Saginario v. Attorney General
| Decision Date | 08 October 1981 |
| Parties | , 111 L.R.R.M. (BNA) 2701 Carmen SAGINARIO, Plaintiff-Respondent, v. ATTORNEY GENERAL, State of New Jersey and Division of State Police,Defendants-Respondents, and State Troopers Fraternal Association of New Jersey, Inc., Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Jerome J. LaPenna, Newark, for defendant-appellant (Cerreto & LaPenna, Newark, attorneys).
Philip M. Saginario, Patterson, for plaintiff-respondent Carmen Saginario.
Melvin E. Mounts, Deputy Atty. Gen., for defendants-respondents Attorney General, State of New Jersey and Division of State Police (James R. Zazzali, Atty. Gen., attorney; Erminie L. Conley, Asst. Atty. Gen., of counsel).
The opinion of the Court was delivered by
This case involves the relationship among a public employee, his duly designated representative, and his public employer in the administration of the arbitration procedure provided in a collective negotiation agreement. More specifically, the question is whether a public employee, whose interests conflict with the position taken by the employees' majority representative in invoking and processing a matter through the grievance procedure and arbitration, must be given notice and the opportunity to be heard in those proceedings. Resolution of this question depends on interpretation of section 5.3 of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.3.
On September 15, 1978 the plaintiff, Carmen Saginario, was promoted from the rank of State Trooper I to Sergeant in the Division of State Police (Division). On September 26, 1978 the State Troopers Fraternal Association of New Jersey, Inc. (Association), the exclusive representative for all troopers in the Division, instituted grievance procedures in accordance with the collective negotiation agreement between the Association and the Division, asserting that the promotion violated the agreement.
The agreement covered numerous matters relating to the terms and conditions of troopers' employment. One article was devoted to promotions, including promotions from Trooper I to Sergeant. Such promotions were to be based in part on a competitive written examination to be weighted at 34% and in part on five other factors to be weighted at 66%. These factors were "length of service," "performance rating," "record of conduct," "medical condition" and "ability to perform in the next higher rank or grade." The Division assigned a maximum number of points to each of these six factors and detailed a breakdown of points within each factor. For example, length of service with a maximum of five points was graded as follows:
7-10 years -- 1
10-15 " -- 2
15-20 " -- 3
Over 20 " -- 5
The total maximum for all factors aggregated 66 points.
The Association, invoking the grievance procedure, claimed that plaintiff's points had been miscalculated in the categories of job-related experience and record of conduct and that the trooper with the highest overall promotional points should be promoted retroactive to the September promotion date. The basic grievance procedure consisted of five steps, the fifth step consisting of binding arbitration. Though a grievance could be initiated either by a trooper or the Association, only the Association could demand arbitration. The Division denied the Association's grievance and the matter progressed to arbitration. Plaintiff was not notified of any of the grievance or arbitration proceedings. Nor did he participate in the arbitration hearing.
The issue presented to the arbitrator by the Association and the State was whether plaintiff's promotion had violated the Agreement and, if so, what the remedy should have been. One witness, the secretary of the Division's promotional review board, testified. The remainder of the record consisted of a stipulation of facts, exhibits, and argument of counsel. The Association contended that plaintiff was entitled to 15, not 20, points for his job-related experience and to zero, rather than 31/2, points for his record of conduct. The State argued that plaintiff's prior experience as a Sergeant justified the point total for job-related experience and that a prior disciplinary action was not relevant.
The arbitrator agreed with the Association and held the promotion should be rescinded and the trooper with the highest overall promotional points should be promoted retroactive to September 8, 1978. On January 4, 1979 the arbitrator's determination was implemented by the Division and Saginario was returned to the rank of Trooper I.
Plaintiff then commenced two actions, one in lieu of prerogative writs in the Superior Court, Law Division, and the other an appeal to the Appellate Division. When the State asserted that the matter was properly before the Appellate Division as an appeal from a determination of the Division, the plaintiff agreed to dismiss the Law Division action without prejudice. The trial court entered a judgment of dismissal.
The Appellate Division, although conceiving the appeal before it to be from the decision of the arbitrator and therefore cognizable in the Law Division, decided to exercise its original jurisdiction in the interest of judicial efficiency. Premising its decision on this Court's opinion in Donnelly v. United Fruit Co., 40 N.J. 61, 190 A.2d 825 (1963), the Appellate Division held that the arbitral award must be vacated and another arbitration hearing held in which Trooper Saginario would be permitted to participate. We granted the Association's petition for certification. 85 N.J. 467, 427 A.2d 564 (1981).
The Appellate Division, professing that it was "obliged to follow" Donnelly v. United Fruit Co., supra, held that the plaintiff could not be bound by the arbitration of which he had no notice and in which he had not been given an opportunity to participate. We find, however, that this case is not governed by Donnelly and that Donnelly itself is no longer sound. Donnelly involved an employer-union-employee relationship governed by the federal Labor Management Relations Act, 29 U.S.C. § 141 et seq. Donnelly also predated Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), which undercut the foundation upon which Donnelly was based.
In Donnelly, we held that a private sector employee whose employment was subject to a collective bargaining agreement could not be deprived of the individual right to participate in an arbitration hearing when the union's position was adverse to the individual's interest, 40 N.J. at 81, 190 A.2d 825, and that the individual retained a right to invoke the provisions of the grievance procedure pro se when the union refused to process his grievance, id. at 92, 190 A.2d 825. Donnelly claimed that he had been discharged in violation of his contract, which eliminated the right to discharge an employee except "for cause." The union agreed with his employer that the discharge was proper and refused to proceed to arbitration. The contract apparently empowered only the union to take that step. Donnelly instituted suit against his employer for wrongful discharge and the union for failure to arbitrate the propriety of the discharge.
We construed sections 9(a) and 301 of the federal Labor Management Relations Act 1 to permit the employee to "intervene in arbitration proceedings and obtain independent representation, if the union is acting adversely to his interests as they appear in, or derive from, the collective bargaining contract," 40 N.J. at 80-81, 190 A.2d 825. We concluded an individual employee has a statutorily vested right to present his grievance to, and to have it determined by, his employer when the union declines to process it in his behalf. " Id. at 87, 190 A.2d 825.
The United States Supreme Court's analysis of this federal statute has led it to a different position. After holding in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), that section 301 encompassed substantive rights and in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that the employee was required to invoke and exhaust the contractual grievance procedures before resorting to judicial remedies, the Supreme Court substantially completed the outline of an employee's rights in the private sector in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). There an employee sued his union for failure to process to arbitration his grievance, which arose out of his discharge. Id. at 173, 87 S.Ct. at 907, 17 L.Ed.2d at 848. The Court held that the employee did not have a right to compel the union to invoke arbitration and thus disregard the terms of the collective bargaining agreement. In reaching this holding the Court relied upon the following considerations: (1) the employer and union contemplated that each would endeavor to settle grievances short of arbitration; (2) the employer and union wanted frivolous grievances disposed of prior to costly and time consuming arbitration; (3) the settlement process would further the interest of the union as statutory agent and as coauthor of the negotiation agreement in representing the employees in enforcement of that agreement; (4) to permit the employee to compel arbitration would undermine the settlement machinery and destroy the employer's confidence in the union.
However, under Vaca the employee was not left without any remedy. The union owed a duty "of fair representation in its handling of the employee's grievance" and therefore the
employee (could) bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee (could) prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance. (Id. at 186, 87 S.Ct. at 914, 17 L.Ed.2d at 855)
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