[149 NJSuper Page 148] This action presents another of the perplexing problems arising out of the application of the public sector bargaining provisions of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. Specifically,
the issue here is the relationship between the act and certain provisions of the Civil Service Law.
The facts which give rise to this controversy are not in dispute. Plaintiff (Local 866) is the certified representative of the custodial and maintenance employees of the defendant Lodi Board of Education (board), and since 1949 all such employees of the board have been covered under the provisions of the Civil Service Law, N.J.S.A. 11:19-1 et seq. Effective July 1, 1973, Local 866 and the board entered into a collective bargaining agreement which contemplated the creation of the position of "leadman," lying on the line of promotion between custodian and head custodian. Under the terms of the agreement leadmen were to be paid at a rate $400 above that of custodians. Four custodians were initially appointed to this position by the board, and two others were added at a later date.
After the agreement was executed the board submitted to the Department of Civil Service (Department) a description of the duties and responsibilities of the leadman position. On December 22, 1973 the position was classified by the Department as falling under the title "senior custodian." A promotional examination, open to all custodians with one year in service, was conducted, and on September 28, 1974 the Department certified five individuals as eligible for appointment to the leadman position. The board failed to appoint any of the successful examination candidates, whereupon the Department issued a payroll disapproval. The board responded to this action by abolishing the leadman position and rescinding the earlier appointments. The Department then lifted the payroll disapproval.
The six individuals who had been appointed leadmen filed a grievance with the board which resulted in an arbitration award on September 5, 1975. The arbitrator concluded that the leadman position was created by a collective negotiation agreement and that the board had violated the agreement by unilaterally abolishing the position. The arbitrator directed the board to restore the leadman job classification
immediately and to make the six employees who had been leadmen "whole for their loss of salary."
The board refused to carry out the terms of the award, and in March 1976 Local 866 filed this action to enforce the award and to recover back pay for the employees involved. The board in its answer asserted that it was obligated both under the terms of its contract with Local 866 and under the Civil Service Law to comply with the directives of the Department and was compelled to abolish the position of leadman. On August 5, 1976 the Department of Civil Service was granted leave to intervene as amicus curiae. Plaintiff has now moved for summary judgment.
The scope of judicial review of an arbitrator's award is, of course, limited. Daly v. Komline-Sanderson Engineering Corp. , 40 N.J. 175, 178 (1963); Local Union 560 v. Eazor Express, Inc. , 95 N.J. Super. 219, 227 (App. Div. 1967); see N.J.S.A. 2A:24-8. While much has been written in an attempt to articulate the basis upon which a court may vacate or modify an award in arbitration, it has been generally accepted that neither the merits of the award nor the factual findings of the arbitrator (unless tainted by misconduct or corruption) may be challenged. See United Steelworkers v. Enterprise Wheel & Car Corp. , 363 U.S. 564, 570, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); Held v. Comfort Bus Line, Inc. , 136 N.J.L. 640, 642 (Sup. Ct. 1948). Igoe Bros., Inc. v. Nat'l Ben Franklin Fire Ins. Co. , 110 N.J. Eq. 373, 376 (E. & A. 1932); Bell v. Price , 22 N.J.L. 578, 590 (E. & A. 1849). Where the arbitrator, however, has passed upon a question of law, particularly one of first impression, and has based his decision on an interpretation and application of the law to the facts he has found, judicial review of his disposition of the legal issues has generally been sanctioned.*fn1 See Brooks v. Pa.
Manu. Assoc. Inc. Co. , 121 N.J. Super. 51, 54 (App. Div. 1972), mod. on other grounds 62 N.J. 583 (1973); Harsen v. West Milford Tp. Bd. of Ed. , 132 N.J. Super. 365, 372 (Law Div. 1975); Held v. Comfort Bus Line, Inc., supra at 641-642; Schenck's Adm'r v. Cuttrell , 2 N.J. Eq. 297, 301 (Ch. 1840).
In this instance the arbitrator expressly disclaimed any attempt to deal with the legal issue projected by the board, viz. , whether the board was bound to comply with a directive of the Department of Civil Service. He reasoned that arbitrators have no expertise in the law, are often without any formal legal training, and should "stay within their particular ballpark", i.e. , the interpretation of the agreement itself. Thus constrained, the arbitrator concluded that the parties ...