On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-2382-01.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 19, 2002
In this public sector employment matter, an arbitrator awarded back pay to public sector employees denied overtime due to the assignment of other employees to out-of-title work. We must decide whether an arbitrator may award back pay when the collective bargaining agreement does not specifically authorize an award of back pay to remedy a breach of a contract provision. The Law Division confirmed an award of back pay; the employer appeals. We affirm.
Plaintiff Office & Professional Employees International Union Local 32, AFL-CIO (Local 32) represents sludge dewatering machine operators who, it alleged, lost overtime due to the assignment of work within their job classification to personnel in other job classifications. Local 32 alleged the out-of-title work assignments were made to avoid paying overtime to the dewatering operators and violated Articles X, Paragraph G and XXXIV, Paragraph A of the collective bargaining agreement.
Article X governs overtime. Paragraph G provides that"[o]vertime work shall be distributed as equally as possible at each work location and Department/Division among employees within the same job classification." Article XXXIV governs job duties and responsibilities. Paragraph A provides that"[e]mployees covered by this Agreement shall perform the duties and responsibilities outlined in the NJDOP job specifications for their positions, as required by such agency."
Local 32 filed a grievance on behalf of the sludge dewatering machine operators which was eventually submitted to arbitration in accordance with the contract. Article IV, Paragraph E, subparagraph 2, outlines the authority of the arbitrator. It provides that:
The arbitrator shall be bound by the provisions of this Agreement and the Constitution and laws of the State of New Jersey, and be restricted to the application of the facts presented to him/her involved in the grievance. The arbitrator shall not have the authority to add to, modify, detract from or alter in any way the provisions of this Agreement or any amendment or supplement thereto. The decision of the arbitrator shall be final and binding.
At the arbitration, both parties agreed that the issue before the arbitrator was whether defendant Camden County Municipal Utilities Authority (CCMUA) violated"the contract by using non-dewatering machine operators to perform the work of that classification and if so, what shall be the remedy?"
The arbitrator found that the employer could show no overlap of duties between the sewage plant operator job classification and the sludge dewatering operator job classification and concluded that the sewage plant operators were assigned out-of-title tasks. Therefore, the arbitrator issued an order to the employer requiring it to cease and desist from assigning sewage plant operators to work normally performed by sludge dewatering machine operators, and to provide access to records to allow the parties to calculate the amount of overtime lost by the sludge dewatering machine operators. The arbitrator also required the amount due to be divided equally among all sludge dewatering machine operators eligible to perform overtime work. Following a period of discovery and negotiations concerning the amount due, a final award of $21,318.22, divided equally among the twelve eligible operators, was entered.
Local 32 filed a complaint in Superior Court to confirm the award. The CCMUA filed an answer and counterclaim to vacate the award. The judge held that back pay is unavailable when the contract does not provide for this remedy. Following the issuance of the decision in State, Dep't of Corr. v. Int'l Fed'n of Prof'l and Technical Eng'rs, Local 195, 169 N.J. 505 (2001) (International Federation), Local 32 moved for reconsideration. The judge granted reconsideration and confirmed the arbitration award because the CCMUA consented to the award of back pay. It is from this order that the CCMUA appeals.*fn1
In International Federation, the Court addressed the appropriate remedy in a public sector labor dispute. The arbitrator found that corrections officers had been improperly denied overtime in violation of a collective negotiations agreement and awarded back pay. Id. at 510. The contract expressly authorized back pay as a remedy for a contract violation. Id. at 511. In resolving the case, the Court was confronted with the"no work, no pay" rule. Id. at 510.
The CCMUA argues that back pay is not a remedy for a breach of a collective bargaining agreement when the agreement does not expressly allow such a remedy. It contends that International Federation, supra, merely allows parties to a public sector collective bargaining agreement to negotiate this remedy as a term and condition in future labor contracts. It further disputes that it reached any agreement to compensate the operators following the arbitrator's initial award; it contends it simply followed the mandate of the initial award. Finally, it contends that the International ...