May 4, 2009
CITY OF CLIFTON, PLAINTIFF-RESPONDENT,
CLIFTON PBA LOCAL #36, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-174-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2009
Before Judges Stern and Payne.
Defendant, Clifton PBA Local #36, appeals from a trial judge's decision vacating an arbitrator's award of thirteen shift differential (SD) days to police detectives. The judge ruled that, in a case in which the union's grievance was filed eighteen months after the alleged wrong first occurred, and not within the twenty days provided for in the collective bargaining agreement, the arbitrator exceeded his powers when he stated that he had waived the twenty-day contractual time limit. In reaching that conclusion, the judge discussed the Supreme Court's decision in Board of Ed. of Borough of Alpha v. Alpha Ed. Ass'n, 190 N.J. 34 (2006), a case in which the Court recognized and applied the continuing violation doctrine to preserve a late-filed grievance by the union resulting from the Board's cessation of payment of health insurance benefits. However, the judge then found:
The arbitrator acknowledges that that [applicability of the continuing violation doctrine] was the defendant's argument but fails to state that he agrees with defendant. He also does not in any part state that he finds the grievance to have been timely made. Instead, he states that he has made the determination that the 20 day time period should be waived. The CBA however makes clear that the time period must be strictly construed and limits the arbitrator's powers to the provisions of the CBA. Moreover, the CBA also unambiguously states that the parties may mutually agree to extend the contract time limits. However, it is apparent that there was no mutual agreement to waive those time frames.
Because the judge found that the arbitrator had exceeded his powers in considering the matter, the judge did not render an opinion on any substantive issue raised by the parties. On appeal, the union again claims that the award, made retroactive only to the time of filing of the grievance, was timely pursuant to the continuing violation doctrine as recognized by the Supreme Court. The plaintiff, City of Clifton, like the trial judge, argues that the arbitrator did not find a continuing violation to have occurred, but rather, determined to waive the contractual twenty-day requirement. We find that the arbitrator's decision is susceptible to both interpretations. In his decision, the arbitrator recognized that the collective bargaining agreement stated that the arbitrator "shall be bound by the provisions of this Agreement" and that the agreement specified that a grievant "shall institute action under provisions hereof within twenty  calendar days after the event giving rise to the grievance has occurred." However, when considering the timeliness of the union's action, the arbitrator wrote:
The first question to be answered is whether the grievance was timely filed and if not what shall be the remedy. Both parties argued this point very extensively in their post hearing briefs. And each had merit. The major consideration that developed was whether or not this was the type of situation where the failure to meet the very limiting words of the Agreement as to the limited time in which a grievance must be filed should be set aside on the basis of the concept that this is a continuing violation of the Agreement should that be proven. As hours of work ranks as one of the most significant elements of the Agreement and as it was the focus of the intense and extended litigation leading up to the arbitration award and as there is a continuing issue as to its application I have determined that there should be a waiver of the 20 day limit set forth in the Agreement with an understanding that any remedy, if warranted, would be retroactive only to the date of filing the grievance. Therefore I have proceeded to consider the merits of the PBA's case.
Our reading of the foregoing passage suggests that the arbitrator nominally declined to decide the applicability of the continuing violation doctrine, couching his decision in terms of waiver. However, the result that he reached was identical to the result reached in Alpha by application of the continuing violation doctrine. See 190 N.J. at 41 (finding a continuing violation but declining to apply award retroactively beyond date of grievance). As a consequence, we remand the matter to the arbitrator for clarification of the basis for his decision on the timeliness of the action.
The City also attacks the award substantively, stating that it was not supported by facts in the record. In particular, the City claims that the thirteen SD days served to equalize the hours worked by detectives with the hours worked by other police employees. The union argues that detectives were entitled to thirteen SD days, regardless of any considerations of equalization, because they worked shifts of five days on/two days off, five days on/two days off and then five days on/three days off, and thus they did not have a regular day off. We decline to address this issue at the present time, since it was never considered by the trial court. Any substantive arguments should be raised there following clarification by the arbitrator of the basis for his consideration of the matter. Remanded to the arbitrator for clarification. Jurisdiction is not retained.
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