CITY OF CLIFTON v. FMBA LOCAL 21

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4031-08T34031-08T3

CITY OF CLIFTON,

Plaintiff-Appellant,

v.

FMBA LOCAL 21,

Defendant-Respondent.

_______________________________

 

Argued: March 3, 2010 - Decided:

Before Judges Stern, Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-107-08.

Douglas E. Solomon argued the cause for appellant (Genova, Burns & Vernoia, attorneys; Mr. Solomon, of counsel; Mr. Solomon and Joseph M. Hannon, on the brief).

Craig S. Gumpel argued the cause for respondent (Fox and Fox, LLP, attorneys; Mr. Gumpel, of counsel; Mr. Gumpel and Nora R. Locke, on the brief).

Randi Doner April argued the cause for amicus curiae Clifton Retired Firefighters (Oxfeld Cohen, PC, attorneys; Sanford R. Oxfeld, of counsel and on the brief; Ms. April, on the brief).

PER CURIAM

Plaintiff, City of Clifton, appeals from an order of March 11, 2009 confirming an arbitrator's award. The City argues that "the arbitrator vastly exceeded his authority in not dismissing the grievance for failure to adhere to the strict time frames in which to file a grievance and submit the matter to arbitration," and "the arbitrator's finding of waiver vastly exceeded his authority and was not a reasonably debatable interpretation of the agreement."

The arbitrator rejected the City's "timeliness" and "abandonment" arguments related to the grievance procedure, and ruled that the City "waived" the procedural claims and that it was obligated to pay Medicare Part B premiums for retired FMBA members retroactive to April 28, 2005 when the arbitration was filed. Judge McVeigh confirmed the award and the City appeals to us, claiming that the award should be vacated under N.J.S.A. 2A:24-8(d) because the arbitrator exceeded his authority. It contends that the collective bargaining agreement required the grievance to be filed within twelve days of "the event giving rise to the grievance occurred," or was "abandon[ed]," and again "within four (4) weeks after the matter has been submitted to the City Manager and he has not issued a decision." Further, the City contends the determination that the City waived these procedural requirements to arbitration was not "reasonably debatable" nor subject to "a reasonably debatable interpretation" of the agreement.

The arbitration proceedings were bifurcated. On September 30, 2006, the arbitrator determined that the employer's conduct "represented a waiver of the requirement of the Union to adhere strictly to the terms of the Grievance Procedure." On May 30, 2008, the arbitrator concluded that "[t]he City shall reimburse the employees who have retired and have paid the cost of Medicare Part B coverage retroactive to April 28, 2005, the date of the filing of the request for arbitration" of the dispute, and shall pay future Medicare Part B premium payments for retirees.

Only the decision at the first phase of the arbitration was challenged before Judge McVeigh. She rendered a comprehensive written opinion concluding that "[w]hether the parties' conduct rose to the level [of] waiver as defined in the Collective Bargaining Agreement is reasonably debatable" and the findings of waiver of the procedural time limits were based on substantial evidence and credibility determinations.

We affirm the judgment substantially for the reasons expressed in Judge McVeigh's written opinion of March 11, 2009. See also Bd. of Ed., Borough of Alpha v. Alpha Ed. Ass'n, 190
N.J. 34, 42-43 (2006).

Only selected portions of the testimony before the arbitrator have been presented to us, but as presented to us the critical issue is whether the subject of "waiver" was "reasonably debatable." We agree with Judge McVeigh that the waiver issue was reasonably debatable on this particular record, which depicts a lengthy and distinctive chronology of interactions between City officials and Union representatives and the unfortunate death of the City Manager within that time frame. We need not and do not reach whether the issue of waiver would be reasonably debatable in other settings involving a different chronology.

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4

A-4031-08T3

April 14, 2010