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New Jersey Transit Corporation v. New Jersey Transit Police Superior Officers Fraternal Order of Police

April 17, 2012

NEW JERSEY TRANSIT CORPORATION, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...


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