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Passaic County Board of Social Services v. Communications Workers of America

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 27, 2007

PASSAIC COUNTY BOARD OF SOCIAL SERVICES, PLAINTIFF-RESPONDENT,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3273-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2007

Before Judges Coburn, Axelrad and Gilroy.

Defendant Communications Workers of America, AFL-CIO appeals from the September 23, 2005, order of the Law Division granting plaintiff Passaic County Board of Social Services' complaint for a declaratory judgment, prohibiting defendant from representing Jose Maldonado at a hearing before the Office of Administrative Law (OAL). Defendant also appeals from the December 16, 2005, order extending the scope of the September 23, 2005, order prohibiting the law firm of Weissman & Mintz, LLC (the Law Firm), from representing Maldonado pro bono before the OAL. We affirm in part and reverse in part.

On October 7, 2003, plaintiff served Maldonado, a probationary social service aide, with a Preliminary Notice of Disciplinary Action, charging him with failing "to successfully complete [his] 90-day working test period." A departmental hearing was conducted on October 23, 2003. On November 5, 2003, plaintiff served Maldonado with a Final Notice of Disciplinary Action, terminating his employment, effective October 6, 2003.

On November 8, 2003, defendant filed an appeal on behalf of Maldonado with the New Jersey Department of Personnel, Merit System Board. The Merit System Board transmitted the matter to the OAL for a hearing. On September 17, 2004, Alan Kaufman, an authorized representative of defendant, submitted a Notice of Appearance Application requesting leave to represent Maldonado at the hearing. At the June 6, 2005, hearing, plaintiff objected to Kaufman's appearance, contending that the parties' Collective Bargaining Agreement (CBA) prohibited defendant from providing representation to employees who have not been employed for at least ninety-two calendar days. Article I, Section E., of the CBA provides in pertinent part:

E. Notwithstanding the above, new employees shall not be represented by the Union until the 92nd calendar day of employment, said period constituting a probationary period. It is recognized, however, that such probationary employee may be incidentally benefited as a consequence of representation of non-probationary employees.

1. In the event of disciplinary action or non-performance charge against a probationary employee, such employee shall be advised of the charges on non-performance specifics and entitled to a hearing before the Personnel Officer or Employer's designee and an appeal to the Director for review on the record of such hearing only. The Director shall have the discretion to require additional information but shall not be obligated to do so. Such appeal must be requested in writing within five (5) calendar days of a decision by the Personnel Officer or Employer's designee.

2. Such probationary employee shall be entitled to submit a written presentation which will be submitted to the Personnel Committee together with the Director's recommendation, provided that said presentation is submitted to the Director no later than five (5) working days after the Director has rendered a decision on the appeal.

3. Initiation of a disciplinary action or non-performance charge during the probationary period shall preclude Union representation on such action until the initiated action is concluded, including determination on appeal.

4. Probationary employees shall have no rights of hearing and appeal and are given no rights under this Agreement except as specified above.

5. The Union shall be notified of any disciplinary action . . . against a probationary employee and the results thereof. Such notification will not imply representation of such employees.

Kaufman argued that he was appearing at the hearing under the provisions of the New Jersey Uniform Administrative Procedural Rules, N.J.A.C. 1:1-1.1 to -21.6, not the CBA. Kaufman maintained that the CBA's prohibition against representation was not intended to apply to proceedings before the OAL. The Administrative Law Judge (ALJ) denied plaintiff's motion without prejudice, determining that the propriety of Kaufman's representation under the CBA was outside the scope of the hearing and beyond her jurisdiction:

There may be a contractual issue between the CWA and the Passaic Board as to whether or not this individual should be here or should not be here, but that seems to me to be a contractual issue, not within the [purview] of the OAL proceeding today . . . . I don't know of any research that would give me jurisdiction to look at a contractual issue under a Collective Bargaining Agreement to judge whether or not this individual is properly before me.

The hearing was adjourned until September 27, 2005.

On July 18, 2005, plaintiff filed a verified complaint and order to show cause (OTSC) in the Law Division, alleging that defendant breached the CBA by appointing Kaufman to represent Maldonado. The complaint sought a judgment enjoining defendant from representing Maldonado before the OAL. On the return date of the OTSC, the trial judge determined that the CBA was unambiguous and prohibited defendant from representing Maldonado in the OAL action. A confirming order was entered on September 23, 2005.

At a later date in time, the Law Firm, which represents defendant in various matters, entered into a retainer agreement to represent Maldonado in his administrative appeal on a pro bono basis. On October 11, 2005, plaintiff filed a motion to amend the OTSC, seeking "an injunctive order precluding [d]efendant . . . and all representatives of [d]efendant from representing the interests of Jose Maldonado in a pending Administrative Court matter . . . ."

On November 4, 2005, the judge enjoined the Law Firm from providing legal services to Maldonado relative to the OAL appeal. The judge reasoned:

I practiced law for --- private practice for 31 years, and this [c]court will not pretend that what exists does not exist. In my view, this is an entire artifice on the part of the Union to circumvent the contractual provision and to circumvent --- well, that contractual provision as interpreted by the [c]court. An[d] artifice, the definition that I found of an artifice is, "an artful stratagem."

I recognize that [defense counsel] is an attorney with Weissman & Mintz. They are counsel for the Union. I find that her willingness to do this, [] "pro bono," [] does not remove the fact that the Union is providing representation for Mr. Maldonado. As far as remuneration is concerned, there are many times where law firms --- when I was in private practice, we would do this --- you would have a --- a large corporate client. A large corporate client, important to the firm, that oftentimes law firms will do something ostensibly for free by way of a loss leader, by way of --- of establishing good will.

The judge concluded that his decision did not deprive Maldonado of his right to counsel, rather it enforced a contractual provision that plaintiff had bargained for and relied upon. A confirming order was entered on December 16, 2005. Defendant appeals from the orders of September 23, 2005, and December 16, 2005.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT INTERPRETED THE COLLECTIVE NEGOTIATIONS AGREEMENT BETWEEN COMMMUNICATIONS WORKERS OF AMERICA, AFL-CIO AND THE PASSAIC COUNTY BOARD OF SOCIAL SERVICES TO PROHIBIT A CWA REPRESENTATIVE FROM REPRESENTING A PROBATIONARY EMPLOYEE AT A HEARING AT THE OFFICE OF ADMINISTRATIVE LAW.

A. THE TRIAL COURT IMPROPERLY ISSUED A FINAL JUDGMENT AT A HEARING ON AN ORDER TO SHOW CAUSE.

B. THE ADMINISTRATIVE LAW COURT WAS THE PROPER FORUM TO DETERMINE WHETHER A CWA REPRESENTATIVE COULD PROPERLY REPRESENT A PROBATIONARY EMPLOYEE IN HIS HEARING CHALLENGING HIS TERMINATION AT THE END OF HIS WORKING TEST PERIOD.

C. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE ARTICLE [I], SECTION E. OF THE COLLECTIVE NEGOTIATIONS AGREEMENT PROHIBITED A CWA REPRESENTATIVE FROM REPRESENTING JOSE MALDONADO AT HIS HEARING BEFORE THE OFFICE OF ADMINISTRATIVE LAW.

D. THE TRIAL COURT ERRED BY FAILING TO CONSIDER ANY EXTRINSIC EVIDENCE TO AID IN THE INTERPRETATION OF ARTICLE I, SECTION E.

POINT II.

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT INTERPRETED THE PARTIES' COLLECTIVE NEGOTIATIONS AGREEMENT TO PROHIBIT THE LAW FIRM OF WEISSMAN & MINTZ, LLC[,] FROM REPRESENTING JOSE MALDONADO, WHO WAS RETAINED AS A CLIENT, IN HIS HEARING AT THE OFFICE OF ADMINISTRATIVE LAW.

A. THERE IS NO BASIS IN FACT OR LAW TO SUPPORT [THE JUDGE'S] RULING THAT THE COLLECTIVE NEGOTIATIONS AGREEMENT BETWEEN CWA AND THE BOARD PROHIBITS A PRIVATE LAW FIRM FROM REPRESENTING A PROBATIONARY EMPLOYEE AT AN OAL HEARING.

B. THE TRIAL COURT'S ORDER DEPRIVED JOSE MALDONADO OF HIS RIGHT TO RETAIN COUNSEL OF HIS CHOICE AND THUS IS VOID AS AGAINST PUBLIC POLICY.

Defendant argues that the trial judge improvidently issued a final judgment on the return date of the OTSC. Defendant contends that plaintiff should have sought an administrative interlocutory review by the Director of the OAL, from the ALJ's denial of plaintiff's motion seeking to disqualify Kaufman as Maldonado's representative in the OAL hearing. Defendant asserts that the trial judge erred in determining that the CBA prohibited defendant from representing Maldonado in the administrative hearing. We disagree.

Trial courts have discretion to waive a party's obligation to exhaust administrative remedies where appropriate. As such, appellate courts will review any such decision for an abuse of discretion. Durgin v. Brown, 37 N.J. 189, 203 (1962); 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super. 320, 322 (App. Div. 1992). Because contract interpretation is a legal issue for the court to decide in the first instance, Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 194 (2004), we are satisfied that the judge correctly exercised his discretion in determining that plaintiff was not required to exhaust its administrative remedies by interlocutory review to the Director of the OAL. We are also satisfied that the trial judge properly entered a declaratory judgment on the return date of the OTSC.

Under the Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-50 to -62, plaintiff possessed the right to "have determined any question of construction or validity arising under" the CBA, "and obtain a declaration of rights, status, or other legal relations thereunder." N.J.S.A. 2A:16-53. In turn, the court has both the power and discretion to declare such rights. N.J.S.A. 2A:16-52. A party's right under a contract "may be construed either before or after a breach thereof." N.J.S.A. 2A:16-54. A justiciable controversy was presented in this matter, rendering declaratory judgment appropriate because plaintiff had been threatened with a breach of the CBA by defendant's representation of a probationary employee on an appeal to the Merit System Board from an adverse disciplinary action.

The Uniform Declaratory Judgments Act is remedial in nature, and it shall be liberally construed and administered.

N.J.S.A. 2A:16-51. "Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Ibid. A declaratory judgment has the force and effect of a final judgment, N.J.S.A. 2A:16-59, and all orders or judgments entered under the provisions of the Act "may be reviewed as other orders and judgments." N.J.S.A. 2A:16-62. Where no disputed issues of facts are presented, a trial is not necessary. See Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001) ("The interpretations of the terms of a contract are decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony."). Because we are satisfied that the issue concerning interpretation of the CBA was solely a question of law, there was no need for discovery or a plenary hearing.

Contract interpretation is a legal issue for the court to decide in the first instance. Alexander, supra, 181 N.J. at 194. "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991). The starting point for contract construction is always the language of the contract. Commc'ns Workers of Am., Local 1087 v. Monmouth County Bd. of Soc. Servs., 96 N.J. 442, 452 (1984). Moreover, a contract must be considered as a whole, with all writings forming part of the same contract considered together. Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956); Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997).

"[W]here the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written." Karl's, supra, 249 N.J. Super. at 493. The court has no right to "remake a better contract for the parties than they themselves have seen fit to enter into, or to alter it for the benefit of one party and to the detriment of the other." Ibid.

Generally, contract terms are to be given their "plain and ordinary meaning." M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002). Moreover, in all cases, "[t]he construction of a written instrument 'to be adopted is the one which appears in accord with justice and common sense and the probable intention of the parties.'" Krosnowski, supra, 22 N.J. at 387 (quoting Clark v. State St. Trust Co., 169 N.E. 897 (Mass. 1930)). Accord Karl's, supra, 249 N.J. Super. at 492-93.

Here, the judge determined that Article I, Section E., prohibited defendant from representing Maldonado in the OAL proceeding: "[N]ew employees shall not be represented by the Union until the 92nd calendar day of employment, said period constituting a probationary period." That Maldonado was terminated before his ninety-second calendar day of employment was not disputed. We are satisfied that the judge correctly construed the provision. His interpretation of the CBA was both reasonable and consistent with the document's terms. The document was negotiated by sophisticated parties. We conclude that defendant's proposed interpretation is a strained one, and strained interpretations are disfavored in the law. Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 651 (App. Div. 1990). Accordingly, we affirm the order of September 23, 2005, entering judgment enjoining defendant from representing Maldonado in the OAL proceeding.

Defendant argues next that the trial judge erred when he interpreted the CBA as to prohibit the Law Firm from representing Maldonado in his hearing before the OAL. Defendant contends that the Law Division's decision deprives Maldonado of his right to be represented by an attorney of his choice. Plaintiff counters that because the Law Firm considers defendant one of its clients, it is providing Maldonado with representation, sub silentio, in order to promote good will with defendant. Plaintiff asserts that the Law Firm's actions constituted a transparent attempt to not only circumvent the CBA, but also the order of September 23, 2005.

A plain reading of the contract does not prohibit a private law firm from representing a probationary employee before an OAL proceeding. The only evidence before the court concerning the Law Firm's representation was the certification of defense counsel, which stated that the Law Firm was representing Maldonado on a pro bono basis, and that defendant was not involved in the representation. Notwithstanding, the trial judge granted plaintiff's relief based on his speculation regarding the motivation of the Law Firm.

In the past, this court has been reluctant to uphold decisions based largely on speculation. State v. Liviaz, 389 N.J. Super. 401 (App. Div.), certif. denied, 190 N.J. 392 (2007). In Liviaz, this court was called upon to review the decision of a trial judge admitting two defendants into the Pretrial Intervention (PTI) Program over the objection of the Burlington County Prosecutor. Id. at 403. The judge based her decision, in part, on a finding that the Burlington County Prosecutor was applying, sub silentio, a per se rule denying PTI to illegal aliens. Id. at 406.

We acknowledged that if a per se rule excluding illegal aliens from the PTI program was, in fact, being applied, it would be contrary to the court rules. Ibid. However, we determined that there was no evidence that such a per se rule was being applied; on the contrary, the prosecutor emphasized several valid reasons for denying PTI to the defendants apart from their illegal status. Id. at 407-08. We reversed, concluding that the trial judge's speculation concerning the motivation of the prosecutor, without sufficient supporting evidence, was not enough to conclude that illegal aliens were in fact being denied protections to which they were entitled under the law. Ibid.

Here, the judge's decision, prohibiting the Law Firm from representing Maldonado, was based on his speculation that the Law Firm was providing the representation on behalf of defendant. As in Liviaz, there is no evidence supporting the supposition. Defense counsel has provided a certification, which has not been contradicted, indicating that the Law Firm is representing Maldonado on a pro bono basis, and that defendant is not contributing to the representation.

Moreover, there is a strong public policy preference for clients to have the freedom to be represented by the attorney of their choice. Dwyer v. Jung, 133 N.J. Super. 343, 347 (Ch. Div.), aff'd o.b., 137 N.J. Super. 135 (App. Div. 1975). Although the judge stated that that Maldonado could choose any lawyer he desired except for one affiliated with the Law Firm, the right to be represented by the attorney of one's choice is deeply rooted in our system of jurisprudence and should be respected where possible. Id. at 346-47.

Because the trial judge's conclusion that the CBA prohibits the same Law Firm which represents defendant from representing Maldonado on a pro bono basis was a legal conclusion, it is not entitled to any special deference on appeal. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Accordingly, we reverse the order of December 16, 2005. The Law Firm is entitled to represent Maldonado on the administrative appeal on a pro bono basis.

Affirmed in part; reversed in part.

20070627

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