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City of Newark v. Service Employees' International Union (Local 617

May 2, 2011

CITY OF NEWARK, PLAINTIFF-APPELLANT,
v.
SERVICE EMPLOYEES' INTERNATIONAL UNION (LOCAL 617), DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-55-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2011

Before Judges Carchman and Waugh.

Plaintiff City of Newark appeals from an order of the Chancery Division denying its claim for relief seeking to vacate an arbitration award. Specifically, the arbitrator concluded that plaintiff was in violation of the collective bargaining agreement (CBA), entered into with defendant Service Employees International Union 617, by failing to render a disciplinary decision within the timeframe set forth in CBA. Judge Harriet Klein in the Chancery Division confirmed and enforced the award. We affirm substantially for the reasons set forth in Judge Klein's thorough and thoughtful oral opinion of April 20, 2010.

These are the relevant facts in what appears to be an ongoing dispute between plaintiff and defendant regarding this contract provision. Plaintiff and defendant entered into a CBA covering the period from January 1, 2008 through December 31, 2011. Included in the CBA was a framework for disciplining employees. Under Article VIII, "work performance problem[s] or misconduct" may be addressed by a conference between the parties, a "[w]ritten [r]eprimand[,]" or resolved through a hearing. The CBA further provides:

In the event an employee is given an immediate suspension, that employee has five (5) business days after receipt of such notice to request a hearing. Where such a request is made, the City shall have ten (10) business days to schedule a hearing. All major disciplinary actions shall proceed through the hearing procedures provided by Civil Service Statutes, Merit System Board and the Office of Administrative Law Rules and Regulations. Arbitration of a grievance or Civil Service hearing procedure shall not operate as a stay of the suspension or discharge except as provided by Civil Service Rules and Regulations.

If any employee has a major disciplinary action hearing, the decision of the Hearing Officer shall be rendered within thirty (30) days. [Emphasis added.]

In addition to the formal process for disciplinary matters, the CBA also delineates a method for filing "grievance[s]" between plaintiff and defendant. Article VII defines a grievance as a "controversy arising over the interpretation or adherence to the terms and conditions of th[e] [a]greement" and mandates procedural "steps" prior to filing a formal grievance. Should the described procedure prove unavailing to resolve the dispute, the parties "may . . . request arbitration." The contract also "bound" the arbitrator to "the provisions of th[e] [a]greement" and denied the arbitrator "the authority to add to, modify, detract from or alter in any way th[ose] provisions ." The parties further agreed to designate the CBA as a "complete and final understanding . . . of all bargainable issues . . . ."

Soon after the CBA was signed, two events involving alleged misconduct by employees triggered the CBA's provisions governing disciplinary action. On August 6, 2008, Kim Greene, manager of the Division of Sanitation, observed a laborer, Ernest Manning, "driving . . . a refuse truck" even though "he had not completed his CDL requirement[s] [for a driving license]." Greene then organized a disciplinary meeting with Manning to discuss this alleged unauthorized driving; however, Manning informed another supervisor that he "w[ould] not [be] showing up to the meeting" unless his "union representative" accompanied him. Manning did not attend the scheduled meetings.

The City then filed a "[p]reliminary [n]notice of [d]isciplinary [a]ction" against Manning and charged him with "[c]onduct unbecoming a public employee"; '[m]isuse of public property, including [a] motor vehicle"; and "[o]ther sufficient cause[s]," N.J.A.C. 4A:2-2.3. On September 23, the City sent a letter to Manning advising that a hearing had been scheduled for a week later and informing him that he had the right to bring his "union for representation [to] the hearing." On September 30, a hearing was held before a hearing officer appointed by plaintiff. Plaintiff's counsel and several division employees attended. Testimony was received, and the issues were submitted to the hearing officer.*fn1

At the same time as Manning's violations, plaintiff began investigating the misconduct of another employee, James Walker. On October 6 and October 7, 2008, Walker allegedly "failed to notify his supervisor that he would not be at work" and had not "call[ed] in." A week later, Walker refused to stay late and "help finish another area[]," noting instead that "[n]obody help[ed] [him]." On October 6, plaintiff filed a preliminary notice of disciplinary action against Walker and charged him with "[i]nsubordination"; "excessive absenteeism or lateness"; and "[n]eglect of duty." Walker requested a hearing.

On December 10, 2008, a disciplinary hearing was held for Walker before a hearing officer appointed by plaintiff. Testimony was received, and the hearing was concluded that day.

Although Manning's hearing concluded on September 30, 2008 and Walker's on December 10, 2008, the presiding hearing officers did not issue their decisions until January 26, 2009 as to Manning and January 30, 2009 as to Walker. In the first instance, the hearing officer recommended a ten-day suspension as to Manning, and the hearing officer recommended a two-day suspension as to Walker. On January 30 and February 6, final notices of disciplinary actions were ...


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