BOROUGH OF GLASSBORO v. FRATERNAL ORDER OF POLICE, LODGE NO. 108

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6653-04T36653-04T3

BOROUGH OF GLASSBORO,

Plaintiff-Respondent,

v.

FRATERNAL ORDER OF POLICE,

LODGE NO. 108,

Defendant-Appellant.

___________________________________________________________

 

Submitted March 7, 2006 - Decided May 10, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Gloucester County, L-1532-04.

Markowitz & Richman, attorneys for appellant

(Peter H. Demkovitz, on the brief).

Brown & Connery, attorneys for respondent

(William M. Tambussi, on the brief).

PER CURIAM

Barry Gray, a Glassboro police officer with the rank of corporal, filed a grievance when, instead of him, another officer was "appointed" to the position of detective corporal in the detective division. Gray claimed that he had been denied a "promotion" to which he was entitled based on his placement on a test administered by or for the Borough. The chief of police denied the grievance on the ground that this was an "assignment" rather than a promotion. The Borough's administrator concurred, and Gray submitted his case to arbitration pursuant to the written agreement between his union and the Borough. On July 31, 2004, the arbitrator decided that Gray was entitled to the position, which he found to be a promotion. The Borough filed a summary action in the Law Division. The judge, agreeing with the Borough, reversed the arbitrator's decision. Gray appeals, and we affirm.

Both parties rely on the contract and the arbitrator's findings of fact, and we shall do likewise. "Attachment 'A'" of the contract sets out the titles and salaries for police officers. For 2003, the titles and initial salaries were as follows: patrolman, $35,408; corporal, $66,006; detective, $67,818; detective 1st class, $69,422; detective corporal, $71,075. The salaries for all officers increase proportionally depending on their years of service. The attachment also lists the salaries for 2004, which were all two to three thousand dollars more than the salaries for 2003. Article XX of the contract says that "[t]here shall be one assigned Detective Corporal to the Detective Bureau," and further says that "[i]n the absence of the Detective Lieutenant and the Detective Sergeant of the Detective Bureau, the Detective Corporal shall be responsible to run said unit." The title detective corporal was created by agreement between the union and the Borough in 1998.

In 2001, the Police Department announced in writing that a test would be given "for promotion to corporal and/or sergeant. The announcement included this statement:

The individual determined to be the eligible candidate as a result of Phase III will be recommended to the Governing Body for approval to be promoted to the first higher available corporal or sergeant position at a date yet to be determined. The second highest candidate will be ranked and listed according to final ranking; these rankings shall remain in effect for one and one-half year (18 months). If a corporal or sergeant's position becomes available during the effective time of the promotional list, the next highest ranked candidate will be promoted to corporal or sergeant.

On August 16, 2001, the police department issued a written statement indicating, in relevant part, that Gray "ranked 3rd for any future sergeant vacancy **ranked 1st for next corporal vacancy in detective bureau (based on assignment) within 18 months;" and that Daniel Williams "ranked **2nd for next corporal vacancy in detective bureau or patrol within 18 months (based on assignment) . . . ."

In the early months of 2003, a vacancy arose in the position of detective corporal in the detective division. At that time Gray, a corporal in the patrol division, was denied the position on the ground that the chief of police had a right, as a matter of managerial prerogative, to keep Gray at his assignment in the patrol division. Williams, a detective, received the detective corporal title and job.

The arbitrator agreed with Gray, reasoning as follows:

The Agreement recognizes the detective corporal position involves higher wages and places the detective in . . . different work schedules. . . . [T]he move from corporal in the patrol division to the detective division is more than ceremonial. It is a transfer based on objective test ranking and noted qualifications, resulting in an advancement of position. While the final decision may rest with the Chief of Police, the decision to move a corporal to the position of detective corporal is promotion and not simply an assignment.

Thus, when the Borough denied . . . Gray the promotion . . ., the policy was violated. The Borough acknowledged . . . Gray followed all appropriate steps to achieve a promotion and was qualified, but was simply passed over for the position to fill the needs of the Department. . . . The evidence established that . . . Gray was ranked number one on the list of promotions.

[Emphasis added.]

Glassboro concedes that the issue was subject to resolution by arbitration under its agreement with the union, and that the arbitration was governed by N.J.S.A. 2A:24-1 to -11, but contends that the Law Division was correct because the arbitrator misinterpreted the contract, made a mistake of law, and rendered a decision that violated public policy.

Under the applicable principles of law in this public sector arbitration, a court may not reject an arbitrator's interpretation of a contract if the interpretation is reasonably debatable, provided that the award does not violate existing law or public policy. State v. Int'l Fed'n of Prof'l and Technical Eng'rs, 169 N.J. 505, 514 (2001).

The agreement created the position of detective corporal in the detective division, assigned it a salary in excess of that paid to patrol officers, corporals, detectives, and detectives first class, and provided that the detective corporal would be responsible for management of the detective bureau in the absence of higher ranking officers. The agreement did not provide for the formal testing process adopted by the Borough. Nor did the agreement provide, as the written announcement for the test indicated, that the individual with the highest ranking "will be recommended to the Governing Body for approval to be promoted to the first higher available corporal or sergeant position . . . ."

The Borough's primary argument is that arbitrator's decision was contrary to law and against public policy because it interfered with the chief's managerial prerogative of making assignments in accordance with operational needs. That argument is supported by Paterson Police PBA v. Paterson, 87 N.J. 78, 97 (1981), where the court held that a promotion clause of the parties' agreement was unenforceable because it "deprive[d] the City of . . . discretion . . . to deploy officers as it deem[ed] best." Consistent with the Paterson Police PBA case, Article II of the contract provides that the employer retains its managerial prerogatives. This would include the right to make assignments between operational divisions. And, more significantly, accepting Gray's argument would mean that a patrol officer could obtain the supervisory position of detective corporal without ever having served as a detective, an anomalous result at odds with the prerogative of the police chief to efficiently manage the department. Although the arbitrator in the instant case noted that "the final decision may rest with the Chief of Police," by which we assume that he recognized that the chief had the right to keep Gray assigned to the patrol division, he failed to recognize that the contract does not call for the position of detective corporal in the patrol division. Thus, although appointment to the position of detective corporal has many of the indicia of promotion, it is not a true promotion because the title can apply only to someone serving, as assigned by the chief, in the detective division, and there is nothing in the agreement that even purports to undercut the chief's assignment powers.

Affirmed.

 

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A-6653-04T3

May 10, 2006