issue of the length of the teaching period, which triggered additional compensation. He did not find it determinative of the dispute at hand, which involved review of explicit contractual language of the 2011-2014 CNA. Also, he did not, as plaintiff suggests, conclude it was an admission of liability. Further, as Judge Suter noted, sustaining defendant's grievance and issuing an award in light of contractual language contained within the 2011-2014 CNA was "reasonably debatable." See Borough of E. Rutherford v. E. Rutherford PBA, 213 N.J. 190, 203 (2013) ("[E]ven when [an] award implicates a clear mandate of public policy, if the correctness of the award, including its resolution of the public-policy question, is reasonably debatable, judicial intervention is unwarranted." (brackets omitted) (citation and internal quotation marks omitted)).

Finally, plaintiff combines all of its challenges to assert the award "was obtained by undue means," see N.J.S.A. 2A:24-8(a) (allowing a party to challenge an arbitration award "procured by . . . undue means"), contending "the [a]rbitrator misconstrued [plaintiff's] challenge to . . . jurisdiction, and failed to address public policy that settlements not be used against a party." The suggestion that plaintiff did not have an opportunity to be heard on the issues forming the basis of the arbitrator's decision lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The parties have labeled their agreement as a collective bargaining agreement, nomenclature also adopted by the trial judge's opinion. However, "[i]n public sector labor relations in New Jersey, courts use the terms 'collective negotiation' and 'collective negotiations agreements' rather than 'collective bargaining' and 'collective bargaining agreements,'" Troy v. Rutgers, 168 N.J. 354, 359 n.1 (2001) (quoting N.J. Tpk. Emps. Union v. N.J. Tpk. Auth., 64 N.J. 579, 581 (1974)), which is a term found in the federal Labor Management Relations Act, 29 U.S.C.A. 141-187. In our opinion, we refer to the parties' agreement by the more appropriate collective negotiation agreement (CNA).

2 The parties' prior document remained operable and controlling over the dispute while negotiations advanced towards a successor agreement. See N.J.S.A. 34:13A-33 ("Notwithstanding the expiration of a [CNA], . . . no public employer . . . shall unilaterally impose, modify, amend, delete or alter any terms and conditions of employment as set forth in the expired or expiring collective negotiations agreement, or unilaterally impose, modify, amend, delete, or alter any other negotiable terms and conditions of employment, without specific agreement of the majority representative.").

3 There are apparent typographical errors on pages eight and eleven of the judge's statement of reasons when reciting the arbitrator's decision. Specifically the opinion states "five periods equals 200 minutes" and the arbitrator determined "a typical period was 40 minutes." In our opinion we correctly reflect the work day at issue and these mistakes have no substantive impact on the judge's determination.

4 The record contains a reference in defendant's grievance to a June 6, 2012 CNA; it is not disputed there is no agreement matching this date.