On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-709-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2008
Before Judges Miniman and Lihotz.
Plaintiff Joseph Grasso is a retired member of the Glassboro Police Department (GPD). Plaintiff appeals from summary judgment granted to defendant Fraternal Order of Police, Glassboro Lodge No. 108 (FOP).
The FOP is the exclusive collective bargaining agent for Glassboro police officers. Plaintiff argues that despite his retired status, the FOP was required to fairly represent him in a dispute with the Borough of Glassboro (Glassboro) regarding reimbursement of Medicare insurance costs. The trial judge determined plaintiff, as a retired officer, could not avail himself of the grievance procedure, which applied to employees because the FOP had no duty to provide fair representation on plaintiff's behalf. We affirm.
The 1992-93 collective bargaining agreement (1993 CBA) negotiated by the FOP with Glassboro for the benefit of the GPD required:
[u]pon retirement, the EMPLOYEE shall enjoy the same medical benefits set forth as though he/she were still actively employed.
There shall be no decrease in medical benefits and shall be upgraded equally as though still employed. These benefits shall continue until the death of the retiree.
Plaintiff, a former FOP member, retired from the GPD on March 26, 1993. In 2003, upon reaching age 65, plaintiff became eligible for social security benefits and began receiving bills from the Social Security Administration for Medicare Part B premiums. Plaintiff requested Glassboro to reimburse these costs. Glassboro denied his request.
Plaintiff sought assistance from the FOP to collect the insurance costs from Glassboro. The FOP sent a letter to Glassboro supporting plaintiff's position. The FOP declined to take further action.
Plaintiff filed suit against Glassboro and successfully obtained a judgment requiring Glassboro to reimburse Medicare Part B premium costs to retirees. In that action, the court denied plaintiff's request for attorney's fees.
Plaintiff initiated this matter against the FOP seeking damages equal to the attorney's fees and costs of suit he incurred in his successful action against Glassboro. Plaintiff argued the FOP owed him a duty of fair dealing and representation to assure compliance with the 1993 CBA it had negotiated. Plaintiff suggested his retired status does not impact the FOP's duty to enforce the claim for benefits because he remained a beneficiary under the 1993 CBA.
The trial court granted the FOP's summary judgment request and dismissed plaintiff's action concluding that because plaintiff was not an employee, as defined in the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. ...