On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4343-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
By Judges Parrillo, Espinosa and Skillman.
An arbitrator found defendant Township of Middletown (the Township) violated the terms of a collective bargaining agreement by failing to pay overtime to police officers who appeared, without notice to the Township, at a colleague's disciplinary hearing. However, the arbitrator also reached an apparently inconsistent conclusion that the Township was not required to pay the officers overtime. Plaintiff Policemen's Benevolent Association, Local 124 (PBA) appeals from the latter conclusion in the arbitration decision and an order confirming the arbitration award, arguing the arbitrator exceeded his authority. For the reasons that follow, we affirm.
The Township served Sergeant William Colangelo with preliminary notice for a minor disciplinary action, seeking to impose a minor discipline that included a fine of approximately $250, the estimated cost to the Township for reimbursing the towing costs of a motorist whose vehicle was ordered towed in violation of Middletown Police Department (the Department) rules. Sergeant Colangelo requested an internal hearing before the Township Administrator. Sergeant Colangelo asked four other officers, Bernard Chenoweth, Kimberly Best, Adam Colfer and Larry Schachtel (collectively, the grievants), to testify on his behalf at the hearing at the Township Municipal Building on April 25, 2007. Sergeant Colangelo told the grievants, each of whom was scheduled to be off-duty that day, that the Superior Officers' Association (SOA) attorney would have subpoenas available for them on the morning of the hearing.
The grievants appeared as requested but the SOA attorney did not have subpoenas for them. They were told that subpoenas would be faxed to them that afternoon after the attorney returned to his office. The grievants waited in the officers' room to be called as witnesses but their testimony was not needed because the Township and Sergeant Colangelo settled the disciplinary matter. They received the subpoenas that afternoon and submitted them in support of requests for overtime.
Relevant provisions of the collective bargaining agreement between the Township and the PBA (the Agreement) state in pertinent part:
B. Employees shall not be paid overtime for hours of work in excess of the normal day unless such overtime is authorized by the Chief of police or the officer in charge of the shift.
F. Any employee, including detectives, whose presence shall be required in any court, including Municipal, County, Superior or any Administrative hearing in the Department of Motor Vehicles, at a time other than when they are on duty, shall be paid for that time at the rate of time-andone-half (1 1/2). This shall include officers responding to their own complaints, as witnesses at the direction of their superior officers or the Chief Of Police, and in response to subpoenas from any court, on call attendance in court, in lieu of subpoenas, arraigned either by the Prosecutor's Office, Superior Officers of the Department, the Chief of Police or attorneys representing parties in civil litigation, criminal prosecution or defense or administrative hearings. For court time, no less than four (4) hours. If called in, employees shall be paid no less than four (4) hours.
The Township denied the grievants any payment for their attendance. The PBA filed a grievance on behalf of the four officers, alleging a violation of Article XI - Overtime, ¶ F, and demanding payment of four hours pay at overtime rates for responding to Sergeant Colangelo's request. After the grievances were denied by the Township in the internal steps of the contractual grievance procedure, the PBA filed for binding arbitration pursuant to the Agreement.
In his opinion, the arbitrator summarized the testimony at the hearing. The Chief of Police, Robert Oches, testified the grievants failed to comply with the requirement of Department Rules and Regulations, 4.12.7, to notify him immediately regarding the subpoena.*fn1 According to Chief Oches, his office frequently communicated with an attorney concerning the necessity for subpoenaed officers to appear to testify. Because a settlement of the proposed discipline had already been discussed prior to the hearing date, the Chief did not believe a hearing would be necessary. If he had received prior notice of the request for the officers to appear, he believed his office would have contacted the SOA attorney to inquire regarding the need for their appearance and that it was likely the SOA attorney would have agreed their appearance was unnecessary. Chief Oches testified the applications for overtime were denied because the grievants did not submit the subpoenas or request overtime in advance.
PBA President Chenoweth testified that the practice in the department was that officers subpoenaed for an appearance on a day on which they were scheduled to be off-duty were not required to give advance notice of the appearance.
The arbitrator found the matter governed by Article XI, ¶ F of the Agreement, and concluded that the Township was contractually obligated to honor subpoenas by attorneys in administrative disciplinary proceedings pursuant to the second sentence, which requires overtime to be paid for a "response to subpoenas from any court, on call attendance in court, in lieu of subpoena arraigned (i.e., called before the court) by . . . attorneys representing parties on civil litigation, criminal prosecution or defense or administrative hearing." The arbitrator rejected the Township's argument that the subpoenas issued for a police disciplinary hearing are not binding because the agreement did not limit the payment of overtime to responses to lawful subpoenas. The arbitrator also discounted the fact that no subpoenas were served prior to the settlement of the matter, finding it a common practice for witnesses to be advised that subpoenas would be served on the day of a hearing and the failure to so serve was not due to any fault of the officers.
Although the arbitrator found the Township had violated the Agreement by failing to pay overtime to the grievants, the arbitrator also concluded that such violation did not warrant the remedy sought. The arbitrator found it significant that the subpoenas were not for a routine court matter but for a matter arising out of department employment, which triggered the requirement under ¶ 4.12.7 of the Department's Rules and Regulations that officers immediately notify the Chief of Police if subpoenaed in such matters. The arbitrator stated the Chief had the right to know who was subpoenaed and found credible his testimony that it was likely an agreement would have been reached, obviating the need for the grievants to appear, ...