*1 added). (Emphasis at her or in her jury direction.” convict- ed aggravated defendant assault knowingly crime— pointing person a firearm another under circumstances mani- festing an extreme indifference to the value of human life. Con- conviction, sistent jury with that also determined that when unholstered, pointed, defendant gun, and fired his he had the purpose unlawfully use it against Tammy Erickson.
IV. I would affirm defendant’s conviction reasons stated and substantially for expressed the reasons Appellate Division’s majority opinion. joins opinion.
Justice Verniero in this For reversal and remandment —Chief Justice PORITZ and STEIN, LONG, Justices LAVECCHIA and ZAZZALI —5. For Coleman and Verniero —2. affirmance —Justices TROY, HALL, DR. MONSE, LEO STAN DR. DR. ERNST U. DR. THOMPSON, ROTHBERG, HUGH DR. IRWIN DR. DANIEL PRIMER, WILHOFT AND DR. IRWIN PLAINTIFFS-APPEL LANTS, RUTGERS, UNIVERSITY, THE STATE DEFEN DANT-RESPONDENT.
Argued February 14, June 2001 Decided *4 Sussman, bar, H. argued Michael a member New York (John Brennan, Jr., appellants attorney). P. cause Peirano, argued respondent John (Carpen- J. Jr. the cause for ter, Peirano, Morrissey, attorneys; & Bennett Mr. Kevin C. brief). Ptasiewicz, Donovan and Seth on the opinion The was Court delivered ZAZZALI, J. employment dispute requires plain-
This us to decide whether presented tiffs sufficient evidence to establish the existence agreements and, so, individual with defendant if whether those agreements superseded by agreement. individual were a collective Plaintiffs, Rutgers University faculty seven tenured Newark members, allege Rutgers University unilaterally defendant changed their calendar-year appoint- status from academic-year appointments ments to in breach of their individual agreements. Appellate professors Division held that the did provide and, agreements sufficient evidence of individual even had, they if generally prevail would over any agreements. The court also concluded dispute managerial prerogative, was matter of such that it could only through non-binding advisory resolved arbitration under disagree, We and therefore reverse and remand.
I Plaintiffs, University Rutgers of the seven tenured members Sciences, Faculty allege that defendant of Arts and Newark unilaterally from University changed their status (CY) (AY) appoint- calendar-year appointments academic-year agreements. ments in breach their individual negotia- agreements independent of are negotiated the American between defendant and tions (AAUP) governs the University Professors that Association University faculty mem- employment of terms and conditions of bers.1 plaintiff appointment at least
By each had held a CY agreement, twenty years. appointment, A CY faculty “expected the entire that the member is to” devote means exception of a one- year University his or her duties with contrast, “requires” An appointment, vacation. AY month September to be from 1 to the date faculty member in attendance negotiated two commencement. Defendant and AAUP CY salary appointees, for AY and CY separate schedules receiving pay. favorable appointees more Hosford, Rutgers In Dean of Newark’s March David that, Sciences, they unless Faculty of Arts and advised criteria, i.e., that satisfy CY duties maintained sufficient duties to year, appoint- their occupy their time for eleven months Plain- changed July AY status effective ments would be appointments made objected, arguing their CY were tiffs they appointments, to those such without conditions attached perform specific beyond the academic obligation to duties had no time, here, that year. Plaintiffs at that and assert contended appointments their so as “grandfather” elected to defendant the terms "collec sector labor in New courts use relations Jersey, public agreements” negotiations negotiation” rather than "collec tive and "collective bargaining agreements.” bargaining” and N.J. Employees tive “collective Tpk. Auth., 579, 581, 319 A.2d v. N.J. N.J. Union Tpk. any requirement they beyond
exclude them from work year. academic *6 to, support argument, plaintiffs point
In of among their other (1) Horton, proofs: deposition George the professor representative, former University AAUP who testified that offi- grandfather cials appointment ap- intended to the status of CY pointees during negotiations early Union in defendant the (2) 1970s; Keddie, deposition the of Wells a former AAUP Presi- dent, who testified that the AAUP and defendant had an unwrit- understanding although University ten ending the discussed practice making the appointments, existing “unconditional” CY (3) appointees grandfathered any CY changes; would be from the appointment history University faculty of other members indicat- ing that unsuccessfully attempted defendant to alter their CY appointments appointments, AY presumably to because of the (4) grandfather appointees; unconditional CY appointment history plaintiffs, of each of the including seven suggests evidence part in that defendant was aware that plaintiffs appointment maintained CY though they status even year University times did not devote the entire duties. Further, plaintiffs argue July that a 1984 memorandum from T. Pond, Alexander then Executive Rutgers Vice President of Uni- versity, policy established appointees insulated CY such as any changes from to the conditions of (the faculty Memorandum) members. That memo Pond was addressed to Provosts and Deans and states: Senate considered the University recently of calendar question year appoint- writing
ments and the President with advice that in provided formalized what has regal'd been our for some essentially practice time to such That appointments. was advice reviewed the Board of Governors. regulating Set forth below is the statement calendar which year appointments promulgating was the Senate and which I am now adopted by as the University’s regard to calendar policy year faculty appointments: 1. All on persons initially tenured calendar appointed and/or year appoint- ments without conditions attached to those shall continue appointments hold those unless an entire class appointments, said appointments reduced without written conditions specific 2. No further calendar year appointments shall be made. made in in- shall be calendar year appointments 3. Non-administrative member’s academic faculty circumstances stances where the special (or work), usual on year- on campus place work presence require her/his long basis. no calendar year appointment which led to new 4. When the conditions longer to an academic year appointment. shall revert the appointment apply, to mean that should moi be construed note that number above Please point without conditions eliminates on a calendar basis year initial appointment engaged obligation in his or her duties of a member to be professional faculty during nor should it be full term of his or her appointment, the University and dean and his or her chairperson mean that a member faculty construed to agree to academic year. an from calendar year cannot to reduce appointment regard should be understood to written conditions 2., number specific point entailed by statement of the professional responsibilities refer to explicit calendar year appointment. added).] (Second [ emphasis AAUP, through grievance May filed a Plaintiffs *7 Parenthetically, we note agreement. pursuant to the collective this collective delineated under grievance procedure that the pri- in procedures contained agreement is different from similar covering, for in- bargaining agreements collective vate-sector stance, Nor is this factory or construction workers. workers in most collective grievance procedure typical of that contained sector, police covering those public such as agreements the officers, grievance officers, K-12 teachers. The standard fire or para- usually consists of a few procedure agreements in those agree- procedure in this collective grievance graphs. The intricate fifty-three single-spaced pages of the twenty-three ment consumes page contract. faculty a mem- that either the AAUP or agreement
The states begins “Step grievance procedure grievance. ber can file investiga- their own One,” University personnel conduct in which If grievant. dissatisfied resulting response in a written to the tion One, Step the AAUP or grievance disposition the with receipt of thirty working days from the ordinarily has grievant the Two,” “Step appeal grievance Step decision to One which is arbitration.
Here, AAUP, plaintiffs, Step on behalf of started One of the grievance procedure by alleging in a letter to defendant that its plaintiffs’ change appointments unilateral was a violation of the agreement University regulations policies. In memorandum, August University’s an Assistant Vice Faculty grievance, stating part President Affairs denied grievants faculty “[t]he that seven were the FAS who were performing year assignments being paid academic while for calen- year appointments. year appointees, dar All other calendar re- gardless age, year assignments.” have calendar appealed Step October the AAUP that denial to Two argued dispute “Category arbitration. Plaintiffs that the was a grievance agreement; argued One” under the collective defendant “Category grievance. it Category griev- that was a Two” A One alleges University mandatorily-negotiable ance that the violated Category terms and conditions in A the collective grievance generally Two does not involve a violation of the collec- itself, agreement tive alleges University but instead policies, agreements, regulations affecting violated other or man- datorily-negotiable Category grievance terms. Unlike One arbitration, binding is resolved in Category grievance Two arbitration,” by “advisory resolved which arbitrator issues an advisory President, recommendation to the Office of the who is charged issuing binding a final and determination. Article agreement XXII of appointments defines AY and CY grievances and states that under that Category Article are Two grievances.
In March dispute the arbitrator concluded fell under Article XXII of the collective and thus was *8 properly Category grievance subject only characterized as a Two advisory pursue to arbitration. advisory Plaintiffs decided not to arbitration. meantime, plaintiffs
In the against had an instituted action the University in December 1992 in the United States District Court Jersey, discrimination, for the alleging age District of New rights, § due process U.S.C.A. of and common-law violations Bassler, of In the Honorable William G. breach contract. U.S.D.J., summary judgment on granted motion for defendant’s summary process denying due claims. the discrimination and claim, of the court observed: judgment on breach contract the genuine fact was a contract A of material exists as whether there issue preventing historic to academic year of calendar year appointments reversion jury language [collec- with the A reasonable provided plain appointments. agreement], Rutgers’ tive the evidence statement, response policy challenges and the testimony to the “historical” calendar year appointments prior regarding agreement and the unwritten could find either Keddie Horton judgment is denied. on this issue summary party. Consequently, Nevertheless, claim the court dismissed the breach contract prejudice, citing pendent an insufficient basis exercise without Troy Rutgers, The jurisdiction. The Third Circuit affirmed. Univ., 1996). (3d 95-5805, 92 No. F.3d 1173 Cir. June State. Plaintiffs breach contract action the Law Division filed this summary judg- filed Plaintiffs and defendant October 1996. motions, filed a ment of which were denied. Defendant then both interlocutory appeal Appellate with motion for to file an leave Division motion with- Appellate Division. The denied defendant’s the Law for a prejudice remanded matter to Division out and In response, underlying statement of reasons its decision. facts at motion court that there were a number material stated issue, including “grandfathered” these were into calendar
whether plaintiffs year appointments (defendant wording agreement; maintaining in the such was never included AAUP Rutgers submitting that the acts and conduct of deposition testimony plaintiffs position). then- supports A fact or not the acts and conduct of the finder must determine whether binding agreement and if not a determina- defendant between parties created right to terminate the status of the tion as whether or not the defendant had along justifiable term term seven from a calendar’ to an academic plaintiffs or not which as to whether these seven plaintiffs reasons would include question conflicting There is also certification facts and deposi- constituted entire class. regard to the to where work, tion what the was with as testimony as to jury how were to summer months. A reasonable spend these [c]ourt matter must make a cannot as a of law rule either determination. motion are denied. direction thus both motion and defendant’s plaintiffs’ *9 subsequently Defendant interlocutory filed second motion for Appellate review Appellate Division. The denied Division motion, defendant’s but remanded the matter to the Law Division disposition argument defendant’s that the individual agreements superseded by were agreement. the collective Ac- remand, cordingly, on the motion court concluded that there was a concerning plaintiffs fact issue grandfathered whether were into calendar-year appointments unconditional exempt any and from conflicting provisions agreement. under the collective Defendant then filed a appeal renewed motion for leave to Appellate with the Appellate granted Division. The Division that motion. Appellate
The plaintiffs Division held that did not have individu- rights any al contract rights and that other asserted were to be governed by agreement. the collective Appellate Division persuaded was not testimony Keddié, that the of Horton and employment plaintiffs, histories of or the Pond memo- right. Rather, randum created a contract the court held that the collective University regulations fully described obligations appointee of a CY agree- the collective superseded ment any separate thus agreements plaintiffs between and defendant. The court also that the matter was one concluded managerial prerogative subject advisory arbitration under agreement. The court therefore reversed and re- entry manded the judgment matter for dismissing complaint prejudice rights without had certification, sought Plaintiffs which this Court granted. N.J. 762A.2d 217 We now reverse.
II We first genuine address whether there exist issues of material relating fact to whether defendant created an enforceable obli- gation permitting plaintiffs to maintain appointments. their CY R. 4:46-2. formed the existence of contract
An
words,
conditions,
implied
but also
from
manifested
*10
Press,
City
v.
employment.
Atlantic
the circumstances of
White
(1973);
128, 133,
Employment
A.2d 197
27 Am.Jur.2d
64 N.J.
313
(1996).
promises, representations,
§ 13
em
Relationship
Oral
manuals,
parties, depending
or
conduct
on the
ployee
of
circumstances,
give
held
rise to an
surrounding
have been
See,
obligation
part
e.g.,
employer.
on the
of an
enforceable
Milford,
Wanaque Borough Sewerage
Township
v.
West
Auth.
of
(“Courts
564, 574,
(1996)
144
A.2d
often
and
N.J.
677
747
find
promises by
promisor’s
of
implied
interpretation
enforce
word
circumstances.”);
light
surrounding
and
in
of the
Shebar
conduct
289,
(1988)
276,
Sys.
111
Sanyo
Corp.,
v.
Bus.
merit.’” Data 3d Interactive Cal. (1988) Scott, Cal.Rptr. (quoting 765 P.2d & Goetz Expanded Analysis An The Limits Choice: the Interactions Implied Express Between Terms 73 L.Rev. Contract Cal. (1985)). that, “[j]ust The modern assent view as 273-276 conduct, including be manifested words or other sometimes silence, promise may so intention to make a manifested in language implication other or from circumstances.” Restate (Second) § ment Contracts cmt. parties in a
Whether acted manner sufficient to create implied question generally preclud contractual terms is a of fact Co., ing judgment. summary Reynolds v. See Palnut N.J.Su 171-72, per. 162, (App.Div.2000) (holding summary A.2d 1216 implied employment inappro dismissal of breach contract claim priate factual policy). where issue over existence oral As the *11 Corp., N.J.Super. 32, court in Giudice noted v. Drew Chem. 210 36, denied, 465, (App.Div.), 509 200 A.2d 104 517 A.2d N.J. certif. (1986), summary ordinarily judgment 449 appropriate is not in an implied employment contract questions claim because “factual will persist concerning the intent meaning and of certain documents relevant a [such] to decision.” See also Witkowski v. Thomas J. Inc., 385, (1994) Lipton, 399, 136 643 (concluding N.J. A.2d 546 jury employee reasonably should determine whether could manual); expect job security from v. Labus Navistar 1053, (D.N.J.1990) (observ Corp., Transp. F.Supp. Int’l 740 1063 that, ing law, Jersey legitimacy represen under New “[t]he of the employee’s tations and the reasonableness reliance are questions appropriate for finder of fact are not for summary judgment”). course, juror Of when no reasonable could conclusion, reach question other than one a of whether docu implied ment an constitutes contract in a resolved motion judgment. Alito, for summary Rosemary Jersey Employ New (2d ed.1999). Law, § ment 1-6:2 at 20 v. See also Pruden Ware Co., 146-47, 135, tial N.J.Super. Ins. 220 (App.Div. 1987) (holding failing that court matter erred as of law in to enter
367
implied employment
employer
plaintiffs
close
at
judgment for
denied,
335,
action),
A.2d 450
113 N.J.
contract
certif.
Sys.
supra, this
distin
Sanyo
Corp.,
Court
Bus.
In Shebar
company-wide policy
action
on a
implied
contract
based
guished
284,
Roche,
.2d1257
99 N.J.
491A
Woolley v.
under
Hoffmann-La
10,
(1985),
A.2d 515
grounds, 101
on other
N.J.
modified
on
(1985),
implied
representa
that is based
from an
contract claim
288,
at
A.2d
particular employee.
N.J.
made to
tions
employee but
The
hired as an at-will
plaintiff
Shebar was
377.
job
that,
resign
accept
attempted
he
another
alleged
after
offer,
stayed would
orally promised him that if he
he
employer
his
cause.
job
he
not be fired without
for life and that
would
have
282-84,
fired
plaintiff
was
four months
at
The Shebar Court therefore
case or
consider whether to
analysis to the facts of that
contract
company-wide policies.2
Woolley
Woolley to oral
Whereas
extend
*12
implied
2
finding
preclude
contract based on oral
of an
Shebar did not
subsequent
policy.
company-wide
decisions
A number of
communications of
Woolley
adopted
Appellate
view
claims are
the
that oral
have
Division's
Shebar
Co.,
171-72,
supra,
N.J.Super.
permissible. Reynolds
at
748 A.2d
v.
330
Palnut
329-30,
1216;
Co.,
N.J.Super.
Mfg.
supra,
609
v. Durand
258
Gilbert
Glass
797,
517;
(D.N.J.1997)
Signal
F.Supp.
Corp.,
v.
807-08
A.2d
Fischer Allied
employee’s
on
employ
held that an
work
reliance
the
continued
promise
job security
contained
such manual was
er’s
303,
purposes,
sufficient consideration for contractual
369 by him employer were relied on remain with the to 288-89, A.2d Id. at 544 declining company. an another offer from that that fact finder could determine 377. The Court concluded a relin plaintiff was given consideration” because “additional exchange, job employer, quished competing offer and to will. Id. at right employment terminate his relinquished its applies retroactively. Smith v. A .2d See 544 377. Shebar (“New 69, 73, Squibb Corp., N.J.Super. (App.Div.) 254 acknowledged three-quarters century of a that for over Jersey has may be to promise of forbearance sufficient consideration an act or denied, support alleged employment.”), oral contract an certif. 10, A.2d N.J. case, more breach of an plaintiffs’ action is akin this implied claim under contract of Shebar surrounding Woolley than it is to claim. The circumstances promises plaintiffs’ complaint suggest that defendant made they were to hold plaintiffs, namely, that allowed specific were appointees. claim special unconditional Plaintiffs status as CY University-wide faculty hold only twenty percent members members, faculty Of the record is silent appointments. CY those not regarding percentage appointments who hold CY but do Nevertheless, denying year. calendar for the entire work August grievance, that as of plaintiffs’ initial defendant claimed performing faculty “were the FAS who were being year year assignments paid for calendar while academic out, Moreover, correctly points as appointments.” defendant allegation they were plaintiffs’ claim rests on the after largely decision, basis, unique to appointed on made a a CY defendant appointments That their until 1992. plaintiff, each alter CY decision, despite according to made defendant’s plaintiffs, was performed responsibilities plaintiff each had not awareness that year. those during the of an entire calendar Under course circumstances, are that the situation here involves we convinced She “special plaintiff. contract” each individual bar, 544A.2d supra, N.J. Memorandum, point deposition
Plaintiffs
the Pond
testi
Keddie,
mony
University’s
of Horton and
and the
action towards
*14
appointees
University-
CY
other
as evidence that defendant had
policy
Woolley
regard
ap
wide
with
to unconditional CY
pointees.
Because
do not assert
those
workforce,
representations
actions and
were communicated
to
general
actions,
there
or even that
was
awareness of
those
those
proofs generally
support
Woolley.
do not
a claim under
99
N.J.
302-04,
Nevertheless,
surrounding
We
barrier to the
implied
change
contract action
it concerns a
because
of work schedule and
pay.
Although
Woolley
attendant reduction
both Shebar and
implied
protect
involve
employee against
contracts that
arbi
termination,
trary
principle
holding
employer responsible
an
promises
for the
it
employees
equally
chooses make to its
applicable to
employment
other
and
terms
conditions of
and
See,
personnel
e.g.,
Computer
decisions.
Marzano
Science
(3d
497,
Cir.1996)
Corp., 91 F.3d
512
(applying
Jersey
New
law
determining whether
concerning maternity
gave
memo
leave
rise
Cos.,
obligation);
Kennedy
Group
enforceable
v. Chubb
Ins.
384,
(D.N.J.1999)
F.Supp.2d
60
(applying
Jersey
399
New
law
deciding
employer’s
program
whether
given
short-week
contractu
force);
Am.,
al
F.Supp.2 452,
Barone v. Leukemia Soc.
42
d
457
(D.N.J.1998) (applying
Jersey
New
in noting employee
law
hand
binding obligations
book
create
concerning sick
or
leave
leave);
bereavement
Guybutler
Giuntoli v.
Corp.,
Garvin
726
494,
(S.D.N.Y.1989)
F.Supp.
(holding
plaintiff may
pro
implied
ceed
contract for bonus
on employer’s
claim based
policies,
dealing
parties,
written
course of
between
oral repre-
and
Co.,
Elec.
v. Pac.
plaintiff);
Scott
Gas
sentations made
(1995) (“[TJhere
427,
834,
Cal.Rptr.2d
904 P.2d
Cal.4th
employees
why
employer’s policy that its
is no rational reason
an
cause,
policy restricting
except
good
like a
will not
demoted
providing
pay,
for severance
cannot become an
or
termination
contract.”); Sledge
v. New Haven
implied term of
Auth.,
(Conn.Super.1996) (recognizing
We hold was in the nature an appointment that their status position persuasive that the obligation. We find it contractual enforceable court, thoughtful opinion, in its determined that federal district summary judgment appropriate was not on that issue. The ultimate resolution of plaintiffs whether had an con- enforceable respect appointments tract CY must be rendered the finder fact.
Ill plaintiffs If can demonstrate to satisfaction of the finder fact that defendant’s obligation, conduct created enforceable question next agreements is whether those individual would be superseded by ease, If that is the precluded recovering. would be from provides representatives
N.J.S.A. 34.13A-5.3 selected public employees for negotiating purposes collective “shall be the representatives negotiation exclusive for concerning collective employment.” terms and conditions of employees Public who representative have separate selected a negoti therefore have no ating rights. negotiations representative Their collective protects and advances their charged interests. The union turn is fairly representing employees all negotiating interests of collective representing employees after the parties an agreement. consummate ago, Francis,
Three writing decades Justice unanimous Court in Lullo v. Int’l Assoc. Fighters, Fire 55 N.J. (1970), very A.2d 681 addressed the implicated concerns in this appeal. He agreements observed that designed are “supersede possible agreements terms of employ ers with strength terms which reflect bargaining power and serve the group.” welfare of the Id. A.2d 681. *16 explained The Court that the union movement “was born of the single realization that a employee had no substantial economic strength. leverage beyond He had little the sale of his own efforts to aid him in obtaining fair wages, hours of working work and 425, conditions.” (citing Id. at 262 681 A.2d v. N.L.R.B. Jones & Laughlin Corp., 1, 33-34, 615, 622-623, Steel 301 U.S. 57 S.Ct. 81 893, (1937)). L.Ed. Employees 909 thus turned labor to unions “to
373 community “in of interest” because strengthen and further achieving equitable strength an and means of there is union agreement bargaining power.” The collective of Ibid. balance viewed the representation from union was that would result against exploita protect employees way to Court as an effective generally negotiation rights individuals Although tion. group under of the collective yield to the interests would have the “terms employees as a benefit because agreements, whole such open every agreement advantages become of the collective “advantages unit” to an represented opposed as employee in the ‘may prove as through [that] an individual contract employee ” 428, disadvantages.’ Id. peace as at 262 disruptive of industrial Bd., Relations 321 v. Nat’l Labor (quoting A.2d 681 J.I. Case Co. (1944)). 762, 332, 338, 576, 581, 88 L.Ed. 64 S.Ct. U.S. favoring agreements over support policy collective individuals, Lullo relied on the piecemeal agreements Court Case Supreme Court decision of J.I. Co. landmark United States Bd., Court consid- supra.3 The J.I. Case v. Nat’l Labor Relations separate employer could have whether ered issue of despite an exist- employees unionized agreements with case agreement. The union in that was ing bargaining collective representative employ- bargaining the exclusive certified as were in effect. 321 employment contracts still whose individual ees 578, employer argued 333, at at 88 L.Ed. U.S. at 64 S.Ct. precluded negotiating preexisting individual contracts obligations individu- affecting under those rights and over matters 578, 334, at L.Ed. at 765. The Id. al contracts. S.Ct. relations, the National Labor Relations labor In the field public employee 159(a), law, §§ decisional 157, 1935, in federal enacted Act, U.S.C.A. guidance resolving Town disputes. Galloway provide Secretaries, 78 N.J. Ass'n Galloway Township Bd. ship of Educ. of Educ. (noting Lullo, also 55 N.J. A.2d 207 See supra, as Act, where instructive interpre that National Labor Relations pertinent, statute). Although law, are we not bound by sixty-five tations of our own resolving judicial can be invaluable disputes years interpretation sector. public *17 374
union practice charge. then filed an unfair labor Ibid. The Supreme employers employees Court concluded that and could not agreements maintain individual any that waive benefit which the employees would be entitled the collective Otherwise, goal permitting the of employees bargain- to use their ing power to employment secure favorable terms serving while the group 338, welfare of the would be Id. undermined. at 64 580, S.Ct. at L.Ed. 88 at 768. The Court noted that individual agreements way typically are “interfering organization with and, of representatives” they choice provide even if for compensation, increased suspicion create the that that benefit is “being paid at long-range expense group the as a whole.” 338-39, 581, Id. at 64 S.Ct. at L.Ed. decision, however, impose J.I. Case does not an absolute
bar on
ability
bargaining
unit members to enter into
employer.
individual
contracts
The Court noted that it
was
upon
“not called
say
that under no
can
circumstances
individual
enforce an
advantageous
more
than
collec-
agreement.”
338,
580,
tive
Id. at
64 S.Ct. at
L.Ed.
at 768. The
Court
great
declared that “where there is
variation in circum-
stances
employment
or capacity
employees,
possible
it is
bargain
prescribe only
minimum rates or maxi-
mum
expressly
hours or
open
to leave certain areas
to individual
338,
581,
bargaining.” Id. at
that case, employees agreement. The in that adoption of a collective fired, employer alleging suit that abruptly filed who were long-term employment promises written made them oral and staying company at the rather employees relied upon which the 389, 2427-28, employment. at 107 S.Ct. at seeking other Id. than sought the case to employer to remove L.Ed.2d at 325. The 96 court, contract essen contending that the breach of claims federal Management § of the Labor tially arising claims under 301 were (LMRA), governs § 185. Section 301 Relations Act 29 U.S.C.A. rights by agreements created claims founded on causes of preempts and thus state affecting commerce industries 2431, 394, at 96 rights. Id. at 107 S.Ct. to enforce those action argued subsequent that the collec employer at L.Ed. 2d contract extinguished the state-law individual agreement tive 2428, 390, 107 L.Ed.2d Id. at at 96 employees. S.Ct. claims at 326. Court, Brennan, writing that for the observed
Justice recognize [an that was “its failure employer’s basic error is by collective-bargaining agreement permit employee] a covered including agreement, legal rights independent that ted to assert upon long relied not rights, so as the contract state-law contract 2431, 396, Id. 107 at collective-bargaining agreement.” S.Ct. Magic Chef, Lingle Norge v. Div. L.Ed.2d at 330. See also 96 (1988) 410, 1877, 1884, 100 422 399, 411, 108 L.Ed.2d 486 U.S. S.Ct. analysis “judges can determine that Section 301 (noting labor-management if involving relations questions of state law collective-bargaining require construing questions such do Moreover, agreement reserve agreements”). agreement. Order individual certain issues be resolved 342, 347, Inc., Agency, 321 U.S. Telegraphers Ry. Express R.R. 585, 788, 791 88 L.Ed. 64 S.Ct. labor Jersey applied the federal
Similarly,
courts have
New
only to the extent
contracts are void
principle that individual
they
agreements
conflict with collective
or interfere with the
principles
negotiation.
Jersey
of collective
See New
Transit Auth.
PBA,
129, 139-40,
Jersey
N.J.Super.
v. New
A.2d
(App.Div.1998)(noting
employer
requirement
could include
individual
contracts that does not conflict with collec
negotiations
Co.,
tive
agreement); Mossberg v. Standard Oil
(Law Div.1967)
N.J.Super.
237 A.2d
(stating
only given
“individual contract is
force and effect if it can in no
way
policy
frustrate the
of the National Labor Relations Act and
does not
bargaining
conflict with collective
agreement”). Courts
may look
agreement
to the collective
decide whether
conflict
exists
between the
and the collective
Ibid.;
Caterpillar,
398, 107
supra, 482 U.S. at
S.Ct.
2433,
In our agreement the collective in this case not does preclude type agreements plaintiffs the allege were established. First, established, agreements, the individual if would be not agreement. with Second, inconsistent the collective the agreements individual any rights provided do diminish for under the Finally, collective the AAUP in this case agreed rights has by allow individual faculty to be enforced members. primary why plaintiffs’ agreements reason would superseded by
not be agreement the collective is the absence of exist, conflict. If University a conflict did persuasively the argues agreement prevail should over the individual agreement, because agreement otherwise the collective would undermined labor relations destabilized. It is true that the subject dispute, namely, matter of this whether are entitled appointments, to CY is covered agree- the collective ment. Article XXII of agreement the collective —“CONDITIONS OF responsibilities EMPLOYMENT” —defines the appoint- of AY appointments. ments and appointments CY AY are defined as “Appointment follows: year requires for the academic appointee inbe University attendance September from 1 to
Commencement, period, within each academic equivalent or an (Em- appropriate academic officer.” year unless excused added). defined as fol- Conversely, appointments CY are phasis 30) (July are year 1-June “Appointees for the calendar lows: University year to their duties with expected devote the entire added). (Emphasis exception a vacation of one month.” precise question is a conflict exists between The more whether terms included the collective the individual contracts and the agreement, by own its agreement. We conclude that the collective agreements of individual preclude the existence language, does not appointees CY varying applicable appointees. to CY terms required to be in “expected year-round they are not are to” work — year, appointees “re- for the as AY are attendance calendar year. “Expected the academic quire[d]” to be in attendance for required. obviously something than Given to” denotes less standards, parties intended a believe that the two different we appointees, AY applicable terms CY and distinction between the that there especially that defendant was aware light the fact who, past, in the had success- appointees existed unconditional CY appoint- their protested attempted defendant to alter fully when Accordingly, appointee of CY the definition ment status. who, although faculty embraces members to,” year-round responsibili- necessarily perform “expected do not parties intended University. ties at the We conclude accommodation, by imposing perhaps greater flexibility, even Plaintiffs’ appointees. to” CY “expected the lesser standard of the terms of the agreements not be inconsistent with would *20 any of a conflict erases agreement and the absence collective agreement be undermined. the collective would concern that agreements Second, noteworthy the individual we find it that rights. Al- plaintiffs’ collective here would not dimmish asserted clearly precludes an individual though the J.I. Case decision rights, away that decision agreement would take collective agreement that is more advanta- an individual preclude does not not conflict long as it does geous agreement, so than collective goals general. with the bargaining precise- of collective That is ly the case here.
Finally, acquiescence allowing faculty AAUP pursue rights agreement supports individual under the collective general our conclusion. The for the rationale rule that collective agreements prevail agreements over individual is that the latter agreement tend to undermine both the collective and the collective negotiations union, representative, charged which is with enforcing different, This case is howev- (1) er, agreed, because will AAUP as we discuss more detail below, Category grievances may Two by be enforced either faculty the Union or the member and that by either do so way (2) litigation arbitration; rather than the record demonstrates actively faculty that the AAUP assisted members in sought instances when defendant to eliminate the unconditional professors. CY status of Accordingly, we conclude that the collec- negotiations representative by tive agreed, here has its contract conduct, rights may its individual be enforced plaintiffs. specifically individual agrees When union that dis- putes arising apart from the agreement may collective be en- forced, voluntarily degree it hegemony. surrenders its cases, such piecemeal the traditional agreements concerns interfering agreements reduced, substantially collective are if not eliminated. holding
Our
undermines neither
importance
the fundamental
agreements.
Indeed,
nor the
function
collective
we reinforce
generally,
the rule
agreements
of Lullo:
prevail
over
and,
agreements
conflict,
when there is a
the individual
agreements may
Nevertheless,
not be enforced.
we follow estab
principles
lished
allowing
State and federal labor law in
an
employee
bring
unique
individual contract claim in the
First,
circumstances of
agreements,
this case.
the individual
if
proven, do not
conflict with the collective
itself or the
negotiation
benefits of collective
in general. Caterpillar, supra,
396, 107
(“[I]ndividual
482 U.S. at
S.Ct.
IV proper forum for law is the next court of address whether We dispute. this agreements in requires that collective Legislature
Our grievance procedures provisions for public include sector interpretation, appeal employees may “the through which the administrative policies, agreements, and or violation of application griev The affecting 34:13A-5.3. ... them.” N.J.S.A. decisions agreement “shall under the procedures established ance agree dispute terms of such any covered utilized for Tpk. Employees’ Union Jersey New also ment.” Ibid. See 461, 467, A.2d 599 Auth., N.J.Super. Jersey Tpk. New procedure for exclusivity grievance (upholding (App.Div.1973), aff'd, N.J. 319 A.2d by public employees), disputes brought “permits the Act Employer-Employee Relations mechanisms, including arbi dispute include resolution parties to Attorney Saginario v. tration, negotiated agreement.” in the (1981). Nevertheless, the 480, 490, General, 87 N.J. *22 question particular dispute whether a is under the arbitrable parties’ of by terms the contract is an issue to be decided the Ridgefield Ridgefield courts. Park Educ. Ass’n Park Bd. of Educ., 144, 153-54, 78 N.J. dispute
Before we determine whether this is arbitrable or justiciable, complex grievance we procedure review the established grievance begins under the Step The One, University personnel in which own investiga- conduct their in resulting response tion grievants. Step written to the After One, grievant the AAUP or the has under normal circumstances thirty working days receipt Step from the of the One decision to appeal Two, grievance Step the which If is arbitration. the grievance Category is a grievance, proceeds binding One it arbitration; Category grievances Two are through resolved advi- sory arbitration.
In sought October the Step AAUP Two arbitration after University’s the Assistant Faculty Vice President for Affairs grievance Step denied the question One. threshold the arbitrator dispute faced was whether the Category was a One grievance, arbitration, through binding to be resolved Catego- or a ry grievance, Two through advisory be resolved arbitration. The arbitrator plaintiffs’ grievance concluded that Category was a grievance Two parties and the dispute do not that determination. E(6)(b) IX, Article Section of agreement provides Category grievances that Two by Step are to be resolved Two F(4) advisory provides arbitration. Section of that Article that “[wjhether pursued, or not [Step this procedure Two] shall consti- tute right the sole and remedy bargaining-unit exclusive of members any and the AAUP for cognizable and all claims procedure.” this
Despite seemingly that unequivocal language, very the next subsection, F(5), happen Step describes what should a Two grievance grievant when the or brings the AAUP action in court involving grievance: the grievance Two [arbitration] of Step this shall be held procedure abeyance grievance agency proceeding, of a brought any portion while court or any the concerning grievant the substance or the portion
AAUP of binding agency grievance, pending. makes that a court or event grievance, Two of this of the Step on the substance of portion determination grievance. longer grievance shall no be available for portion procedure Nothing as a waiver this shall be construed or implied provision grievance or exclusivity of exhaustion of remedies defenses University paragraph 6. below. as except provided procedure, added).] (Emphasis [ F(6) IX, Further, of the collective Article Section precluded defendant is forth the circumstances under which sets exclusivity or asserting defense an exhaustion remedies from grievance defense: Category If the AAUP does not timely as to Two Grievances. 6. Exception grievant(s) ... AAUP commence [arbitration] Two and the invoke and/or Step working pertaining grievance of the last proceeding to the within days court *23 the defenses Two, which could have invoked timely Step date the AAUP upon grievance will not be of the exclusivity of remedies or procedure exhaustion proceeding____ the in such court to University available added).] (Emphasis [ F(6) IX, inter- Section should be argues that Article Defendant concerning court action preted professors to initiate a to allow (1) are met: only after conditions Category grievances Two two (2) arbitration; “Step timely invoke Two” does not the Union pertain- grievants proceeding a court commence the AAUP and/or on days the last date forty-five grievance within ing Step timely invoked Two. could have which the AAUP agreement. Sec- of the reject interpretation that We F(5) right to raise the defenses of defendant preserves the tion exclusivity procedure. grievance or of remedies exhaustion F(6) merely exceptions in which those provides for two Section timely invoke if does be raised: the AAUP defenses cannot forty-five proceeding is commenced a court and when arbitration elapsed. Two has right Step under to arbitrate days after the from even F(6) defendant precludes that procedural is a clause to establish conditions raising cannot be read certain defenses —it commencing a action. court plaintiffs prior must meet that F(5) F(6), IX, together, Rather, read when Article Section litiga- contemplated and established parties that demonstrate tion as an Step Why alternative to Two arbitration. would the F(5) parties providing have included a clause under for the abeyance of Step any Two agency arbitration “while court or if, proceeding pending” ... suggests, plaintiffs as defendant litigation only right could commence after Step Two arbitra expired? plaintiffs tion has If permitted were to initiate court missing action bringing Step after for deadline Two arbitration, interpret agreement, as defendant would F(5) purpose there would be including provision no under stays litigation that arbitration when has commenced. We should parties honor acknowledged the intent of both who in the collec agreement, tive implicitly, albeit rights can be litigated. Co., Grover Universal Ins. Underwriters 80 N.J. (1979) (“[OJnly those issues be arbitrated arbitrate].”). parties which the agreed have [to passing, accept we note that if interpre- even we defendant’s F(6), tation we alternatively plaintiffs conclude would have First, met defendant’s it plaintiffs conditions. cannot be said that truly Step “invoked” Two dispute arbitration on the merits of the merely because an arbitrator dispute determined that was Category non-arbitrable grievance. as One To invoke the arbitration, view, remedy of in our right means an exercise pursue remedy. Here, once were faced with a grievance determination that their proceed would have to arbitration, advisory they and, elected not remedy to invoke that instead, pursue Second, chose to their federal claim. there can be *24 dispute plaintiffs no that timely acted forty-five day within the deadline under agreement. Although the collective agreement may contemplated have litigation that be barred be- late, cause it is filed too the claim extinguished here cannot be early. because it was filed too
V Appellate “hire, retain, Division held that decisions to promote, assign professors and transfer” are manageri- matters of and, dispute although a those was prerogative, al that this such arbitration, litigation advisory of may be matters submitted impermissible. dispute, this involv- disputes is We hold that such required to work are ing as it does issue over whether appointees, not a matter of year as CY for the calendar faculty dispute It a work managerial prerogative. is a over schedule, employment, that be of a term condition litigated. concerning subjects mandatorily are
Questions
whether
City
case-by-ease
Jersey
on a
basis.
negotiable should be made
555, 574,
Assoc., 154
713 A.2d
Jersey City Police Benevolent
N.J.
Burlington
Faculty
County College
Association v.
(1973),
Trustees,
10,
Burlington
64 N.J.
Piscataway Education v. Board of Ass’n, provides N.J.Super. (App.Div.1978), non-negotiable deciding matter is a guidance in whether a further Education in prerogative. The Board of managerial exercise of unilaterally yearly case reduced the term months, resulting propor ten from twelve months to teachers 100, A.2d salary for those teachers. Id. at tionate reduction charge practice an unfair faculty association filed 880. The *25 (PERC). Employment the Public Relations Commission Ibid. rejected subject argument PERC the Board’s that the matter was mandatory subject negotiations not a of and instead concluded practice. Appel- that the Board committed an unfair Ibid. The affirmed, Division observing late that “[w]e have no doubt that the length year matter of of inseparable the work and its concomi- compensation—are and employment terms conditions of ... tant — consequently subject mandatory negotiation before being put public employer.” into effect Ibid. us,
In the matter before we change believe that the plaintiffs’ from appointees status CY AY appointees, with a cut, proportionate pay concerning involved a decision “terms and employment” conditions of the Employer-Employee under Rela Act, tions Although N.J.S.A. 34:13A-5.3. of a establishment managerial prerogative, school calendar is a a decision that direct ly impacts days compensation worked and days those implicates a employment. Similarly, term condition of this case days involves the a appointee number CY must work and is mandatorily-negotiable employment. term appropriate In an reached, case in which an dispute over such term and condition of can be binding submitted to arbitra here, however, grievance tion. The cannot be submitted to bind ing arbitration Category grievance. because it is a Two can It IX, litigated F, Article Section 5 and subsections
VI
hold
question
We
there is a fact
in this case
regarding whether defendant
obligation
created an enforceable
prevented plaintiffs’
alleged status as unconditional calendar-
year appointees
being
from
altered. We reinforce the principle
agreements generally
that collective
prevail
agree
over individual
Lullo,
supra,
ments.
Nevertheless,
VERNIERO, J., concurring. comprehensive opinion. I thoughtful and join
I the Court’s although discusses emphasize that the Court separately to write 284, Inc., Roche, 99 N.J. Woolley v. of the contours Hoffmann-La 10, 1257, grounds, 499 A.2d on 101 N.J. A.2d other 491 modified concluding (1985), that in the course of it does so 515 Indeed, never has Woolley apply. not this Court of does doctrine Woolley public employ directly requirements extended v. to so do. See Golden ers, recently an invitation declined (2000) (conclud Union, 431, 420, 842 749 A .2d County 163 N.J. Woolley misplaced on was public employee’s reliance ing that employ employee’s at-will statutory language establishing view 595, State, 131 status). N.J. 689 A.2d v. 147 See also Walsh ment (1997) doctrine implied-eontract (affirming that determination at-will action in view of apply public employee’s should not statute). relationship created adjuster appoint
Moreover, county whose involving in a case statute, imply a fixed term we did governed ment was v. public employer. DiPaolo impose one or on 487, Freeholders, N.J.Super. County Chosen Passaic Bd. of public employ 493, (holding that “the (App.Div.1999) statutory schemes and relationship applicable derives from ment public employer and independent contract between not from an o.b., A.2d 540 employee”), 162 N.J. aff'd I Nor do consider reliance on v. Sanyo Court’s Shebar Systems Corp., (1988), Business 111 N.J. A.2d suggests implied routinely recognized contracts now be public employers employees. between merely Shebar is cited Court, example as an of a case in which the applying traditional principles formation, of contract concluded that material issues of precluded summary judgment. fact Such the ease here. Granting them all favorable inferences due under Brill America, Guardian Insurance Co. 142 N.J. 666 A .2d Life (1995),plaintiffs jury are entitled to have a determine whether parties calendar-year had formed individual contracts. determination, making jurors rely Woolley should not on or *27 contracts, implied its doctrine of but on the more traditional tenets law setting. contract used this I also consider Court’s holding idiosyncratic to be limited facts of my this case. In view, then, holding the Court’s any would not extend to case Golden, DiPaolo, Walsh, resembling or in which the relationship statutory derives from a clear scheme. reasons, join
For I disposition those in the Court’s and consider it to be the correct one. join
Justices COLEMAN and opinion. LaVECCHIA in this For reversal and remandment —Chief Justice PORITZ STEIN, COLEMAN, LONG, VERNIERO, Justices LaVECCHIA and ZAZZALI —7.
Opposed—None.