                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NOS. A-0485-16T2
                                                   A-0486-16T2

BERGEN COUNTY SHERIFF'S
OFFICE and COUNTY OF BERGEN,

        Plaintiffs-Appellants,

v.

POLICEMEN'S BENEVOLENT
ASSOCIATION, LOCAL 49, BERGEN
COUNTY POLICE DEPARTMENT,

     Defendants-Respondents.
_______________________________

              Argued September 19, 2017 – Decided October 31, 2017

              Before Judges Reisner, Hoffman, and Gilson.

              On appeal from the Superior Court of New
              Jersey, Law Division, Bergen County, Docket
              No. L-3627-16.

              John J. McCann argued the cause for appellant
              Bergen County Sheriff's Office (C. Elston &
              Associates, LLC, attorneys; Mr. McCann, of
              counsel and on the briefs; Cathlene Y. Banker,
              on the briefs).

              Frank P. Kapusinski, Assistant County Counsel,
              argued the cause for appellant County of
              Bergen (Julien X. Neals, County Counsel,
              attorney; Mr. Kapusinski, of counsel and on
              the briefs).
          Michael A. Bukosky argued the cause for
          respondents (Loccke, Correia & Bukosky,
          attorneys; Mr. Bukosky, of counsel and on the
          brief).

PER CURIAM

     The issue presented in these consolidated appeals is whether

the County of Bergen (County) agreed, in a collective bargaining

agreement, to arbitrate whether the County police officers would

receive a retroactive pay increase if the Bergen County Police

Department    merged    into    the     Bergen       County      Sheriff's      Office

(Sheriff's Office).       The County contends that the Bergen County

Police Department was realigned with, but not merged into, the

Bergen   County     Sheriff's       Office.              The    Police     Benevolent

Association, Local 49 (PBA 49), which represents the Bergen County

police officers, argues that there was a merger thereby entitling

County police officers to a retroactive pay raise.

     We hold that the parties agreed to arbitrate all issues

concerning the interpretation of the contract and, therefore, the

underlying question concerning the pay increase is to be decided

by the arbitrator.        Our Supreme Court has instructed that if a

collective    bargaining       agreement      confers          the   issue    of    the

interpretation    of   that    agreement      to     an    arbitrator,       then   the

arbitrator,   and   not    a   court,       must    interpret        the   agreement.

Amalgamated   Transit      Union,     Local        880    v.    N.J.     Transit    Bus


                                        2                                      A-0485-16T2
Operations, Inc., 200 N.J. 105, 118 (2009).    Thus, we affirm an

August 19, 2016 order denying the request by plaintiffs, the

Sheriff's Office and the County (collectively, plaintiffs), to

enjoin the arbitration and granting the motion of defendant PBA

49 to dismiss plaintiffs' complaint for a declaratory judgment.

                                I.

     Historically, Bergen County has had a police department and

a sheriff's office.    The Administrative Code of Bergen County,

adopted in 2007, stated that the "Police Department" was a division

of the Department of Public Safety, led by a director appointed

by the County Executive.    That same Code identified the Sheriff

as a constitutional officer and the head of a separate "department"

with officers and employees under his or her jurisdiction.

     The County and PBA 49 have been parties to a collective

bargaining agreement (CBA) for several decades.      As previously

noted, PBA 49 represents the County police officers, except the

chief and deputy chief.    The base terms of the current CBA were

agreed to in 2001, and that CBA has been extended and modified by

agreements executed in 2002, 2010, 2011, and 2014.

     For a number of years, the County has considered the idea of

combining or reorganizing the Bergen County Police Department and

the Sheriff's Office. In 2012, the Freeholders rejected a proposed

ordinance to dissolve the County police and transfer its functions

                                 3                           A-0485-16T2
to the Sheriff's Office.         The following year, the Freeholders

adopted Ordinance No. 13-27, transferring the County police to the

Sheriff's Office. The then County Executive vetoed that ordinance,

and the Freeholders voted to override that veto.           That dispute

between the County Executive and Freeholders engendered a lawsuit,

which was later dismissed after a new County Executive was elected.

     In January 2014, the County Executive executed an extension

of the CBA with PBA 49 (the 2014 CBA Extension).            Among other

things, the 2014 CBA Extension addressed the salaries of County

police officers.       The 2014 CBA Extension provided that County

police officers would receive certain salaries, however, if the

County    police    were   "merged/consolidated"   into   the   Sheriff's

Office, then the County police officers would receive different

salaries,   which    effectively   would   be   retroactively   increased

salaries.    Specifically, paragraph one of the 2014 CBA Extension

states:

            1.   Article VIII, Salaries – Attached as
            Exhibit A is a new salary guide for all
            officers hired after January 1, 2014. Current
            officers who have not achieved top pay will
            progress under the existing salary guide until
            he/she achieves top pay.    All officers will
            receive a 1.5% increase (applied to the salary
            guides) for each year of the agreement
            (January 1, 2014 – January 1, 2017). Article
            VIII, Paragraphs 1-4, 6-7 and Exhibit B are
            no longer operative, unless the County police
            are merged/consolidated into the Bergen County
            Sheriff's Office or disbanded, in which event,

                                     4                            A-0485-16T2
           Paragraphs 1-4, 6-7 and Exhibit B become
           retroactively operative effective January 1,
           2014.

On May 14, 2014, the Freeholders adopted a resolution approving

the 2014 CBA Extension.

      In January 2015, a new County Executive entered into a

memorandum of agreement with the County Sheriff and Prosecutor

that addressed the organization of the County Police Department

(the 2015 MOA).    The 2015 MOA stated that the Bergen County Police

Department was being realigned with the Sheriff's Office.            In that

regard, the 2015 MOA provided that once the Freeholders adopted

an   ordinance   transferring   all       operational   and   administrative

authority over the County police to the Sheriff's Office, the

County police will be known as "Bergen County Sheriff, Bureau of

Police Services."    The 2015 MOA goes on to provide that the Bergen

County Police Department will continue to be a separate unit

overseen by the Sheriff's Office and that there will be no changes

required to any existing labor contracts. The 2015 MOA also states

that the number of officers is expected to be reduced through

attrition to a maximum level of 201 officers, representing a

reduction of over fifty County police officers and the retention

of the current authorized strength of 152 Sheriff's officers.

      In January 2015, the Freeholders adopted Resolution No. 42-

15, approving the 2015 MOA.           The Freeholders also adopted an

                                      5                              A-0485-16T2
ordinance reflecting the organizational transfer set forth in the

2015 MOA and identifying the Bergen County Police Department as

"Bergen County Sheriff, Bureau of Police Services."             Another

ordinance established a table of organization for the County police

for the "Post-Realignment Period."

     In February 2016, PBA 49 filed a grievance under its CBA,

alleging that the County police had merged into the Sheriff's

Office and, therefore, officers were entitled to a retroactive

salary increase under the 2014 CBA Extension.

     Article XVI of the CBA between the County and PBA 49 sets

forth a grievance procedure.       A grievance is defined as

          any dispute between the Employer and the
          Employee with respect to the interpretation,
          application or violation of any of the
          provisions of this Agreement, or a dispute
          between the same parties concerning rules,
          regulations,    or   administrative   decisions
          qualifying   as    terms  and   conditions   of
          employment and which intimately and directly
          affect the work and welfare of the Employees.

     The CBA goes on to provide for a three-step grievance process.

First, the grievance is submitted to the Chief.         Second, if not

settled by the Chief, the grievance is submitted to the County

Administrator.    Finally, if the grievance remains unresolved, an

arbitrator   is   appointed   by   the   Public   Employment   Relations

Commission (PERC).    The arbitrator "shall have full power to hear

the grievance and make a final decision, which decision shall

                                    6                            A-0485-16T2
neither modify, add to, nor subtract from the terms of the [CBA]

and the above referenced rules, regulations or administrative

decisions."   The arbitrator's decision is binding on the parties.

     In response to the grievance filed by PBA 49 in February

2016, the Chief of the Sheriff's Office denied the grievance.    The

Chief contended that a merger had not occurred, rather, the County

police had realigned with the Sheriff's Office.        PBA 49 next

submitted what it contended was a second-step grievance to the

County's Director of Personnel.1     Thereafter, in April 2016, PBA

49 submitted a request to PERC for appointment of an arbitrator

to arbitrate the dispute.

     The County responded by asking PERC to hold the arbitration

in abeyance while it sought a declaratory judgment from a court.

PERC denied that request, and the County and the Sheriff's Office

filed a declaratory judgment action in the Law Division.   In their

complaint, the County and the Sheriff's Office sought a declaration

that the County police had not been merged or consolidated into

the Sheriff's Office and, therefore, the County police were not

entitled to a retroactive salary increase.      The County and the



1
  The County contends that the second-step grievance should have
been submitted to the County Administrator. Nevertheless, both
parties agree that the grievance was not resolved and a third-step
grievance was submitted to PERC for the appointment of an
arbitrator.

                                 7                          A-0485-16T2
Sheriff's    Office   also   sought   an   injunction   to   prevent   the

arbitration from proceeding.

     PBA 49 opposed the request for an injunction and filed a

motion to dismiss the complaint so that the arbitration could

proceed.    The trial court heard arguments on the applications.         On

August 19, 2016, the trial court entered an order denying the

request of the County and the Sheriff's Office for an injunction

and dismissing their complaint for declaratory relief.          The court

also issued a written opinion explaining its rulings.          In short,

the trial court found that the County had agreed to arbitrate the

question of whether the County police were entitled to a salary

increase if there was a merger or consolidation of the County

police with the Sheriff's Office.

     The County and     the Sheriff's Office filed a motion for

reconsideration, but the trial court denied that motion in an

order entered on September 20, 2016.       The County and the Sheriff's

Office then filed separate appeals from the orders entered on

August 19, 2016 and September 20, 2016.           We consolidated the

appeals.

     The County and the Sheriff's Office also sought a stay of the

arbitration pending the appeals, which the trial court granted.




                                      8                           A-0485-16T2
                                     II.

       On appeal, the County and the Sheriff's Office make a series

of arguments that are all designed to contend that a court, as

opposed to an arbitrator, should decide whether the County police

did or did not merge into the Sheriff's Office.        Thus, plaintiffs

argue the trial court erred by: (1) not making a declaratory

judgment on that issue; (2) failing to consider an "admission" by

counsel for PBA 49 that the County Police Department remained a

"separate    agency"   after   the   reorganization;   (3)   failing    to

consider if the question whether a realignment occurred could be

answered by the terms of the CBA; and (4) denying their motion for

reconsideration.

       While framed in different ways, only one issue is presented

on these consolidated appeals: Did the County and PBA 49 agree to

arbitrate the effect on salaries of the County Police if the County

Police Department was merged or consolidated into the Sheriff's

Office?     We hold that they agreed to arbitrate and hence the

underlying question is an issue for the arbitrator.

       We begin our analysis with an overview of the well-settled

law governing arbitration.       We then review the language of the

CBA.    Finally, we address the specific arguments put forward by

plaintiffs.



                                      9                          A-0485-16T2
       A.    The Law Governing Arbitration

       Agreements to arbitrate are contracts and, therefore, subject

to    the   law    governing    contract       interpretation.    Garfinkel    v.

Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 134-35

(2001).     Accordingly, in interpreting the CBA here, we start with

its plain language.            See id. at 135 (holding that the "intent

expressed         or    apparent   in     the    writing   []    controls"    the

interpretation of an arbitration agreement).

       Initially, the court needs to decide "whether the party

seeking arbitration is making a claim which on its face is governed

by the [CBA]."           Standard Motor Freight, Inc. v. Int'l Bhd. of

Teamsters, 49 N.J. 83, 96 (1967) (citing United Steelworkers of

Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960)).                  In Standard

Motor, our Supreme Court addressed the issue of arbitrability and

identified        two    categories:      "substantive"    arbitrability      and

"procedural" arbitrability.             Standard Motor, supra, 49 N.J. at 96-

97.   "Substantive" arbitrability refers to "whether the particular

grievance is within the scope of the arbitration clause [in the

CBA] specifying what the parties have agreed to arbitrate."                   Id.

at 96.      Thus, the Court explained that

             a party cannot be required to submit to
             arbitration any dispute which he [or she] has
             not agreed so to submit . . . . [T]he judicial
             inquiry . . . must be strictly confined to the
             question whether the reluctant party did agree

                                          10                            A-0485-16T2
            to arbitrate the grievance or did agree to
            give the arbitrator power to make the award
            he [or she] made.

            [Ibid.]

       Thus, courts are limited to ascertaining whether the party

seeking arbitration is making a claim that on its face is governed

by the contract.      If the answer is yes, then that question of

contract interpretation is for the arbitrator.      See Amalgamated

Transit Union, supra, 200 N.J. at 114.

       "Procedural"   arbitrability   asks    "whether   procedural

conditions to arbitration have been met."    Standard Motor Freight,

supra, 49 N.J. at 97.     "The grievance process itself is used to

decide matters of procedural arbitrability and, so, arbitrators

are the decision-makers for those concerns."    Amalgamated Transit

Union, supra, 200 N.J. at 116 (citing Standard Motor Freight,

supra, 49 N.J. at 97).

       Our Supreme Court has also explained that whether a question

is substantively versus procedurally arbitrable is not always the

relevant inquiry.     Amalgamated Transit Union, supra, 200 N.J. at

117.    Instead, the critical question is whether the issue being

presented is a question to be decided by the arbitrator.       Thus,

if a question requires an interpretation of the CBA, and the CBA

makes clear that such questions are for an arbitrator, then the



                                 11                          A-0485-16T2
court's only role is to refer that question to arbitration.                Id.

at 118-19.

      This appeal is governed by the decision in Amalgamated Transit

Union.   In Amalgamated, a probationary employee of New Jersey

Transit and member of the union was terminated during his probation

period   for   providing      false    information     on   his    employment

application.     Amalgamated Transit Union, supra, 200 N.J. at 109-

10.   The union filed a grievance concerning the termination.                It

sought arbitration in accordance with the provisions in the CBA

that permitted arbitration of any dispute or grievance "as to the

interpretation, application, or operation of any provisions of

this agreement[.]"    Id. at 110.          The arbitration panel concluded

that the termination of a probationary employee was not subject

to arbitration under the agreement.           The trial court agreed, but

the   Appellate    Division     reversed.        The   Appellate    Division

determined that a court, not the arbitration panel, must decide

whether the grievance was subject to arbitration.             The Appellate

Division then interpreted the agreement to permit arbitration of

the grievance.

      The Supreme Court reversed.          The Court concluded that under

the terms of the collective bargaining agreement, the arbitration

panel, not the court, must decide whether a probationary employee



                                      12                              A-0485-16T2
could invoke the arbitration provision and grieve his termination.

Id. at 119-20.      In reaching that conclusion, the Court explained:

            [T]he CBA clearly conferred that broadly
            stated power to interpret this CBA on the
            arbitrators.    Thus, the CBA's arbitration
            provision granted to the arbitrators the
            authority to decide this question about their
            own jurisdiction. Any court looking at this
            CBA should have seen that it conferred broad
            interpretive power on the arbitrators and
            should   have    left    the   question   for
            interpretation    to    the   decision-makers
            designated by this CBA.

            [Id. at 118.]

     B.     The CBA between the County and PBA 49

     The   CBA     between     the    County     and   PBA    49   broadly   defines

"grievance" as "any dispute between the [County] and the [PBA 49]

with respect to the interpretation, application or violation of

any of the provisions of this Agreement . . . ."                     Like the CBA in

Amalgamated,       the   CBA   here     provides       that   disputes      over   the

interpretation      of   the    agreement       are    subject     to   arbitration.

Consequently, the question whether the County police officers are

entitled to different salaries because the County police was merged

into the Sheriff's Office is a question for the arbitrator to

decide.

     The issue is not whether the County could reorganize its

County Police Department.            It could.    Instead, the issue is if the

County    Police    Department       was    reorganized       with    the   Sheriff's

                                           13                                 A-0485-16T2
Office, are the County police officers entitled to a retroactive

pay   raise?     The   2014   CBA    Extension   states   that   if   the

reorganization is a merger or consolidation, then the County police

officers receive a retroactive pay increase.         If, on the other

hand, the reorganization was not a merger or consolidation, then

the County police officers do not receive a pay increase.             That

question requires an interpretation of the CBA, and thus is not

for a court to decide.   Instead, in the grievance procedure in the

CBA, the parties agreed that an arbitrator would decide that

question.

      C.    The Plaintiffs' Specific Arguments

      When the narrow question before the court is properly framed,

the arguments by plaintiffs can be summarily addressed.

      First, plaintiffs are not entitled to a declaratory judgment

by a court because they had previously agreed that an arbitrator

would make that decision.     The declaratory judgment action allows

a court to determine any question of construction arising under,

among other things, a contract.      N.J.S.A. 2A:16-53; Carter v. Doe,

__ N.J. __, __ (2017) (slip op. at 23) (citing Rego Indus., Inc.

v. Am. Modern Metals Corp., 91 N.J. Super. 447, 453 (App. Div.

1966)).     If, however, the contract calls for that determination

to be made by an arbitrator, a party cannot sidestep the agreement

to arbitrate that issue by filing a declaratory judgment action.

                                    14                           A-0485-16T2
     Second,     plaintiffs'        argument        concerning        an    admission

allegedly made by counsel for PBA 49 is a question for the

arbitrator to consider.        In other words, plaintiffs seek to have

the court determine whether a merger took place.                           As we have

already explained, the arbitrator will interpret the language in

the 2014 CBA Extension to determine whether it triggers or does

not trigger a salary increase.             In so doing, the arbitrator will

also be free to consider plaintiffs' arguments concerning an

alleged admission made by PBA 49.

     Third, the question of whether there was a realignment is not

the relevant issue.         The 2014 CBA Extension uses the phrase

"merged/consolidated[.]"            The    arbitrator     will       interpret    that

phrase within the confines of deciding a salary issue.

     Finally, since we have held that the trial court correctly

denied   the   injunction      of   the        arbitration     and   dismissed     the

declaratory judgment action, there was no error in denying the

motion for reconsideration.

     The County and PBA 49 also debate whether the question

presented to the trial court was a question of law or fact.                      Here,

that is not the controlling issue.                Parties can agree to present

questions of law to an arbitrator.                 Perini Corp. v. Greate Bay

Hotel    &   Casino,   Inc.,    129       N.J.    479,   493    (1992)      (granting

arbitrators broad latitude in resolving questions of law when

                                          15                                  A-0485-16T2
interpreting contracts).      Here, the CBA expressly stated that any

interpretation of the CBA would be a question subject to the

grievance    procedures,     with   the   ultimate     step   being     binding

arbitration.   The only limitation to such an agreement in a public

collective   bargaining    agreement      would   be   questions   of    public

policy and managerial prerogative.         City of Jersey City v. Jersey

City Police Officers Benevolent Ass'n, 154 N.J. 555, 571 (1998).

Here, no party argued that there was a public policy reason against

enforcing this arbitration provision, and no party argued that the

disputed    interpretation    of    the   agreement    involved    managerial

prerogative.     Indeed, we discern neither a public policy problem

nor a limitation on managerial prerogative.

     Affirmed.    The stay of the arbitration is vacated.




                                     16                                 A-0485-16T2
