On certification to the Superior Court, Appellate Division, whose opinion is reported at 228 N.J. Super. 189 (1988).
For reversal Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.
[119 NJ Page 75] The question in this case is whether a public employee covered under a collective negotiations agreement has the right to invoke the arbitration provisions included in the grievance machinery of the contract. We hold that absent clear language in the agreement conferring such a right on an employee, the
employee organization has the exclusive right to invoke the arbitration provisions of the contract. In turn, the employee organization owes a duty of fair representation to the employee and must answer for any breach of that duty.
The case arises from plaintiff's complaint against the New Jersey State Board of Mediation and his employer, Bergen County Utilities Authority (BCUA or Authority), demanding that the State Board of Mediation (Board) be directed to invoke the arbitration provisions to resolve a grievance between the plaintiff and his employer. Plaintiff's complaint showed that he had been employed by BCUA from August 1983 until about December 10, 1985, during which time he was a member of the Utilities Workers Union of America AFL-CIO Local 534 (Local 534). He asserted that the collective agreement between BCUA and Local 534 provided for arbitration of grievances, and specifically provided that an individual member could process his or her own grievance. On December 10, 1985, plaintiff received a final notice of disciplinary action from BCUA terminating his employment with the Authority because of unauthorized absences. Over the course of subsequent months, there were numerous communications between his lawyer and the lawyers for BCUA.
On September 10, 1986, the attorney for BCUA informed plaintiff's attorney by letter that as a provisional employee plaintiff had no Civil Service status and was not entitled to Civil Service protection. He had received a departmental hearing on December 10, 1985, at which he was represented by his union, Local 534. The letter informed plaintiff's counsel that the union had indicated that it was "processing Mr. D'Arrigo's grievance to final and binding arbitration." It informed him that the BCUA attorney would shortly receive a list of arbitrators, one of whom would resolve the dispute.
Apparently the union later determined not to invoke the arbitration provisions of the labor agreement, and plaintiff instituted action to compel the Board to supply to plaintiff and BCUA a list of arbitrators for the selection of one to conduct the grievance arbitration between the parties.
In response to an order to show cause, the State Board of Mediation explained to the court that the arbitration request that plaintiff had submitted to the Board was denied because the individual plaintiff is not a party to the collective negotiations agreement between Local 534 and BCUA. Under the Board's policy, only the parties to an agreement may initiate arbitration. Inasmuch as Local 534 had not sanctioned the employee's request to proceed to arbitration, the Board was without authority to offer a panel of arbitrators to an aggrieved employee. The Chancery Division entered judgment dismissing plaintiff's complaint.
The Appellate Division reversed, directing the Board to forward a list of arbitrators. 228 N.J. Super. 189, 549 A.2d 451 (1988). The court reasoned that because the agreement expressly provides for employees to process their own grievances, and the grievance procedure includes arbitration, under Fagliarone v. Consolidated Film Industries, Inc., 20 N.J.Misc. 193, 26 A.2d 425 (Cir.Ct.1942), aff'd, 131 N.J.L. 315, 36 A.2d 297 (E. & A.1944), plaintiff could compel arbitration. It ruled that the selected arbitrator should determine both the timeliness of the grievance and the merits of plaintiff's claim. Id. 20 N.J. Misc. at 198-99, 26 A.2d 425.
We granted the petition for certification filed by BCUA, 115 N.J. 73, 556 A.2d 1217 (1989), and permitted intervention by Local 534. We also allowed the Public Employment Relations Commission and Joint Council # 73, ...