For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[38 NJ Page 97] Plaintiff (herein the Company) sued to compel defendants (herein the Union) to arbitrate a dispute
under the collective bargaining agreement between them. The trial court entered judgment for the Union. We certified the Company's appeal before the Appellate Division considered it.
For a number of years the parties disagreed upon whether under their agreements the Company had the right on a permanent basis to change the work schedules of men required for maintenance work in its power plants, so as to assign them for work at times other than 8 A.M. to 4:30 P.M., Monday through Friday. The dispute relates to compensation for such work. The Company insists the pay should be at straight-time rate (plus nighttime differential where applicable) for the first eight hours, whereas the Union contends the pay must be at a premium rate.
In the negotiations for the contract here involved the parties were unable to resolve this recurring dispute. The relevant provisions of the earlier contract were repeated without change, but in a "Statement of Principle" presented to the Union's representative, the Company reiterated its view of their proper construction and said it "agrees to extend the present language applicable to scheduling maintenance into the new contract with the understanding that it is not conceding the merits of the issue or its interest in ultimately reaching its goal."
In the trial court the Union contended successfully that there was no merit whatever to the Company's position and hence arbitration should not be ordered. Before us the Union advances the further propositions that the arbitration provision does not embrace the dispute even if the dispute is meritorious, and that the quarrel is now moot because the contract expired during the pendency of the appeal.
We will first consider the Union's position that the dispute, even if meritorious, does not come within the terms of the arbitration provision. As we have said, this
issue is tendered for the first time on appeal. Indeed the Union now disputes what it conceded in its answer to the complaint.*fn1
Section 8.22 of the contract reads:
"In the event the Company desires to make complaint in connection with this agreement, it shall do so, and if no satisfaction is obtained from the Local Union involved within ten (10) days, the Company shall refer the matter to the System Council. If, within fifteen (15) days, thereafter, the matter remains in dispute, the Company, may, at its option, invoke the grievance procedure set forth herein."
Then follows Article IX, captioned "Grievances and Arbitration," in which appears:
"9.2. Should any dispute arise between the Union and the Company, as to any unadjusted grievance or as to the rights of either party under this agreement, both parties shall endeavor to settle such matters in the simplest and most direct manner. Any dispute arising from the interpretation of this agreement will be referred for discussion between the Company and the Negotiating Committee of the System Council. The procedure (unless changed or any steps thereof waived by mutual consent) shall be as follows:" (italics added).
Five steps are then delineated, the last being arbitration.
The Union relies upon the sentence we have italicized. It says that if a dispute arises "from the interpretation of this agreement," the sole grievance procedure is "discussion between the Company and the Negotiating Committee
of the System Council." It adds that the four steps preliminary to arbitration are couched in terms which reflect an employee's grievance and hence the fifth step, ...