On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-105-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Kennedy.
The Township of Montclair (Township) appeals from a Chancery Division order dismissing its complaint seeking to vacate an arbitration award entered against it on a grievance brought by the Montclair Policemen's Benevolent Association, Local No. 53 (PBA).*fn1 For reasons expressed in this opinion, we vacate the Chancery Division order and arbitration order and remand the matter to the arbitrator for further proceedings consistent with this opinion. Given this disposition, the Chancery Division complaint is dismissed without prejudice.
The grievance stems from the Township's assignment of supervisory
officers to patrol duties when vacancies arose in the patrol division.
Prior to 2010, vacancies in minimum staffing levels in the patrol
division were filled by assigning available, off-duty patrol officers
on an overtime basis. The PBA claimed the change in this "practice"
violated the Collective Negotiations Agreement (CNA)*fn2
between the Township and the PBA.
The PBA requested arbitration of the grievance with the Public Employment Relations Commission (PERC) and an arbitrator was assigned. After the hearing, the parties submitted briefs setting forth their arguments. The PBA asserted that filling vacancies in the patrol division by assigning available, off-duty patrol officers was a "practice" protected by Article XX of the CNA which provided, in pertinent part, that "practices which the employees covered by this [CNA] enjoyed prior to this [CNA] are retained by the employees, except as those rights, privileges and benefits are specifically abridged or modified by this [CNA]." The PBA also relied upon Article XXXII pertaining to overtime.
The Township contended that Article XX was specifically modified by Article IV, which reserved to it various management prerogatives, including the right to "make rules of procedure" and to "hire all employees and to promote, transfer, assign and re-assign employees," and by Article XXV, which empowered it to establish and change work schedules. The Township also asserted that the use of off-duty patrol officers in the past was not a "practice" under the CNA.
After the parties presented evidence and framed the issues for the arbitrator as noted above, the arbitrator on February 8, 2011, issued his "Opinion & Award" in favor of the PBA.
However, the arbitrator addressed none of the issues raised by the parties, and instead "determined that the threshold question" was: "[W]ere the supervisors utilized by the Township recognized as members of the relevant bargaining unit, pursuant to the recognition clause set forth in Article I of the [CNA]?" He then concluded that because supervisors are not part of the bargaining unit, "assignment of bargaining unit work to supervisors violates the [CNA]."
On April 25, 2011, the Township filed a complaint in the Chancery Division seeking to set aside the arbitration award. The Township asserted that the arbitrator based the award on "entirely different grounds" than those briefed and relied upon by the parties and that, consequently, "the Township did not have an opportunity to respond to or brief this new question, or to demonstrate the fallacy of this approach." In addition, the Township claimed the award must be vacated because it is "unlawful", based upon "factual errors", and is "not a reasonably debatable interpretation of the [CNA]." The PBA responded with a counterclaim seeking to confirm the award.
The trial judge, following argument and consideration of the papers submitted by the parties, issued an opinion from the bench confirming the award. With respect to the Township's claim that the award was procedurally flawed because the arbitrator based the award on an issue neither party had raised, the trial judge stated:
I know of no authority, statutory or common law, which says that an arbitration decision is defective merely because the arbitrator reaches his conclusion on grounds ...