On appeal from the Superior Court, Chancery Division, Passaic County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.
[184 NJSuper Page 592] Plaintiff City of Paterson appeals from a judgment of the trial court confirming the award of an arbitrator in respect of a grievance filed by defendant Paterson Police P.B.A. Local # 1 (P.B.A.).
Essentially, the subject of the grievance was the entitlement of a group of police officers to the benefits accorded by N.J.S.A. 40A:9-5. That statute provided in pertinent part that in certain circumstances the period of a municipal employee's prior employment by a county or other municipality shall be added to his current period of employment for "any purpose whatsoever" in respect of which total length of service is relevant. The gravamen of the dispute between the parties in its present posture is predicated on the holding of this court on January 21, 1980, that N.J.S.A. 40A:9-5 is unconstitutional as special legislation because of the limitation of its benefits to employees in counties of the first and second class. Kenney v. East Brunswick Tp., 172 N.J. Super. 45 (App.Div.1980).
Although the grievance here was filed prior to January 21, 1980, the arbitration hearing was not held until several months after the Kenney decision. It is consequently the position of the city that the arbitration award, which afforded rights to the grievants pursuant to N.J.S.A. 40A:9-5, was procured by undue means requiring its vacation. See N.J.S.A. 2A:24-1 et seq., 2A:24-8(a). The contention of the P.B.A., with which both the arbitrator and the trial judge agreed, is that the arbitrator was purporting to construe not statutory entitlements but rather contractual ones. Thus, it argues that since the contract was construable as having incorporated the benefits of N.J.S.A. 40A:9-5 prior to the unconstitutionality holding, those benefits remained contractually available despite the intervening demise of the statute.
The collective negotiation agreement here in question covered the period of August 1, 1978 to July 31, 1980. There had apparently been some dispute between the parties during the contract term respecting the application of N.J.S.A. 40A:9-5. Consequently, the Director of the Department of Public Safety issued a directive to the city's police chief and fire chief, effective September 12, 1979, purporting to clarify the city's policy in this regard. The directive provided that subject to the exceptions therein stated, every appointee to the police or fire
department would be required to execute a written waiver of all rights under that statute as a condition of appointment. Those police appointees excepted were those "immediately transferring" from employment by another paid police department, a county police department, a county park police department or a housing police department, provided such appointees had satisfactorily completed police officer training as prescribed by the New Jersey Training Commission. Such excepted appointees were also required to execute written waivers of seniority rights under the statute as they pertained to promotions, vacation days and vacation "picks," but were to be accorded seniority credit for the purpose of determining pay grade. The grievants, all of whom were denied the full scope of statutory rights, included both officers who had executed the required waivers and those who were appointed despite the fact that they had not.
The grievance was formally filed by the P.B.A. with the chief of police on October 31, 1979 and denied by the Director of Public Safety on November 5, 1979. The arbitration thereafter ensued, resulting in an award dated August 4, 1980, sustaining the grievance and directing the city to grant the grievants "credit for prior service as required under N.J.S.A. 40A:9-5, including time prior to a break in service."
Before addressing the merits of the controversy, the arbitrator considered the city's argument that the right to grieve had been waived by the P.B.A. because of the untimeliness of the filing of the grievance. Although the collective negotiation agreement does require the filing of a grievance within 15 days following the event complained of and the event here occurred no later than the September 12, 1979 directive, the arbitrator nevertheless rejected the city's timeliness claim on the ground that there had been ongoing discussions between the parties regarding the application of the statute for some months prior to the filing of the grievance. It was the conclusion of the arbitrator that these discussions should not procedurally prejudice either party. He thus permitted the city to raise the
timeliness argument at the arbitration over the P.B.A.'s objection but determined the question adversely to the city both as a matter of equity and fundamental fairness and as a matter of contract interpretation. We note the foregoing because the city continues to raise the timeliness objection. We regard the action of the arbitrator in this regard as unimpugnable since it was clearly within his jurisdiction to construe the contract in respect of the application of grievance time periods.
With respect to the merits of the controversy, it was first the view of the arbitrator that neither the waiver requirement nor the actual execution of waivers by some of the grievants precluded the sustaining of the grievance. It was his conclusion in this respect that the city's waiver requirements conflicted with various provisions of the collective negotiation agreement. These provisions included the stipulation that all statutory rights not specifically referred to in the contract were to be deemed not to have been waived by the P.B.A. and an undertaking by the city not to interfere with any employee rights conferred by law. And see Kloss v. Parsippany-Troy Hills Tp., 170 N.J. Super. 153 (App.Div.1979). The arbitrator further noted that since the ...