NEW JERSEY TRANSIT CORPORATION v. NEW JERSEY TRANSIT POLICE SUPERIOR OFFICERS FRATERNAL ORDER OF POLICE, LODGE 37

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4902-07T34902-07T3

NEW JERSEY TRANSIT CORPORATION,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT POLICE,

SUPERIOR OFFICERS FRATERNAL

ORDER OF POLICE, LODGE 37,

Defendant-Respondent.

________________________________________________________________

 

Submitted: September 14, 2009 - Decided:

Before Judges Alvarez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2360-07.

Anne Milgram, Attorney General, attorney

for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Richard W. Schleifer, Deputy Attorney General, on the brief).

Markowitz & Richman, attorneys for

respondent (Matthew D. Areman, on the brief).

PER CURIAM

Plaintiff, New Jersey Transit Corporation (NJT), appeals from a final order entered in the Law Division on May 9, 2008, which dismissed with prejudice its verified complaint seeking judgment vacating an Award of Arbitration in favor of defendant, New Jersey Transit Police Superior Officers Fraternal Order of Police, Lodge 37 (FOP), and confirmed that Award in accordance with N.J.S.A. 2A:24-7 (permitting a party to an arbitration involving collective bargaining agreements to commence a summary action in the Law Division for the confirmation of the arbitration award or its vacation, modification or correction). We affirm.

The following factual and procedural history is relevant to our consideration of the issues presented in this appeal. NJT is a State agency created pursuant to N.J.S.A. 27:25-1 to -34. The NJT Police Department is a division of NJT that has "police and security responsibilities over all locations and services owned, operated or managed by [NJT] and its subsidiaries." N.J.S.A. 27:25-15.1(a). The FOP is the exclusive representative for all superior officers below the rank of captain, including sergeants and lieutenants. N.J.S.A. 34:13A-3(e); N.J.S.A. 34:13A-5.3. NJT and the FOP entered into a comprehensive collective bargaining agreement covering the period July 1, 2001 through June 30, 2006. Article V of the agreement, entitled "Physical Examinations," provides in pertinent part:

SECTION 2. (a) When a SO [Superior Officer] has been removed from his position on account of his physical or mental condition and the Union desires the question of his physical or mental fitness to be decided before he/she is permanently removed from his position, the case shall be handled in the following manner:

(b) The President of the Union shall bring the case to the attention of the Director-Labor Relations. NJT and the employee shall each select a doctor (physician), each notifying the other of the name and address of the doctor (physician) selected. The two doctors (physicians) thus selected shall confer and appoint a third doctor (physician).

(c) Such Board of Doctors shall then fix a time and place for the employee to appear for a physical examination. After completion of the examination, they shall make a full report of their finding, sending copies of those findings to the Director-Labor Relations, the NJT Medical Director and the employee.

(d) A decision of the majority of doctors on the board as to the physical fitness of the employee to resume duty at the time examined shall be final and binding on the parties, but this does not mean that a change in the employee's physical condition shall preclude a re-examination at a later date.

(e) The neutral physician selected for such board shall be a specialist in the disease or disability from which the SO is alleged to be suffering.

[Emphasis Added.]

On October 8, 2002, Sergeant Gerard Robson, a NJT police officer and member of the FOP, was on duty. While responding to a fare dispute involving an unruly passenger, Sergeant Robson tripped on a piece of PVC pipe lying on the rail tracks and fell, causing severe and debilitating pain in his left hip. He was taken to Jersey City Medical Center where he was treated and released. Robson reported the incident to his supervising Lieutenant; submitted required paperwork to NJT's Medical Services Division documenting the injury and incident; and filed a claim for workers' compensation benefits.

Following his report of the incident, Robson was examined by Dr. Charles Rowe of NJT's Medical Services Division, who referred him for evaluation and treatment to Dr. Mark Zawadsky of University Orthopedics in New Brunswick. After undergoing treatment and diagnostic testing, Dr. Zawadsky determined that Robson was suffering from avascular necrosis of his left femoral head, causing deterioration of the hip joint. On April 4, 2003, Robson underwent hip replacement surgery, authorized by NJT and performed by Dr. Zawadsky.

Following a course of rehabilitation and treatment Dr. Zawadsky issued a report to NJT dated July 3, 2003, releasing Robson from medical care and authorizing his return to work as of July 14, 2003. He also completed and submitted a form on that date that indicated Robson had not yet fully healed from the surgical procedure. In response, Lois McFadden, Senior Nurse of NJT's Medical Services Division, and Manager of Clinical Services for NJT, sent a letter to Dr. Zawadsky dated July 7, 2003, stating:

Enclosed is a job description and list of functions tested on a RTW [Return To Work] agility test.

Can Gerard Robson take this test as a part of his RTW evaluation? Is he a greater risk, than the general population, for injury to himself while working as a policeman; and if so, what is that risk?

We will await your response before scheduling the agility test.

Ms. McFadden testified that her Division had been orally instructed by the Director of the NJT Police Department that when a police officer was absent from work for a period in excess of ninety (90) days, that officer would be required to satisfactorily perform an agility test prior to his or her return to duty as a police officer; there was, however, no written policy to that effect. Ms. McFadden explained that among the tasks required by the agility test were a wall climb; trigger pull; agility run; horizontal jump; and dummy drag.

In reply to Ms. McFadden's July 7, 2003 letter and its enclosures, Dr. Zawadsky issued a report to the Medical Service Division, dated July 22, 2003, stating:

In regard to this patient, he underwent a left total hip arthroplasty on 4/07/03, for a diagnosis of avascular necrosis of the left hip. He has recovered nicely from this procedure and has regained excellent mobility. He is now planning on returning to work. I received your letter dated July 7, 2003, with questions about his return to work. His limitations in terms of his left total hip replacement require that he undergo no activities that require running or jumping. He needs to protect his left hip from extremes of flexion and internal rotation. He is otherwise able to engage in full normal activities and is able to stand and walk without limitations except for activity tolerances. His major risk in terms of activity would be dislocation or fracture.

If I can be of any further assistance in the future, please do not hesitate to contact me.

Upon review of Dr. Zawadsky's report, Dr. Rowe issued a document entitled "Request For Medical Services," dated August 12, 2003, in which he concluded that Robson had reached Maximum Medical Improvement (MMI), and was "not medically qualified to work as a policeman[,]" but was medically qualified to assume the duties of a position in which there was "no running or jumping, no extremes of flexion and internal rotation." NJT managerial personnel then orally informed Robson that following exhaustion of all his accumulated sick and other types of leave, he would be terminated as a police officer; that he could apply for a disability pension from the New Jersey Police and Firemen's Retirement System (PFRS); and that he could be considered for a position with NJT as a communication dispatcher at a significantly-lower rate of compensation. Subsequently, Robson applied for the dispatcher position and filed a claim with PFRS for a disability pension. By letter dated September 5, 2003, NJT offered Robson the position of Communication Dispatcher at an annualized gross salary of $36,000, which offer was accepted by him on September 15, 2003.

Meanwhile, the FOP had filed a grievance on behalf of Robson on August 20, 2003, contending:

The Employer, New Jersey Transit, has

violated the above listed provisions of the

Collective Bargaining Agreement (CBA), by

failing to return Sgt. Robson to full duty,

requiring him to utilize personal sick leave

for a duty-related injury, and discriminating against him by applying and improperly implemented, non-prospective, an incompletely conceived physical fitness policy. The policy in question was implemented without referral to the Standing Committee for deliberation and discussion and does not define any accommodations

for age and other typically necessary

considerations. Aside from the policy's

unreasonable standards, [its] implementation

negatively impacts the level of retained benefits such as a full 1 year period prior to termination of services and not complying with its obligation to accommodate Robson in the manner described in the current CBA.

The grievance was not resolved at steps one and two of the procedure set forth in the collective bargaining agreement. On September 23, 2003, the FOP filed a "Request For Submission of a Panel of Arbitrators" with the New Jersey Public Employment Relations Commission (PERC), resulting in the appointment of Daniel F. Brent as Arbitrator to hear the grievance. Section B(4)(b) of Article XIX, "Grievance Procedure," of the collective bargaining agreement provides:

(b) The Arbitrator shall be bound by the provisions of this Agreement and restricted to the application of the facts presented to him/her in the grievance. The Arbitrator shall not have the authority to add to, modify, detract from or alter in any way, the provisions of this Agreement or any amendment or supplement thereto. The

Arbitrator shall set forth his/her findings of fact and conclusions of law and the reasons for making his/her findings of fact and conclusions of law and the reasons for making his/her award. The decision of the Arbitrator shall be final and binding upon the parties.

During pendency of the arbitration, the New Jersey Division of Pensions and Benefits issued a letter to counsel for Robson dated November 9, 2004, stating that the Board of Trustees of the PFRS had "determined that Mr. Robson is considered totally and permanently disabled from the performance of his regular and assigned duties as a police sergeant[,]" and granted him ordinary disability retirement benefits, effective October 1, 2003.

The Arbitrator conducted hearings on April 18, 2006, and October 30, 2006. At the outset of the April 18, 2006 hearing, the Arbitrator noted that the parties had agreed to submit the following issue to him for resolution:

Did New Jersey Transit properly disqualify the grievant, Gerard Robson, from continued services as a police officer in violation of the collective bargaining agreement? If so, what shall be the remedy?

Upon conclusion of the testimony and evidence at the October 16, 2006 hearing, NJT requested that the grievance be dismissed or, alternatively, that the arbitration proceedings and the Arbitrator's decision be stayed to allow NJT to file a Scope of Negotiations Petition with PERC, contending that the issue to be decided was not negotiable as a matter of law, and thus not arbitrable. The Arbitrator denied that request.

On or about November 16, 2006, NJT filed a Scope of Negotiations Petition with PERC, seeking restraint of the arbitration proceedings on the basis that NJT's request for Robson to submit to a physical fitness agility test was not an arbitrable matter as it constituted a managerial prerogative protected under Article II of the collective bargaining agreement, which provides, as follows:

It is understood and agreed that NJT possesses the sole and exclusive right to conduct NJT business, to manage and direct its affairs, to fulfill its lawful obligations, and that all management rights repose in it except as specifically modified or limited by the terms of this Agreement. It is further agreed and understood that all rights of management are retained by NJT, unless otherwise specifically restricted by this Agreement and/or the provisions of applicable law.

[Emphasis added.]

No decision was issued by PERC on that petition prior to the issuance of the Award by the Arbitrator, or prior to filing of the Law Division action by NJT.

The Arbitrator issued his Award and written decision on December 15, 2006, finding as follows:

Based on the evidence submitted, New Jersey Transit improperly disqualified the grievant Gerard Robson from continued service as a police officer in violation of the collective bargaining agreement. The grievant shall be paid the difference between the salary he earned from New Jersey Transit from July 14, 2003 through the present and his full sergeant's salary, less substitute interim earnings. The grievant shall continue to work, either on light duty as a police officer or as a police dispatcher, for New Jersey Transit at his Sergeant's salary until a treating physician appointed by the Employer determines whether the grievant is capable of passing either a physical test that is required of all current employees or a reasonable medical examination to determine his fitness to resume full duties as a police officer.

If the Employer deems grievant permanently unfit to resume duties as a police officer, the Employer shall initiate the convening of a Board of Doctors pursuant to Article V of the collective bargaining agreement. This Board shall impose reasonable tests, consistent with their professional expertise and the custom and practice of the medical profession, that are necessary and reasonably related to testing the grievant's fitness for resuming service as a police officer.

As a result of the Employer's violation of the collective bargaining agreement, the grievant was charged with sick leave that should not have been deducted from his sick leave bank. This sick leave shall be returned to him immediately in the form of accrued sick time and, if the grievant in ultimately not returned to work, the sick leave improperly deducted shall be paid as a cash payment at the value of a sick leave day as of the grievant's last day of active duty as a superior officer for the New Jersey Transit Police before he became a dispatcher. Such payment shall be subject to any limitation on payout of unused sick leave upon retirement that may exist in the collective bargaining agreement.

The Arbitrator hereby retains jurisdiction for the purpose of resolving any dispute that may arise regarding the implementation or computation of the remedies ordered pursuant to this Award.

In his decision, the Arbitrator recognized the right of the employer to assess an injured or disabled employee's ability to perform the essential functions of a police officer before permitting that employee to return to active duty. However, the Arbitrator noted that what was at issue in the grievance was whether the unilateral imposition of a physical agility test to determine Robson's fitness to resume his duties as a police officer violated the procedure set forth in the collective bargaining agreement in Article V, Section 2.

The Arbitrator found that the failure to convene a Board of Doctors before determining whether Robson was permanently unfit to resume his duties as a police sergeant violated the collective bargaining agreement, and thereby invalidated NJT's determination that Robson was unfit. Moreover, the Arbitrator concluded that NJT's unilateral decision to utilize the specific physical agility test set in place by the Chief of Police "must be made by a qualified medical professional or, when an employee is protesting a preliminary finding of unfitness for duty, by a majority of a Board of Doctors convened pursuant to the collective bargaining agreement." The Arbitrator stated that Robson "should have been afforded continuing light duty from July 14, 2003 until he reached maximum medical improvement. Therefore, the grievant is entitled to receive full back pay, less substitute interim earnings, until such a Board of Doctors is convened and a procedurally proper and medically appropriate determination is rendered." The Arbitrator explained his decision, as follows:

The grievant's treating orthopedic physician, Dr. Mark Zawadsky, wrote a memo dated July 3, 2003 (Union Exhibit 4) stating that "we will have him continue with physical therapy for another four weeks. He can return to his job on July 14. I will see him again in approximately three months for repeat evaluation." It is not clear from the context of the memo, or from any other evidence in the record, whether Dr. Zawadsky's reference to returning to "his job on July 14" meant limited light duty or full duty as a police officer. Therefore, this statement provides insufficient basis as a material factor for resolving the instant dispute.

Dr. Zawadsky also signed a form (Union Exhibit 25) on or about July 3, 2003 indicating that the grievant had not reached maximum medical improvement and checking a sentence that "no restrictions of job activities required. Concurrent therapy may be required, but all essential job functions may be performed safely and without harm to the person[,]" to which Dr. Zawadsk[y] added "after 7/14/03." This statement apparently contradicts the Employer's assertion that the grievant had achieved maximum medical improvement at this time.

A single physician selected by the Employer arguably could unilaterally require a reasonable agility test as part of a battery of tests necessary for obtaining a professional medical opinion before returning a police officer to work. However, where the Employer asserts that a bargaining unit employee is permanently disabled to the point that the employee cannot perform the essential duties of a police officer classification, the procedure negotiated by the parties in Article V of the collective bargaining agreement not only governs, but also precludes such unilateral referral for agility testing, as the purpose for testing in the later context is significantly different from the former context. Thus, the expressed purpose for the disputed testing procedure precludes enforcing the requirement unilaterally imposed by New Jersey Transit in the instant case. In view of the Employer's position that the grievant was permanently disabled, had reached maximum medical improvement, and could not perform the essential functions of his job, even with an accommodation, the Employer's failure to convene such a Board was improper and violated the collective bargaining agreement.

Furthermore, Joint Exhibit 6, which is a New Jersey Transit Request for Medical Services form filled out by Dr. Rowe on August 12, 2003, misinterprets the finding of the Employer's treating doctor, Mark Zawadsky dated July 22, 2003 (Joint Exhibit 5) in which Dr. Zawadsky advises Lois McFadden, Manager of Clinical Services at New Jersey Transit, that "his limitations in terms of his left total hip replacement require that he undergo no activities that require running or jumping." The grievant was then unfit for agility testing because his physical condition following successful surgery, although healing at an appropriate pace, had not yet fully healed. Consequently, the agility test should have been postponed based on the treating physician's assessment before determining that the grievant had reached maximum medical improvement and that he was permanently disabled from performing the essential functions of a police sergeant's classification.

The Arbitrator again emphasized that the criteria for fitness to remain a police officer on active duty, or the criteria for returning to active duty from a debilitating injury or illness were not before him. Rather, "[a]t issue [was] whether New Jersey Transit complied with the procedural aspects contained in Article V of the collective bargaining agreement, which[,] as the Appellate Division recognized in [In re Township of Bridgewater v. PBA Local 174, 196 N.J. Super. 258, 262 (App. Div. 1984)], are mandatorily negotiable, and thus arbitrable."

Following issuance of the arbitration Award, NJT filed a verified complaint in the Law Division on March 20, 2007, seeking an order vacating that Award, contending it had been procured by undue means, on the basis that the decision by NJT to require Robson to submit to a physical fitness test before being permitted to resume his Police Sergeant duties was an exercise of the NJT's managerial prerogative, was not arbitrable, and thereby did not fall within the purview of the collective bargaining agreement. The FOP filed an answer and counterclaim, seeking confirmation and enforcement of the Award.

An order to show cause was issued by the Law Division on May 29, 2007, ultimately returnable on July 7, 2007, requiring the FOP to show cause why the relief sought in the verified complaint should not be granted. The matter was argued in the Law Division on July 6, 2007; after hearing arguments, the court reserved decision.

Meanwhile, on May 31, 2007, PERC issued a decision on NJT's Scope of Negotiations Petition. PERC concluded that the issue decided by the Arbitrator "[was] within the scope of negotiations and therefore legally arbitrable." In its decision, citing to Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981), PERC recognized that arbitration will only be permitted "if the subject of the dispute is mandatorily or permissible negotiable[,]" stating that "Paterson would bar enforcement of this arbitration award only if the award is preempted or would substantially limit NJT's policymaking powers." PERC explained its decision, as follows:

Public employers have a non-negotiable managerial prerogative to require employees to undergo fitness-for-duty testing related to their job functions before they are allowed to return to work. We have thus restrained arbitration of grievances contesting such tests. . . . The effective delivery of governmental services would be substantially limited if employees were entitled to resume work even though they were unfit to do their essential job functions. NJT thus need not allow a police officer who cannot pass its agility test to return to work as a police officer.

But this case presents a different issue. It is about whether the grievant should have been declared permanently disabled and terminated from his sergeant's position without a board of doctors having been convened. The arbitrator found there was a dispute as to whether the grievant was still healing and he determined that Section 2 of Article V required convening a board of doctors before the grievant was permanently removed from his position as sergeant or required to take a test that might further injure him. NJT has not argued that Section 2 is not negotiable. In fact, Section 2 provides a neutral and negotiable procedure for resolving a dispute over the employer's initial determination that the grievant was unfit for duty and should be permanently terminated from a police sergeant position. . . .

[Citations omitted.]

On May 9, 2008, the trial judge placed his decision on the record, and issued an order dismissing the verified complaint with prejudice and confirming the Award of Arbitration. The judge found that the arbitrator

did not exceed the scope of his authority . . . when he based his decision on Article 5, Section 2 of the agreement and his decision was not based on . . . a mistake of law which violated public policy. I looked at Article 5, Section 2 and it does establish that when a superior officer has been removed based on his physical condition the [FOP] must bring the issue to the attention of the Director of Labor Relations. In the instant case, the Union did file a grievance on August 20, 2003 indicating, among other things, that [NJT] did not comply with the provisions of Article 5. At that point in time, the Director of Labor Relations had notice of [Robson's] desire to have his physical fitness decided by them in the manner described in the agreement and, thereafter, there was not compliance with [the] provision requiring the doctor panel to decide the fitness of the employee.

The Award, as I find it, . . . was not based upon any mistake of law. Furthermore, it appears to me that the arbitrator's interpretation of the agreement satisfies the reasonably debatable standard of this provision with respect to when an employee is terminated . . . for . . . being unable physically to do the job and it seems to me that this case is not about whether [Robson] is permanently disabled because I know - - subsequent to termination that he is but the issue, as far as I see it, and that's the way the arbitrator saw it too, is whether or not the proper procedure was . . . followed with respect to his termination under the circumstances, and I understand that the argument is that . . . there was no request specifically under the terms of the agreement but it also seems to me that the agreement indicates that . . . it has to be . . . brought to the attention of the Director, that is, the request and then certainly the grievance could be looked at as a demand for a panel [of doctors], and I also note that it's filed approximately five days after his termination.

It seems to me, under the circumstances, that that procedure should have been followed and it wasn't. . . .

On appeal NJT presents the following arguments for our consideration:

POINT I

THE ARBITRATOR'S AWARD SHOULD HAVE BEEN

VACATED BECAUSE IT WAS NOT "REASONABLY

DEBATABLE" AND BECAUSE IT EXCEEDED THE

SCOPE OF THE ARBITRATOR'S AUTHORITY.

POINT II

THE TRIAL COURT IMPROPERLY APPLIED THE

"REASONABLY DEBATABLE" STANDARD.

POINT III

THE AWARD WAS NOT "REASONABLY DEBATABLE"

BECAUSE THE IMPOSITION OF A PHYSICAL

FITNESS TEST CONSTITUTES AN EXERCISE OF

MANAGERIAL PREROGATIVE.

POINT IV

THE AWARD SHOULD HAVE BEEN VACATED BECAUSE

IT VIOLATES PUBLIC POLICY.

In its reply brief, NJT presents the following additional argument:

BY VIRTUE OF THE CLEAR AND UNAMBIGUOUS

TERMS OF THE CONTRACT, THE TRIAL COURT

ERRED IN DENYING PLAINTIFF'S APPLICATION

TO VACATE THE ARBITRATOR'S DECISION.

We first note that it is improper to raise an argument for the first time in a reply brief. See State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); A.D. v. Morris County Bd. of Social Servs., 353 N.J. Super. 26, 30-31 (App. Div. 2002); In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001); Warren Township v. Suffness, 225 N.J. Super. 399, 412 (App. Div.), certif. denied, 113 N.J. 640 (1988). Additionally, several of the arguments presented on appeal were not made before the Law Division. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Notwithstanding, in order to conduct a complete and meaningful review, we elect to briefly address all arguments advanced by NJT.

We begin our analysis by restating certain established principles. Arbitration is a favored means of resolving labor disputes. Pascack Valley Regional High School Bd. of Educ. v. Pascack Valley Regional Support Staff Ass'n, 192 N.J. 489, 496 (2007); Township of Wyckoff v. PBA Local 261, 409 N.J. Super. 344, 354 (App. Div. 2009). 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 v. Board of Educ. of City of Jersey City, 218 N.J. Super. 177, 187 (App. Div.), certif. denied, 109 N.J. 506 (1987). N.J.S.A. 2A:24-8 provides that a court shall vacate an arbitration award for any of the following causes:

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 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. New Jersey Turnpike Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 293-95 (2007).

Recently, in reversing an order vacating an arbitration award as exceeding the power of the arbitrator and violating public policy, we noted that the standard for reviewing an arbitrator's interpretation of the issue submitted to him is a deferential one, confined to determining whether the interpretation of the contractual language is "reasonably debatable," where the reviewing court may not substitute its own judgment for that of the arbitrator. Township of Wyckoff, supra, 409 N.J. Super. at 355-56 (citing New Jersey Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 553-54 (2006)).

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." New Jersey Turnpike 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.

We have carefully reviewed the record in light of these principles and have determined, as did the Law Division, that there is no warrant to reject the Arbitrator's determination. The Arbitrator's interpretation of the collective bargaining agreement was reasonably debatable, did not violate any well-defined clear mandate of public policy, and was thereby properly entitled to deferential treatment. The Arbitrator simply concluded that the negotiated procedure set forth in Article V, Section 2, of the collective bargaining agreement for determining the physical fitness of an officer to resume duty had not been followed.

NJT's argument that the procedures set forth in Article V, Section 2, were not applicable because the FOP never specifically brought "the case to the attention of the Director-Labor Relations[]" of NJT prior to Robson's removal, is disingenuous. First, that argument was not raised during the arbitration hearing. Moreover, Section 2(a) of Article V clearly contemplates that the negotiated physical fitness determination procedure be implemented after the "SO has been removed from his [or her] position on account of his physical or mental condition[,]" not before. Common sense dictates that there is no way to demand the convening of a Board of Doctors on behalf of an employee pursuant to Article V, Section 2 without first knowing that he or she has been removed from his or her position based on a physical condition. Lastly, the grievance submitted by the FOP on Robson's behalf specifically cited alleged violations of, inter alia, Article V, and was filed within five days of NJT's ex parte determination of unfitness.

It is also significant to note the Arbitrator found that Dr. Rowe's August 12, 2003 determination that Robson had reached Maximum Medical Improvement (MMI) was based on a misinterpretation of Dr. Zawadsky's July 3, 2003 and July 22, 2003 reports, since it was clear from the July 3 report and completed form that Dr. Zawadksy had concluded that Robson had not yet fully healed from his hip replacement surgery. In other words, the "unfitness" determination by Dr. Rowe was premature. Thereby, the record supports the conclusion that that arbitration determination was reasonably debatable and entitled to judicial deference.

NJT further asserts its managerial prerogative to determine an officer's physical fitness for duty has been improperly infringed upon by the arbitration Award. Not so. The issue in the arbitration was whether the contract-negotiated procedure for determining the physical fitness of an officer to resume duty as a police officer had been violated, not Robson's actual fitness or unfitness for such duty, or NJT's right to determine same.

Although medical examinations to determine fitness for duty are a managerial prerogative in public-sector employment, particularly where, as here, physical fitness tests "bear on a police officer's ability to do his or her job[,]" New Jersey Transit PBA Local 304 v. New Jersey Transit Corporation, 384 N.J. Super. 512, 519 (App. Div. 2006), see also Township of Bridgewater, supra, 196 N.J. Super. at 261-62, we have ruled that "[w]hile the fact of testing is a non-negotiable managerial prerogative, . . . there is a clear distinction between the decision to test, on the one hand, and the procedure to be utilized, on the other." International Federation of Professional & Technical Engineers, Local 194A v. Burlington County Bridge Commission, 240 N.J. Super. 9, 30 (App. Div. 1990). Clearly, procedures for implementing non-negotiable substantive decisions are negotiable. Ibid. Since the FOP is not challenging NJT's right to require a medical examination to determine an employee's fitness for duty, there is nothing in the arbitration Award or the Law Division judgment confirming it which violates public policy.

We recognize that the New Jersey Division of Pensions and Benefits has granted Robson a PFRS ordinary disability pension based on its determination that he was considered totally and permanently disabled from the performance of his duties as a police officer as of October 1, 2003. However, the record on appeal does not disclose the extent to which the Division of Pensions and Benefits, in granting that disability pension, relied upon NJT's conclusion that Robson was unfit to perform his duties as a police officer. That issue is not before us. We do note that the Arbitrator retained "jurisdiction for the purpose of resolving any dispute that may arise regarding the implementation or computation of the remedies ordered[.]" Accordingly, issues concerning actual implementation of the procedure set forth in Article V, Section 2 of the collective bargaining agreement, and the effect of the ultimate results of that implementation on the computation of the ordered remedies, as well as what effect, if any, same may have on Robson's disability pension, are matters to be brought to the attention of the Arbitrator and reviewed, if appropriate, by the Division of Pensions and Benefits.

 
Affirmed.

Copies of Dr. Zawadsky's July 3, 2003 report and the completed form are not contained in the record on appeal, although they were entered into evidence as exhibits during the arbitration hearing, and were referred to by the Arbitrator in his decision.

At the arbitration hearing, Ms. McFadden testified that she managed the medical treatment aspects of workers' compensation cases filed by employees against NJT, which was self-insured.

The record on appeal contains a "Physical Agility Test Evaluation Form" utilized by Rutgers University Police Department. That form was attached to the March 13, 2007 certification of John Bush, the Director of Administration and Support Services for the NJT Police Department, and was proffered as being similar to the physical agility test used by NJT.

By letter from Alex Carrazana, Senior Benefit Representative of NJT's Workers' Compensation and Disability Claims Division dated August 25, 2003, Sergeant Robson was informed of NJT's determination that he had reached the maximum benefit of his treatment and "[t]he doctors also believe that you are not medically able to return to your position as a Police Officer."

The record reflects that Robson worked as a Communication Dispatcher for NJT for only a short period before leaving to take employment outside NJT.

The grievance alleged violations of Article III - Standing Committee; Article V - Physical Examinations - Section 1, Section 2; Article VI - Physically Incapacitated Employees; Article IX - Retention of Benefits; Article XI - Discrimination or Coercion; and Article XVIII - Sick Leave - Section 8.

(continued)

(continued)

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A-4902-07T3

January 11, 2010