On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7003-06.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Payne and Newman.
In these consolidated appeals, PBA Local 261 and its member, Brenda Groslinger, appeal from a trial court's order vacating an arbitration award in appellants' favor, as exceeding the power of the arbitrator and violating public policy, and remanding the matter for a new arbitration before a different arbitrator. We reverse.
The procedural and factual basis for this appeal is somewhat lengthy. At the time of the events in issue, Groslinger had been a patrol officer with the Wyckoff Police Department for approximately six or seven years. She was the only female member of the Department among twenty-four to twenty-six officers. During a prior pregnancy, Groslinger had sought to continue work in a non-patrol position. Although the Department did not have an official light duty policy, Police Chief Ydo had accommodated Groslinger's condition by assigning her to three months of training in the duties of a detective followed by an assignment to an open dispatch position.
Within a year of Groslinger's return to work after delivery of her first child, she again became pregnant, and again sought to be employed in a light-duty assignment. However, this time, no open dispatch positions existed, and as a result, Groslinger was assigned by Chief Ydo to perform administrative work and assume the duties of a per diem civilian dispatcher on an as-needed basis. Whereas Groslinger always previously had the benefit of a regular schedule, known one year in advance, the new position required her to work very irregular hours, sometimes with as little as eight hours between shifts, and with only one month or less notice of her schedule.
On September 14, 2005, Groslinger provided the Department with a physician's note stating that she could no longer perform the duties of a police officer as the result of her pregnancy. On the following day, Chief Ydo sent correspondence to Groslinger directing her to provide, on or before September 19, a specific indication from Groslinger's physician of the work activities/job functions she was able to perform. The doctor responded by stating that "[w]e see no reason for her to be unable to do the civil dispatch position at this time." On September 21, 2005, Chief Ydo advised Groslinger to return to work on September 23, which she did.
Additionally, in a letter dated September 23, Chief Ydo noted that Groslinger had spoken to her physician on September 16 regarding her work status, but she did not inform her supervisor of her medical clearance or report for work in the period from September 17 through 20. Groslinger was directed to immediately prepare a written report explaining her absence and her failure to contact her supervisor. In response, Groslinger filed a grievance, dated September 30, 2005, protesting the Department's alleged sexual harassment and claiming discrimination as the result of the failure of the Department to offer paid sick leave for any pregnancy-related leave she might need in the future. According to Groslinger, "[s]uch conduct violate[d] sections 1.01, 3.01 and 21.00 as well as any other applicable provisions of the Collective Bargaining Agreement, The New Jersey Law Against Discrimination, and the New Jersey Family Leave Act." The matter was referred to the Township Administrator for further investigation, resulting in a report delivered in December 2005.
On November 2, 2005, Groslinger and the PBA signed an agreement with Ydo acknowledging that neither the Department nor the Township had adopted a light duty policy or practice, but nonetheless agreeing that as a non-precedential accommodation, Groslinger would be assigned to police administrative functions and dispatch duty for so long as a need for such services existed. Groslinger and the PBA also acknowledged "the unprecedented and temporary nature of [the] reassignment" and that shift changes were "possible, and more than likely," due to the as-needed basis of some of Groslinger's functions. The agreement further stated that the days in August that Groslinger had been absent from work would be treated as sick leave, pursuant to Article 21 of the collective bargaining agreement. Further, the agreement provided that if Groslinger were deemed medically unable to work, she would be "entitled to be paid sick leave in accordance with the applicable Collective Bargaining Agreement and the Township's personnel policies." The agreement provided that, by signing, no party was waiving any statutory or contractual rights that they might have.*fn1
On December 7, 2005, Groslinger served a further grievance. In it, she stated that since informing Chief Ydo of her intention to take sick leave for her pregnancy, she had been ordered to work in an "administrative" position as a "civilian dispatcher," an out-of-title job, in violation of Article 21.00 of the collective bargaining agreement "in that there is no provision requiring officers to work in alternate job positions when that officer has a medical condition." Groslinger then set forth Article 21.01, which stated: "Sick leave shall be granted to all members of the Department for a reasonable length of time up to one (1) year considering the type and extent of the sickness and the length of service time that the member has had with the Department." Groslinger continued by alleging that the Department had no contractual authority to implement a policy requiring her to work out-of-title in an "administrative" or "civilian dispatcher" position while suffering from an illness, and that the unilateral change in the terms and conditions of her employment violated the collective bargaining agreement and the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -30. Groslinger sought rescission of the Department's order that she work in a position outside her job description and that it make her whole for other losses that she had suffered.
Chief Ydo denied Groslinger's grievance on the basis that Groslinger had not requested sick leave, and indeed she requested a continuation of work assignments compatible with her condition. Groslinger appealed the decision to the Township Committee, which denied the appeal on January 11, 2004, noting that the work request had emanated from Groslinger, that she had not requested sick leave, and that any such request would be honored.
A request to the Public Employees Relations Commission (PERC) for arbitration was thereupon filed, and on May 19, 2006, an arbitration hearing was held. The grievance was specified to be "unilateral change in maternity benefit administration."
In the meantime, commencing in November 2005, Groslinger had been seeking a specification of the number of sick days to which she was entitled. By letter dated April 5, 2006, she was informed that she had twenty-seven remaining sick days as of December 31, 2005. This allocation was said to be consistent with a Township sick leave policy, dated April 10, 2006, granting each Township employee fifteen sick days per year. On April 11, 2006, Groslinger filed a further grievance alleging that the Township's newly promulgated sick leave policy violated the one-year sick leave provision of Article 21.00 of the collective bargaining agreement. A further grievance on this subject was filed by the PBA. Following denial by Chief Ydo and the Township Committee, the matters were referred to arbitration and a settlement was reached "premised upon certain mutually acceptable revisions to the language in Article 21" of the collective bargaining agreement. The terms of that settlement have not otherwise been specified, and at oral argument, counsel for the PBA asserted without contradiction that the settlement was not consummated.
Additionally, on April 17, 2006, Groslinger filed a civil action against the Township and Chief Ydo alleging violations of the Law Against Discrimination and the Conscientious Employee Protection Act and seeking entry of a cease and desist order, ...