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Township of Neptune v. Afscme Council 73

February 15, 2012

TOWNSHIP OF NEPTUNE, PLAINTIFF-APPELLANT,
v.
AFSCME COUNCIL 73, LOCAL 1844 AFL-CIO, ON BEHALF OF MICHELLE BIVENS, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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).

II.

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 ...


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