IAFF LOCAL 1197 v. TOWNSHIP OF EDISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IAFF LOCAL 1197,

Plaintiff-Respondent,

v.

TOWNSHIP OF EDISON,

Defendant-Appellant.

________________________________

September 24, 2015

 

Submitted September 16, 2015 Decided

Before Judges Ostrer, Haas and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-55-14.

Roth D'Aquanni, LLC, attorneys for appellant (Allan C. Roth, of counsel and on the brief; Rachel M. Caruso and Marissa Quigley, on the brief).

Kroll Heineman Carton, LLC, attorneys for respondent (Raymond G. Heineman, of counsel and on the brief).

PER CURIAM

Defendant Township of Edison appeals from the May 9, 2014 order of the Chancery Division confirming a labor arbitration award issued under a collective negotiation agreement (CNA) between plaintiff Local 1197 of the International Association of Fire Fighters (IAFF) and defendant. We affirm.

The procedural history and facts of this matter are thoroughly set forth in our recent decision in In re Township of Edison, No. A-6012-12 (App. Div. Dec. 23, 2014) (slip op. at 2-10), and that discussion is incorporated here by reference. The parties are fully familiar with this history and, therefore, only a brief summary is needed to place the current appeal in its proper context.

In this case, the parties' 2010-2013 CNA provided that thirty-six union firefighters, who performed emergency medical technician (EMT) duties for the township, would receive "pay differential[s] . . . regardless of whether [their] supervisors assigned them to emergency medical duties, or to a desk job at headquarters." Id. at 6. "On January 15, 2011, the township purported to eliminate the 'rotation'" under which the thirty-six firefighters performed EMT duties, and allegedly re-assigned this work to civilian EMTs. Id. at 7. The ambulance previously assigned to the Fire Division was also transferred to the civilian EMTs. Id. at 7-8. The township then stopped paying the thirty-six firefighters the pay enhancements required by the CNA. Ibid.

IAFF filed a grievance, which the township denied. Id. at 8. The union then requested arbitration, and the matter was assigned to an arbitrator. Ibid.

After the first arbitration session was held on October 3, 2011, "the township filed a scope petition with [the Public Employment Relations Committee (PERC)], seeking its determination that it was within the township's non-negotiable managerial prerogative to end the rotation, and its obligation to pay the differential." Ibid. PERC rejected the township's contentions and ordered that the arbitration proceed. Id. at 8-10.1

The arbitrator then conducted a second day of hearings on December 5, 2013. The parties submitted the following questions to the arbitrator for resolution: "Whether the [t]ownship violated the [CNA] by ceasing to pay firefighter/EMTs the contractual EMT differential pay effective January 25, 2011? If so, what should be the remedy?"

IAFF presented the testimony of several firefighter/EMTs who testified that, in spite of the fact that civilian EMTs were now available, the thirty-six firefighter/EMTs in the rotation continued to respond to medical calls and perform EMT duties. "[T]he responding firefighters stabilize the patient, take vitals, secure the patient's airway, secure the patient to a long board where needed, provide basic life support and operate the defibrillator, where needed." The firefighters also "provide[d] a higher level of care than first responders, including inhalers and administration of oxygen, Epinephrine and Nitroglycerin."

Although the firefighter/EMTs no longer operated the ambulance, they used "Fire Rescue 4" on EMT calls. This vehicle was equipped with "EMS equipment on-board, including oxygen, nasal cannulas, oxygen masks, stabilizing equipment, head blocks, back boards and splints." According to the testimony provided, "the firefighter/EMTs perform[ed] the same function as they always [had], except [the firefighters] now [had] to wait for an ambulance for transport after stabilizing the patient."

The township's own records confirmed that the firefighter/EMTs continued to perform EMT duties, "albeit at a decreasing rate" for the period between January 2010 and "2013, the fourth and final year of the parties' Agreement . . . ." In 2010, firefighters answered 3,924 calls. In 2013, the call volume was "reduced to fewer than 400." As the arbitrator found, "[t]hese statistics alone demonstrate[d] that EMT Qualified firefighters continue[d] to provide their expertise at the scenes of potentially life threatening situations."

In August 2013, the township entered into a contract with a local hospital to provide ambulance services. However, this development had no effect on the role of the firefighter/EMTs, who "continue[d] to respond to EMS calls on Fire Rescue and other fire apparatus[es]."

Based upon this testimony, and after reviewing the township's long history of using firefighter/EMTs to provide these services, the arbitrator issued a comprehensive thirty-four-page decision concluding that the township violated the CNA "by unilaterally discontinuing the [f]irefighter/EMT [pay] differential" in January 2011. The arbitrator found that the township and IAFF negotiated the pay differential "at arms' [sic] length and with their eyes open" and that the township had, for over two decades, provided additional pay to the firefighter/EMTs in the rotation "even though it knew not all would be assigned to fire rescue or respond to calls for EMS service . . . ." As a result, the township received a clear benefit, namely, "a significant pool of qualified [f]irefighter/EMTs to provide EMS response, if called upon and an obvious reduction in administrative costs associated with the difficult task of tracking and accurately paying those [f]irefighter/EMTs assigned to fire rescue, or those responding to EMS calls while assigned to fire suppression . . . ."

While the hiring of civilian EMTs in January 2011, and the subsequent use of a hospital-based ambulance service, reduced the number of emergency medical calls the firefighters handled over the period between 2011 and 2013, their EMT function was never eliminated. Under these circumstances, the arbitrator directed the township to reinstate the pay differential for the thirty-six firefighters and compensate them for any pay lost as a result of the township's decision to unilaterally terminate the pay differential.

IAFF then sought an order in the Law Division confirming the arbitrator's award. After conducting oral argument, Judge Frank M. Ciuffani issued a detailed written decision confirming the award. Applying the "reasonably debatable" standard discussed by the Supreme Court in Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201-02 (2013), Judge Ciuffani found no basis for disturbing the arbitrator's decision. In so ruling, the judge rejected the township's contention that the arbitrator "demonstrated partiality" in his award because he made critical comments concerning prior Appellate Division and Civil Service Commission decisions. The judge stated that the arbitrator

did exactly what [PERC] said he was to do as the issue was directed to him. He made detailed finding[s] and determined based on these findings that the firefighters were performing EMT duties . . . . Because they were continually performing these duties, the firefighters were entitled to the additional compensation. The [c]ourt finds the arbitration award to be reasonably debatable, and as such, the [c]ourt may not substitute its own interpretation for that of [the arbitrator].

This appeal followed.

On appeal, the township argues that: the arbitrator's decision was not based upon the facts; the award was "contrary to public policy"; and the arbitrator acted with "evident partiality" in rendering his decision. We disagree.

We engage "in an extremely deferential review when a party to a collective bargaining agreement has sought to vacate an arbitrator's award." Policemen's Benevolent Ass'n, Local No. 11 v. City of Trenton, 205 N.J. 422, 428 (2011). "That high level of deference springs from the strong public policy favoring 'the use of arbitration to resolve labor-management disputes.'" Id. at 429 (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 275-76 (2010)); see also Borough of E. Rutherford, supra, 213 N.J. at 201. Our role "in reviewing arbitration awards is extremely limited and an arbitrator's award is not . . . set aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513 (2001) (citing Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)).

We will not substitute our judgment for that of a labor arbitrator, and we will uphold an arbitration decision so long as the award is "reasonably debatable." Borough of E. Rutherford, supra, 213 N.J. at 201-03. "Reasonably debatable" means fairly arguable in the minds of ordinary laymen. See Standard Oil Dev. Co. Emps. Union v. Esso Research & Eng'g Co., 38 N.J. Super. 106, 119 (App. Div.), sustained on reh'g, 38 N.J. Super. 293 (App. Div. 1955).

Applying these standards, we discern no basis for disturbing Judge Ciuffani's or the arbitrator's findings. Contrary to the township's argument, the arbitrator's decision was squarely based upon the testimony and documentary evidence presented at the hearing. As detailed in the arbitrator's decision, the firefighters in the rotation continued to perform EMT duties after the township hired the civilian EMTs and even after it engaged a hospital to provide ambulance services. Thus, there was ample support for the arbitrator's decision that the township must continue to pay the firefighter/EMTs the pay differential they bargained for in the CNA. This conclusion therefore meets the "reasonably debatable" standard, and we decline the township's invitation to substitute our "'own judgment for that of the arbitrator . . . .'" Borough of E. Rutherford, supra, 213 N.J. at 201-02 (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)).

The township's argument that the arbitrator's award was "contrary to public policy" also lacks merit. "[A] court 'may vacate an award if it is contrary to existing law or public policy.'" Middletown Twp. PBA Local 124, supra 193 N.J. at 11 (quoting N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 28 3, 294 (2007)). The Court in Middletown explained

"For purposes of judicial review of labor arbitration awards, public policy sufficient to vacate an award must be embodied in legislative enactments, administrative regulations, or legal precedents," and may not be "based on amorphous considerations of the common weal." Moreover, the public policy exception is triggered when "a labor arbitration award not the grievant's conduct violates a clear mandate of public policy . . . ."

[Middletown, supra, 193 N.J. at 11 (citations omitted) (quoting N.J. Tpk. Auth., supra, 190 N.J. at 295, 300).]

For these reasons, the "standard for vacation will be met only in rare circumstances." Borough of E. Rutherford, supra, 213 N.J. at 202 (quoting N.J. Tpk. Auth., supra, 190 N.J. at 294).

In arguing that the arbitrator's decision is contrary to public policy, the township asserts that it should not have to pay the thirty-six firefighters under the CNA because they are performing fewer EMT calls than before. However, as the arbitrator found, the firefighters in the rotation continue to perform EMT services. Thus, this is not a case of "featherbedding" where a public employee performs no services, yet seeks compensation. See Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 381-82 (App. Div. 2012). As a result, because citizens continue to receive prompt and effective emergency medical services from the firefighters, the public interest is clearly served.

Finally, the township argues that, in his written decision, the arbitrator criticized a 1997 Civil Service Commission decision to eliminate "retroactive pay increases for those employees no longer on the payroll at the time of [a] settlement . . . ." See State Troopers Fraternal Ass'n v. New Jersey, 149 N.J. 38 (1997). The arbitrator also noted his belief that our decision in In re Morris County Sheriff's Office v. Morris County Policemen's Benevolent Ass'n, Local 298, 418 N.J. Super. 64 (App. Div. 2011), was distinguishable from our prior decisions. The township alleges that these "disturbing comments" indicated that the arbitrator was biased against public employers and meant that he acted with "evident partiality" against the township. Therefore, the township argued that his award should have been vacated pursuant to N.J.S.A. 2A:24-8(b).2 We disagree.

An arbitration "award will not be vacated for the 'evident partiality' of a party-designated arbitrator unless there is a showing of actual bias or partiality [or there is an appearance of partiality] in the course of the arbitrator's conduct in the hearing, deliberation, decision or award." Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 201 (1981). Contrary to the township's contention, there is simply nothing in the arbitrator's conduct or decision that indicates he harbored any bias against public employers in general, or the township in particular. The arbitrator merely commented on case law and a prior Civil Service Commission ruling as part of his thirty-four-page decision, and he distinguished these rulings from the case at hand. The record reflects that the arbitrator fully considered all of the township's contentions and thoroughly explained his findings and conclusions. Thus, the arbitrator did not manifest "evident partiality" toward the township, and Judge Ciuffani properly confirmed the arbitrator's award.

Affirmed.

1 We affirmed PERC's determination in our unpublished December 23, 2014 opinion. Id. at 15-17.

2 N.J.S.A. 2A:24-8(b) states that an arbitrator's award shall be vacated "[w]here there was either evident partiality or corruption in the arbitrators, or any thereof . . . ."