On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5829-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Lyons.
District 1199J, AFL-CIO (the Union) appeals from two orders entered by the Law Division on January 23, 2009. The first order granted the County of Hudson's (Hudson) application to vacate an arbitration award. The second order denied the Union's application to affirm the award. The relevant facts and procedural history necessary for our consideration of the issues on appeal are as follows.
The Union and Hudson are parties to a Collective Negotiation Agreement (the Agreement) that covers the period July 1, 2001, through June 30, 2006. The Agreement was extended by a Memorandum of Agreement signed by both parties. The grievant, Richardo Fulcher, was represented by the Union and was part of the Union's bargaining unit with Hudson. He was hired by Hudson on June 12, 2006, on a provisional basis as a printing machine operator.
A provisional employee appointment is one made in the absence of a complete certification where "the appointing authority certifies that in each individual case the appointee meets the minimum qualifications for the title at the time of the appointment and that failure to make a provisional appointment will seriously impair the work of the appointing authority." N.J.S.A. 11A:4-13(b). The relevant statute provides, however, that, "[i]n no case shall any provisional appointment exceed a period of 12 months." Ibid. Pursuant to N.J.A.C. 4A:4-1.5(b), [a]ny employee who is serving on a provisional basis and who fails to file for and take an examination which has been announced for his or her title shall be separated from the provisional title. The appointing authority shall be notified by the Department and shall take necessary steps to separate the employee within 30 days of notification, which period may be extended by the Commission for good cause.
At the time Fulcher was hired, Jesus Manalanson was also employed by Hudson on a provisional basis as a printing machine operator. The Department of Personnel called for an examination of candidates to select a permanent appointee for the position. At that time, Fulcher signed an "Acknowledgment" in which he was advised that the Department had announced a Civil Service examination for his position. In the Acknowledgment, Fulcher was informed that the Department had announced an examination for his position and that "if I do not file for the position and pass the examination I may be terminated from my position or returned to my previous title, whichever is applicable, and replaced by a person who takes and passes the examination." The examination was administered in August of 2006, and the Department issued its results on October 4, 2006. The names of Brando Colom and Jesus Manalanson appeared on the list of successful candidates. Fulcher failed the examination and his name did not appear on the certified list as an eligible candidate.
On February 20, 2007, Jesus Manalanson was hired as a permanent printing machine operator from the certified list of eligible candidates. On April 13, 2007, Fulcher was separated from employment.
Fulcher received a letter from Hudson dated April 11, 2007, captioned "Notice of Layoff." The letter advised him that you are being laid off from your provisional position of Printing Machine Operator. This layoff is effective at the end of the work day on Friday, April 13, 2007. This action has been taken because your name does not appear on the New Jersey Department of Personnel (civil service) list for your title.
The Agreement contained a Grievance Procedure which ends in binding arbitration. Article VIII, Section 5.A, Layoff, provides: "The County adheres to the NJ Department of Personnel Rules and Regulations governing layoffs, seniority, demotional rights, and recalls as contained in N.J.A.C. 4A:8-1.1, et seq."
Fulcher filed a grievance challenging his separation. The grievance progressed through various steps of the grievance procedure, culminating in a binding arbitration hearing on March 11, 2008. The parties agreed to submit the following issues to arbitration:
A. If the arbitrator has jurisdiction to decide this issue, is the grievance of Richard Fulcher preempted by the Civil Service Regulations governing the separation of provisional employees from service, in which case it must be dismissed?
B. Did the employer violate the parties' collective bargaining agreement by refusing to process the April 11, 2007 ...