ORANGE POLICE DEPARTMENT SUPERIOR OFFICERS ASSOCIATION v. CITY OF ORANGE TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1198-17T3

ORANGE POLICE
DEPARTMENT SUPERIOR
OFFICERS ASSOCIATION,

          Plaintiff-Respondent,

v.

CITY OF ORANGE TOWNSHIP,

     Defendant-Appellant.
______________________________

                    Argued November 27, 2018 – Decided January 14, 2019

                    Before Judges Rothstadt, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Essex County, Docket Nos. C-
                    000108-17 and C-000115-17.

                    John J.D. Burke argued the cause for appellant
                    (Scarinci & Hollenbeck, LLC, attorneys; Ramon E.
                    Rivera, of counsel and on the briefs; Jason T. Mushnick
                    and Krystle Nova, on the briefs).

                    Lynsey A. Stehling argued the cause for respondent
                    (Law Offices of Daniel J. Zirrith, LLC, attorneys;
               Daniel J. Zirrith, of counsel and on the brief; Lynsey A.
               Stehling, on the brief).

PER CURIAM

      The City of Orange Township (City) appeals from a September 19, 2017

order confirming two arbitration awards that granted longevity back pay, with

interest, to a City police lieutenant. The awards arose out of a grievance that

had been filed by the lieutenant's union, Orange Police Department Superior

Officers Association (Union). The City argues that the awards should be vacated

because the arbitrator exceeded or imperfectly executed his authority, the

grievance was untimely or barred by laches, and there was no legal basis to

award back pay or interest. In addition, before the Chancery Court, the City

argued for the first time that there should have been no award for the time when

the lieutenant was a patrol officer and not a superior officer represented by the

Union.

      Having reviewed the City's arguments in light of the record and law, we

affirm substantially for the reasons set forth in the written opinion of Judge

Thomas M. Moore. In his thorough, twenty-one-page decision, Judge Moore

accurately set forth the facts and procedural history of the grievance and

arbitration.    In summary, the City and Union are parties to a collective

bargaining agreement (Agreement) that governs the terms and conditions of the

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employment of superior police officers. The Agreement provides for longevity

incremental payments. The Agreement also sets forth procedures for asserting

a grievance and for arbitration if the grievance is not resolved.

      The grievant, Lieutenant Rothenberger, asserted that the City failed to

credit her with longevity for the forty-one months she was placed on involuntary

disability pension between November 1997 and April 2001.               The City

acknowledged that Rothenberger was entitled to the forty-one months of time

towards her longevity.     The City, however, disputed giving Rothenberger

longevity credit retroactively. That dispute was submitted to arbitration and the

arbitrator made two awards. First, the arbitrator found that Rothenberger was

entitled to credit for the forty-one months and she was also entitled to back pay

for the period of time that she was not receiving the proper incremental longevity

payments. Second, the arbitrator awarded a specific amount for back pay, which

was just over $129,000, and reasonable interest.

      After accurately summarizing the facts and procedural history, Judge

Moore analyzed each of the City's arguments, which are the same arguments the

City iterates on this appeal. Judge Moore correctly identified the limited scope

of review a court uses in evaluating a challenge to a public-sector arbitration

award. See Policemen's Benevolent Ass'n v. City of Trenton,  205 N.J. 422, 428-


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29 (2011) (discussing the deferential standard of review and recognizing that

"[t]hat high level of deference springs from the strong public policy fav oring

'the use of arbitration to resolve labor-management disputes.'" (quoting Linden

Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko,  202 N.J. 268, 275-76

(2010))). Judge Moore also correctly identified and applied the law in rejecting

each of the City's arguments.

      In that regard, Judge Moore correctly ruled that the arbitrator had not

exceeded or imperfectly executed his authority.        See  N.J.S.A. 2A:24-8(d).

Instead, the arbitrator had properly considered the issues the City and Union had

agreed to arbitrate.   Moreover, the arbitrator had based his award on the

governing provisions of the Agreement. As Judge Moore noted, the arbitrator's

interpretation of the agreement was reasonably debatable and, thus, the awards

were not subject to being overturned by a court. See Borough of E. Rutherford

v. E. Rutherford PBA Local 275,  213 N.J. 190, 201 (2013) ("Generally, when a

court reviews an arbitration award, it does so mindful of the fact that the

arbitrator's interpretation of the contract controls."). See also N.J. Transit Bus

Operations, Inc. v. Amalgamated Transit Union,  187 N.J. 546, 553-54 (2006)

("[R]eview of an arbitrator's interpretation is confined to determining whether

the interpretation of the contractual language is 'reasonably debatable.'") .


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      Judge Moore also correctly held that there was no basis to reject the

arbitrator's finding that the City had waived the issue of the timing of the

grievance. The Agreement expressly stated that the procedural steps, which

included timing, may be waived by mutual agreement. The arbitrator found such

a waiver based on evidence that Rothenberger sought an earlier resolution of the

longevity issue and City officials repeatedly told her the issue would be

resolved.

      Judge Moore then addressed the City's laches argument and properly

rejected it. Here, the arbitrator determined the length of the delay was because

of the City's continued reassurance to Rothenberger that she would receive her

longevity benefits. Laches, in essence, "is inexcusable delay in asserting a

right." Atlantic City v. Civil Serv. Comm'n,  3 N.J. Super. 57, 60 (App. Div.

1949). Laches, moreover, is an equitable defense and "the central issue is

whether it is inequitable to permit the claim to be enforced[.]" Lavin v. Bd. of

Educ. of Hackensack,  90 N.J. 145, 152-53 (1982).

      Addressing the argument that the arbitrator had no authority to award

longevity when Lieutenant Rothenberger was a patrol officer, Judge Moore

correctly held that the City had waived that argument by not presenting the

argument to the arbitrator. The City contends that there is no transcript of the


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arbitration proceeding and, thus, it is not clear that they did not present the issue.

Here, however, the arbitrator carefully identified each argument raised by the

City in his written awards. Thus, the record establishes that the City did not

raise this argument before the arbitrator.       If an issue is not presented in

arbitration, it should not be the subject of an action to confirm or vacate the

arbitration award. See N.J. Turnpike Auth. v. Local 196,  190 N.J. 283, 292

(2007) ("[A]rbitration is 'meant to be a substitute for and not a springboard for

litigation.'" (quoting Local No. 153, Office & Prof'l Emps. Int'l Union, AFL-

CIO v. Tr. Co. of N.J.,  105 N.J. 442, 449 (1987))).

      Next, Judge Moore rejected the City's contention that the arbitrator had

improperly given preclusive effect to another arbitration award. In rendering

his decision, the arbitrator cited to the arbitration of another grievance involving

police officer James Rainforth. Judge Moore correctly recognized that the

arbitrator had not given the Rainforth arbitration preclusive effect; rather, the

arbitrator considered that other award, among other things, but made his

substantive determination based on the parties' Agreement.

      Finally, Judge Moore correctly held that the arbitrator had a sound basis

for awarding back pay and reasonable interest.           The Agreement does not

preclude either back pay or interest, and both back pay and interest are


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reasonable remedies in resolving Rothenberger's grievance. See Borough of E.

Rutherford,  213 N.J. at 205 (recognizing that arbitrators are commissioned to

reach fair solutions); see also United Steel Workers of Am. v. Enter. Wheel &

Car Corp.,  363 U.S. 593, 597 (1960) (explaining that an arbitrator who is

commissioned to interpret and apply a collective bargaining agreement has

authority "to bring his [or her] informed judgment to bear in order to reach a fair

solution of a problem").

      In summary, the City agreed to arbitrate this dispute, participated in the

arbitration, acknowledged that Rothenberger was entitled to credit for the forty-

one months she was on involuntary disability pension, repeatedly informed

Rothenberger that her longevity would be corrected, but now objects to the

arbitrator's award of back pay and interest. Judge Moore comprehensively

analyzed each of the City's arguments. The facts set forth in his opinion are

based on credible evidence in the record. His summary of the governing law is

correct. Having conducted a de novo review, we agree with Judge Moore's

conclusion that there is no basis for vacating or modifying the arbitrator's

awards. Accordingly, Judge Moore correctly confirmed the awards.

      Affirmed.




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