On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-839-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa, Alvarez and Coburn.
Plaintiff Policemen's Benevolent Association, Local No. 11 (PBA), the collective bargaining representative and negotiating agent for Trenton's police officers, patrol officers, and detectives, appeals from the Law Division's reversal of a September 13, 2007 labor arbitration decision interpreting a collective bargaining agreement provision as to the ten minutes prior to roll call. We now reverse and reinstate the arbitrator's decision.
On September 5, 2006, defendant City of Trenton's (Trenton) Police Director, Joseph Santiago, issued Memorandum Order 2006-102 requiring patrol officers to appear ten minutes prior to the beginning of their shift. Employees arriving later than ten minutes prior to the start of a scheduled shift would "be considered late for duty." On November 7, 2006, Acting Police Director Fred W. Reister issued Memorandum Order 2006-132 requiring Criminal Investigation Bureau detectives assigned to the evening shift to report for roll call ten minutes prior to their tour of duty, scheduled to start at 5:00 p.m. No compensation was paid to the patrol officers or detectives for this ten-minute early muster.
Accordingly, a grievance was filed by the PBA alleging that Trenton violated the terms of the parties' collective bargaining agreement. A request was made to the New Jersey Public Employment Relations Commission to submit the dispute to arbitration. The parties stipulated that the following framed the issue for the arbitrator's consideration:
Did the employer violate the collective bargaining agreement by requiring employees to report to work ten minutes before the start of their shifts without additional pay or compensation? If so, what shall be the remedy?
In his decision, the arbitrator first noted that the ten-minute early muster was properly instituted by the issuance of the memoranda. Furthermore, the early muster was mandatory time at work, meaning lateness could result in disciplinary action. Those straightforward conclusions laid the groundwork for the more difficult question of whether affected police personnel were entitled to compensation for the ten-minute muster.
The arbitrator relied on two sections of the collective bargaining agreement in reaching his decision that officers and detectives were entitled to pay, albeit at straight time and not at overtime. Section 8.03 of Article VIII in the collective bargaining agreement, titled "Compensation for Overtime," states:
It is recognized that employees may be required for the purpose of muster at the commencement of a tour to report in advance of the tour starting time and for the purpose of report making at the end of a tour to remain at the termination of [a] tour. In accordance with this recognition, no overtime shall be paid for a ten minute period prior to the commencement of a tour, or for a ten minute period at the termination of a tour, but in the event an employee is required to report earlier than ten minutes prior to the commencement of a tour or to remain beyond ten minutes after the end of a tour, the employee shall be paid the overtime rate for all time worked in excess of, the work day of eight consecutive hours.
The arbitrator noted, among other things, that the paragraph mandates overtime to be paid "if [o]fficers are required to report earlier than ten minutes before the shift" or to remain more than ten minutes after the end of the tour of duty. (Emphasis added).
Appendix B of the collective bargaining agreement provides:
Because the new schedule requires fewer weekly hours worked by members and does not provide sufficient manpower to allow training during normal work hours, members will be required to report for certain training outside normal working hours at no additional compensation. This training, on an annual basis, will consist of two days of firearms training and qualification, and up to 40 hours of other training mandated by the Chief of Police, to be scheduled in blocks of not less than four hours, as ordered by the Chief of Police or his designee. It is anticipated that training for anyone not on this new ...