On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-8126-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 12, 2007
Before Judges A.A. Rodríguez, C.S. Fisher and C.L. Miniman.
Plaintiff Amalgamated Transit Union Local 880 (Union) appeals from a January 3, 2007, judgment of the Law Division denying and dismissing the Union's application to vacate an arbitral award in favor of defendant New Jersey Transit Bus Operations, Inc. (Transit). The arbitral panel concluded that the Union's grievance was not subject to the grievance procedure set by the Collective Bargaining Agreement (CBA) and dismissed the arbitration. We reverse the Law Division dismissal and remand for a new arbitration hearing.
The basis of the Union's grievance is Transit's termination of Juan Anaya's probationary employment. Anaya completed an application for employment on August 23, 2004. According to the application, Anaya previously served in the U.S. Navy from August 2000 to February 2003 and then worked briefly for a plumbing and heating contractor. He indicated that his driver's license had been suspended from March through April 2004 as a result of unpaid parking tickets. He certified that he did not have any "driving convictions" or criminal convictions. In the affidavit portion of his application, Anaya stated: "I understand that if I am employed in a position covered by a labor agreement and successfully complete the probationary period prescribed by such agreement, NJ Transit may terminate my employment only in accordance with the provisions of the applicable labor agreement."
Anaya was hired on September 15, 2004, as a bus cleaner, a position covered by the CBA, and began work six days later. The letter of appointment stated that his probationary period was ninety days. On October 5, 2004, Transit sent a letter to Anaya stating that an investigation of his criminal background "is showing data inconsistent" with his application. Transit required Anaya to provide no later than October 26, 2004, "a certified copy of the disposition and the accusatory instrument for each conviction" with a court's seal or certification affixed. Although the letter stated that the conviction or convictions were attached, they do not appear in the record on appeal and that record does not reveal whether the requested documents were supplied by Anaya. On October 21, 2004, Anaya became a member of the Union.
On November 10, 2004, Anaya was given a notice to appear that day with a Union representative*fn1 respecting an incident occurring two days earlier regarding his background check results. The incident report from November 8, 2004, indicated that the "background check revealed that he falsified his job application." The November 10 appearance was described as a "Probationary Employee Meeting." Transit terminated Anaya's employment that day and issued a letter dated November 10, 2004, stating:
This in reference to your employment application dated August 23, 2004. On that application you indicated that you had never been convicted of a crime other than minor traffic violations. As a result of the background investigation which was conducted, we received a report that indicated that you, in fact, had been arrested and convicted of a crime(s).
In accordance with the rules, regulations, and policies of this agency, this is to advise you that you are hereby terminated from your employment with NJ TRANSIT effective immediately for providing false information on your employment application.
Anaya did not immediately grieve the termination.
Section 1A of the CBA specifies the grievance procedure:
Should any dispute or grievance arise between the Company and the Union, or any of its members, as to the interpretation, application, or operation of any provisions of this agreement, not specifically settled in said agreement, both parties shall endeavor to settle the question in the simplest and most direct manner. The procedure shall be as follows unless any step thereof is waived by mutual consent:
First: Such dispute or grievance is to be taken up between the employee and the Union representative and the ...