On appeal from Superior Court, Chancery Division, Hudson County.
Lynch, Kole and Petrella.
The Town of Kearny appeals the trial judge's confirmation of an arbitrator's award in favor of respondent Kearny PBA Local #21 in consolidated actions in which the Policemen's Benevolent Association (PBA) sought confirmation of the arbitration award and the town sought vacation of the award.
Arbitration*fn1 was provided for in the collective bargaining agreement between the town and the PBA as the union representing the police officers. The facts presented in the arbitration proceeding were contained in undisputed exhibits and by way of stipulation. The essential facts are thus undisputed. The arbitrator awarded overtime pay to all of the policemen of the Kearny Police Department when, because of a "job action" by other town employees, the police chief directed that all members of the department were "to remain on a standby basis until further notice, and are not to leave the Town of Kearny." This standby status lasted during the period from 8:40 p.m. on Monday, October 11, 1976 through noon, Friday, October 15, 1976. The directive required policemen residing outside the town to remain within the municipality during this period rather than to return home if they resided outside the town. There was no proof before the arbitrator or the trial judge as to the number of resident and nonresident policemen or where any nonresidents lived. Policemen residing within the town could under the order go home and any place within the town limits but were prohibited from leaving the town. The order did not provide for leaving the town even with the permission of the police chief. Violation of the directive would presumably have subjected the offending police officer to disciplinary action.
In arbitration the PBA's position was that being required to remain within town limits after regular working hours meant they were on duty continuously during the entire
period the directive was in effect, and thus entitled them to overtime pay. Among other points, the town argued, was that (1) no officer on standby had actually been called in to work during the emergency period; (2) because a provision for overtime pay for standby time had been rejected during negotiation of the then effective contract, the members of the PBA were not entitled to standby pay; and (3) the award would result in unlawful payment of public employees for work not performed,*fn2 contrary to the no work -- no pay rule.
The proposal requested by the PBA, but rejected in the contract negotiations, provided:
The arbitrator agreed that the PBA should not be permitted to obtain through arbitration what it could not achieve at the bargaining table. But, he said that the rejected contract proposal for compensation for standby pay at home was less restrictive than the standby directive issued by the police chief. It is true that although the contract proposal sought overtime for "standby at home," the directive precluded those living outside the town from even going home. The arbitrator then found, without differentiating between residents and nonresidents, that this directive placed a greater burden on the freedom of movement of all police officers. Thus, he reasoned that an award of overtime pay under the directive would not be granting the same type of compensation rejected during the contract negotiations. Under his award all police officers were to be
paid for 55 hours and 20 minutes of overtime, whether sick, on vacation or whether or not they would have worked during all the hours. The award was based on a 24-hour tour, deducting an eight-hour normal tour of duty, for the period the directive was in force.
We recognize that the general rule favors upholding the validity of the award of an arbitrator. LaStella v. Garcia Estates , 66 N.J. 297, 303 (1975); Ukrainian Nat'l Urban Renewal v. Muscarelle, Inc. , 151 N.J. Super. 386, 396 (App. Div. 1977). The scope of review in private sector arbitration has generally been limited to determining whether there exists any of the grounds for vacation of the award listed in N.J.S.A. 2A:24-8, whether or not a court might have found differently. See Daly v. Komline-Sanderson Engineering Co. , 40 N.J. 175, 178 (1963); Ukrainian Nat'l Urban Renewal v. Muscarelle, Inc., supra (151 N.J. Super. at 396) and Carpenter v. Bloomer , 54 N.J. Super. 157, 168 (App. Div. 1959). We have applied that scope of review here. Compare Div. 540, Amalgamated Transit Union AFL-CIO v. Mercer Cty. Improvement Auth. , 76 N.J. 245 (1978), which involved the scope of review in public sector arbitration under a compulsory arbitration statute.
We conclude that given his guiding standard under the statute the arbitrator "imperfectly executed" his powers by arriving at an award which is internally inconsistent. Therefore, the award must be ...