On appeal from Superior Court of New Jersey, Law Division, Union County.
Approved for Publication November 19, 1996.
Before Judges King, Conley and Loftus. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by CONLEY, J.A.D.
Defendant Union County College Chapter of the American Association of University Professors (AAUP) appeals a Law Division order vacating an arbitration award in favor of its grievant, Spencer Zimmerman. We affirm.
The grievant, an assistant professor employed by plaintiff Union County College, was denied tenure and was not reappointed for the 1993-94 academic year. The AAUP grieved that determination on his behalf. Ultimately, the dispute was arbitrated, with an award for Zimmerman. Following a hearing, the record of which is not before us since it was not transcribed, the arbitrator determined that "the employer did violate the Agreement by not granting tenure . . . [and] remanded to the department level . . . [directing] that consistent criteria be applied. . . . [and] should there be any deficiencies in faculty-member's evaluation, said deficiencies be stated with specificity, so they may be properly addressed. . . ."
The AAUP's grievance was premised upon a claim that the tenure denial violated a settlement of a prior grievance arising from the College's decision not to reappoint Zimmerman for academic year 1992-1993 and also based upon the contention that the College arbitrarily and capriciously did not comply with a positive recommendation by a peer review committee, did not provide "proper" reasons for the determination, and was arbitrary and capricious in that the "criteria of Article XIII B. and C." *fn1 were not followed or "properly applied."
We deem it unnecessary to recount in detail the entire procedural and substantive history of the grievance. Suffice it to say that the settlement the AAUP relied upon related solely to Zimmerman's reappointment for academic year 1992-1993. It included an agreement that he be reappointed for that year and considered for reappointment for 1993-1994 as a fifth year reappointment. Under the collective agreement, Zimmerman would also have been considered for tenure as a fifth year assistant professor. The settlement is entirely silent as to Zimmerman's prospects for tenure consideration and suffice it also to say that under the parties' collective negotiations agreement the criteria for reappointment and tenure are distinct. *fn2
Simply put, this the arbitrator did not understand. As the trial Judge explained:
The agreement, in addressing criteria, very clearly shows that there is an enhanced level of evidence required for a tenure appointment beyond that required for the normal reappointment. That's important in this case because the focus of the dispute is not on the teaching effectiveness or the general academic record of Professor Zimmerman. No one has brought those general qualifications into issue here. But rather, the focus is on, in addition to that, does his file and his record at the college demonstrate the other criteria of contribution to the college and the community? The arbitrator equated the criteria for reappointment with the criteria for tenure in this area. Throughout the decision the arbitrator continually referred to those criteria as being the same.
Reference to page 15 of the award and the ensuring pages. When speaking of the two decisions made by the department evaluation committee, the arbitrator said these two separate Conclusions by the same department within a two week period cannot be reconciled. In so stating, the arbitrator fails to recognize that there are different criteria at work, that there is no inconsistency on a very basic and fundamental level with those two Conclusions.
On the next page the arbitrator goes a little further and appears to apply the criteria in dealing with a contribution to the college and community, criteria set forth for the reappointment and to ignore different criteria set forth for the tenure appointment, and further he now, in speaking of these two appointments, uses the words "same criteria."
I find that that clearly is in error, that the agreement does not apply the same criteria to these appointments; that the agreement without question, as I have indicated, establishes a higher level of evidence when dealing with the tenure appointment. An arbitrator's decision must be founded on the agreement made by the parties that is before the arbitrator. If it goes beyond or if it makes a fundamental error in its reading of that agreement, it cannot stand. This agreement, this decision I think is fundamentally flawed for that reason.
We are cognizant of the appropriate scope of review of public-sector arbitration awards. To be sure, arbitration of labor-management disputes is favored, County College of Morris Staff Ass'n v. County College of Morris, 100 N.J. 383, 390, 495 A.2d 865 (1985), and arbitration awards are entitled to judicial deference, Local No. 153, Office and Professional Employees Int'l Union v. Trust Co. of New Jersey, 105 N.J. 442, 448-49, 522 A.2d 992 (1987). But that favor and that deference are not without limitation. Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 149, 651 A.2d 1018 (1995). An arbitrator may not exercise greater authority than the contract confers. Ibid. ; County College of Morris, (supra) , 100 N.J. at 391. "The scope of an arbitrator's authority depends on the terms of the contract between the parties." Scotch Plains-Fanwood, (supra) , 139 N.J. at 149; see Local No. 153, (supra) , 105 N.J. at 449. Any action taken by an arbitrator ...