POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 11 v. CITY OF TRENTON

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELLATE DIVISION

                                            SUPERIOR COURT OF NEW JERSEY
                                            APPELLATE DIVISION
                                            DOCKET NO. A-2303-08T3

POLICEMEN'S BENEVOLENT
ASSOCIATION, LOCAL NO. 11,

     Plaintiff-Appellant,

v.

CITY OF TRENTON,

     Defendant-Respondent.


            Submitted December 14, 2009 - Decided February 24, 2010

            Before Judges Lisa, Alvarez and Coburn.

            On appeal from the Superior Court of New
            Jersey, Law Division, Mercer County, Docket
            No. L-839-08.

            Kroll Heineman, attorneys for appellant
            (Raymond G. Heineman, on the brief).

            Knapp, Trimboli & Prusinowski, attorneys for
            respondent (Stephen E. Trimboli, of counsel
            and on the brief; Molly S. Marmion, on the
            brief).

PER CURIAM

     Plaintiff Policemen's Benevolent Association, Local No. 11

(PBA), the collective bargaining representative and negotiating

agent   for    Trenton's     police      officers,   patrol   officers,    and

detectives,     appeals    from    the    Law   Division's    reversal    of   a

                                                  decision    interpreting     a
September     13,   2007   labor   arbitration

collective bargaining agreement provision as to the ten minutes

prior     to    roll    call.        We    now       reverse      and    reinstate       the

arbitrator's decision.

    On September 5, 2006, defendant City of Trenton's (Trenton)

Police Director, Joseph Santiago, issued Memorandum Order 2006-

102 requiring patrol officers to appear ten minutes prior to the

beginning of their shift.                 Employees arriving later than ten

minutes    prior       to   the   start    of    a    scheduled        shift    would    "be

considered late for duty."                On November 7, 2006, Acting Police

Director       Fred    W.   Reister       issued      Memorandum        Order     2006-132

requiring Criminal Investigation Bureau detectives assigned to

the evening shift to report for roll call ten minutes prior to

their   tour     of     duty,     scheduled      to       start   at    5:00    p.m.     No

compensation was paid to the patrol officers or detectives for

this ten-minute early muster.

    Accordingly, a grievance was filed by the PBA alleging that

Trenton violated the terms of the parties' collective bargaining

agreement.         A    request     was    made       to    the   New    Jersey     Public

Employment       Relations        Commission         to    submit      the     dispute    to

arbitration.          The parties stipulated that the following framed

the issue for the arbitrator's consideration:

               Did the employer violate the collective
               bargaining agreement by requiring employees
               to report to work ten minutes before the
               start of their shifts without additional pay


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                                            2

           or compensation?        If so, what shall be the
           remedy?

       In his decision, the arbitrator first noted that the ten-

minute early muster was properly instituted by the issuance of

the memoranda.     Furthermore, the early muster was mandatory time

at work, meaning lateness could result in disciplinary action.

Those straightforward conclusions laid the groundwork for the

more   difficult   question   of   whether     affected    police   personnel

were entitled to compensation for the ten-minute muster.

       The arbitrator relied on two sections of the collective

bargaining agreement in reaching his decision that officers and

detectives were entitled to pay, albeit at straight time and not

at overtime.       Section 8.03 of Article VIII in the collective

bargaining     agreement,     titled       "Compensation    for     Overtime,"

states:

                It is recognized that employees may be
           required for the purpose of muster at the
           commencement of a tour to report in advance
           of the tour starting time and for the
           purpose of report making at the end of a
           tour to remain at the termination of [a]
                   In accordance with this recognition,
           tour.
           no overtime shall be paid for a ten minute
           period prior to the commencement of a tour,
           or   for   a  ten   minute  period  at   the
           termination of a tour, but in the event an
           employee is required to report earlier than
           ten minutes prior to the commencement of a
           tour or to remain beyond ten minutes after
           the end of a tour, the employee shall be
           paid the overtime rate for all time worked



                                                                      A-2303-08T3
                                       3

              in excess of, the            work     day   of    eight
              consecutive hours.

The arbitrator noted, among other things, that the paragraph

mandates overtime to be paid "if [o]fficers are required to

report earlier than ten minutes before the shift" or to remain

more   than    ten   minutes   after   the    end    of   the   tour    of   duty.

(Emphasis added).

       Appendix B of the collective bargaining agreement provides:

                   Because the new schedule requires fewer
              weekly hours worked by members and does not
              provide   sufficient   manpower   to   allow
              training during normal work hours, members
              will be required to report for certain
              training outside normal working hours at no
              additional compensation.   This training, on
              an annual basis, will consist of two days of
              firearms training and qualification, and up
              to 40 hours of other training mandated by
              the Chief of Police, to be scheduled in
              blocks of not less than four hours, as
              ordered by the Chief of Police or his
              designee.   It is anticipated that training
              for anyone not on this new schedule will be
              on their tour of duty. For those on the new
              schedule, training to the extent possible,
              will be on their tour of duty.

              (Emphasis added).

The above language regarding training obligations was, according

to the arbitrator's decision, the only section in the entire

collective bargaining agreement that specified when employees

were required to serve the employer without compensation.




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                                       4

    The arbitrator's view, as a result of his consideration of

the provisions, and of the agreement as a whole, was as follows:

              The framers of the Agreement were not
         novices to collective negotiations.           They
         were    skilled      hands     who     negotiated
         intelligently    and    alertly    to   reach    a
                                              Appendix    B
         comprehensive    agreement.
         references   that    employees     would    attend
         training beyond their regular hours of work
                                                   Section
         without additional compensation.
         8.03 references that they will not be paid
         overtime for the ten minute muster. If the
         parties wanted to specifically exclude any
         and all payment for that ten minute period
         they   certainly    were    free    to   do    so.
         (emphasis supplied)     The fact that they did
         not is not a glaring omission or any type of
         omission.    It simply is that the parties
         only addressed that overtime would not be
         paid during that period of time.            It is
         difficult for me to accept the fact that
         police officers and night shift detectives
         would be required to work beyond their
         normal tour of duty without compensation
         unless   specifically      delineated    in    the
         Agreement.    To that end when the parties
         referenced the training in Appendix B, they
         specifically   agreed     to   the    amount    of
                                           would    be   no
         training   and    that   there
         additional compensation. (emphasis supplied)
         They agreed that Officers would attend those
         training sessions without straight time or
         overtime    compensation.           They     never
         referenced      that      for       straight-time
         compensation within the ten minute muster
         period.

              The unmistakable intent of the parties
         in Article 8.03 is that overtime will not be
         paid for those ten minutes in question.
         That language is clear and unambiguous. The
         parties   specifically  referenced  overtime
         compensation, and any alternative argument


                                                              A-2303-08T3
                                 5

             by the City must be set aside.        It is
             axiomatic in contract construction that to
             expressly exclude only overtime payment for
             the ten minute muster period is to expressly
             allow for straight-time payment for those
             ten minutes.

       The arbitrator also relied upon Kearny PBA Local No. 21 v.

Town of Kearny, 
81 N.J. 208 (1979).              In Kearny, the Supreme

Court decided that because the town's police chief required the

entire police department to remain on standby notice during a

municipal employee strike, all affected officers were entitled

to be compensated at overtime rate because they were effectively

                                                                   See id. at
rendered unavailable for all activities except work.

223-24.      The arbitrator drew a parallel between the "stand-by"

time in Kearny and the early muster in this case, concluding

that   although   officers   were   explicitly    prohibited       from    being

paid overtime for the ten extra minutes, they were implicitly

entitled to straight-time compensation.           He further noted that

the obligation under Section 8.03 was similar to the one imposed

by the chief in Kearny, that the collective bargaining agreement

did    not    specifically   designate   the      ten-minute       muster     as

uncompensated time, and that the collective bargaining agreement

only expressly prohibited payment of overtime.

       As the Law Division judge saw it, the arbitrator rewrote

                  Trenton was "right" and the PBA "wrong."                He did
the contract:

not    consider   the   matter   "debatable,     at   all";   in    fact,     he


                                                                      A-2303-08T3
                                     6

considered the arbitrator to be "off the page in his decision-

making."   He said:

           The contract in this syllogistic form speaks
           to normal hours and it speaks to straight
           time. It's very explicit in that regard.

                ....

                Straight   time  ends   by  contractual
           definition at the conclusion of the time
           periods referenced. So, anything after that
           must be and can only be overtime, and the
           arbitrator did not so find. And that's why
           I say the arbitrator rewrote the contract.
           What the parties agreed to was that this ten
           minutes would not be compensated by the only
           rate that it could be compensated by, and
           that is time and a half because it was not
           considered as overtime as defined in the
           contract.

                I believe the language is clear.      I
           believe this can be determined as a matter
           of law.   I believe it is not debatable and
           does not admit to any other interpretation.
           That it is as straightforward as I have
           indicated.   I have considered the arguments
           raised by the union with regard to the
           provision for training.

                I have considered the legal cases that
           have   been    cited,   and    they're    very
           distinguishable. They're not controlling at
           all in my judgment.    And I have considered
           very specifically the standard, and it is a
           very high standard that must be applied here
           in dealing with an arbitrator's award.     And
           I feel that in this particular case the
           arbitrator clearly overstepped his bounds
           and made a determination that was not
           warranted by the language here.        He, in
           essence -- to repeat myself, but it bears
           repeating -- rewrote the agreement.


                                                            A-2303-08T3
                                 7

Therefore, the judge denied the PBA's request to enforce the

arbitrator's award.

    Trenton argued in the Law Division that the arbitrator's

award exceeded his authority, did not accord with the facts of

the case, and was contrary to law.      The judge agreed.       In our

view, in doing so, he departed from well-established standards

governing judicial review of arbitration awards, including those

concerning public policy.

    Arbitration   "'is   a   favored   means   of   resolving    labor

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

Pascack Valley Reg'l Support Staff Ass'n, 
192 N.J. 489, 496

(2007) (quoting Bd. of Educ. of Borough of Alpha v. Alpha Educ.

Ass'n, 
190 N.J. 34, 41-42 (2006)).     To that end, an arbitrator's

award "is entitled to a presumption of validity" and will only

be vacated on narrow grounds.    Jersey City Educ. Ass'n Inc. v.

Bd. of Educ. of City of Jersey City, 
218 N.J. Super. 177, 187

(App. Div.), certif. denied, 
109 N.J. 506 (1987).      See also Twp.

of Wyckoff v. PBA Local 261, 
409 N.J. Super. 344, 354 (App. Div.

2009).   N.J.S.A. 2A:24-8 provides that a court shall vacate an

arbitration award only for the following causes:

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




                                                             A-2303-08T3
                                 8

            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
            therefor, 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.

Our Supreme Court has also recognized that an arbitration award

may be set aside if a well-defined public policy is violated by

the award itself.       N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 
190 N.J. 283, 293-95 (2007).

    When reversing an order vacating an arbitration award for

exceeding    the   power     of   the    arbitrator      and    violating     public

policy,    we    have   noted     that   the     standard      for    reviewing     an

arbitrator's decision is a deferential one.                     Twp. of Wyckoff,

supra,     409   N.J.    Super.    at      355   (citing       N.J.    Transit     Bus

Operations,      Inc.   v.   Amalgamated       Transit   Union,       
187 N.J.   546

(2006)).     We determine only whether the interpretation of the

contractual language is "'reasonably debatable,'" meaning that

the reviewing court "'may not substitute its own judgment for

that of the arbitrator.'"          Ibid.




                                                                             A-2303-08T3
                                         9

       Although          the   standard        of    review     of       public-employment

arbitration "requires the court to consider the consistency of

the award both with the law and with the public interest[,]" In

re City of Newark v. Newark Council 21, 
320 N.J. Super. 8, 20

(App. Div. 1999), "public policy sufficient to vacate an award

must    be    embodied         in    legislative        enactments,         administrative

regulations, or legal precedents, rather than based on amorphous

considerations of the common weal."                     N.J. Tpk. Auth., supra, 
190 N.J. at 295.            Therefore, the public policy exception may be used

to vacate arbitral awards "only in 'rare circumstances.'"                                    Id.

at 294 (citing Tretina Printing, Inc. v. Fitzpatrick & Assocs.,

Inc., 
135 N.J. 349 (1994)).

       Having reviewed the record in light of these principles, we

determine         that    there     is    no   basis    for    the       rejection      of   the

arbitrator's        decision.            His   interpretation        of    the    collective

bargaining agreement was "reasonably debatable" given the actual

text   of    the        collective       bargaining      agreement        and    fundamental

principles         of    construction,         and     did    not    violate      any    clear

mandate      of    public      policy.         Accordingly,         it    was   entitled      to

deferential treatment.

       The   arbitrator         simply     concluded         that   if    the    experienced

negotiators who arrived at the collective bargaining agreement

intended to make the ten-minute muster time noncompensable, they


                                                                                     A-2303-08T3
                                               10

would have said so, as they did with the training time.                    His

conclusion     was    corroborated    by     the    fact     that   overtime

compensation    for   the   ten-minute      early   start    was    expressly

prohibited.    Whether or not we agree with this interpretation,

it is plausible and reasonably            debatable.       His award should

therefore be upheld.

    Reversed.




                                                                     A-2303-08T3
                                     11

________________________________________________________________

COBURN, J.A.D. (temporarily assigned, on recall), dissenting.




    In        public   employment     arbitration,     the    arbitrator's

interpretation of the parties' contract must be accepted by a

court    if     the    arbitrator's   interpretation     is    "reasonably

debatable" and the award violates neither law nor public policy.

State, Office of Employee Relations v. Commc'ns Workers of Am.,

AFL-CIO, 
154 N.J. 98, 112 (1998).         No one is suggesting that the

award violated law or public policy.           Rather, the question is

whether the arbitrator's interpretation is reasonably debatable.

    The arbitrator's interpretation can be reasonably debatable

only "if the contractual language is open to reasonable debate."

N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union,


187 N.J. 546, 554 (2006).           In other words, "[t]he reasonably


                                                                  A-2303-08T3
                                      1

debatable standard requires . . . that the arbitrator's choice

be examined to determine whether it was justifiable based on a

                                                                                      Id. at
reasonable interpretation of the contractual language."

555 (citing Kearny v. PBA Local No. 21 v. Town of Kearny, 81

        208,    220-21      (1979)).      Applying         those       principles,         the
N.J.

majority determines that the arbitrator's decision was based on

a reasonable interpretation of the contract and that therefore

the trial judge erred in vacating the award.                           I find myself in

agreement with the trial judge and in disagreement with the

majority.            Therefore     I   respectfully             dissent       with      these

additional comments.

       The     agreement         describes        two     basic         categories          of

compensation:         a normal eight-hour working day at straight-time

and    work    beyond     the    normal   eight         hours     at    overtime.            In

addition, the agreement requires two days plus forty hours for

training       "outside      normal    working          hours     at     no    additional

compensation,"        and    attendance      at    the     ten-minute         muster       and

reporting periods without overtime pay.

       Section 8.03 of the collective bargaining agreement, which

concerns the ten-minute muster at the beginning of an eight-hour

tour of duty and the ten-minute report period at the end of an

eight-hour tour of duty, clearly states that "no overtime shall

be    paid"    for   those   ten-minute       periods.           As    the    trial     judge




                                                                                     A-2303-08T3
                                          2

determined, it is perfectly obvious that Section 8.03 used the

phrase   "no    overtime      shall   be       paid"    because   the    ten-minute

periods would otherwise constitute payable overtime.                       There is

no   logical    basis   for    inferring       from     that   language,    or    from

anything    else   in   the    contract,         that    the   parties     used   the

language at issue to agree that the officers would be paid at

straight time for the ten-minute periods.

      The arbitrator's conclusion is also inconsistent with the

provision at the end of Section 8.03 requiring that officers who

muster or report for more than ten minutes before or after a

regular tour of duty be paid at the overtime rate for all of the

time in excess of eight hours.

      The   arbitrator     relied     on       the    proposition   that     it   was

unlikely that police officers would have agreed "to work beyond

their    normal     tour      of   duty        without     compensation      unless

specifically delineated in the Agreement."                     It would, I think,

be far more unlikely that police officers would have agreed to

work for compensation beyond a normal tour at any rate less than

overtime.      Since the ten-minute periods in question are overtime

periods, I think it clear that the express agreement not to be

paid overtime for them constituted an agreement that these were

uncompensated periods.         That view is buttressed by the exception

to non-payment at the end of Section 8.03 stating that when




                                                                            A-2303-08T3
                                           3

muster or reporting time exceeded ten minutes, Trenton would

have to pay overtime for all the time in excess of eight hours.

    The    arbitrator       concludes       his    opinion    by    stating    this

proposition:

           It is axiomatic in contract construction
           that to expressly exclude only overtime
           payment for the ten minute muster period is
           to expressly (sic) allow for straight-time
           payment for those ten minutes.

That conclusion appears to be illogical and inconsistent with

the agreement.     Furthermore, since we are dealing here with an

implied   term,   it   is    contrary   to        the   settled    principle   that

"[t]erms will be implied in a contract where the parties must

have intended them because they are necessary to give business

efficacy to the contract as written."                   N.J. Bank v. Palladino,


77 N.J. 33, 46 (1978) (citing Renee Cleaners, Inc. v. Good Deal

Super Markets of N.J., Inc., 
89 N.J. Super. 186, 190 (App. Div.

1964)).   Here, implication of the term as done by the arbitrator

was not only unnecessary to give efficacy to the contract, it

was contrary to it.         In short, time spent beyond eight hours is

overtime under the agreement.           Therefore, a waiver of overtime

in this context can only mean a waiver of pay.




                                                                          A-2303-08T3
                                        4



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