Defendant Ferrone, a member of defendant Local, an affiliate of the International Brotherhood of Teamsters, was employed by plaintiff, Garden State Propane Gas Company. On August 8, 1977 plaintiff discharged Ferrone who thereafter sought arbitration based upon his claim that the discharge was without "just cause or reason" and hence violates the terms of the employment agreement in effect at that time. Garden State seeks to restrain arbitration until the court determines whether the discharged employee has complied with certain alleged contractual preconditions requiring a written grievance to be filed within two working days of the discharge. Defendants insist that question is for the arbitrators under the contract. The employer argues that the employee's failure to comply with the aforementioned procedural requirement of the contract deprives Ferrone of recourse to arbitration and that the controversy here is thus solely for the court's determination.
The function of the court in such a dispute is to determine whether the employment contract in question on its face is within the area of competence of the arbitrators. Wiley & Sons v. Livingston , 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964); United Steelworkers v. American Mfg. Co. , 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); Operating Engineers v. Flair Builders , 406 U.S. 487, 92 S. Ct. 1710, 32 L. Ed. 2d 248 (1972); Battle v. General Cellulose, Co. , 23 N.J. 538 (1957); Dist. 65, R.W.D.S.U. v. Paramount Surg. Supply Co. , 117 N.J. Super. 125 (App. Div. 1971). Plaintiff, however, claims that before arbitration is available the preconditions contained in the employment agreement must be met.
Article VIII of the employment contract provides for discipline and discharge in the following language:
The Employer retains the right to discipline or discharge employees for just cause or reason. In the event the employee or the Union questions the disciplinary action or discharge, he or it shall file a written grievance with the Employer concerning the same within two (2) working days of the imposition of the discipline or discharge.
If a grievance is properly filed, the same shall be processed in accordance with the grievance and arbitration provisions of this Agreement. The Union steward or officer in the plant will be given notice of any discipline or discharge.
Garden State asserts that neither the Local nor Ferrone complied with Article VIII in that no grievance concerning the discharge was filed within two working days after the imposition of the discharge.
Defendant relies substantially on Operating Engineers v. Flair Builders, supra , arguing that the alleged failure to comply with the two day requirement is analogous to the claim of laches.
In Flair Builders , although the agreement provided for arbitration of "any difference * * * between the parties hereto which cannot be settled * * * within 48 hours of the occurrence," the application for arbitration was not filed until five years after the incident.
I cannot agree that the circumstances of Flair Builders and those of the instant case are analogous. Laches is an inexcusable delay in bringing suit, coupled with prejudice to the party against whom the claim is asserted. McLaughlin v. Dredge Gloucester , 230 F. Supp. 623 (D.N.J. 1964) Finley v. U.S. , 130 F. Supp. 788 (N.J. 1955); Good v. Lackawanna Leather Co. , 96 N.J. Super. 439 (Ch. Div. 1967).
Here plaintiff does not rely on laches based upon unjustifiable delay; rather, Garden State contends that there is a contractual precondition to the right to arbitrate, that is, the filing of a grievance in writing within two working days of the discharge. This argument is substantially different from that with which Flair Builders was concerned.
More in point is Moreira Constr. Co., Inc. v. Wayne Tp. , 98 N.J. Super. 570, 572 (App. Div. 1968), wherein a contract between the municipality and a contractor provided for arbitration of certain disputes and contained this provision: "The Contractor shall, within two (2) days ...