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Township of Neptune v. Afscme Council 73


February 15, 2012


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0966-10.

Per curiam.


Argued May 11, 2011

Before Judges Axelrad and R. B. Coleman.

Plaintiff Township of Neptune appeals from a June 1, 2010 order of the Law Division that denied its motion to vacate an arbitration award entered pursuant to the parties' collective negotiation agreement (CNA) providing for binding arbitration, and granted the motion of defendant AFSCME Council 73, Local 1844 AFL-CIO (the Local), on behalf of Michelle Bivens, to confirm the award. We affirm.

Bivens, an assistant purchasing agent for the Township, was suspended without pay, effective January 20, 2009, pending a disciplinary hearing after she forged her supervisor's signature on a payment voucher which she then submitted for processing. The voucher represented that she was entitled to compensation time (comp time) she had not earned. Bivens, who had no prior history of misconduct, insisted she never intended to collect money on the voucher, and she presented it as a joke and to bring attention to what she believed were ongoing abuses of comp time.

The Township Administrator conducted an investigation of Bivens's submission of the voucher. He also contacted the police, who concluded there was no basis to charge Bivens with criminal conduct. The Township filed disciplinary charges against Bivens in the form of a Personal Violation Notice charging her with "[d]isorderly or immoral conduct, serious breech of discipline, [n]egligence and willful waste of public funds, misconduct and harassment." Discipline consisted of thirty days suspension and reassignment to another Township department. However, as the disciplinary hearing proceeded, the charges were amended to encompass claims of insubordination, harassment of other employees and creation of a hostile work environment. Ultimately, the Township modified its intended sanctions to include termination, and at the conclusion of its disciplinary hearing, it terminated Bivens's employment.

Pursuant to the CNA, the Local grieved Bivens's dismissal through binding arbitration. At the arbitration, the parties presented testimony, evidence, and arguments. The arbitrator concluded that Bivens had committed serious offenses in the exercise of bad judgment constituting just cause for the Township to impose severe discipline against her. Nevertheless, in light of articulated mitigating factors, including her long and satisfactory employment record and concepts of progressive discipline, Arbitrator Susan Wood Osborn concluded that termination could not be upheld. Instead, she directed that Bivens, whose suspension without pay had lasted for a year, should be reinstated to her former position, without back pay, or at the option of the Township, transferred to another department within Township government. By order to show cause, the Township sought to vacate the arbitration award, which the Local, by counterclaim, sought to confirm.

The Township contended the award was in violation of public policy and that the arbitrator exceeded her authority. Rejecting those contentions, Judge John R. Tassini noted in a written opinion the strong preference for judicial confirmation of arbitration awards. He found "[t]he suspension for one year without pay (consistent with the arbitrator's award) was substantial discipline." The judge framed the issue before him as "not what a judge would have imposed as discipline, but whether the arbitrator's award should be vacated." Though recognizing Bivens "certainly violated public policy[,]" Judge Tassini concluded the "Township has not shown that the award is contrary to a statute, regulation or precedent. Consequently, under [New Jersey Turnpike Authority v. Local 196, 190 N.J. 283, 291 (2007)] and consistent with the policy of deference to arbitration and supporting arbitration as an efficient means of resolution of parties' differences[,]" he declined to vacate the arbitrator's award. This appeal ensued.

In this appeal, the Township argues reinstatement is against public policy and the arbitrator's award should be vacated under a public policy exception to public sector arbitration awards. It further argues the criminal code sets forth public policy mandates against misconduct that preclude the arbitrator's award. The Township also argues the arbitrator exceeded her scope of authority under the agreement, as the reinstatement of Bivens to any position at her previous salary is contrary to public policy. Based on our review of the record and applicable law, we are not persuaded by any of the Township's arguments and affirm the arbitrator's award substantially for the reasons articulated by Judge Tassini.


At the outset, we acknowledge that we engage "in an extremely deferential review when a party to a collective bargaining agreement has sought to vacate an arbitrator's award." PBA, Local 11 v. City of Trenton, 205 N.J. 422, 428 (2011). "That high level of deference springs from the strong public policy favoring 'the use of arbitration to resolve labor management disputes.'" Id. at 429 (quoting Linden Bd. of Educ.

v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 275-76 (2010)). Our role "in reviewing arbitration awards is extremely limited and an arbitrator's award is not . . . set aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513 (2001) (citing Kearny PBA Local 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)).

We will not substitute our judgment for that of a labor arbitrator, and we will uphold an arbitral decision so long as the award is "reasonably debatable." PBA, Local 11, supra, 205 N.J. at 430-31. See also N.J. Tpk. Auth., supra, 190 N.J. at 301. "Reasonably debatable" means fairly arguable in the minds of ordinary laymen. See Standard Oil Dev. Co. Emps. Union v. Esso Research & Eng'g Co., 38 N.J. Super. 106, 119 (App. Div.), sustained on rehearing, 38 N.J. Super. 293 (App. Div. 1955). However, our Supreme Court permits an arbitrator's award to be vacated "if it is contrary to existing law or public policy." N.J. Tpk. Auth., supra, 190 N.J. at 293-94 (citation and internal quotation marks omitted).


The Township first argues it is being constrained to violate public policy by either returning Bivens to her former position or transferring her outside of the Finance Department at her previous salary. We disagree.

We recognize the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, which applies to CNA disputes, permits courts to vacate an arbitration award in certain circumstances:

a. Where the award was procured by corruption, fraud or undue means;

b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;

d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. [N.J.S.A. 2A:24-8.]

The United States Supreme Court has also stated that courts may not enforce public sector collective bargaining agreements that are contrary to "well defined and dominant public policy." W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183, 76 L. Ed. 2d 298, 307 (1983).

On the other hand, the "public policy exception requires 'heightened judicial scrutiny' when an arbitration award implicates 'a clear mandate of public policy[.]'" N.J. Tpk. Auth., supra, 190 N.J. at 294 (quoting Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 443 (1996)). This standard will only be met in "rare instances." Ibid. (emphasis omitted). The Court has explained:

Assuming that the arbitrator's award accurately has identified, defined, and attempted to vindicate the pertinent public policy, courts should not disturb the award merely because of disagreements with arbitral fact findings or because the arbitrator's application of the public-policy principles to the underlying facts is imperfect. If the correctness of the award, including its resolution of the public- policy question, is reasonably debatable, judicial intervention is unwarranted. The judiciary's duty to provide an enhanced level of review of such arbitration awards is discharged by a careful scrutiny of the award, in the context of the underlying public policy, to verify that the interests and objectives to be served by the public policy are not frustrated and thwarted by the arbitral award.

However, if the arbitrator's resolution of the public-policy question is not reasonably debatable, and plainly would violate a clear mandate of public policy, a court must intervene to prevent enforcement of the award. In such circumstances, judicial intervention is necessary because arbitrators cannot be permitted to authorize litigants to violate either the law or those public-policy principles that government has established by statute, regulation or otherwise for the protection of the public. [Weiss, supra, 143 N.J. at 443.]

Significantly, in determining whether the public policy exception applies, the court should concentrate on the award, not the conduct which gave rise to the dispute. N.J. Tpk. Auth., supra, 190 N.J. at 297.

"[F]or purposes of judicial review of labor arbitration awards, public policy sufficient to vacate an award must be embodied in legislative enactments, administrative regulations, or legal precedents," not "amorphous considerations" of the public's well-being. Id. at 295.

The Township points to N.J.S.A. 2C:30-2(a) and N.J.S.A. 2C:30-5 for the proposition that misconduct of public servants must not be tolerated. N.J.S.A. 2C:30-2(a) provides:

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner

N.J.S.A. 2C:30-5(a) and (b) state:

The Legislature finds and declares that:

a. Public confidence in the institutions of government is undermined when an official engages in any form of misconduct involving the official's office.

b. Such misconduct, and the corresponding damage to the public confidence, impairs the ability of government to function properly, fosters mistrust and engenders disrespect for government and public servants.

The Township asserts these statutory provisions demonstrate returning Bivens to her former position as an assistant purchasing agent would be inconsistent with public policy. These cited statutes are examples of the general prohibition of misconduct in office, but they do not relate specifically to Bivens's conduct. Moreover, without suggesting that a criminal conviction is required, we note that Bivens was never convicted, let alone charged with a crime. The argument overlooks the fact that the arbitrator found Bivens never intended to collect on the voucher. Hence, one cannot conclude Bivens acted "with purpose to obtain a benefit for [her]self or another or to injure or to deprive another of a benefit." N.J.S.A. 2C:30-2(a). Under such circumstances, the arbitrator appropriately determined the termination sanction did not fit the offense.

The Township's arguments suggest the arbitrator could not supplant the sanction and the arbitrator overstepped her bounds when she directed the reinstatement of Bivens to her former position or to some other position outside of the financial department. Not only is that remedy not shown to be prohibited by any statute, regulation or other clear mandate of public policy, it is not shown to be beyond the CNA. That agreement specifically provides for binding arbitration, without limiting the power of the arbitrator to fashion an appropriate remedy. Moreover, the Court has observed that "deference to an arbitrator's award reinstating an employee to his former position following admittedly serious misconduct is consistent with arbitration jurisprudence across the nation." N.J. Tpk. Auth., supra, 190 N.J. at 302 (citations omitted).

The Township also argues the arbitrator's award violates public policy because the statute which governs purchasing agents was amended, effective in 2011, to include good moral character as a requirement. Even if it were appropriate to apply a statute which became effective after the date of the acts for which disciplinary charges are filed - a highly doubtful proposition - the Township's argument that the after-the-fact amendment would strengthen the law governing the punishment of purchasing agent misconduct is simply not persuasive.

The Township further argues that the term "regulations," as stated in New Jersey Turnpike Authority, includes administrative decisions. In support of that argument, it cites Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), in which the Court considered whether an employer could fire an at-will employee for wrongful discharge if the employee could establish that the discharge was contrary to a clear mandate of public policy. In that context, the Court stated that sources of public policy could include legislation, administrative rules, regulations or decisions and judicial determinations. Id. at 72.

By comparison, in addressing the public policy exception affecting challenges to public sector arbitration awards, the Court has stated the exception should only apply to public policy embodied in legislative enactments, administrative regulations, or legal precedents. N.J. Tpk. Auth., supra, 190 N.J. at 302. We do not presume that it was through inadvertence that administrative decisions were omitted from the sphere of clear mandate of public policy in New Jersey Turnpike Authority. Moreover, we note that reliance on such administrative decisions may offend the restrictions cast by Rule 1:36-3 against attributing binding or precedential value to unpublished opinions.

The Township also argues that, based on well-settled decisional law, a public official owes a fiduciary duty to the public which should not be diluted by self-interest. The Township points out that the arbitrator specifically found that Bivens violated the public trust. The arbitrator, however, determined, under the totality of the circumstances, that the employee's conduct did not warrant termination of her employment. We reiterate that the focus of the court's inquiry is not upon the grievant's conduct, but upon the award and whether it violates public policy. N.J. Tpk. Auth., supra, 190 N.J. at 297. The Township does not argue and does not convince us that the arbitration award itself violates established public policy.

The Township maintains that the reinstatement of Bivens at her previous pay rate, even in a separate department, is contrary to the public policy against waste and abuse of taxpayer money. The Township therefore contends the arbitrator was required to consider the fiscal impact of her decision, citing South Plainfield Board of Education v. South Plainfield Education Association, 320 N.J. Super. 281 (App. Div. 1999). To the extent it is suggested that our decision in South Plainfield is at odds with the subsequent pronouncements of the Supreme Court in PBA, Local 11, and New Jersey Turnpike Authority, we reject that suggestion.

In South Plainfield, we held that the fiscal impact of an arbitration award is relevant when considering the public interest and welfare. S. Plainfield Bd. of Educ., supra, 320 N.J. Super. at 291. We recognized that "grievance arbitration issues must not be decided in a vacuum without consideration of their impact on the public good, interest and welfare as well as upon the grievant." Id. at 291-92. However, we also cautioned that consideration of fiscal impacts may not be relevant in every case, but we recognized that "where a decision may result in a bona fide claim of layoffs and service reduction, the arbitrator must factor in such concerns in fashioning a remedy." Id. at 293-94. Ultimately, we concluded that fiscal impacts should be a "factor to be considered in a grievance arbitration when the ultimate award to be rendered may have substantial impact on the personnel and programs provided by the public entity, at least as to how the remedy may be administered." Id. at 294.

In South Plainfield, the grievance concerned a "multi-claim grievance arbitration involving years of credits and an undetermined number of grievants . . . ." Id. at 294. The Board against whom the award was made outlined eleven points of reduction, all negatively affecting public school children and ultimately the public. Id. at 293. Here, the Township argues the reinstatement of Bivens, a single employee, to a position within or outside the Finance Department at her prior rate of pay would have "a devastating effect and would result in her being overcompensated for the services she is asked to provide."*fn1

The Township argues this is against public policy because the fiscal impact results in waste which adversely affects the residents of the Township. The record does not contain evidence of service reduction or overt detriment to the public by Bivens's reinstatement that is comparable to the obvious effect in South Plainfield. Because we do not perceive any fundamental flaw in the remedy fashioned by the arbitrator, we reject the Township's challenges.


The Township next argues the arbitration award exceeded the arbitrator's scope of authority under the agreement. Courts are required to vacate an arbitration award where "the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made." N.J.S.A. 2A:24-8(d). "When parties have agreed, through a contract, on a defined set of rules that are to govern the arbitration process, an arbitrator exceeds his powers when he ignores the limited authority that the contract confers." Port Auth. Police Sergeants Benev. Ass'n of N.Y., N.J. v. Port Auth. of N.Y., N.J., 340 N.J. Super. 453, 458 (App. Div. 2001) (quoting Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 391-92 (1985)). In this case, the Township does not point to any section of the CNA which sets rules narrowing the scope of arbitration, and we have found none.

Here, the Township fails to explain how the award is separated from the essence of the CNA, except to make the bald assertion that Bivens's reinstatement at her previous pay grade exceeded the arbitrator's scope. Contrary to the Township's assertion, reinstatement without back pay is a common remedy in CNA cases. See N.J. Tpk. Auth., supra, 190 N.J. at 303-04. We note that employees have been reinstated through arbitration awards for much more egregious and violent behavior than the misconduct demonstrated by Bivens. See id. at 302-04.

Therefore, without a more definitive showing of the arbitrator's excess, our review is confined to a consideration of whether the award is reasonably debatable, in light of the suspension without pay for a year, which the Court has described as "a considerable penalty that recognized economic realities and social norms." Id. at 302 (finding nearly a year suspension without pay in addition to a psychological assessment to be a considerable penalty that recognized "economic realities and social norms"). Further, "there can hardly be a public policy that a man who has been convicted, fined, and subjected to serious disciplinary measures, can never be ordered reinstated to his former employment." Id. at 301 (citation and internal quotations omitted).


Finally, the Township argues that the arbitrator made three mistakes of fact which materially undermined her reasoning, causing the award to be rendered by undue means. The Township asserts the mistakes of fact are that: (1) the voucher used by Bivens was not the appropriate voucher used by Finance Department employees when requesting comp time, (2) the arbitrator failed to recognize Bivens's accusation that current employees are stealing gas could not be applied to the identified co-employee, and (3) the arbitrator incorrectly stated that another identified employee did not testify about telling Bivens that a supervisor's assistant came in late and changed her time.

"'Undue means,' as used in N.J.S.A. 2A:24-8(a), ordinarily encompasses situations where the arbitrator has made a mistake of fact or law that is either apparent on the face of the record or admitted to by the arbitrator." N.J. Highway Auth. v. Int'l Fed'n of Prof'l and Tech'l Eng'rs, Local 193, 274 N.J. Super. 599, 609 (App. Div.) (citations omitted), certif. denied, 139 N.J. 288 (1994). "'Undue means' has been construed to mean basing an award on a clearly mistaken view of fact or law." Local Union 560, I.B.T. v. Eazor Express, Inc., 95 N.J. Super. 219, 227-29 (App. Div. 1967). Undue means does not apply to the use of facts based on credibility determinations by the arbitrator. Local No. 153, Office & Prof'l Emps. Int'l Union v. Trust Co. of N.J., 105 N.J. 442, 450 n.1 (1987).

The Township asserts the arbitrator made mistakes of fact. We have reviewed the arbitrator's written analysis of the facts, as well as the analysis by the Law Division. We perceive no mistakes that are material, and we conclude these asserted errors lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).


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