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Township of Montclair v. Communications Workers of America

October 19, 2009

TOWNSHIP OF MONTCLAIR, PLAINTIFF-RESPONDENT,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 1040, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-34-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2009

Before Judges Yannotti and Chambers.

Defendant Communications Workers of America, AFL-CIO, Local 1040 (CWA) appeals from the trial court decision restraining arbitration of its grievance against plaintiff Township of Montclair (Township). CWA contends that the question of whether the grievance is arbitrable is for the arbitrator to decide. The trial court held that the question of arbitrability of the grievance was a question for the court and concluded that the grievance was not subject to arbitration.

In light of the recent Supreme Court decision of Amalgamated Transit Union, Local 880 v. New Jersey Transit Bus Operations, Inc., 200 N.J. 105 (2009), we reverse. The question of whether the grievance is subject to arbitration is a question for the arbitrator to decide.

I.

We begin with the salient facts and procedural history. On January 2, 2007, the Township appointed Paul Brown to its newly created position of Production Manager - CATV for the Township's Manager's Office. The position was placed within CWA's collective bargaining negotiations unit. Brown's appointment was subject to the successful completion of a ninety-day probationary period. As part of the Township's policy, Brown underwent drug screening. When he tested positive for cannabinoid, the Township immediately terminated his employment. Brown denied that he abused drugs or alcohol and contended that he was never under the influence of drugs or alcohol when at work.

CWA filed a grievance, alleging that Brown had been terminated without just cause in violation of Article 6 of its collective bargaining agreement with the Township. The Township denied the grievance. CWA then filed for arbitration of the dispute in accordance with the grievance procedure in the collective bargaining agreement.

After an arbitrator was selected, the Township filed an order to show cause to restrain the arbitration, contending that Brown, as a probationary employee, was not "regularly employed" within the meaning of the collective bargaining agreement, and his grievance was not properly subject to arbitration under the terms of that agreement. In a cogent written opinion dated August 19, 2008, the trial court determined that it had the jurisdiction to determine whether the dispute was arbitrable and concluded that it was not. CWA has appealed to this court.

II.

After the trial court issued its decision and while this appeal was pending, the Supreme Court issued its opinion in Amalgamated Transit Union, Local 880 v. New Jersey Transit Bus Operations, Inc., supra, 200 N.J. 105. That case effectively decides the issue before us.

In Amalgamated, a probationary employee of New Jersey Transit and member of the union was terminated during his probationary period for providing false information on his employment ...


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