On appeal from Superior Court, Chancery Division, Essex County.
Michels, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.
Judge Geoffrey Gaulkin entered a judgment confirming an arbitration award for the year 1979 resulting from compulsory interest binding arbitration between plaintiff Firemen's Association and the City of Newark. He held that the award was supported by substantial credible evidence and that the city's counterclaim was without merit. The counterclaim in part attacked the validity of a rule of the Public Employment Relations Commission, N.J.A.C. 19:16-5.7(f), that permits during the course of the compulsory arbitration proceeding, the acceptance by the arbitrator, in his discretion, of a revision of the position by either party on any issue until a hearing is deemed closed, provided that the other party is given the opportunity to respond. In the instant case the procedure set forth in this rule was followed by the arbitrator.
The City appeals on the following grounds: (1) the arbitrator's award is not supported by substantial credible evidence and thus should be reversed and (2) the award should be vacated because the arbitrator exceeded his power by permitting the plaintiff Association to revise its economic offer after commencement of arbitration.
We have considered the City's first argument on this appeal in the light of the arbitrator's award. We find no sound basis for disturbing the determination below that there was substantial credible evidence in the record supporting the award and that the arbitrator properly took into account the public interest and the impact of his decision on the public welfare as well as the other factors required by law. We cannot say that
the award was unreasonable. See, N.J. State P.B.A., Local 29 v. Town of Irvington , 80 N.J. 271 (1979); Div. 540 v. Mercer Cty. Improvement Auth. , 76 N.J. 245 (1978).
We now consider the City's contention that the award must be vacated because the arbitrator exceeded his power in permitting the Association to modify its economic offer during the course of arbitration. This procedure, it is asserted, violates the following express terms of N.J.S.A. 34:13A-16(f)(1), part of the statute governing compulsory arbitration for police and fire departments. N.J.S.A. 34:13A-16(f)(1) provides:
Prior to the arbitration proceedings, the parties shall submit to the arbitrator or tripartite panel of arbitrators, pursuant to rules and procedures established by the commission, their final offers in two separate parts: (a) a single package containing all the economic issues in dispute and (b) the individual issues in dispute not included in the economic package, each set forth separately by issue. (emphasis supplied)
The parties submitted offers to the arbitrator at the beginning of arbitration. As the arbitration proceeded the Association revised its economic offer downward. The arbitrator chose the last economic offer of the Association pursuant to N.J.S.A. 34:13A-16(d)(2) of the same statute, which provides for binding arbitration
The revised offers were made pursuant to N.J.A.C. 19:16-5.7(f), the pertinent provisions of which are set forth above.
The City argues here and contended in the court below that this rule contravenes the statutory requirement that final offers be submitted to the arbitrator prior to arbitration. N.J.S.A. 34:13A-16(f)(1). The City's position is that since the statute refers to final offers, such offers cannot be revised. The City also contends that allowing ...