The primary issue in this case is whether minor disciplinary disputes involving civil service employees can be subject to binding arbitration.
This lawsuit has been commenced by plaintiffs Eugene Conlon, a Middlesex County Corrections Officer, and the Middlesex County Policeman's Benevolent Association, Local Number 152. Plaintiff Conlon is an officer and member in the union. As an employee of the Middlesex County Corrections Department, he is protected by the civil service laws.
The facts which give rise to this controversy are relatively straightforward. On July 21, 1993, Conlon was issued a memorandum from his superior, Captain John Tevoli, advising him that due
to fifteen used sick days, Conlon would thereafter be required to submit a doctor's note for every sick day used and the note must clearly state that he was unable to work that day. Less than a week later, on July 27, 1993, he reported in sick. He subsequently submitted a note dated July 27, 1993, from Princeton Allergy Associates stating that he had been to that office for medical treatment on July 27, 1993. The note did not state he was unable to work that day.
On July 28, 1993, Captain Tevoli, in a memorandum to the Deputy Warden, charged Conlon with insubordination for failure to submit a proper doctor's note. A minor disciplinary hearing was held on September 3, 1993, before Captain Kenneth Maretta. Conlon was represented by counsel at the hearing. On September 8, 1993, he was found guilty as charged and was suspended for two days (September 13 and 14, 1993).
On January 5, 1994, almost four months later, Conlon filed this action in lieu of prerogative writs against the Middlesex County Department of Corrections, August Marazo, John Tevoli, Kenneth Maretta, and the County of Middlesex to overturn the disciplinary action and alleging violations of § 1983 of the Civil Rights Act. 42 U.S.C.A. § 1983.
Defendants County of Middlesex and Middlesex County Department of Corrections seek to dismiss the complaint arguing that (1) plaintiffs failed to exhaust their administrative remedies and (2) the action in lieu of prerogative writs is out of time.
With respect to the claim that plaintiffs have failed to exhaust their administrative remedies, the New Jersey Court Rules provide that before an action in lieu of prerogative writs may be brought, all administrative remedies must be exhausted. The rule in question, R. 4:69-5, provides:
Except where it is manifest that the interest of Justice requires otherwise, actions under R. 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted.
In this case defendants maintain that Conlon has not exhausted his administrative remedies since he failed to follow the grievance
procedure in the collective bargaining agreement governing his employment.
The terms and conditions of Conlon's employment are governed by the collective bargaining agreement between Policemans Benevolent Association Local Number 152 and the County of Middlesex. The grievance procedure set forth in section 37.03 of the agreement includes four steps: (1) Discussion between Policemans Benevolent Association representative and the superior officer; (2) written grievance to deputy warden or his designee; (3) written grievance to warden or his designee; and (4) written grievance to the personnel director. Section 37.04 provides that failure to submit a grievance to the next step constitutes withdrawal of the grievance. If the four step procedure does not resolve the grievance, the matter can then be submitted to binding arbitration pursuant to Section 37.05 of the agreement.
In this case plaintiff did not pursue his grievances to the warden personnel director and then to binding arbitration. As a result, defendants argue Conlon has not exhausted his administrative remedies and may not pursue an action in lieu of prerogative writ.
In response, plaintiffs contend that the grievance procedure is illegal and thus Conlon need not exhaust his administrative remedies to proceed with this action. Specifically, plaintiffs contend that the provision in the contract providing for binding arbitration of the dispute is unenforceable. Defendants disagree.
Plaintiffs maintain that the grievance procedure, including the binding arbitration procedure, is unenforceable, because it constitutes unlawful infringement of management's prerogative and because the New Jersey Employer-Employee Relations Act precludes ...