                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-3684-18T3

CITY OF NEWARK,

          Plaintiff-Respondent,

v.

NEWARK SUPERIOR
OFFICERS ASSOCIATION,

     Defendant-Appellant.
___________________________

                   Argued December 18, 2019 – Decided January 24, 2020

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Essex County, Docket No. C-
                   000037-19.

                   Matthew D. Areman argued the cause for appellant
                   (Markowitz and Richman, attorneys; Matthew D.
                   Areman, on the briefs).

                   Stacy Leigh Landau argued the cause for respondent
                   (Carmagnola & Ritardi, LLC, attorneys; Domenick
                   Carmagnola, of counsel and on the brief; Stacy Leigh
                   Landau, on the brief).
PER CURIAM

      On June 14, 2017, plaintiff City of Newark promulgated General Order

16-02 (Order), requiring any Newark police officer involved in a shooting or

other critical incident to submit to a fitness for duty examination (FFDE).

Pursuant to the grievance procedure contained in the parties' collective

negotiations   agreement     (CNA),    defendant    Newark    Superior   Officers

Association (SOA) filed a grievance against the City, alleging that the

application of the Order to one of its members violated both the CNA and the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12111. Ultimately, the

SOA initiated arbitration proceedings against the City, during which the City

asserted that the grievance was not substantively arbitrable.1 The City then filed

a verified complaint and order to show cause in the Chancery Division to

preclude the SOA from arbitrating both its pending grievance and future similar

cases. As a result, the arbitrator deferred his ruling.

      On April 8, 2019, the Chancery Division judge determined the grievance

was not substantively arbitrable under the CNA, and permanently restrained




1
   Under Article 4 of the CNA, the parties agreed to a six-step procedure to
resolve grievances, ranging from informal efforts to settle disputes to the
submission of the grievance to arbitration.
                                                                          A-3684-18T3
                                         2
arbitration. The SOA now appeals from the April 8 order, raising the following

points for our consideration:

             A.  THE LOWER COURT FAILED TO LEND
             ADEQUATE DEFERENCE TO THE STATUTORY
             AND JUDICIALLY-RECOGNIZED PRESUMPTION
             OF ARBITRABILITY.

             B.   THE  LOWER   COURT   IMPROPERLY
             RESTRAINED ARBITRATION BASED UPON A
             MISAPPLICATION OF THE FACTS AND THE
             LAW.

After carefully reviewing the record and the governing principles, we affirm.

      General Order 16-02 requires that after "a critical incident[,] the

[c]ommander of the [m]edical [s]ervices [u]nit shall coordinate with the

involved officer to have a psychological examination scheduled immediately

with a psychologist . . . ." Under the Order, "[o]fficers involved in a . . . critical

incident shall not be rearmed immediately following the incident[.]" "If the

involved officer returns to duty, the officer shall be held in a restricted status

until the psychological evaluation and recommendation has been completed."

The term "critical incident" is defined in the Order as "[a]ny event that can cause

a member of the Newark Police Division to experience an unusually strong

emotional [and/]or psychological reaction[], including the use of deadly force

by or against a member; accidental discharge of a weapon; and any additional


                                                                              A-3684-18T3
                                          3
unusual occurrences." The Order is intended "to minimize the chance that

officers will suffer from the negative emotional and psychological reactions that

can occur after the use of deadly force or the involvement in a critical incident"

and "to take action . . . to safeguard the mental health of all officers."

      On February 19, 2018, Sergeant Juan Gonzalez, a Newark police officer

and SOA member, was involved in an on-duty shooting incident, and was

ordered to undergo a FFDE pursuant to the Order. On behalf of Gonzalez, after

initial settlement efforts failed, the SOA initiated arbitration proceedings,

alleging that the mandatory FFDE was violative of the ADA and provisions of

the CNA. Regarding the CNA, the SOA alleged the Order violated Article 18

applicable to "rights, privileges, and benefits" to which a SOA member is

entitled, Article 19 delineating "[m]anagement [r]ights[,]" Article 20 permitting

grievance of the City's "rules and regulations," Article 24 protecting officers

from discrimination based on union membership, "race, color, creed, age,

national origin, gender or sexual orientation[,]" and Article 29 pro hibiting oral

modification of the CNA, and relieving both parties of the obligation to engage

in further negotiations. During the arbitration hearing, the City countered that

the arbitrator had no jurisdiction over the matter because the subject matter of

the grievance was outside the provisions of the CNA. Nonetheless, the arbitrator


                                                                             A-3684-18T3
                                         4
began hearing testimony from witnesses before resolving the jurisdiction issue,

prompting the City to file a complaint and order to show cause, seeking

injunctive relief enjoining arbitration, and a declaratory judgment declaring that

FFDEs ordered pursuant to the Order did not constitute grievances under the

parties' CNA.

        On April 8, 2019, during oral argument, the City cited "[t]he management

prerogative[]" contained in Article 19 of the CNA, reserving the City's powers

"to set the criteria for continued employment of [its] officers[,]" 2 and argued that


2
    Article 19 states in its entirety:

               Section 1:

                      The City hereby retains and reserves unto itself,
               without limitation, all powers, rights, authority, duties
               and responsibilities conferred upon and vested in it
               prior to the signing of this Agreement by the laws and
               Constitution of the State of New Jersey and of the
               United States, including but without limiting the
               generality of the foregoing, following rights:

                     (a) To the executive management and
                     administrative control of the City
                     Government and its properties and
                     facilities;

                     (b) To hire all employees and subject to the
                     provision of law, to determine their
                     qualifications and conditions for continued


                                                                             A-3684-18T3
                                          5
      employment, assignment, promotion and
      transfer;

      (c) To suspend, demote, discharge or take
      other disciplinary action for good and just
      cause according to law; and

      (d) To the executive management of the
      Police Department by economical and
      efficient selection, utilization, deployment
      and      disposition       of     equipment,
      notwithstanding any other provisions of
      this Agreement.

Section 2:

      The exercise of the foregoing powers, rights,
authority, duties or responsibilities of the City, the
adoption of policies, rules, regulations and practices in
furtherance thereof, and the use of judgment and
discretion in connection therewith shall be limited only
by the terms of this Agreement and then only to the
extent such terms hereof are in conformance with the
Constitution and laws of New Jersey and the United
States.

Section 3:

      Nothing contained in this Article shall be
construed to deny or restrict the City of its rights,
responsibilities and authority under N.J.S.A. 40, 40A
and 11 or any other national, state, county or local laws
or ordinances.


                                                            A-3684-18T3
                           6
under the "controlling case law, . . . disputes arising out of the municipalit[y's]

exercise of rights specifically reserved to it by the express agreement of the

parties cannot be viewed as [subject] to the grievance procedure." The City also

refuted the SOA's contention that Article 20 of the CNA applied, asserting the

Order was "not a rule or regulation" subject to arbitration, but rather "a general

order which [was] a distinct category."3 Further, according to the City, because



3
    Article 20 provides:

                    The City may establish and enforce reasonable
              and just rules and regulations in connection with its
              operation of the Department and maintenance of
              discipline provided such rules and regulations shall be
              furnished to the Association and opportunity for the
              discussion of the new rules and regulations shall be
              afforded to the Association before implementing same.

                    It is understood that employees shall comply with
              all such rules and regulations. Employees shall
              promptly and efficiently execute the instructions and
              orders of officers and superiors. If an employee or
              employees believe a rule, regulation, instruction or
              order of an officer or other superior is unreasonable or
              unjust the employee or employees shall comply with
              the rule, regulation, order or instruction, but with the
              further provision that such employee or employees may
              regard the rule, regulation, order or instruction as a
              grievance which shall be handled in accordance with
              the grievance procedure set forth in Article IV of this
              Agreement.


                                                                           A-3684-18T3
                                         7
a FFDE was not specifically "addressed by other provisions in the [CNA,]" it

was not subject to arbitration.

      The SOA countered that pursuant to N.J.S.A. 34:13A-5.3, there was "a

presumption of arbitrability between public employers and their public sector

unions." The SOA asserted that "the management rights clause" of Article 19

relied on by the City "reserved" the City's rights "only to the extent it does[ not]

violate the law."     According to the SOA, "the application of [the Order]

violate[d] the law" by violating "the ADA." The SOA also maintained that

Article 20 of the CNA "authorize[d] the [SOA] to challenge 'the application or

interpretation of any rule or regulation[,]'" and the application of the Order fell

under the purview of that provision.

      In an oral opinion, the judge ruled that the dispute was not substantively

arbitrable.    Thus, the judge "restrain[ed] the arbitration and issu[ed] a



                     The Association shall have the opportunity to
              grieve the continuation of any rule or regulation for a
              period of thirty (30) calendar days after the execution
              date of this Agreement or the promulgation of any new
              rule or regulation within thirty (30) calendar days after
              the promulgation and furnishing of same to the
              Association as to the reasonableness or propriety of
              said rule or regulation. The foregoing shall not
              preclude the Association from grieving the application
              or interpretation of any rule or regulation in accordance
              with Article IV.
                                                                            A-3684-18T3
                                         8
declaratory judgment" providing that "grievances" involving officers submitting

to FFDEs pursuant to the Order were "not arbitrable under the parties' [CNA]."

In reaching her decision, the judge reasoned that Borough of Stone Harbor v.

Wildwood Local 59, 164 N.J. Super. 375 (1978) was "exactly on point"

inasmuch as "two provisions [of the CNA were] mutually repugnant" and "the

parties [could not] be presumed to have intended such repugnancy."

      Specifically, the judge found Articles 19 and 20 of the CNA "to be in

conflict with one another." According to the judge, the provisions "must be read

in a way that harmonizes the meaning of both." The judge determined that

"through Article 19, the City did specifically reserve . . . its control over various

personnel issues." Relying on Stone Harbor, the judge concluded that "disputes

arising out of the municipalit[y's] exercise of rights specifically reserved to it by

the express agreement of the parties[,]" as contained in "Article 19, Section 1b[,]

cannot be viewed as subject to the grievance procedure and, hence, cannot be

submitted to arbitration, the final step of that procedure." In rendering her

decision, the judge rejected the SOA's contention that Article 18 "relating to the

maintenance of standards, . . . Article 20 relating to rules and regulations, Article

24 regarding discrimination and coercion, and Article 29 relating to fully




                                                                             A-3684-18T3
                                         9
bargained provisions" dictated a different result.         The judge entered a

memorializing order and this appeal followed.

      On appeal, the SOA argues the judge "erred by disregarding the statutory

and judicial presumption in favor of arbitration in labor disputes[,]" and erred

in resolving the "purported conflict" between the two provisions of the CNA by

giving "greater weight to one contractual provision over others[.]" According

to the SOA, "[i]n the event the court perceived a conflict in the parties'

agreement, it had an obligation to defer the matter" to the arbitrator for

resolution of that dispute."     Additionally, the SOA contends the judge's

"significant reliance upon [Stone Harbor] is misplaced."

      We agree that New Jersey law expressly provides public employees with

a statutory and judicial presumption in favor of arbitration. N.J.S.A. 34:13A -

5.3 provides, in relevant part, that when "interpreting the meaning and extent of

a provision of a [CNA] providing for grievance arbitration, a court . . . shall be

bound by a presumption in favor of arbitration[,]" and "[d]oubts as to the scope

of an arbitration clause shall be resolved in favor of requiring arbitration. " See

Bd. of Educ. of Borough of Alpha, Warren Cty. v. Alpha Educ. Ass'n, 190 N.J.

34, 41-43 (2006) (acknowledging that "[a]rbitration is a favored means of

resolving labor disputes."). "However, the preference for arbitration 'is not


                                                                           A-3684-18T3
                                       10
without limits.'" Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 187 (2013)

(quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168

N.J. 124, 132 (2001)), and "[a]rbitration's favored status does not mean that

every arbitration clause, however phrased, will be enforceable." Atalese v. U.S.

Legal Servs. Grp., L.P., 219 N.J. 430, 441 (2014).

      "Substantive arbitrability refers to 'whether the particular grievance is

within the scope of the arbitration clause specifying what the parties have agreed

to arbitrate.'" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research,

Inc., 427 N.J. Super. 45, 59 (App. Div. 2012) (quoting Standard Motor Freight,

Inc. v. Local Union No. 560, 49 N.J. 83, 96 (1967)). "Issues of substantive

arbitrability are . . . decided by the court[,]" rather than the arbitrator. Ibid. See

also Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l

Support Staff Ass'n, 192 N.J. 489, 496-97 (2007) (explaining that substantive

arbitrability is "for a court to decide"). Thus, once a court finds "the existence

of an arbitration clause, a court then must evaluate whether the particular claims

at issue fall within the clause's scope." Hirsch, 215 N.J. at 188.

      Because "arbitration is a matter of contract[,] . . . a party cannot be

required to submit to arbitration any dispute which [it] has not agreed so to

submit." Merrill Lynch, 427 N.J. Super. at 59 (quoting Howsam v. Dean Witter


                                                                              A-3684-18T3
                                        11
Reynolds, 537 U.S. 79, 83 (2002)). See also First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 945 (1995) ("[A] party can be forced to arbitrate only

those issues it specifically has agreed to submit to arbitration[.]"). Therefore,

"[a] court must look to the language of the arbitration clause to establish its

boundaries[,]" and "may not rewrite a contract to broaden the scope of

arbitration." Hirsch, 215 N.J. at 188 (first citing then quoting Garfinkel, 168

N.J. at 132).

      In Stone Harbor, a union sought to arbitrate "a grievance under the

collective bargaining agreement" between the union and the municipality in

order to determine "the propriety of [a police officer's] discharge[.]" 164 N.J.

Super. at 378-80. We reversed the trial court order denying the municipality's

application for injunctive relief restraining arbitration. Id. at 382-83. We held

that the parties' collective bargaining agreement did not provide for binding

arbitration as a means of resolving a grievance concerning the discharge of a

police officer for just cause where a "provision in the collective bargaining

agreement . . . reserve[d] to management, as an essential management

prerogative, the right 'to suspend, demote, discharge or take other disciplinary

action for good and just cause according to law.'" Id. at 379.

      We explained that


                                                                         A-3684-18T3
                                      12
            the municipality's contractually reserved right to
            discipline, which includes the right of discharge for just
            cause, cannot realistically coexist with the agreement
            to submit determination of when and how that right can
            be exercised to binding arbitration. In our view, . . . the
            two provisions are mutually repugnant and the parties
            cannot be presumed to have intended such repugnancy.
            Rather the agreement must be read in a way that
            harmonizes the meaning of both. Hence, despite the
            breadth of the language of the provision describing the
            grievance procedure, embracing as it does "any
            disagreement between the [municipality] and the
            members of the [union] involving the interpretation,
            application or violation of policies, agreements and
            administrative decisions affecting them," those
            disputes arising out of the municipality's exercise of
            rights specifically reserved to it by the express
            agreement of the parties cannot be viewed as subject to
            the grievance procedure and hence cannot be submitted
            to arbitration, the final step of that procedure.

            [Id. at 381.]

      We reasoned that our "interpretation of the collective bargaining

agreement    [was]    entirely   consistent   with   a   municipality's    manifest

responsibilities regarding the integrity and effectiveness of its local police force

as reflected in our decisional law[,]" and was "in accord with normal

expectations." Id. at 382. We determined that "[t]o hold otherwise would render

ineffective the municipality's reserved right of discipline and would compromise

the power of the municipality to control morale and insure adequate standards

of safety and performance." Ibid.

                                                                            A-3684-18T3
                                        13
      Here, the City has a "contractually reserved right" to establish whether an

officer meets "the conditions for continued employment," under Article 19,

section 1(b), of the CNA in the same way that the municipality in Stone Harbor

had a "contractually reserved right to discipline, which include[d] the right to

discharge for just cause[.]" Id. at 381. It follows therefore that the City has the

right to order a FFDE, as delineated in the Order, and this reserved right "cannot

realistically coexist with the agreement to submit determination of when and

how that right can be exercised to binding arbitration." Ibid. Thus, based on

our de novo review, we agree with the judge that the SOA's grievance of the

application of the Order is not substantively arbitrable. See Merrill Lynch, 427

N.J. Super. at 57 ("Where the issues involve contract interpretation and the

application of case law to the facts of the case, the appellate court's standard of

review is de novo.").

      Assuming the Order is a "rule or regulation" cognizable under Article 20, 4

our interpretation harmonizes the meaning of both Articles 19 and 20, and is


4
  Under Article 20, the SOA is permitted to grieve any new rule or regulation
promulgated by the City "within thirty . . . calendar days after the promulgation."
Although the Order was promulgated by the City on June 14, 2017, the SOA did
not file its grievance on behalf of Gonzalez until over a year later, on June 22,
2018. Article 20 also provides, however, that the requirement that a rule or
regulation be challenged within thirty days "shall not preclude the [SOA] from


                                                                           A-3684-18T3
                                       14
"entirely consistent with a municipality's manifest responsibilities regarding the

integrity and effectiveness of its local police force as reflected in our decisional

law." Stone Harbor, 164 N.J. Super. at 382. Furthermore, contrary to the SOA's

contention, the judge correctly rejected its reliance on Articles 18, 24, and 29,

as those provisions are inapplicable and irrelevant to the issues implicated

herein. Consequently, we agree with the judge's decision to restrain arbitration

of the Order's application in this case, and to enter a declaratory judgment to

curb future similar arbitrations.

      Affirmed.




grieving the application or interpretation of any rule or regulation in accordance
with Article [4]." Thus, while a grievance related to the Order itself is out of
time, a grievance related to the application of the Order to Gonzalez is not time
barred.
                                                                            A-3684-18T3
                                        15
