NEW JERSEY TRANSIT CORPORATION v. PBA LOCAL 304

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3341-07T33341-07T3

NEW JERSEY TRANSIT CORPORATION,

Plaintiff-Respondent,

v.

PBA LOCAL 304,

Defendant-Appellant.

______________________________________

 

Submitted December 9, 2008 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

C-310-07.

Loccke, Correia, Schlager, Limsky & Bukosky,

attorneys for appellant (Merick H. Limsky,

of counsel and on the brief; Lauren P. Sandy,

on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Richard W.

Schleifer, Deputy Attorney General, on the

brief).

PER CURIAM

Defendant PBA Local 304 (PBA), appeals from the order of the Chancery Division, General Equity Part, overturning an arbitration award that declared that New Jersey Transit (NJT) police officers who are transferred involuntarily by the Chief of Police are entitled to additional pay for travel time. The court held that the arbitrator's decision violated public policy because it restricted the chief's authority to reassign officers thereby limiting his ability to enhance operational awareness and public safety.

After reviewing the record before us and considering prevailing legal standards, we reverse. We are satisfied that the arbitrator's interpretation of the Collective Bargaining Agreement (CBA) was reasonable and therefore entitled to deferential treatment.

These are the salient facts. This matter concerns the arbitrator's interpretation of Article XXIII, Section 6 of the CBA. The article provides in relevant part:

(a) A temporary position may, at the discretion of the Chief of Police, be assigned to an officer for a period not to exceed 30 calendar days.

(b) After a 30 calendar day period or less, the assigned officer will then be reassigned to his original position, and a second officer may then be assigned, then the third, etc.

On March 1, 2005, the NJT Chief of Police issued orders temporarily assigning two police officers to each other's regular assignments for a period of twenty-eight calendar days. Specifically, Officer Trumble was transferred from his position in Hoboken, and assigned to Officer Sepe's position in Newark, while Officer Sepe was assigned to Officer Trumble's Hoboken position. The assignment orders were effective from March 5, 2005, until April 1, 2005.

On March 22, 2005, the PBA filed a grievance, alleging that the assignments constituted an "involuntary tour swap," because the affected officers were required to change their bid work location (regular assignment) and to work each other's bid position. On May 9, 2006, the matter was submitted to arbitration. The parties framed the issue thusly: "Was the effectuation of personnel orders P O5-047 and/or P O5-048 in violation of the Collective Bargaining Agreement?"

At arbitration, the PBA argued that the assignments are limited under the Article to positions that are open or vacant, and not to those positions that are already filled by officers who had been awarded those positions. NJT argued that, except for certain time limitations, the Article does not limit the Chief's discretionary authority to assign temporary positions.

Here, by temporarily assigning police officers to different positions, the Chief wanted to enhance the Department's flexibility to respond to public safety concerns by ensuring that officers are exposed to the challenges of different positions. The arbitrator ruled in favor of the PBA, and directed that the officers be compensated for having their work location changed. The award did not include a specific amount of compensation.

The arbitrator found that the term "temporary position" referred to "a position that is open or vacant and not one that has been filled by the awarding of a specific position to a specific officer under Section 1 of Article XXIII." Based on the testimony of PBA president Geoffrey Schaedel, the arbitrator found that the parties had created a pool of officers who could be assigned to temporary positions. This pool did not include officers holding bidded positions.

The arbitrator also based his conclusion on the text of the CBA itself, which recognized a distinction between a temporary position and an awarded position. As further corroboration, the arbitrator noted a memorandum modifying the CBA which replaced the term "positions" with "shift assignment" in Sections 1 and 2 of Article XXIII, but did not replace the term "temporary position" in Section 6.

Finally, the arbitrator accepted the PBA's argument that if Section 6 was interpreted to permit an officer in a bidded position to be temporarily transferred, nothing in the CBA would prevent the Chief from temporarily removing that officer from his bidded position, and then perpetually renewing the temporary assignment. In reaching this conclusion, the arbitrator did not mention subsection (b) of Section 6, which provides that after the 30 day period expired, "the assigned officer will then be reassigned to their original position and a second officer may then be assigned, then a third . . . ."

The matter proceeded to Superior Court by way of the PBA's action to confirm. NJT sought to vacate the award. Initially, the trial court confirmed the arbitration, determining that the arbitrator's decision was reasonably debatable. On an order to show cause for reconsideration, the court reversed itself, determining that the award violated public policy by severely restricting the Chief's statutory responsibility to promote and provide for public safety.

The PBA now appeals arguing that the court misinterpreted settled law by vacating the arbitrator's award. We agree. Ordinarily, an arbitration award can be vacated only if the one seeking vacation can establish one of the following four grounds:

a. Where the award was procured by corruption, fraud or undue means;

b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefore, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;

d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.

[N.J.S.A. 2A:24-8.]

The Supreme Court has also recognized one additional ground. A party may also seek to vacate an award if it shows: (1) the existence of a well-defined public policy "embodied in legislative enactments, administrative regulations, or legal precedents, rather than based on amorphous considerations of the common weal"; and (2) the public policy is violated by the award itself, rather than by the underlying conduct being arbitrated. N.J. Tpk. Auth. v. Local 196, 190 N.J. 283, 295, 299-300 (2007).

Thus, "a court 'may vacate an award if it is contrary to existing law or public policy.'" Id. at 294 (quoting Bd. of Educ. of Alpha v. Alpha Educ. Assoc., 190 N.J. 34, 42 (2006)). The public policy exception permitting vacation of an award is narrow, and the "standard for vacation will be met only in 'rare circumstances.'" Ibid. (quoting Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 364 (1994)).

Here, NJT's argument is rooted on the general notion that it is statutorily responsible for the safety and security of "all locations and services owned, operated, or managed by the corporation and its subsidiaries." N.J.S.A. 27:25-15.1. To meet this statutory responsibility, the Legislature authorized the Chief of Police to make such personnel changes as may be necessary to promote the public's safety. Ibid.

This argument overlooks the fact that the arbitration award does not prohibit the Chief from making these personnel assignments. The arbitrator merely found, from an interpretation of the CBA, that officers who are involuntarily reassigned from certain positions are entitled to compensation. The issue is about compensation, not the authority of the Chief to reassign officers as he sees fit.

Because the arbitrator's decision was based on a reasonable, although albeit fairly debatable interpretation of the CBA, we are compelled to uphold it.

Reversed.

 

(continued)

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A-3341-07T3

June 23, 2009