COUNTY OF WARREN v. POLICEMEN'S BENEVOLENT ASSOCIATION LOCAL #331

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

COUNTY OF WARREN,

A public entity,

Plaintiff-Respondent,

v.

POLICEMEN'S BENEVOLENT

ASSOCIATION LOCAL #331,

Defendant-Appellant.

___________________________________

January 22, 2014

Submitted August 14, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket

No. L-505-11.

Loccke, Correia, Limsky & Bukosky, attorneys for appellant (Michael A. Bukosky, of counsel and on the brief).

Florio Perrucci Steinhardt & Fader, LLC, attorneys for respondent (J. Andrew Kinsey, of counsel; Eltia I. Montano Galarza, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Defendant Policemen's Benevolent Association Local #331 (PBA) appeals from a June 26, 2012 final order of the Law Division denying its motion to confirm an arbitration award and granting the cross-motion filed by plaintiff County of Warren (the County) to vacate the award. Because we agree that Judge O'Connor properly vacated the arbitration award, we affirm.

The PBA represents the collective negotiations unit of detectives employed by the Warren County Prosecutor's Office. In 2009, the PBA was in negotiations with Warren County and the Warren County Prosecutor over a new collective bargaining agreement under the auspices of an interest arbitrator. The contracting parties reached an agreement in mediation in June 2009, and thereafter exchanged correspondence and draft agreements culminating in the execution of a collective negotiations agreement (CNA) on October 28, 2009.

Among the issues negotiated by the parties was retiree health benefits and, specifically, County-paid premiums for retiree health benefits. Like the CNA executed on October 28, 2009, the parties' previous CNA limited County-paid premiums to those retirees, regardless of age, having twenty-five years of continuous full-time County service, or for those retiring after attaining age fifty-five, having twenty-five years of accredited pension time in the Police and Firefighters Retirement System (PFRS), the last fifteen of which must have been in full-time Warren County service. Those employees having twenty-five years of pension time in PFRS, the last fifteen of which were in Warren County but who retired before age fifty-five, were required to pay the full monthly cost of the plan until age fifty-five when the County would resume payment of its portion of the premiums.

In June 2009, however, the County Freeholders adopted a resolution requiring the County to pay premiums for those employees retiring with twenty-five years in a New Jersey pension system, without regard to years of service in Warren County. Although the County maintained that the resolution applied only to the County's non-unionized employees, the PBA maintained that the benefit accrued to its members by virtue of a provision of the prior CNA stating that the CNA would not act as a bar to better benefits provided by legislation. In any event, that resolution was superseded by one adopted by the Freeholders on October 14, 2009, which mirrored the language in the CNA executed two weeks later on October 28, 2009.

One of the PBA's members, Detective William Eppell, retired on September 1, 2009 with twenty-five years of service, the last fifteen of which were in Warren County. Although Eppell was not then fifty-five, he retired with the understanding that the County would pay its portion of his health premiums in retirement because he had twenty-five years service in the pension system. The County paid its portion of Eppell's premiums until October 16, 2009, when it realized that Eppell did not have twenty-five years of Warren County service.

On January 18, 2010, the PBA filed a grievance with the Public Employment Relations Commission (PERC) contending that the County breached the CNA by refusing to extend retiree health benefits to the PBA's members having twenty-five years of accredited PFRS pension time but who did not meet the other conditions for qualification imposed by the CNA. The County denied the grievance and specifically denied that it had failed to pay retiree health benefits to any retiree eligible for such benefits under the CNA. The matter was subsequently arbitrated. In its arbitration brief filed after the hearing, the County argued that the PBA had been on notice since October 2009 of the County's position on retiree health benefits and that the PBA's grievance filed January 18, 2010 was thus untimely.

Although acknowledging that the CNA provides that a grievance may be moved to arbitration "within ten (10) calendar days after the determination by the Prosecutor" and that the PBA did not file its advanced step grievance "until January 201[0]," the arbitrator nevertheless rejected the County's argument that the grievance was time-barred. Noting that the PBA had given the County "the opportunity to raise an objection or to 'address the filing of this matter appropriately'" when the PBA filed its grievance, the arbitrator concluded that "[t]he Prosecutor has long ago waived the right to object to the Union's grievance on this technical ground."

The arbitrator determined that as to Eppell, the only one of the PBA's members to retire after the Freeholders adopted the resolution in June 2009 broadening the provision of paid retiree health benefits and before the policy was superseded by the language of the October 2009 resolution and the new CNA, the County violated the terms of the CNA by failing to provide him employer-paid health benefits upon his retirement with "twenty-five (25) years of full-time service in a New Jersey pension system." The arbitrator rejected the PBA's argument that other of its members who may have anticipated retiring but did not because of the dispute with the County, should be allowed to retire with the same benefits provided Eppell. Instead, the arbitrator ruled that such employees would be covered by the provisions of the CNA in effect at the time of their actual retirements, not at a time they might have earlier contemplated retiring.

Warren County thereafter filed a complaint in the Law Division to vacate the award and the PBA answered and counterclaimed seeking its confirmation. After hearing argument on the parties' cross-motions, Judge O'Connor entered an order vacating the arbitration award.

In an accompanying statement of reasons, Judge O'Connor explained that the scope of review of a public sector arbitration award is limited to a determination of whether the arbitrator's interpretation of the contractual language is reasonably debatable. Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 390-91 (1985). Although acknowledging the CNA's ten-day period for the filing of a grievance, and cognizant of the need to follow the parties' grievance procedure and timelines, the arbitrator nevertheless noted "a general preference for resolving the underlying grievance." Judge O'Connor found that while the "arbitrator may have felt at liberty to relax the grievance filing period" based on language in the CNA stating that the grievance procedure is to remain as informal as appropriate, "such language did not give the arbitrator the power to override the procedural mandates of the contract and relax the filing period."

Judge O'Connor concluded that the arbitrator "read into the [CNA] the non-existent requirement that the County had to object by an unspecified time to the late filing or the County would be deemed to have waived such defense." Although acknowledging that resort to the continuing violation doctrine might have allowed the arbitrator to deem defendant's grievance timely, see Bd. of Educ. of Borough of Alpha v. Alpha Educ. Ass'n, 190 N.J. 34, 43-45 (2006), the judge noted that the arbitrator did not rely on, or even refer to, that doctrine in his decision. Because the decision of whether a party has timely demanded arbitration is for the arbitrator and not the court, see Commerce Bank, N.A. v. DiMaria Const., Inc., 300 N.J. Super. 9, 15-16 (App. Div.), certif. denied, 151 N.J. 73 (1997), cert. denied, 522 U.S. 1116, 118 S. Ct. 1053, 140 L. Ed. 2d 116 (1998), Judge O'Connor determined that she could not rely on the doctrine in the absence of the arbitrator having done so. Instead, the judge concluded that her role was limited to determining whether the arbitrator's interpretation of the CNA was reasonably debatable.

Having determined that the arbitrator's interpretation of the CNA was not reasonably debatable, and that the County did not waive the defense that the grievance was not timely filed, Judge O'Connor vacated the arbitration award. This appeal followed.

The PBA contends that the trial court failed to apply the reasonably debatable standard and substituted its own opinion on the timeliness of defendant's grievance. We disagree.

The CNA, in Article 12 Grievance Procedure, plainly provides that any "[g]rievance affecting the interpretation and application of the provisions of this Agreement not settled through steps one, two, and three may be referred to the Public Employment Relations Commission within ten (10) calendar days after the determination by the Prosecutor." The arbitrator acknowledged "the need for following the parties' grievance procedure and its timelines" but found that the PBA identified its filing as an advanced step grievance and asked that Warren respond immediately "[i]f you disagree with this filing stance." Having found that the PBA provided the County "the opportunity to raise an objection or to 'address the filing of this matter appropriately,'" the arbitrator concluded that Warren County "has long ago waived the right to object to the Union's grievance on this technical ground."

The arbitrator, however, did not identify any provision of the CNA stating that a party's failure to object when given the opportunity by the other party constitutes a waiver of the CNA's terms. To the contrary, Article 2 Recognition and Scope, specifically provides that "[a]ny time period may be extended by mutual agreement by both the Prosecutor and the P.B.A." Article 44 Fully Bargained Provisions, Section 3, states that "[n]othing herein shall infer (sic) that this Agreement will be altered or modified in whole or in part during the life of this Agreement without the express mutual consent of both bargaining parties."

As the Supreme Court has explained, "[w]hen parties have agreed, through a contract, on a defined set of rules that are to govern the arbitration process, an arbitrator exceeds his powers when he ignores the limited authority that the contract confers." Cnty. Coll. of Morris Staff Ass'n, supra, 100 N.J. at 391. Here, it is plain from the arbitrator's decision that he concluded that defendant's grievance was untimely. Thus we agree with Judge O'Connor that application of the continuing violation doctrine, which would deem the grievance timely when filed, see Bd. of Educ. of Borough of Alpha, supra, 190 N.J. at 44-48; Henry v. Dep't of Human Servs., 204 N.J. 320, 333 (2012), cannot be employed to deem timely a grievance the arbitrator deemed untimely.

Having found the grievance untimely, the arbitrator "read into" the CNA a provision not found there, that the ten-day period for filing a grievance is waived if the County fails to object promptly to the untimely filing. In light of the express terms of the CNA regarding the timelines for the filing of a grievance and the requirement that extensions of such periods be by mutual consent, the arbitrator's interpretation is not reasonably debatable. Policemen's Benev. Ass'n v. City of Trenton, 205 N.J. 422, 429-430 (2011). Accordingly, we affirm the order vacating the arbitration award substantially for the reasons expressed by Judge O'Connor.

Affirmed.