May 24, 2013
BOARD OF TRUSTEES OF OCEAN COUNTY COLLEGE, Plaintiff-Appellant,
FACULTY ASSOCIATION OF OCEAN COUNTY COLLEGE, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1080-12.
Berry Sahradnik Kotzas & Benson, attorneys for appellant (John C. Sahradnik and Mathew B. Thompson, on the brief).
Detzky & Hunter, L.L.C., attorneys for respondent (Stephen B. Hunter, of counsel and on the brief).
Before Reisner and Hayden, Judges.
Plaintiff Board of Trustees of Ocean County College (College) appeals from a May 11, 2012 order denying its motion to vacate an arbitration award in favor of the Faculty Association of Ocean County College (Association). For the reasons that follow, we affirm.
For the purposes of this opinion, the facts can be summarized as follows. The College issued a letter of reprimand to a professor for allegedly ordering a book for one of his classes without obtaining approval from the department dean, and for allegedly giving evasive answers during the ensuing investigation. Specifically, the letter recited that "[d]uring the investigation of this violation, you maintained that you did what everyone else did." The Association filed a request for arbitration with the Public Employment Relations Commission (PERC). The College sent PERC a letter, contending that the matter was not arbitrable and that pursuant to N.J.S.A. 18A:3B-6(f), the College had exclusive jurisdiction to decide grievances involving employee discipline. However, the College did not ask PERC to stay the arbitration. In the alternative, the College argued that the Association skipped the third step of the grievance process set forth in Article VII of the collective negotiation agreement (CNA).
The arbitrator found that the College waived its objection to the Association's alleged failure to pursue step three of the grievance procedure, when it failed to provide a definitive response to the Association's request for a step three hearing. The arbitrator declined to consider the merits of the College's statutory argument, concluding that the issue was beyond his jurisdiction.
On the merits, the arbitrator found that there was no just cause for imposing discipline. He found that the dean had "effectively delegated" to her administrative assistant the responsibility of approving book orders. He found that the professor followed the established procedure for ordering the book, by submitting his request to the dean's administrative assistant, and that all of the other professors in the department followed that procedure. Although it was not specifically addressed in the arbitrator's decision, it is clear from his decision that when the professor told the College's representative that he just "did what everyone else did" in placing his book order, the professor was being truthful.
The College filed a complaint with the Law Division to vacate the arbitration award. In an oral opinion issued on May 11, 2012, Judge Rochelle Gizinski determined that the matter was appropriate for arbitration, pursuant to N.J.S.A. 34:13A-29, which specifically addressed arbitration of minor disciplinary matters. She reasoned that the more general statute concerning the governance of public colleges, N.J.S.A. 18A:3B-6, was not applicable to this situation. Finding that the arbitrator's decision on the merits of the grievance was reasonably debatable, she denied the application to modify or vacate the award.
An arbitrator's award may be vacated under the following very limited circumstances:
a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
An award may be modified or corrected on these grounds:
a. Where there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to therein;
b. Where the arbitrators awarded upon a matter not submitted to them unless it affects the merit of the decision upon the matter submitted; and
c. Where the award is imperfect in a matter of form not affecting the merits of the controversy.
Like the trial court, our review of an arbitrator's award is "extremely deferential." Policemen's Benev. Ass'n v. City of Trenton, 205 N.J. 422, 428 (2011). An arbitrator's construction of a collective bargaining agreement will be confirmed so long as it is "'reasonably debatable.'" Id. at 429 (quoting Linden Board of Educ. v. Linden Educ. Ass'n. ex rel. Mizichko, 202 N.J. 268, 276 (2010)).
On this appeal, the College argues that award should be vacated because the Association's grievance was not arbitrable. In the alternative, the College contends that the arbitrator's award should be modified, because he implicitly addressed an issue not presented to him, concerning whether the professor gave an evasive response during the investigation. See N.J.S.A. 2A:24-9(b).
Addressing the latter argument first, we find it is without merit. The two grounds for the reprimand were, arguably, inextricably intertwined, and the ultimate issue was whether the letter of reprimand should be removed from the professor's personnel file. Moreover, based on the arbitrator's specific findings, it is clear that the charge of giving an evasive answer was utterly without merit. Therefore, we agree with the trial judge that the arbitrator's award, directing that the letter of reprimand be removed from the professor's personnel file, was reasonably debatable and there was no basis to modify the award.
We find the College's statutory argument to be equally unpersuasive. In Article VII of the CNA ("Grievance Procedure"), the College and the Association agreed that disputes over "alleged violations of any promulgated rules, procedures, or policy of the Administration or Board of Trustees affecting terms and conditions of employment" could be made the subject of a grievance, and could be resolved at arbitration. Article X, concerning "Professional Behavior, " set forth procedures to deal with disciplinary violations, but also stated that "the above procedure shall not preclude the use of the Grievance Procedure." Clearly, under the terms of the CNA, the Association's grievance concerning the letter of reprimand was both grievable and arbitrable.
However, the College contends that N.J.S.A. 18A:3B-6(f) gives its Board of Trustees "exclusive jurisdiction" to decide disputes concerning personnel matters. In essence, the College is arguing that the CNA, to which it agreed, is ultra vires. That argument is frivolous.
N.J.S.A. 18A:3B-6 defines, in general terms, the powers and duties of "each public institution of higher education." Those powers include the following:
To have final authority to determine controversies and disputes concerning tenure, personnel matters of employees not classified under Title 11A of the New Jersey Statutes, and other issues arising under Title 18A of the New Jersey Statutes involving higher education except as otherwise provided herein. Any matter arising under this subsection may be assigned to an administrative law judge, an independent hearing officer or to a subcommittee of the governing board for hearing and initial decision by the board, except for tenure hearings under N.J.S. 18A:6-18. Any hearings conducted pursuant to this section shall conform to the requirements of the "Administrative Procedure Act, " P.L.1968, c.410 (C.52:14B-1 et seq.). The final administrative decision of a governing board of a public institution of higher education is appealable to the Superior Court, Appellate Division.
The statutory provision on which the College relies was part of the Higher Education Restructuring Act of 1994, N.J.S.A. 18A:3B-1 to –69, L.1994, c.48. The Act abolished the former Department of Higher Education, which previously had extensive authority over the State's public colleges and universities. N.J.S.A. 18A:3B-4. The Act was designed to return autonomy to the colleges and universities. See N.J.S.A. 18A:3B-2. To that end, the legislative history indicates:
Under the bill, each institution's board of trustees will have final authority over the management and operation of the institution, including institutional planning, fiscal affairs, construction and contracts, employment and compensation of staff, tuition and fees, controversies and disputes, and program and degree offerings, so long as they are consistent with the institution's mission and applicable State law.
[Senate Education Committee Statement to S1118 (June 6, 1994).]
The Act was clearly intended to free the public colleges from the Department of Higher Education's control over their operational decisions, including personnel issues. However, nothing in the Act's history suggests that it was intended to preclude public colleges from complying with other pre-existing State laws concerning labor relations, or from reaching agreements with their faculty associations concerning the arbitration of minor disciplinary grievances.
We agree with the Association that the right to arbitration follows from the CNA as well as from three statutes that predated the Act and remain in effect First NJSA 34:13A-53 requires public employers to negotiate written grievance and disciplinary review procedures which may include arbitration of disputes Second NJSA 34:13A-29 requires the use of binding arbitration "as the terminal step [of the negotiated grievance procedures] with respect to disputes concerning imposition of reprimands" and other minor discipline Third NJSA 18A:64A-13 gives county college professors "all the rights and privileges" of public school teachers Inferentially that includes the right of collective negotiation and the right to bargain for arbitration of disputes over minor discipline As noted above we find no basis to conclude that the Act was intended to affect the continued applicability of any of these statutes