CITY OF MILLVILLE v. NEW JERSEY CIVIL SERVICE ASSOCIATION, CUMBERLAND COUNCIL 18
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1324-16T2
CITY OF MILLVILLE,
Plaintiff-Appellant,
v.
NEW JERSEY CIVIL SERVICE
ASSOCIATION, CUMBERLAND
COUNCIL 18,
Defendant-Respondent.
_______________________________
Argued December 5, 2017 – Decided January 3, 2018
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-0500-16.
Kyle D. Weinberg argued the cause for
appellant (Blaney & Karavan, PC, attorneys;
John R. Dominy, on the briefs).
Kevin D. Jarvis argued the cause for
respondent (O'Brien, Belland & Bushinsky, LLC,
attorneys; Kevin D. Jarvis, of counsel and on
the brief).
PER CURIAM
Plaintiff City of Millville (City) appeals from an October
24, 2016 order of the Law Division denying the City's order to
show cause to vacate an arbitration award and dismissing its
complaint against defendant NJ Civil Service Association
Cumberland Council 18 (Union). We affirm.
Lynne Porreca Compari was elected to the City's Board of
Commissioners. As part of her elected duties, she supervised the
City's Department of Consumer Affairs, which included the Division
of Inspections (Division). The Division processed property rental
applications and construction permits. Compari noticed a backlog
in processing paperwork for the Division. Despite the backlog,
Compari terminated a clerk in the Division who was responsible for
processing the property rental applications. Compari was not
permitted to hire a replacement clerk until the terminated clerk's
appeal process was complete. In the interim, Compari attempted
to assign the terminated clerk's work to other workers until the
workload became too much for the remaining office staff. Compari
requested permission from the City to pay the staff overtime to
complete the work, but the request was denied.
To reduce the backlog, Compari unilaterally decided to pay
her private secretary from her personal business to work in the
Division. Compari's private secretary worked a few days in July
2 A-1324-16T2
2015, and a few hours on a Saturday in September 2015, processing
the City's rental renewal applications.
In September 2015, members of the City's construction office
learned that a non-unit employee performed work that Union members
would have completed. As a result, the Union filed a grievance
alleging a breach of the parties' Collective Negotiations
Agreement (CNA). The Union's grievance asserted that the City
hired a non-union member to perform work specified in the CNA to
be done by Union members. The CNA contained a "recognition" clause
that provided as follows:
The Employer recognizes the Council as the
designated representative for the purpose of
collective negotiations, according to law for
all full time Millville City Employees, but
excluding policemen, firemen, confidential
employees, managerial executives, and
supervisors within the meaning of the Act.
The part time employees covered by this
Agreement shall be those employees who are
permanently employed working a full calendar
year with a minimum of 21 hours per week as
their scheduled work period. This does not
include seasonal employees, summer employees,
temporary emergency employees and newly hired
employees working through a test period. It
is agreed that upon the creation of any new
titles, which are appropriate to this unit of
employees, these new titles shall be covered
by this Agreement.
In accordance with the CNA, the New Jersey Public Employment
Relations Commission (PERC) designated Susan Osborn as the
3 A-1324-16T2
grievance arbitrator. The arbitrator took testimony and
documentary evidence during an arbitration hearing.
Based on the evidence at the hearing, the arbitrator concluded
that the City violated the CNA by using a non-Union individual to
perform work that Union members performed exclusively. The
arbitrator found that the CNA's "recognition clause is fundamental
to all other rights in a collective negotiations agreement. The
Union is always entitled to enforce the recognition clause."
In addition, the arbitrator rejected the City's argument that
the Union waived its right to object to the work in September 2015
"by tacitly agreeing to [the non-union individual's] work earlier
in July 2015." The arbitrator found that no Union member was
aware of Compari's use of her private secretary to perform Union
work on behalf of the City prior to filing the grievance.
The arbitrator also dismissed the City's argument that the
Union had failed to object to the City's use of volunteers in
other situations, including the City's use of students to clean
up City parks, work that otherwise would have been performed by
Union members. The arbitrator reasoned that the City failed to
"demonstrate that the amount of work performed by these volunteers
is other than part-time, and from the scant description in the
testimony, it appears likely these volunteers work[ed] well below
the part-time threshold in the recognition clause."
4 A-1324-16T2
The arbitrator directed the City "to cease and desist from
using non-unit employees or volunteers to perform [Union] work,
especially in the rental registrations office, without first
notifying [the Union] and obtaining [the Union]'s agreement."
However, the arbitrator declined to award monetary damages to the
Union.
Thereafter, the City filed a summary action and order to show
cause in the Law Division, seeking to vacate the arbitrator's
award. The Union responded to the pleading and filed a cross-
motion seeking to confirm the award.
The motion judge heard the matter and issued a written
decision on October 24, 2016, dismissing the City's complaint and
confirming the arbitrator's award. The judge found that the City
failed to satisfy any of the statutory requirements under
N.J.S.A.
2A:24-8 to vacate the arbitrator's award or
N.J.S.A. 2A:24-9 to
modify the arbitrator's award.
The judge expressly rejected the City's argument that the
matter be remanded to PERC for a scope of negotiations
determination.1 The judge found that the City was "equitably
1
The City did not raise the PERC scope of negotiations issue until
oral argument. The motion judge invited the parties to submit
supplemental briefing, which he reviewed prior to making his
determination. Thus, we find no abuse of discretion in the motion
judge's consideration and rejection of the City's scope argument
5 A-1324-16T2
estopped" from pursuing a scope of negotiations determination with
PERC because the City elected to proceed by way of arbitration.
The judge reasoned that the City "should [not] be permitted to
forego a challenge to the Scope, and then resurrect the
arbitrability issue when its gamble fails."
The City appealed the judge's order confirming the
arbitrator's award and denying its motion to vacate the decision.
New Jersey recognizes a "strong preference for judicial
confirmation of arbitration awards." Weiss v. Carpenter, Bennett
& Morrissey,
143 N.J. 420, 442 (1996). A court shall accept an
arbitrator's award as long as it is "reasonably debatable."
Middletown Twp. PBA Local 124 v. Twp. of Middletown,
193 N.J. 1,
11 (2007) (quoting N.J. Tpk. Auth. v. Local 196,
190 N.J. 283, 292
(2007)). According to the "reasonably debatable" standard, a
court reviewing an arbitration decision "may not substitute its
own judgment for that of the arbitrator, regardless of the court's
view of the correctness of the arbitrator's position." Borough
of E. Rutherford v. E. Rutherford PBA Local 275,
213 N.J. 190,
201-02 (2013) (quoting Middletown Twp. PBA Local 124,
193 N.J. at
11).
for the reasons stated in his memorandum opinion. See R. 1:6-2(a);
Enourato v. N.J. Bldg. Auth.,
182 N.J. Super. 58, 64–65 (App. Div.
1981) (acknowledging trial court's discretion to allow oral
motions), aff'd,
90 N.J. 396 (1982).
6 A-1324-16T2
A court may overturn an arbitration decision if it is against
public policy, but this standard will only be met in "rare
circumstances." N.J. Tpk. Auth.,
190 N.J. at 294. The "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." Borough of Glassboro v. Fraternal Order of Police,
Lodge No. 108,
197 N.J. 1, 10 (2008) (quoting N.J. Tpk. Auth.,
190 N.J. at 295).
On appeal, the City argues that it is appropriate to challenge
the scope of negotiations after an arbitration decision, and that
the motion judge erred in declining to refer the matter to PERC.
In the context of an arbitration, "[a]bsent a pre-arbitration
scope petition asserting that negotiations are not permitted on a
subject, the parties are deemed to have agreed to arbitrate all
unresolved issues." Twp. of Teaneck v. Teaneck Firemen's Mutual
Benevolent Assoc. Local No. 42,
353 N.J. Super. 289, 299 (App.
Div. 2002) (finding that a party cannot petition PERC for a scope
determination after the parties go to interest arbitration),
aff'd,
177 N.J. 560 (2003).
We determine that there is a clear preference for PERC to
make scope determinations before arbitration. In Ridgefield Park
Education Association v. Ridgefield Park Board of Education, 78
7 A-1324-16T
2 N.J. 144, 155 (1978) the Court concluded that the proper process
for a scope petition is to file the petition before arbitration.
To allow parties to raise scope of negotiations issues after
arbitration would defeat the purpose of arbitration and foster
litigation. "Arbitration should spell litigation's conclusion,
rather than its beginning." N.J. Tpk. Auth.,
190 N.J. at 292.
We agree with the motion judge that the proper procedure was for
the City to file a scope petition prior to arbitration. To allow
otherwise would give the City an improper "second bite at the
apple."
The City also argues that it has an inherent managerial right
to subcontract work, and that right cannot be bargained away. The
City contends that the decision to use Compari's personal secretary
was a form of subcontracting. A public employer's decision to
subcontract is "a non-negotiable matter of managerial
prerogative." In re Local 195,
88 N.J. 393, 408 (1982).
We reject the City's argument on this point. The work
performed by Compari's personal secretary was not sent out to bid
either as a contractual temporary replacement for the terminated
Union employee or as a subcontract for temporary staffing to reduce
the Division's backlog. Nor did the municipal governing body
otherwise authorize any subcontracting of the work. Thus, the
City's subcontract argument fails.
8 A-1324-16T2
We further find that the judge correctly affirmed the
arbitrator's award as "reasonably debatable." See N.J. Tpk. Auth.,
190 N.J. at 292. There was sufficient, credible evidence in the
record to support the judge's deference to the arbitrator's award
as "reasonable debatable."
The City also argues that the arbitrator failed to consider
public policy implications in her decision, including the City's
ability to use volunteers in the future. We reject the argument
that the arbitrator's award has such far-reaching consequences.
Our decision has no precedential value as to the City's ability
to use volunteers in the future provided the use of volunteers
does not violate the CNA's recognition clause. Volunteers who
clean up City parks or organize senior citizen events are not
performing Union work. The City is only prohibited from using
volunteers, like Compari's secretary, to perform work done
exclusively by Union members. Nor did the municipal governing
body otherwise authorize any subcontracting of the work.
The City further contends that the arbitrator failed to
consider the public interest in her decision. We reject the City's
argument on this point. The arbitrator specifically stated:
I acknowledge Commissioner Compari's dilemma
and her authority to do what is necessary,
generally, to ensure the efficient operations
of the department. She was responsible for
overseeing the reduction of the backlog of
9 A-1324-16T2
rental registration clerical work, but could
not obtain approvals from City officials to
hire new staff or offer overtime to unit
employees willing to perform the work.
However, the City cannot solve these difficult
problems by violating the recognition clause
of the agreement with Council 18.
. . . .
One measure Compari might have taken instead
of bringing in outside help, would have been
to assign the construction technical
assistants overtime for compensatory time off
rather than cash overtime.
We concur with the motion judge that the arbitrator properly
considered the impact her decision would have on the City as well
as the public. Further, the arbitrator did not award any money
to the Union that could have had a "potentially catastrophic"
effect on the City. S. Plainfield Bd. of Educ. v. S. Plainfield
Educ. Assoc.,
320 N.J. Super. 281, 286 (App. Div. 1999).
Lastly, the City argues that the judge erred in confirming
the arbitrator's decision because the Union sought confirmation
more than three months after the award was issued contrary to
N.J.S.A. 2A:24-7.
Rule 4:67 governing summary actions allows a court to
adjudicate a matter where "it is likely that the matter may be
completely disposed of in a summary manner." R. 4:67-1(b). To
proceed summarily, the court must be "satisfied that the matter
10 A-1324-16T2
may be completely disposed of on the record." Ibid. In Heffner
v. Jacobson, our Supreme Court held that
the prevailing party in an arbitration
proceeding does not lose his right to judicial
enforcement of the award once the statutory
three-month period has run. Although such
party may no longer automatically avail
himself of the remedy set forth in N.J.S.A.
2A:24-7, i.e., a summary action for
confirmation brought pursuant to R. 4:67-1(a)
and R. 4:67-2(a), he may nonetheless bring a
new action by summons and complaint to enforce
the award, and may file a motion under R. 4:67-
2(b) to proceed summarily.
[
100 N.J. 550, 555 (1985) (quoting Heffner v.
Jacobson,
185 N.J. Super 524, 528 (1982)).]
We find that the judge properly confirmed the arbitration
award despite the Union's counterclaim being filed after the
expiration of the three-month statutory period.2 It would have
been inefficient for the judge to adjudicate the City's order to
show cause in the absence of his simultaneous consideration of the
Union's counterclaim seeking to confirm the award. To return the
matter to the court to be litigated would have wasted judicial
resources and imposed significant additional costs on both the
City and the Union.
Affirmed.
2
The City's summary action was filed within the three-month
statutory timeframe.
11 A-1324-16T2
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