Union County College v. Union County College Chapter of American Ass'n of University Professors

• Decision Date: 14 November 1996
• Citation: 295 N.J.Super. 15,684 A.2d 511
• Parties: , 114 Ed. Law Rep. 205 UNION COUNTY COLLEGE, Plaintiff-Respondent, v. UNION COUNTY COLLEGE CHAPTER OF the AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 15

295 N.J.Super. 15

684 A.2d 511, 114 Ed. Law Rep. 205

UNION COUNTY COLLEGE, Plaintiff-Respondent, v. UNION COUNTY COLLEGE CHAPTER OF the AMERICAN ASSOCIATION OF

UNIVERSITY PROFESSORS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 23, 1996.

Decided Nov. 14, 1996.

Paul Schachter, Newark, for appellant (Reinhardt & Schachter, attorneys; Mr. Schachter, of counsel, and on the brief).

Frank J. Peterpaul, Springfield, for respondent (Yauch, Peterpaul, Clark & Vitolo, attorneys; Mr. Peterpaul, of counsel, and on the brief).

Before Judges KING, CONLEY and LOFTUS.

The opinion of the court was delivered by

CONLEY, J.A.D.

Defendant Union County College Chapter of the American Association of University Professors (AAUP) appeals a Law Division order vacating an arbitration award in favor of its grievant, Spencer Zimmerman. We affirm.

The grievant, an assistant professor employed by plaintiff Union County College, was denied tenure and was not reappointed for the 1993-94 academic year. The AAUP grieved that determination on his behalf. Ultimately, the dispute was arbitrated, with an award for Zimmerman. Following a hearing, the record of which is not before us since it was not transcribed, the arbitrator determined that "the employer did violate the Agreement by not granting tenure ... [and] remanded to the department level ... [directing] that consistent criteria be applied.... [and] should there be any deficiencies in faculty-member's evaluation, said deficiencies be stated with specificity, so they may be properly addressed...."

The AAUP's grievance was premised upon a claim that the tenure denial violated a settlement of a prior grievance arising from the College's decision not to reappoint Zimmerman for academic year 1992-1993 and also based upon the contention that the College arbitrarily and capriciously did not comply with a positive recommendation by a peer review committee, did not provide "proper" reasons for the determination, and was arbitrary and capricious in that the "criteria of Article XIII B. and C." ¹ were not followed or "properly applied."

We deem it unnecessary to recount in detail the entire procedural and substantive history of the grievance. Suffice it to say that the settlement the AAUP relied upon related solely to Zimmerman's reappointment for academic year 1992-1993. It included an agreement that he be reappointed for that year and considered for reappointment for 1993-1994 as a fifth year reappointment. Under the collective agreement, Zimmerman would also have been considered for tenure as a fifth year assistant professor. The settlement is entirely silent as to Zimmerman's prospects for tenure consideration and suffice it also to say that under the parties' collective negotiations agreement the criteria for reappointment and tenure are distinct. ²

Simply put, this the arbitrator did not understand. As the trial judge explained:

The agreement, in addressing criteria, very clearly shows that there is an enhanced level of evidence required for a tenure appointment beyond that required for the normal reappointment. That's important in this case because the focus of the dispute is not on the teaching effectiveness or the general academic record of Professor Zimmerman. No one has brought those general qualifications into issue here. But rather, the focus is on, in addition to that, does his file and his record at the college demonstrate the other criteria of contribution to the college and the community? The arbitrator equated the criteria for reappointment with the criteria for tenure in this area. Throughout the decision the arbitrator continually referred to those criteria as being the same.

Reference to page 15 of the award and the ensuing pages. When speaking of the two decisions made by the department evaluation committee, the arbitrator said these two separate conclusions by the same department within a two week period cannot be reconciled. In so stating, the arbitrator fails to recognize that there are different criteria at work, that there is no inconsistency on a very basic and fundamental level with those two conclusions.

On the next page the arbitrator goes a little further and appears to apply the criteria in dealing with a contribution to the college and community, criteria set forth for the reappointment and to ignore different criteria set forth for the tenure appointment, and further he now, in speaking of these two appointments, uses the words "same criteria."

I find that that clearly is in error, that the agreement does not apply the same criteria to these appointments; that the agreement without question, as I have indicated, establishes a higher level of evidence when dealing with the tenure appointment. An arbitrator's decision must be founded on the agreement made by the parties that is before the arbitrator. If it goes beyond or if it makes a fundamental error in its reading of that agreement, it cannot stand. This agreement, this decision I think is fundamentally flawed for that reason.

We are cognizant of the appropriate scope of review of public-sector arbitration awards. To be sure, arbitration of labor-management disputes is favored, County College of Morris Staff Ass'n v. County College of Morris, 100 N.J. 383, 390, 495 A.2d 865 (1985), and arbitration awards are entitled to judicial deference, Local No. 153, Office and Professional Employees Int'l Union v. Trust Co. of New Jersey, 105 N.J. 442, 448-49, 522 A.2d 992 (1987). But that favor and that deference are not without limitation. Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 149, 651 A.2d 1018 (1995). An arbitrator may not exercise greater authority than the contract confers. Ibid.; County College of Morris, supra, 100 N.J. at 391, 495 A.2d 865. "The scope of an arbitrator's authority depends on the terms of the contract between the parties." Scotch Plains-Fanwood, supra, 139 N.J. at 149, 651 A.2d 1018; see Local No. 153, supra, 105 N.J. at 449, 522 A.2d 992. Any action taken by an arbitrator beyond that authority is "impeachable and may be vacated on statutory grounds." Scotch Plains-Fanwood, supra 139 N.J. at 149, 651 A.2d 1018; and see N.J.S.A. 2A:24-8d (arbitration award should be vacated where the arbitrator has exceeded his or her powers). ³

There is, moreover, a distinction between public and private sector arbitration and the court's role in reviewing such awards. Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc., 135 N.J. 349, 364-65, 640 A.2d 788 (1994); Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 524, 610 A.2d 364 (1992) (Wilentz, C.J., concurring) (majority opinion abrogated by Tretina, supra ); PBA Local 160 v. Township of North Brunswick, 272 N.J.Super. 467, 472, 640 A.2d 341 (App.Div.), certif. denied, 138 N.J. 262, 649 A.2d 1283 (1994). As the Supreme Court recently observed "[i]n public-sector arbitration, an arbitration award may not have 'the effect of establishing a provision of a negotiated agreement inconsistent with state statutory policy.' " Scotch Plains-Fanwood, supra, 139 N.J. at 150, 651 A.2d 1018 (citations omitted). And, thus, a public-sector arbitration award may be vacated because of a mistake of law, Tretina, supra, 135 N.J. at 364-65, 640 A.2d 788, or where the award has exceeded the inherent principles and public policy applicable to the public-sector collective negotiations process. Kearny PBA Local No. 21 v. Town of Kearny, 81 N.J. 208, 217, 405 A.2d 393 (1979); PBA Local 160, supra, 272 N.J.Super. at 473, 640 A.2d 341. And see Old Bridge Tp. Bd. of Educ. v. Old Bridge Educ. Ass'n, 98 N.J. 523, 527, 489 A.2d 159 (1985).

The subject of the arbitration award here was tenure. A tenure determination is a fundamental managerial prerogative. Such a determination is not negotiable. Teaneck Bd. of Ed. v. Teaneck Teachers Ass'n, 94 N.J. 9, 16, 462 A.2d 137 (1983); Rutgers v. Rutgers Council of AAUP Chapters, 256 N.J.Super. 104, 116, 606 A.2d 822 (App.Div.1992), aff'd o.b., 131 N.J. 118, 618 A.2d 853 (1993). With the limited exception of determining whether the education officials followed the proper procedures, such determinations are also not arbitrable. ⁴ Old Bridge Tp. Bd. of Educ. v. Old Bridge Educ. Ass'n, supra, 98 N.J. at 527-28, 489 A.2d 159 ("[t]he scope of arbitrability is generally coextensive with the scope of negotiability.... Thus the tests for each are nearly the same") (citing Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 160, 393 A.2d 278 (1978)). See Teaneck Bd. of Ed. v. Teaneck Teachers Ass'n, supra, 94 N.J. at 14-17, 462 A.2d 137.

Critically, the exception for "procedure" to the extent it impinges upon a managerial prerogative is narrow, Rutgers v. Council of AAUP Chapters, supra, 256 N.J.Super. at 118-20, 606 A.2d 822, and "[t]he simple labeling of a contract [provision] as procedural" is not dispositive, id. at 120-23, 606 A.2d 822. With respect to reappointment and tenure evaluations, "who is to perform a particular role in an evaluative process, how that role is to be fulfilled and what manner internal evaluative communications occur do impinge significantly upon the actual evaluation determination itself. These are aspects of the process that frame and shape the ultimate outcome." Id. at 123, 606 A.2d 822. We concluded in Rutgers, therefore, that collective negotiations proposals for a particular form to be used in the faculty evaluations, promotions and reappointments were not merely "procedural" and thus were not negotiable. We observed:

Ostensibly, proposal 8 would simply require the use of a form (already required by the University's Instructions) to set forth the results of the evaluation process at each level. But the proposal would do more: it requires that each candidate be rated under the same criteria and in a consistent manner. As noted in Dep't of Law and Pub. Saf. v. State...