On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-802-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Lihotz.
Defendant Borough of West Wildwood (the Borough) appeals from a Law Division order entered in the summary action filed by plaintiff, the International Brotherhood of Teamsters, Local #331 (Local #331), to confirm an arbitration award. The award directed the Borough to reinstate William Null as the foreman in the Borough's Department of Public Works (DPW). Null had been terminated for allegedly misappropriating municipal property. Local #331 filed a grievance challenging Null's termination, which was reviewed in arbitration. The trial court denied the Borough's motion to vacate and confirmed the arbitration award in favor of Null. On appeal, the Borough argues the Law Division erred in failing to set aside the arbitrator's award because the arbitrator refused to consider material evidence and applied the incorrect standard of proof. We affirm.
These facts are taken from the administrative record. Null was hired by the Borough in 1999 as a laborer in the DPW, and promoted to foreman in 2005. On September 17, 2008, Null was suspended with pay, pending completion of the Borough's investigation of whether he and other DPW employees had used Borough funds to purchase auto parts for equipment the Borough did not own.*fn1
Null was a member of Local #331, which negotiated a Collective Negotiations Agreement (CNA) governing the terms of employment of the Borough's employees, effective from January 1, 2007 through December 31, 2011. We review the CNA clauses relevant to Null's suspension.
Article XIII set forth the basis for employee discipline, requiring written warning notices to the employee, with a copy to Local #331, before any discharge or suspension. Exceptions to this provision were made for certain defined conduct, including "[p]roven theft or dishonesty." Article XV delineated a four-step grievance procedure, which "constitute[d] the sole and exclusive method for resolving grievances between the parties covered by this Agreement[.]" If a grievance was not settled after steps one through three, step four allowed either party to "submit the dispute to arbitration pursuant to the rules and regulations of the Public Employee Relations Commission [(PERC).]"
The Borough hired retired State Police Major James Fallon of Fallon Associates to investigate whether there were irregularities in the DPW's records. Fallon identified seventy auto parts purchases whose application did not match the Borough's vehicles. He further narrowed the group of invoices seemingly unrelated to the DPW equipment to twenty-four signed by Null. The total expenditure of municipal funds for these twenty-four invoices was $495.97.
Upon review of the conclusions set forth in Fallon's investigative summary, the Borough notified Null that the "unauthorized use of [Borough] purchase accounts and . . . property"*fn2 resulted in the conversion of his suspension to one without pay. Null was formally terminated on January 21, 2009.
In accordance with the terms of the CNA, Local #331 filed a grievance on behalf of Null. The matter proceeded to step four arbitration, which commenced on June 26, 2009. Prior to the arbitration hearing, the parties mutually agreed to define the issue for determination: "Was the suspension and termination of William Null for just cause? If not, what should be the remedy?"
As stated in the CNA, the arbitrator was bound by the terms of the CNA and was restricted to the application of the facts presented to him/her involved in the grievance. The arbitrator shall not have the authority to add to, modify, detract from or alter in any way the provisions of [the CNA] or any amendment or supplement thereto. The decision of the arbitrator shall be final and binding.
During the arbitration, in addition to Fallon, the Borough offered testimony from the Mayor, the Chief Financial Officer, the Borough Clerk and the Commissioner of Public Works. Null testified on his own behalf and presented testimony from the Borough Commissioner in charge of revenue and finance.
The Borough's proofs predominately relied on Fallon's investigative findings and conclusions. Fallon related the methodology he utilized to review the hundreds of parts purchased by the DPW from Christman Auto Parts between 2004 and 2008. Fallon described how he matched the invoices with the Borough's vehicles and identified those invoices that had no relationship to Borough equipment.*fn3 Fallon was questioned on direct examination using specific vouchers the Borough sought to bring to the attention of the arbitrator. He generally noted that Exhibits 18 and 20 of his report listed the non-matching parts purchased by Null, but did not address every purchase made that was listed in his report. From his ...