CITY OF NEWARK VS. NEWARK SUPERIOR OFFICERS ASSOCIATION (C-000037-19, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3684-18T3
CITY OF NEWARK,
Plaintiff-Respondent,
v.
NEWARK SUPERIOR
OFFICERS ASSOCIATION,
Defendant-Appellant.
___________________________
Argued December 18, 2019 – Decided January 24, 2020
Before Judges Whipple, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. C-
000037-19.
Matthew D. Areman argued the cause for appellant
(Markowitz and Richman, attorneys; Matthew D.
Areman, on the briefs).
Stacy Leigh Landau argued the cause for respondent
(Carmagnola & Ritardi, LLC, attorneys; Domenick
Carmagnola, of counsel and on the brief; Stacy Leigh
Landau, on the brief).
PER CURIAM
On June 14, 2017, plaintiff City of Newark promulgated General Order
16-02 (Order), requiring any Newark police officer involved in a shooting or
other critical incident to submit to a fitness for duty examination (FFDE).
Pursuant to the grievance procedure contained in the parties' collective
negotiations agreement (CNA), defendant Newark Superior Officers
Association (SOA) filed a grievance against the City, alleging that the
application of the Order to one of its members violated both the CNA and the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12111. Ultimately, the
SOA initiated arbitration proceedings against the City, during which the City
asserted that the grievance was not substantively arbitrable.1 The City then filed
a verified complaint and order to show cause in the Chancery Division to
preclude the SOA from arbitrating both its pending grievance and future similar
cases. As a result, the arbitrator deferred his ruling.
On April 8, 2019, the Chancery Division judge determined the grievance
was not substantively arbitrable under the CNA, and permanently restrained
1
Under Article 4 of the CNA, the parties agreed to a six-step procedure to
resolve grievances, ranging from informal efforts to settle disputes to the
submission of the grievance to arbitration.
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arbitration. The SOA now appeals from the April 8 order, raising the following
points for our consideration:
A. THE LOWER COURT FAILED TO LEND
ADEQUATE DEFERENCE TO THE STATUTORY
AND JUDICIALLY-RECOGNIZED PRESUMPTION
OF ARBITRABILITY.
B. THE LOWER COURT IMPROPERLY
RESTRAINED ARBITRATION BASED UPON A
MISAPPLICATION OF THE FACTS AND THE
LAW.
After carefully reviewing the record and the governing principles, we affirm.
General Order 16-02 requires that after "a critical incident[,] the
[c]ommander of the [m]edical [s]ervices [u]nit shall coordinate with the
involved officer to have a psychological examination scheduled immediately
with a psychologist . . . ." Under the Order, "[o]fficers involved in a . . . critical
incident shall not be rearmed immediately following the incident[.]" "If the
involved officer returns to duty, the officer shall be held in a restricted status
until the psychological evaluation and recommendation has been completed."
The term "critical incident" is defined in the Order as "[a]ny event that can cause
a member of the Newark Police Division to experience an unusually strong
emotional [and/]or psychological reaction[], including the use of deadly force
by or against a member; accidental discharge of a weapon; and any additional
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unusual occurrences." The Order is intended "to minimize the chance that
officers will suffer from the negative emotional and psychological reactions that
can occur after the use of deadly force or the involvement in a critical incident"
and "to take action . . . to safeguard the mental health of all officers."
On February 19, 2018, Sergeant Juan Gonzalez, a Newark police officer
and SOA member, was involved in an on-duty shooting incident, and was
ordered to undergo a FFDE pursuant to the Order. On behalf of Gonzalez, after
initial settlement efforts failed, the SOA initiated arbitration proceedings,
alleging that the mandatory FFDE was violative of the ADA and provisions of
the CNA. Regarding the CNA, the SOA alleged the Order violated Article 18
applicable to "rights, privileges, and benefits" to which a SOA member is
entitled, Article 19 delineating "[m]anagement [r]ights[,]" Article 20 permitting
grievance of the City's "rules and regulations," Article 24 protecting officers
from discrimination based on union membership, "race, color, creed, age,
national origin, gender or sexual orientation[,]" and Article 29 pro hibiting oral
modification of the CNA, and relieving both parties of the obligation to engage
in further negotiations. During the arbitration hearing, the City countered that
the arbitrator had no jurisdiction over the matter because the subject matter of
the grievance was outside the provisions of the CNA. Nonetheless, the arbitrator
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began hearing testimony from witnesses before resolving the jurisdiction issue,
prompting the City to file a complaint and order to show cause, seeking
injunctive relief enjoining arbitration, and a declaratory judgment declaring that
FFDEs ordered pursuant to the Order did not constitute grievances under the
parties' CNA.
On April 8, 2019, during oral argument, the City cited "[t]he management
prerogative[]" contained in Article 19 of the CNA, reserving the City's powers
"to set the criteria for continued employment of [its] officers[,]" 2 and argued that
2
Article 19 states in its entirety:
Section 1:
The City hereby retains and reserves unto itself,
without limitation, all powers, rights, authority, duties
and responsibilities conferred upon and vested in it
prior to the signing of this Agreement by the laws and
Constitution of the State of New Jersey and of the
United States, including but without limiting the
generality of the foregoing, following rights:
(a) To the executive management and
administrative control of the City
Government and its properties and
facilities;
(b) To hire all employees and subject to the
provision of law, to determine their
qualifications and conditions for continued
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employment, assignment, promotion and
transfer;
(c) To suspend, demote, discharge or take
other disciplinary action for good and just
cause according to law; and
(d) To the executive management of the
Police Department by economical and
efficient selection, utilization, deployment
and disposition of equipment,
notwithstanding any other provisions of
this Agreement.
Section 2:
The exercise of the foregoing powers, rights,
authority, duties or responsibilities of the City, the
adoption of policies, rules, regulations and practices in
furtherance thereof, and the use of judgment and
discretion in connection therewith shall be limited only
by the terms of this Agreement and then only to the
extent such terms hereof are in conformance with the
Constitution and laws of New Jersey and the United
States.
Section 3:
Nothing contained in this Article shall be
construed to deny or restrict the City of its rights,
responsibilities and authority under N.J.S.A. 40, 40A
and 11 or any other national, state, county or local laws
or ordinances.
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under the "controlling case law, . . . disputes arising out of the municipalit[y's]
exercise of rights specifically reserved to it by the express agreement of the
parties cannot be viewed as [subject] to the grievance procedure." The City also
refuted the SOA's contention that Article 20 of the CNA applied, asserting the
Order was "not a rule or regulation" subject to arbitration, but rather "a general
order which [was] a distinct category."3 Further, according to the City, because
3
Article 20 provides:
The City may establish and enforce reasonable
and just rules and regulations in connection with its
operation of the Department and maintenance of
discipline provided such rules and regulations shall be
furnished to the Association and opportunity for the
discussion of the new rules and regulations shall be
afforded to the Association before implementing same.
It is understood that employees shall comply with
all such rules and regulations. Employees shall
promptly and efficiently execute the instructions and
orders of officers and superiors. If an employee or
employees believe a rule, regulation, instruction or
order of an officer or other superior is unreasonable or
unjust the employee or employees shall comply with
the rule, regulation, order or instruction, but with the
further provision that such employee or employees may
regard the rule, regulation, order or instruction as a
grievance which shall be handled in accordance with
the grievance procedure set forth in Article IV of this
Agreement.
A-3684-18T3
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a FFDE was not specifically "addressed by other provisions in the [CNA,]" it
was not subject to arbitration.
The SOA countered that pursuant to N.J.S.A. 34:13A-5.3, there was "a
presumption of arbitrability between public employers and their public sector
unions." The SOA asserted that "the management rights clause" of Article 19
relied on by the City "reserved" the City's rights "only to the extent it does[ not]
violate the law." According to the SOA, "the application of [the Order]
violate[d] the law" by violating "the ADA." The SOA also maintained that
Article 20 of the CNA "authorize[d] the [SOA] to challenge 'the application or
interpretation of any rule or regulation[,]'" and the application of the Order fell
under the purview of that provision.
In an oral opinion, the judge ruled that the dispute was not substantively
arbitrable. Thus, the judge "restrain[ed] the arbitration and issu[ed] a
The Association shall have the opportunity to
grieve the continuation of any rule or regulation for a
period of thirty (30) calendar days after the execution
date of this Agreement or the promulgation of any new
rule or regulation within thirty (30) calendar days after
the promulgation and furnishing of same to the
Association as to the reasonableness or propriety of
said rule or regulation. The foregoing shall not
preclude the Association from grieving the application
or interpretation of any rule or regulation in accordance
with Article IV.
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declaratory judgment" providing that "grievances" involving officers submitting
to FFDEs pursuant to the Order were "not arbitrable under the parties' [CNA]."
In reaching her decision, the judge reasoned that Borough of Stone Harbor v.
Wildwood Local 59, 164 N.J. Super. 375 (1978) was "exactly on point"
inasmuch as "two provisions [of the CNA were] mutually repugnant" and "the
parties [could not] be presumed to have intended such repugnancy."
Specifically, the judge found Articles 19 and 20 of the CNA "to be in
conflict with one another." According to the judge, the provisions "must be read
in a way that harmonizes the meaning of both." The judge determined that
"through Article 19, the City did specifically reserve . . . its control over various
personnel issues." Relying on Stone Harbor, the judge concluded that "disputes
arising out of the municipalit[y's] exercise of rights specifically reserved to it by
the express agreement of the parties[,]" as contained in "Article 19, Section 1b[,]
cannot be viewed as subject to the grievance procedure and, hence, cannot be
submitted to arbitration, the final step of that procedure." In rendering her
decision, the judge rejected the SOA's contention that Article 18 "relating to the
maintenance of standards, . . . Article 20 relating to rules and regulations, Article
24 regarding discrimination and coercion, and Article 29 relating to fully
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bargained provisions" dictated a different result. The judge entered a
memorializing order and this appeal followed.
On appeal, the SOA argues the judge "erred by disregarding the statutory
and judicial presumption in favor of arbitration in labor disputes[,]" and erred
in resolving the "purported conflict" between the two provisions of the CNA by
giving "greater weight to one contractual provision over others[.]" According
to the SOA, "[i]n the event the court perceived a conflict in the parties'
agreement, it had an obligation to defer the matter" to the arbitrator for
resolution of that dispute." Additionally, the SOA contends the judge's
"significant reliance upon [Stone Harbor] is misplaced."
We agree that New Jersey law expressly provides public employees with
a statutory and judicial presumption in favor of arbitration. N.J.S.A. 34:13A -
5.3 provides, in relevant part, that when "interpreting the meaning and extent of
a provision of a [CNA] providing for grievance arbitration, a court . . . shall be
bound by a presumption in favor of arbitration[,]" and "[d]oubts as to the scope
of an arbitration clause shall be resolved in favor of requiring arbitration. " See
Bd. of Educ. of Borough of Alpha, Warren Cty. v. Alpha Educ. Ass'n, 190 N.J.
34, 41-43 (2006) (acknowledging that "[a]rbitration is a favored means of
resolving labor disputes."). "However, the preference for arbitration 'is not
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without limits.'" Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 187 (2013)
(quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168
N.J. 124, 132 (2001)), and "[a]rbitration's favored status does not mean that
every arbitration clause, however phrased, will be enforceable." Atalese v. U.S.
Legal Servs. Grp., L.P., 219 N.J. 430, 441 (2014).
"Substantive arbitrability refers to 'whether the particular grievance is
within the scope of the arbitration clause specifying what the parties have agreed
to arbitrate.'" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research,
Inc., 427 N.J. Super. 45, 59 (App. Div. 2012) (quoting Standard Motor Freight,
Inc. v. Local Union No. 560, 49 N.J. 83, 96 (1967)). "Issues of substantive
arbitrability are . . . decided by the court[,]" rather than the arbitrator. Ibid. See
also Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l
Support Staff Ass'n, 192 N.J. 489, 496-97 (2007) (explaining that substantive
arbitrability is "for a court to decide"). Thus, once a court finds "the existence
of an arbitration clause, a court then must evaluate whether the particular claims
at issue fall within the clause's scope." Hirsch, 215 N.J. at 188.
Because "arbitration is a matter of contract[,] . . . a party cannot be
required to submit to arbitration any dispute which [it] has not agreed so to
submit." Merrill Lynch, 427 N.J. Super. at 59 (quoting Howsam v. Dean Witter
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Reynolds, 537 U.S. 79, 83 (2002)). See also First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 945 (1995) ("[A] party can be forced to arbitrate only
those issues it specifically has agreed to submit to arbitration[.]"). Therefore,
"[a] court must look to the language of the arbitration clause to establish its
boundaries[,]" and "may not rewrite a contract to broaden the scope of
arbitration." Hirsch, 215 N.J. at 188 (first citing then quoting Garfinkel, 168
N.J. at 132).
In Stone Harbor, a union sought to arbitrate "a grievance under the
collective bargaining agreement" between the union and the municipality in
order to determine "the propriety of [a police officer's] discharge[.]" 164 N.J.
Super. at 378-80. We reversed the trial court order denying the municipality's
application for injunctive relief restraining arbitration. Id. at 382-83. We held
that the parties' collective bargaining agreement did not provide for binding
arbitration as a means of resolving a grievance concerning the discharge of a
police officer for just cause where a "provision in the collective bargaining
agreement . . . reserve[d] to management, as an essential management
prerogative, the right 'to suspend, demote, discharge or take other disciplinary
action for good and just cause according to law.'" Id. at 379.
We explained that
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the municipality's contractually reserved right to
discipline, which includes the right of discharge for just
cause, cannot realistically coexist with the agreement
to submit determination of when and how that right can
be exercised to binding arbitration. In our view, . . . the
two provisions are mutually repugnant and the parties
cannot be presumed to have intended such repugnancy.
Rather the agreement must be read in a way that
harmonizes the meaning of both. Hence, despite the
breadth of the language of the provision describing the
grievance procedure, embracing as it does "any
disagreement between the [municipality] and the
members of the [union] involving the interpretation,
application or violation of policies, agreements and
administrative decisions affecting them," those
disputes arising out of the municipality's exercise of
rights specifically reserved to it by the express
agreement of the parties cannot be viewed as subject to
the grievance procedure and hence cannot be submitted
to arbitration, the final step of that procedure.
[Id. at 381.]
We reasoned that our "interpretation of the collective bargaining
agreement [was] entirely consistent with a municipality's manifest
responsibilities regarding the integrity and effectiveness of its local police force
as reflected in our decisional law[,]" and was "in accord with normal
expectations." Id. at 382. We determined that "[t]o hold otherwise would render
ineffective the municipality's reserved right of discipline and would compromise
the power of the municipality to control morale and insure adequate standards
of safety and performance." Ibid.
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Here, the City has a "contractually reserved right" to establish whether an
officer meets "the conditions for continued employment," under Article 19,
section 1(b), of the CNA in the same way that the municipality in Stone Harbor
had a "contractually reserved right to discipline, which include[d] the right to
discharge for just cause[.]" Id. at 381. It follows therefore that the City has the
right to order a FFDE, as delineated in the Order, and this reserved right "cannot
realistically coexist with the agreement to submit determination of when and
how that right can be exercised to binding arbitration." Ibid. Thus, based on
our de novo review, we agree with the judge that the SOA's grievance of the
application of the Order is not substantively arbitrable. See Merrill Lynch, 427
N.J. Super. at 57 ("Where the issues involve contract interpretation and the
application of case law to the facts of the case, the appellate court's standard of
review is de novo.").
Assuming the Order is a "rule or regulation" cognizable under Article 20, 4
our interpretation harmonizes the meaning of both Articles 19 and 20, and is
4
Under Article 20, the SOA is permitted to grieve any new rule or regulation
promulgated by the City "within thirty . . . calendar days after the promulgation."
Although the Order was promulgated by the City on June 14, 2017, the SOA did
not file its grievance on behalf of Gonzalez until over a year later, on June 22,
2018. Article 20 also provides, however, that the requirement that a rule or
regulation be challenged within thirty days "shall not preclude the [SOA] from
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"entirely consistent with a municipality's manifest responsibilities regarding the
integrity and effectiveness of its local police force as reflected in our decisional
law." Stone Harbor, 164 N.J. Super. at 382. Furthermore, contrary to the SOA's
contention, the judge correctly rejected its reliance on Articles 18, 24, and 29,
as those provisions are inapplicable and irrelevant to the issues implicated
herein. Consequently, we agree with the judge's decision to restrain arbitration
of the Order's application in this case, and to enter a declaratory judgment to
curb future similar arbitrations.
Affirmed.
grieving the application or interpretation of any rule or regulation in accordance
with Article [4]." Thus, while a grievance related to the Order itself is out of
time, a grievance related to the application of the Order to Gonzalez is not time
barred.
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