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New Jersey Transit Corp. v. New Jersey Transit Police Superior Officers Fraternal Order of Police Lodge #37

July 25, 2007

NEW JERSEY TRANSIT CORPORATION, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY TRANSIT POLICE SUPERIOR OFFICERS FRATERNAL ORDER OF POLICE LODGE #37, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-197-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 23, 2007

Before Judges Cuff, Fuentes and Baxter.

Defendant New Jersey Transit Police Superior Officers Fraternal Order of Police Lodge #37 (Lodge #37) appeals from an order permanently restraining arbitration of the discipline imposed on Sergeant Alan West and granting summary judgment in favor of plaintiff New Jersey Transit Corporation (NJ Transit). It also appeals from an order denying its motion to extend discovery. We affirm.

On February 3, 2003, the New Jersey Transit Police Department (NJTPD) filed two disciplinary charges against Sergeant West for violation of sections 7.8 and 7.12 of its rules and regulations. West was charged with discourtesy and unsatisfactory performance. He pled not guilty and requested an internal NJTPD disciplinary hearing on the charges. The hearing commenced on July 9, 2003. The hearing reconvened on October 6 and continued on October 20 and 23, 2003. A hearing officer presided at the hearing, and West, who was represented by counsel throughout the proceeding, had the opportunity to cross-examine witnesses and produce witnesses on his behalf. Following transcription of the hearing record, the hearing officer sustained the charge of unsatisfactory performance but dismissed the discourtesy charge. The hearing officer did not recommend a sanction. On February 25, 2004, the Chief of the NJTPD imposed a five working day suspension without pay but postponed three of those suspended days if West remained charge free for a year.

On March 29, 2004, defendant Lodge #37 filed a grievance and request for arbitration on behalf of West. When an arbitrator was appointed on May 28, 2004, NJ Transit filed a Verified Complaint and an Order to Show Cause in the Chancery Division of the Superior Court of New Jersey on June 15, 2005.

In its complaint, NJ Transit sought to bar arbitration because arbitration was reserved to disputes between the parties regarding the interpretation or application of the terms of the collective negotiation agreement (CNA) between NJ Transit and Lodge #37. NJ Transit further alleged that appeals from disciplinary proceedings must proceed in the Superior Court pursuant to the terms of Article XLII of the CNA.

On August 8, 2005, Judge Harriet Klein issued an order preliminarily restraining the arbitration. A September 23, 2005 case management order allowed for a period of discovery. NJ Transit moved for summary judgment on February 23, 2006, and Lodge #37 filed a cross-motion to extend discovery.

In an oral opinion, Judge Klein denied Lodge #37's motion for an extension of discovery because further discovery was unwarranted and "wholly irrelevant" to the issue before the court. She held that Article XLII of the CNA expressly provides that review of a conviction on any disciplinary charge following a hearing is in the Superior Court. She rejected the proffered evidence of past practices because none of the cases cited by Lodge #37 involved a full internal hearing and adjudication on disciplinary charges. Rather, in each instance the charged employee immediately filed a grievance. The judge also noted that the disciplinary procedure outlined in Article XLII mirrored the procedure for non-civil service police officers provided by N.J.S.A. 40A:14-150. In conclusion, the judge remarked that "[t]he violation which is at issue in this case arises out of [NJTPD]'s rules and regulations, specifically Rule 7.12, namely [u]nsatisfactory performance. The complaint was not an alleged violation dealing with terms of the CNA and, therefore, just looking at the language of that section itself, it appears to be inapplicable to this situation."

On appeal, Lodge #37 argues that material issues of fact existed pertinent to the interpretation of the CNA that precluded disposition of this case by summary judgment. It also contends that the interpretation of the CNA is erroneous as a matter of law, that discovery should have been extended, and that the judge should have allowed it to amend its answer to provide that the parties had arbitrated minor disciplinary charges in the past. NJ Transit responds that the matter is strictly one of interpretation of the CNA and that the interpretation rendered by the judge is correct as a matter of law.

Plaintiff NJ Transit is a State agency created pursuant to N.J.S.A. 27:25-1 to -34. The NJTPD is a division of NJ Transit that has " police and security responsibilities over all locations and services owned, operated, or managed by [plaintiff] and its subsidiaries." N.J.S.A. 27:25-15.1.a. Defendant Lodge #37 is the exclusive representative for all superior officers below the rank of captain, including sergeants and lieutenants of NJ Transit. N.J.S.A. 34:13A-3(e); N.J.S.A. 34:13A-5.3.

On July 1, 2001, NJ Transit and Lodge #37 entered into a CNA, effective from July 1, 2001 to June 30, 2006. Two articles in the CNA specifically address disciplinary appeals: Article XIX, entitled "Grievance Procedure" and Article XLII, entitled "Discipline."

Section A of Article XIX, entitled "Grievance Procedure" provides: "[Superior officers] shall not be disciplined or dismissed from service without just cause." Section B of Article XIX establishes four mechanisms, including arbitration, for resolving "[a]ny disagreement, dispute or grievance (including discipline) which shall arise between the ...


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