April 17, 2012
NEW JERSEY TRANSIT CORPORATION, PLAINTIFF-APPELLANT,
NEW JERSEY TRANSIT POLICE SUPERIOR OFFICERS FRATERNAL ORDER OF POLICE, LODGE 37, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2360-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 17, 2012
Before Judges Parrillo, Alvarez and Skillman.
On January 11, 2010, we affirmed an arbitrator's award to Gerard Robson, a former New Jersey Transit (NJT) sergeant. N.J. Transit Corp. v. N.J. Transit Police, Superior Officers Fraternal Order of Police, Lodge 37, No. A-4902-07 (App. Div. Jan. 11, 2010).*fn1 Following the affirmance, the arbitrator granted Robson a supplemental award. Thereafter, Robson filed a motion in the Law Division seeking to enforce litigant's rights. NJT filed a cross-motion to vacate the supplemental award issued by the arbitrator as a result of the subsequent proceedings. The judge converted the motions into a summary action, and after a hearing on March 10, 2011, she affirmed the arbitrator's supplemental award. We have considered NJT's argument that the supplemental award violated public policy and was not reasonably debatable, reject it, and now affirm.
The incident which triggered the litigation occurred on October 8, 2002, when Robson injured his hip while on duty. He underwent hip replacement surgery and was authorized to return to work on July 14, 2003. Based on a letter from Robson's physician to the effect that he should not run or jump, at least temporarily, the NJT physician determined Robson was not medically qualified to work at his prior position. As a result, the NJT Superior Officers Fraternal Order of Police Lodge 37 (FOP) filed a grievance on Robson's behalf with the New Jersey Public Employment Relations Commission (PERC), asserting that NJT violated the collective bargaining agreement (CBA) by requiring Robson to pass an agility test as a condition of returning to work, and by forcing Robson to choose between loss of his sergeant's benefits and employment as a dispatcher. The FOP also alleged that Robson, in violation of the CBA, was terminated without proper notice and hearing.
On appeal, we concurred with the arbitrator's decision that NJT had not followed the enumerated steps in the CBA before terminating Robson as no longer physically able to work at his former position.*fn2 We determined that the arbitrator's interpretation of the CBA was reasonably debatable, not in violation of any public policy, and thereby entitled to deferential treatment. Id. (slip op. at 23). As we specifically said, "[t]he [a]rbitrator simply concluded that the negotiated procedure set forth in Article V, Section 2, of the [CBA] for determining the physical fitness of an officer to resume duty had not been followed." Ibid.
We noted, however, that in the interim Robson received a disability pension from the New Jersey Police and Firemen's Retirement System (PFRS), in reliance to some unknown extent on NJT's determination that he was disabled from the performance of his duties as of October 1, 2003. The arbitrator also ordered NJT to determine whether Robson was fit to resume his police duties. If not fit, NJT would be required to convene a Board of Doctors.
The arbitrator had awarded Robson the "difference between the salary he earned from [NJT] from July 14, 2003[,] through the present and his full sergeant's salary, less substitute interim earnings." Because the arbitrator retained "jurisdiction for the purpose of resolving any dispute that may arise regarding the implementation or computation of the remedies ordered[,]" we directed that any issues regarding actual implementation of the procedure found in the CBA, and any questions regarding the computation of the ordered remedies, or calculations taking into account Robson's disability benefits, could be brought to the attention of the arbitrator and reviewed, if appropriate, by the Division of Pension and Benefits. Id. (slip op. at 26).
After our decision, counsel for the FOP contacted NJT's counsel, inquiring as to the date Robson would be able to return to work. No agreement was ever reached regarding reinstatement and back pay. Therefore, NJT's counsel demanded a second round of arbitration.
The parties met with the arbitrator, engaging first in informal discussions and, subsequently, a formal proceeding during which the arbitrator noted the parties' agreement to submit briefs addressing the effect Robson's retirement income had on NJT's "obligation to pay him the monies described in the [a]rbitrator's award dated December 15, 2006." At that proceeding, the arbitrator pointed out that NJT was attempting to raise a new argument regarding Robson's entitlement, specifically, that he was admitted into the pretrial intervention program (PTI) arising out of a July 2004 indictment for unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(c), involving a parked NJT patrol car and an off-duty officer who was in the vehicle at the time. Although the arbitrator did not consider the admission into PTI to be relevant, he invited NJT to "convince [him] otherwise." Despite several extensions, NJT never submitted a brief, on that point, or any other.
Accordingly, on December 20, 2010, the arbitrator entered a supplemental award. He observed that despite his award of December 15, 2006, NJT "has neither convened  a Board [of Doctors] nor has [it] paid [Robson] the difference between his [s]ergeant's salary and his substitute interim earnings, as was also required by the [a]ward . . . ," and that Robson's entitlement "continues unabated." He emphasized that the "medical evaluation and payment of past due back wages is not contingent on the successful completion of a background or criminal record check . . . ." The arbitrator noted that "[i]t is premature . . . for [NJT] to impose any impediment to [Robson]'s immediate limited reinstatement for purposes of redressing the defects in the medical evaluation procedures." The arbitrator concluded that no further delay was justified in convening the Board, paying Robson past due wages, or reinstating him, and that NJT's failure to remit payments within ten days might result in the imposition of interest and other costs.
The FOP then filed a motion to enforce litigant's rights. On January 26, 2011, Judge Denise A. Cobham held that the motion was premature. On February 15, 2011, the FOP filed a second motion, this time to confirm the supplemental arbitration award and to enforce litigant's rights. On March 7, 2011, NJT filed a cross-motion to vacate the supplemental award, also claiming that the FOP's action should have been brought as a new verified complaint, and not a motion. On March 10, 2011, the trial judge decided to convert the applications into a summary action.
At the subsequent hearing, NJT argued that the supplemental award violated public policy because Robson was not entitled to back pay after the date of his voluntary resignation, and that this was not reasonably debatable. NJT also contested the jurisdiction of the arbitrator and alleged he engaged in misconduct. The FOP advanced its position that Robson was entitled to complete back pay because he was unlawfully terminated, and that the initial arbitration award and the supplemental award were justified under the terms of the CBA.
In its decision, the trial court focused on confirmation of the supplemental award in light of our affirmance of the earlier arbitrator's award, and rejected NJT's argument that reinstatement without police training and medical testing violated public policy. The court reasoned that the statutes NJT cited in support of that position related to new hires, not applicable to Robson. The court noted that NJT provided no legal authority whatsoever in support of its claim that the "supplemental award is not reasonably debatable with regard to the back pay issue." The court therefore reiterated that Robson was entitled to back pay from July 14, 2003, the date NJT violated the CBA, to the present. Regarding NJT's claim of arbitrator misconduct, the judge pointedly stated that "[i]f someone is guilty of misconduct in this case, it is not the arbitrator." The FOP's motion to confirm the supplemental award was granted and NJT's cross-motion denied.
The trial judge ordered that the supplemental award "be complied with immediately" and stated that failure to reinstate Robson would result in an enforcement of litigant's rights hearing. R. 1:10-3. She closed by observing: "Enough is enough. Enough time has passed. Years have passed and this [c]court can't be a party to any further harm or prejudice to a party who has complied with the legal process to vindicate his rights."
NJT filed an application to stay the order, which Judge Cobham denied on March 18, 2011, concluding that NJT failed to establish either irreparable harm or the likelihood of success on appeal. She also concluded that the back pay award serves the public interest and that reinstatement is not in violation of public policy. On March 25, 2011, NJT appealed the March 10, 2011 order. On April 18, 2011, NJT's application for a stay to the Appellate Division was denied.
We affirm Judge Cobham's decision for the reasons she stated, with the following brief comments. The original arbitration award, affirmed on appeal, directed Robson be paid the difference between the salary he earned from NJT from July 14, 2003, to the date of payment, namely, his full sergeant's salary, less substitute earnings. The arbitrator retained jurisdiction for the sole purpose of resolving disputes regarding the implementation or computation of the remedy. Our prior affirmance instructed the parties that, if required for the sole purpose of computation, those matters should be brought to the attention of the arbitrator, and if necessary, reviewed by the Division of Pensions and Benefits. N.J. Transit Corp, supra, slip op. at 26. Now at this late date, NJT seeks to challenge the very reason for the need for computation, namely, the original arbitrator's award, by asserting that it violates public policy because it allocates payments to Robson after his voluntary resignation, thereby making the award not reasonably debatable. This is an ill-disguised effort to relitigate issues long ago decided.
"The doctrines of collateral estoppel, issue preclusion, res judicata, and the like serve the important policy goals of 'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]'" First Union Natl. Bank v. Penn Salem Marina Inc., 190 N.J. 342, 352 (2007) (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)). In essence, an already-litigated issue may not be litigated again. Id. at 352. Collateral estoppel applies to arbitration proceedings, where the facts have been "unequivocally decided in the arbitration proceeding." See Pressler & Vernierio, N.J. Court Rules, comment 7.5.2 on R. 4:5-4 (2012).
These issues have been comprehensively litigated. The language in our prior opinion was only intended to make available a forum in which the parties could resolve disputes as to the actual mathematical calculation of the amounts owed. In fact, at the second arbitration hearing conducted on October 13, 2010, the sole issue addressed was the impact of Robson's disability pension on the calculations.
It was not until NJT appeared in the Law Division before Judge Cobham that it raised the argument that because Robson voluntarily quit the dispatcher job, the award violated public policy. Obviously, the question of whether Robson's resignation should have any impact on NJT's violation of the CBA should have been addressed in the prior proceedings. Res judicata at this juncture bars consideration of this new argument, which is intended to undercut the viability of the initial arbitration award. It is an effort to reargue issues already laid to rest in multiple proceedings over a span of several years. The question of whether Robson is entitled to back pay for the period of time after he resigned as a dispatcher is not open to dispute. That question is substantive, and long since decided. The computation of the amount of the award was the singular issue for consideration on remand, and only if the parties did not agree. As Judge Cobham said:
I think we're in the unique situation where the State and an individual have been in a legal fight and that individual has been to . . . the Office of Administrative Law. It [has] been before [PERC]. It [has] been before an arbitrator twice. It [has] been before a Law Division [j]udge to confirm the original arbitration award. It [has] been before the Appellate Division to affirm the confirming of the original arbitrator's award. It [has] been here on a motion to enforce litigant's right[s] as to the supplemental and original arbitration award and he's been before this court on a motion to confirm the arbitrator's supplemental award.
[Robson] has shown great patience and he has shown great respect for the process of how rights and responsibilities are determined in our society, in our democratic society and what he has seen is that the process seems to go on without end and without regard to his personal circumstances. So I find that he has been harmed by delay and further delay will only harm him more . . . .