POLICEMEN'SBENEVOLENT ASSOCIATION, LOCAL 277 v. CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0497-16T1
POLICEMEN'S BENEVOLENT
ASSOCIATION, LOCAL 277,
Plaintiff-Appellant,
v.
CAMDEN COUNTY BOARD OF
CHOSEN FREEHOLDERS AND
SHERIFF,
Defendants-Respondents.
Argued December 20, 2017 – Decided April 24, 2018
Before Judges Alvarez, Nugent, and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, Docket No.
C-000077-16.
James M. Mets argued the cause for appellant
(Mets Schiro & McGovern, LLP, attorneys; James
M. Mets, of counsel and on the briefs; David
M. Bander, on the briefs).
Howard L. Goldberg, First Assistant County
Counsel, argued the cause for respondents
(Christopher A. Orlando, County Counsel,
attorney; Howard L. Goldberg and Catherine
Binowski, Assistant County Counsel, on the
brief).
PER CURIAM
Plaintiff Policemen's Benevolent Association, Local 277
(PBA), appeals from a Chancery Division August 19, 2016 order
dismissing its complaint and confirming a labor arbitration
decision. After consideration of the record and relevant
precedent, we affirm.
The PBA entered into a collective negotiations agreement
(CNA) with their joint employers, defendants, the Camden County
Board of Chosen Freeholders (County) and Sheriff. During the
relevant time period, Article XIV, "Sick Leave With Pay," Section
5, Paragraph 1, of the CNA provided:
employees who do not use sick time in any
calendar quarter of the year shall earn one
(1) additional vacation day for each quarter
where there is no sick time used. Employees
who use no sick time at all during any calendar
year shall earn a total of five (5) additional
vacation days for that year.
For some indefinite time period including the 2014 calendar
year, the Sheriff's Department had awarded vacation bonus time
under that paragraph even if an employee had taken paid time under
the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654. In
January 2015, however, the County Finance Department, which had
recently assumed the calculation function, reversed the award.
The PBA filed a grievance after the County's reversal of the
vacation bonus time award. At the PBA's grievance hearing, Steve
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Williams, the County's comptroller since 2013, explained that
prior to 2014, the County Prosecutor's Office, Sheriff,
Corrections Department, and Public Safety Department maintained
separate records regarding vacation time bonuses. For the
remaining County employees, the Comptroller's Office maintained
the records, and the County did not extend perfect attendance
bonuses to those other employees if FMLA time was taken.
After assuming the responsibility to maintain bonus award
records for all County subdivisions, Williams learned that the
Sheriff awarded bonuses even to those who used FMLA leave.
Williams believed that under those circumstances bonuses should
not be granted, and he developed a computer program that tracked
them. The program automatically disqualified employees from bonus
vacation time awards when they took sick leave, including FMLA
leave. Once Williams realized in March 2015 that the Sheriff's
employees had again been awarded bonus vacation days, despite
taking FMLA leave, he corrected the records and rescinded the
bonuses.
The PBA submitted a request for arbitration to the Public
Employment Relations Commission (PERC) after unsuccessfully
pursuing the grievance process. For arbitration, the parties
stipulated the issue as follows: "Did the County violate Article
XIV, §5 of the [CNA] by failing to pay 'VS time' bonus to PBA members
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who used sick time on approved FMLA [leave] during 2014? If so, what
shall be the remedy?"
The arbitrator did not find that defendants violated the CNA.
In rendering his decision, the arbitrator stated:
In examining Section 5, I do not find any
language that is ambiguous. Either an employee
uses sick leave and is disqualified for at
least one quarterly bonus day and the annual
bonus as well, or he or she does not use sick
leave and receives the bonus.
. . . .
In the present case, the parties
submitted the following issues in dispute
. . . . A FMLA violation is not included in
the phrasing of the issue.
Additionally, under Article XX, Section
2 (a), "the term 'grievance' means a complaint
that there has been an improper application,
interpretation, or violation of this
Agreement, any County policy governing the
PBA, or any administrative decision affecting
any member or members of the PBA, including
all minor discipline, up to and including five
(5) days suspension but excluding counseling
notices." Thus, the parties' definition of a
grievance does not encompass a statutory
violation. Finally, I observe, no contractual
provision, including Article XIV,
substantively incorporates the provisions of
the FMLA.
In light of the foregoing, I cannot
conclude that I have the jurisdiction to issue
a binding arbitration award involving an
interpretation and application of the FMLA.
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In dismissing the PBA complaint seeking to vacate the
arbitration award, the judge stated:
Counsel for the plaintiff points to the past
practice of the parties, but the arbitrator,
really he acknowledged the past practice. He
says okay, I get it, however, it's not
contained here. It's not in writing anywhere,
so it's not incumbent upon him to enforce it
and in doing so, he would have been adding
stuff into a contract that's already been
negotiated and written and that everybody's
been following.
Is it unfortunate that the County didn't
pick up on it sooner and realize that it was
being done? Yeah, it's unfortunate because
without that error, we wouldn't have the past
practice, which is what they're hanging their
hat on, because it would have been done away
with the first year that it was discovered
. . . .
But the County didn't pick up on it and,
in fact, this went on for a period of 15 years
with the people who were members of the
plaintiff union getting the benefit of that.
So I don't think the arbitrator was
obligated to modify the contract by adding in
the past practice. . . . The issue was very
simple and narrow, that is if you use up your
sick time, paid sick time during your Family
Medical Leave Act Time, are you then still
entitled to accrue bonus days? The arbitrator
made a clear finding, no, you're not. If you
get a paid sick day somewhere along the way,
wether [sic] it's inside or outside the Family
Medical Leave Act time, you forfeit the extra
bonus days.
In its appeal of that decision, the PBA now raises the
following points:
5 A-0497-16T1
POINT I
THE TRIAL COURT'S DECISION CONFIRMED AN AWARD
THAT FAILED TO ADDRESS A CLEAR QUESTION OF
PUBL[I]C POLICY: DID THE COUNTY VIOLATE THE
FMLA BY ITS ACTIONS?
POINT II
THE TRIAL COURT'S DECISION RATIFIED THE
ARBITRATOR'S FAILURE TO RENDER A DECISION ON
AN ISSUE OF SUBSTANTIVE LAW GOVERNING THE
MATTER, THE FAMILY AND MEDICAL LEAVE ACT.
POINT III
THE TRIAL COURT'S DECISION APPROVED THE
ARBITRATOR'S REWRITING OF THE CONTRACT
I.
There is "a strong preference for judicial confirmation of
arbitration awards." Middletown Twp. PBA Local 124 v. Twp. of
Middletown,
193 N.J. 1, 10 (2007) (citation omitted). "[A]n
arbitrator's award will be confirmed 'so long as the award is
reasonably debatable.'" Policemen's Benevolent Ass'n v. City of
Trenton,
205 N.J. 422, 429 (2011) (quoting Linden Bd. of Educ. v.
Linden,
202 N.J. 268, 276 (2010)). Our courts have emphasized the
importance of arbitration to public sector employees. State v. Int'l
Fed'n of Prof'l & Tech. Eng'rs, Local 195,
169 N.J. 505, 514 (2001).
Because courts favor the settlement of labor-management disputes
through arbitration, our "role . . . in reviewing arbitration awards
is extremely limited and an arbitrator's award is not to be set aside
lightly." Id. at 513.
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The New Jersey Arbitration Act provides four statutory grounds
for vacating an arbitration award:
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.
[N.J.S.A. 2A:24-8.]
The United States Supreme Court has also articulated a public
policy exception in holding that courts may not enforce collective
bargaining agreements that are contrary to "well defined and
dominant" public policy. W.R. Grace & Co. v. Local Union 759, Int'l
Union of United Rubber,
461 U.S. 757, 766 (1983). New Jersey's public
policy exception requires "heightened judicial scrutiny" when an
arbitration award implicates "a clear mandate of public policy."
Weiss v. Carpenter,
143 N.J. 420, 443 (1996). "A court may vacate
such an award provided that the 'resolution of the public-policy
question' plainly violates a clear mandate of public policy." N.J.
Tpk. Auth. v. Local 196, I.F.P.T.E.,
190 N.J. 283, 294 (2007) (quoting
Weiss,
143 N.J. at 443). Usage of this public policy exception should
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be limited to "rare circumstances." Tretina v. Fitzpatrick & Assocs.,
135 N.J. 349 (1994).
The scope of an arbitrator's authority is based on the terms of
the contract between the parties. Cty. Coll. of Morris Staff Asso.
v. Cty. Coll. of Morris,
100 N.J. 383, 391 (1985) (citations omitted).
"When 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." Ibid.
When the parties have an agreement that includes certain terms
and conditions, "the arbitrator may not disregard those terms," and
"may not rewrite the contract terms for the parties." Grover v.
Universal Underwriters Ins. Co.,
80 N.J. 221, 230 (1979). "In the
absence of directions to the contrary his award should be consonant
with the matter submitted." Id. at 230-31.
II.
The arbitration provision of the CNA, Article XX, Section 7,
Paragraph f, states:
The arbitrator will be bound by the provisions
of this Agreement and the Constitution and the
Laws of the State of New Jersey and of the
United States of America and be restricted to
the application of facts and issues submitted
to him/her involving the grievance and shall
consider it and nothing else. The arbitrator
shall not have the authority to add to,
modify, subtract from or alter in any way the
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provisions of this Agreement or any amendment
or supplement thereto.
[(Emphasis added).]
In its first point, the PBA contends the arbitrator's award
should be vacated because it is contrary to public policy. It
bears noting before we begin our discussion of the issue, that the
arbitrator was not presented with the public policy issue in the
stipulated question, as the judge also observed.
In any event, the public policy exception for vacating
arbitration awards is very narrow. N.J. Tpk. Auth.,
190 N.J. at
294. "[P]ublic 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." Id. at 295.
The PBA fails to support its claim that not awarding bonus
vacation days for FMLA leave violates public policy. There is
neither precedent for the proposition nor any compelling logic
behind it. The PBA takes the contention a step further, asserting
that the award was procured by "undue means" because it violated
public policy. We conclude that the County's policy regarding
bonus vacation days does not violate public policy and thus the
decision was not the product of undue means.
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The only relevant case cited by either party is Chubb v.
City of Omaha, Nebraska,
424 F.3d 831 (8th Cir. 2005). In that
case, a police officer was denied an annual leave bonus offered
to employees taking less than forty hours of sick leave in a given
year. The officer appealed the denial of the bonus, as his paid
sick leave was taken concurrent to unpaid FMLA leave. He argued
that the employer's failure to give him the bonus days penalized
him for his exercise of the FMLA.
As the court stated in dismissing the claim, the FMLA only
mandates that the employer allow the leave, and bans the employer
from punishing the employee for taking it. It does not require
payment of his or her salary. That the officer took sick leave
moved him into the category of persons excluded from the bonus
time. The court said that it "decline[d] to punish [the employer]
for putting [the officer] in a better position than he would have
enjoyed had Omaha fulfilled only its minimum duties under the
FMLA." Chubb, 424 F.3d at 833. In other words, although the City
did not prevent the employee from gaining the benefit of collecting
his salary while enjoying concurrent sick leave and FMLA leave,
neither could the employer be required to do more than federal law
mandated.
Furthermore, under federal law, the County can require that
employees elect concurrent paid sick leave under the FMLA, or
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allow the employee to make such an election. 29 U.S.C.
§ 2612(d)(2)(B).
Additionally, the applicable federal regulation states that
when a bonus
is based on the achievement of a specified
goal such as hours worked, products sold or
perfect attendance, and the employee has not
met the goal due to FMLA leave, then the
payment may be denied, unless otherwise paid
to employees on an equivalent leave status for
a reason that does not qualify as FMLA leave.
[29 C.F.R. § 825.215(c)(2).]
The PBA suggests that other types of paid leave, such as for jury
duty, are equivalent to the FMLA leave, however, those are
entitlements that would not require concurrent use of accumulated
sick time.
Nothing that the PBA suggests falls within that narrow scope
of a clear public policy exception that allows for an arbitration
award to be vacated. Indeed, the arguments appear to be based on
"amorphous considerations of the common weal." N.J. Tpk. Auth.,
190 N.J. at 294. Therefore, the arbitrator's decision did not
ignore or violate public policy.
A decision reached by "undue means" is "a situation in which
the arbitrator has made an acknowledged mistake of fact or law or
a mistake that is apparent on the face of the record." Borough
of E. Rutherford v. E. Rutherford PBA Local 275,
213 N.J. 190, 203
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(2013); see
N.J.S.A. 2A:24-8(a). The arbitrator's decision, which
excluded a specific discussion of the FMLA, was therefore not
reached by undue means.
Finally, the PBA contends that the arbitrator rewrote the
contract. The PBA argues that defendant's past practice means the
language in the CNA has been interpreted as excluding FMLA leave
from its provisions. The arbitrator concluded that the contract
language was clear and unequivocal, meaning he could not entertain
past practice or parole evidence in order to interpret it. We
agree——the language in Section 5 is clear and unambiguous regarding
the use of sick leave. Therefore, past practice does not dictate
the result. Id. at 204; Hall v. Bd. of Educ. of Jefferson,
125 N.J. 299, 306 (1991).
To allow the practice to continue would also mean that PBA
members who used FMLA leave gain an additional benefit not
available to other employees who use their sick time for another
reason. There is no basis for doing so. This practice, an extra-
employment contract benefit for Sheriff's employees, is not
legally justified.
The arbitrator allowed those employees who took FMLA time in
2014 to retain their bonus vacation days, despite his decision,
on the theory that they would otherwise suffer unanticipated loss
of benefits. This was a reasonable and pragmatic means of
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addressing the past practice. It does not, however, justify a
rewriting of the contract.
Affirmed.
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