On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.
Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff, Charles D'Arrigo, appeals from a judgment of the Chancery Division dismissing his complaint. Plaintiff had sought a direction to the State Board of Mediation to provide a list of arbitrators for plaintiff's claim against his former employer.
On November 27, 1985, plaintiff was suspended by his employer, the Bergen County Utilities Authority. Mr. D'Arrigo had worked for the Authority since 1983, and was a member of the Utility Workers Union of America. The collective bargaining agreement signed by the Union and the Authority provides that if any grievance is not settled by a specified three-step grievance procedure,*fn1 an arbitrator, selected through the New Jersey State Board of Mediation, would decide the case. After plaintiff's suspension, the Union requested a hearing. At the request of Mr. D'Arrigo, the initial hearing date was rescheduled from December 2 to December 10, so his lawyer could be present. However, on December 10, Mr. D'Arrigo appeared without his lawyer, and "relied on the union". The Authority's personnel officer was the hearing officer, and he upheld the discharge, whereupon the Authority gave Mr. D'Arrigo his final notice of discharge on December 12, 1985.
In April and July of 1986, plaintiff, then represented by counsel, requested another hearing before the Authority, which was scheduled for the week of September 8, 1986. Apparently the new hearing was never held, as Mr. D'Arrigo's attorney
received a letter from the Authority dated September 10, 1986 notifying Mr. D'Arrigo that
[t]he Union has indicated . . . that . . . the Union is processing Mr. D'Arrigo's grievance to final and binding arbitration. I expect to receive within the next week or two a list of arbitrators.
Mr. D'Arrigo thereafter made three written requests for the list of arbitrators, on October 30, December 12, and December 26, 1986. The "only response" was a March 17, 1987 letter from the Authority to Mr. D'Arrigo's attorney stating that "[i]t was the unanimous opinion of the [Authority's board of] commissioners that they would not offer Mr. D'Arrigo reinstatement."
On April 20, 1987 plaintiff filed a grievance petition for arbitration and again on July 9, 1987 requested the list of arbitrators. Thereafter on October 22, 1987 plaintiff instituted this action by obtaining an order directing defendants to show cause on November 19, 1987 why the Board should not be ordered to provide a list of arbitrators. The Authority did not appear on that date, and the court postponed the hearing until December 2, 1987.
On December 2, 1987, the trial court heard the attorneys for the Authority and the plaintiff. The Board appeared solely by way of a letter to the court from the Attorney General's office, stating that it was not the policy of the Board to provide lists of arbitrators to individual plaintiffs. The Authority argued that neither the plaintiff nor the union had filed a grievance, and therefore the plaintiff could not avail himself of the arbitration procedure. The Authority further urged that even if the grievance had been filed or waived, plaintiff had not processed his grievance within the time limits stated in the Agreement.
The plaintiff argued that the Agreement explicitly authorized him to proceed with arbitration as an ...