Education Ass'n of Passaic v. Passaic Bd. of Ed.

• Citation: 166 N.J.Super. 250,399 A.2d 980
• Parties: EDUCATION ASSOCIATION OF PASSAIC, Plaintiff-Appellant, v. PASSAIC BOARD OF EDUCATION, Defendant-Respondent.
• Decision Date: 25 March 1977
• Court: New Jersey Superior Court – Appellate Division

Page 250

166 N.J.Super. 250

399 A.2d 980

EDUCATION ASSOCIATION OF PASSAIC, Plaintiff-Appellant, v. PASSAIC BOARD OF EDUCATION, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 14, 1977.

Decided March 25, 1977.

Theodore M. Simon, Clifton, for plaintiff-appellant (Goldberg & Simon, Clifton, attorneys; Louis P. Bucceri, Clifton, on the brief).

Irving C. Evers, Hackensack, for defendant-respondent.

Before Judges BISCHOFF, MORGAN and FURMAN.

PER CURIAM.

Appellant association brought this action to enforce an arbitrator's award. The arbitrator determined a grievance in favor of Daria Sawczyn, whose salary increment for the sixth year of teaching was withheld. His ruling was made applicable to several similar grievances, according, he stated, to an agreement of the parties. Respondent board granted Sawczyn's increment. The issue on appeal is the enforceability of the arbitrator's award in favor of the back-up grievants.

After a two day trial the trial judge found as a fact that there had been no agreement of the parties to submit the back-up grievances to arbitration but nevertheless reversed the arbitrator's award, based upon his conclusion that the arbitrator had misapplied the law. We disagree.

N.J.S.A. 18A:29-14 provides: "Any board of education may withhold, for inefficiency or other good cause, the employment increment, or the adjustment increment, or both, of any member (defined as full-time teacher) in any year by a recorded roll call majority vote of the full membership of the board of education."

A right of appeal is established to the State Commissioner of Education but superseded by N.J.S.A. 34:13A-5.3, a subsequent enactment, as follows: ". . . Notwithstanding any procedures for the resolution of disputes, controversies or grievances established by any other statute, grievance procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement".

Grievance procedures were established in the agreement between appellant association and respondent board.

Salary increments to Sawczyn and the back-up grievants were withheld because of a board policy adopted in 1967 which required all teachers to earn five hours of professional growth credits prior to the grant of a sixth year salary increment. The trial judge viewed the so-called five credit/five year policy as a management prerogative.

Initially we comment that the arbitrator's factual finding of an agreement to submit the back-up grievances to arbitration was unchallengeable except for fraud, undue means or a mistake apparent on the face of his opinion and award. N.J.S.A. 2A:24-8; Local Union 560 v. Eazor Express, Inc., 95 N.J.Super. 219, 227-8, 230 A.2d 521 (App.Div.1967); Wm. J. Burns, etc., Inc. v. N.J. Guards Union, Inc., 64 N.J.Super. 301, 312, 165 A.2d 844 (App.Div. 1960); Carpenter v. Bloomer, 54 N.J.Super. 157, 168, 148 A.2d 497 (App.Div. 1959). No such fraud, undue means or mistake is discernible in the arbitrator's opinion and award. But the trial judge reached the ultimate merits because he concluded that the arbitrator misapplied the law, despite his rejection of the arbitrator's fact finding of procedural arbitrability. We are constrained to disagree both with...