On appeal from the Superior Court, Appellate Division, whose opinion is reported at 305 N.J. Super. 454 (1997).
The opinion of the court was delivered by: Pollock, J.
Robert E. Anderson, General Counsel, submitted a brief on behalf of amicus curiae New Jersey Public Employment Relations Commission.
In this appeal we revisit the question whether common-law arbitration has survived the passage of the Arbitration Act, N.J.S.A. 2A:24-1 to -11 (the "Act"). The Appellate Division doubted that common-law arbitration survived. 305 N.J. Super. 454, 457, 459 (App. Div. 1997). Accordingly, the court held that plaintiff, the Policeman's Benevolent Association, Local 292 (PBA), could not resort to a plenary action to confirm an award resulting from grievance arbitration with defendant, the Borough of North Haledon ("North Haledon" or the "Borough"). Id. at 465, 466. One Judge Dissented in part. Id. at 466 (Rodr¡guez, J. Dissenting). The PBA appealed of right. R. 2:2-1. We reverse and remand the matter to the Chancery Division.
In November 1993, North Haledon hired a Special Law Enforcement Officer to perform patrol and desk work on regularly scheduled police shifts. The PBA claimed that the replacement of a regular officer with a special officer violated both its collective bargaining agreement (the "Agreement") with the Borough and N.J.S.A. 40A:14-146.16(b), which provides that special officers may assist, but not replace, regular officers. The Borough claimed that "short-staffing" within the police department had created an "emergency," under N.J.S.A. 40A:14-118 and -122, entitling the Borough to hire special officers during the emergency's existence.
A grievance clause in the Agreement specified the submission of disputes to arbitration conducted in accordance with rules promulgated by the Public Employment Relations Commission (PERC). The PBA filed a grievance, and the matter proceeded to arbitration. In February 1995, the arbitrator entered an award for the PBA.
One section of the Arbitration Act, N.J.S.A. 2A:24-7, provides that either party may commence a summary action for confirmation or vacation of the award within three months of its delivery. That provision states:
A party to the arbitration may, within 3 months after the award is delivered to him, unless the parties shall extend the time in writing, commence a summary action in the court aforesaid for the confirmation of the award or for its vacation, modification or correction. Such confirmation shall be granted unless the award is vacated, modified or corrected. [N.J.S.A. 2A:24-7]
In a prior grievance arbitration, the PBA had prevailed. Within three months of delivery of that award, the PBA brought a confirmation action. The Borough then sought vacation of the award, arguing that the award was contrary to law and against public policy. Adopting the Borough's argument, the Chancery Division vacated the award.
Seeking to avoid a similar result in the present matter, the PBA decided not to file a summary action for confirmation under the Act, but to wait and seek confirmation through a plenary proceeding. By waiting, the PBA hoped to preclude an untimely action by the Borough to vacate the award.
The Borough also played a waiting game: It hoped that if it did not move to vacate the award, the PBA would fail to file a timely action to confirm, thereby rendering the award unenforceable.
Four months after the entry of the award, the PBA instituted the within action by summons and complaint in the Chancery Division. Two months later, the Borough filed an answer and counterclaim, seeking vacation of the award and asserting twenty affirmative defenses. The PBA claimed that the Borough's counterclaim was time-barred as beyond the three-month limit. The Chancery Division agreed and confirmed the award.
In a divided opinion, the Appellate Division affirmed in part and reversed in part. 305 N.J. Super at 454. The court concluded that the failure of either party to institute a timely summary action prevented both the PBA's confirmation and the Borough's vacation of the award. Id. at 457. Consequently, the court affirmed the Chancery Division's refusal to vacate and reversed its confirmation of the award. Id. at 466.
Believing that common-law arbitration survived the passage of the Act, Judge Rodr¡guez would have remanded the matter to the Chancery Division to proceed as ...