On appeal from Superior Court, Chancery Division, Cape May County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D. Fritz, P.J.A.D. (concurring).
Plaintiff Borough of Stone Harbor, a municipality which has not elected to employ under civil service, appeals from a trial court denial of its application for an injunctive order restraining defendant Daniel Lloyd, a former police officer discharged on a finding of cause therefor, from submitting the disciplinary charges brought against him to arbitration.
The pertinent facts are not disputed. On June 8, 1977 Chief William Donohue, of the Stone Harbor Police Department, brought written charges against Patrolman Daniel Lloyd. Well within 30 days thereafter the Public Safety Committee conducted a hearing, in which Lloyd participated, the result of which was a dismissal of Lloyd from the Stone Harbor police force. Final notice of Lloyd's dismissal was sent to Lloyd on July 7, 1977, two days after the decision of the Committee, and was received by Lloyd's wife on July 8, 1977. On that same day Lloyd sought, in writing, arbitration of his dismissal as a grievance under the collective bargaining agreement between defendant Wildwood Local 59, Policemen's Benevolent Association of New Jersey, and the Borough of Stone Harbor.
Lloyd, however, had initiated proceedings under the collective bargaining agreement almost immediately following his receipt of charges. Hence, on June 10, 1977, he wrote to the Police Committee advising it that he regarded the charges as grievable matters and demanded their immediate withdrawal. Not receiving an immediate answer to this letter, he wrote another letter of the same tenor and on June 23, 1977 received an answer advising him that the Committee would not withdraw the charges "pending a hearing on June 27,
1977." As noted before, the hearing was held and the dismissal of July 5, 1977 resulted. The subsequent demand for arbitration precipitated the present litigation.
The trial judge, in a letter opinion, denied injunctive relief holding that the statutory means provided for the review of municipal disciplinary action (N.J.S.A. 40A:14-147) was not the exclusive means of reviewing municipal discipline of police officers. He took the position that the Legislature intended, by means of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , to permit disciplinary matters to be the subject of grievance procedures if the parties so elect. Finally, he rejected the municipality's contention that the terms of the contract did not survive its expiration date, holding instead that the terms subsisted until a new contract was executed.
He did not, however, directly confront what we consider the most troublesome issue in the case, the one predicated upon the provision in the collective bargaining agreement which reserves 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." The provision from which the quoted portion was taken announces the parties' understanding that
The Borough 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, the following rights:
There follows a list of those rights reserved for the exercise of management, including the right to manage and control the city government, its property and facilities; the right to hire employees and determine their qualifications for continued employment; and pertinent to the present matter, the right to take disciplinary action for just and good cause according to law.
The municipality argues that disputes and controversies concerning the manner in which it exercises those rights reserved exclusively to it by the terms of the collective bargaining agreement are not arbitrable under the grievance ...