On appeal for the Superior Court of New Jersey, Chancery Division, Bergen County, C-394-99E.
Before Judges Petrella, Newman and Braithwaite.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, the Port Authority of New York and New Jersey (PA), appeals from a judgment of the Chancery Division, confirming an arbitration award of back pay to William Behrens, a former sergeant of the Port Authority Police Division. We now reverse.
These are the relevant facts. On June 3, 1995, while off duty, Behrens was involved in a car accident with Richard Pinto on Route 9 in Middlesex County, New Jersey. Because Behrens allegedly brandished his weapon at Pinto, a warrant was issued for Behrens' arrest on November 1, 1995. That same day, the PA suspended Behrens without pay.
On February 21, 1996, Behrens was indicted by a Middlesex County Grand Jury. On June 9, 1996, prior to the institution of departmental disciplinary proceedings and prior to the resolution of the criminal charges, Behrens voluntarily retired from the PA. The criminal case against Behrens was tried in Middlesex County in January 1997. On January 9, 1997, the jury found Behrens not guilty of the criminal charges.
On February 6, 1997, Richard D. Williams of the PA responded to counsel for Behrens' "inquiry concerning the status of the outstanding disciplinary charges which were pending against William Behrens at the time he retired on June 9, 1996." Williams wrote that because Behrens "has voluntarily separated from Port Authority employment via retirement, the charges which sought involuntary termination as a penalty, will not be pursued."
Shortly thereafter, on February 27 and April 1, 1997, plaintiff, Port Authority Police Sergeants Benevolent Association, Inc. (SBA), filed grievances against the PA on behalf of Behrens. Behrens sought, inter alia, full back pay from the date of his suspension on November 1, 1995 until the date of his retirement on June 9, 1996. The grievances ultimately proceeded to arbitration.
A March 8, 1993 collective bargaining agreement ("Memorandum of Agreement") between SBA and PA sets forth the terms and conditions of employment of SBA members with the PA. Appendix G of this agreement contains a "Grievance-Arbitration Procedure" that delineates the authority of an arbitrator to resolve disputes:
(c) The arbitrator shall not have the power to add to, subtract from or modify the provisions of the Memorandum of Agreement and shall confine his decision solely to the interpretation and application of the Memorandum of Agreement. He shall confine himself to the precise issue presented for arbitration and shall have no authority to determine any other issues not so presented to him nor shall he submit observations or declarations of opinion which are not essential in reaching the determination.
(d) The decision or award or relief afforded by the arbitrator shall be final and binding upon the Port Authority, the Association and the grievant or grievants to the extent permitted by and in accordance with applicable law and the Memorandum of Agreement.
Appendix G of the collective bargaining agreement also establishes procedures governing "Temporary Suspensions Without Pay:"
A. Any employee may be temporarily suspended without pay pending the preparation of charges and the completion of disciplinary proceedings (but not for more than two weeks without the approval of the Executive Director); and such temporary suspension shall not be deemed to ...