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Rutherford v. Rutherford PBA Local 300

Superior Court of New Jersey, Appellate Division

August 27, 2013

BOROUGH OF RUTHERFORD, Plaintiff-Respondent/ Cross-Appellant,
RUTHERFORD PBA LOCAL 300, Defendant-Appellant/ Cross-Respondent.


Argued April 10, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-253-11.

Michael A. Bukosky argued the cause for appellant/cross-respondent (Loccke, Correia, Limsky & Bukosky, attorneys; Marcia J. Tapia, of counsel and on the briefs).

David M. LaPorta argued the cause for respondent/cross-appellant (LaPorta & LaPorta, LLC, attorneys; Mr. LaPorta and Justin D. Santagata, on the briefs).

Before Judges Simonelli and Accurso.


Defendant Rutherford PBA Local 300 (the PBA) appeals from a January 12, 2012 final order of the Chancery Division confirming, in part, and vacating, in part, an arbitration award entered in a grievance arbitration before the Public Employment Relations Commission (PERC). Plaintiff Borough of Rutherford (Borough) cross-appealed. We affirm.

This appeal arises from the Borough's implementation of a police department sick leave policy for the weekend of September 25 and 26, 2010. On that weekend, the officer in charge of the Borough's police department, Lieutenant Harold Ciser, posted an order advising that "Anyone calling in sick will bring in a doctor's note, when causing O[ver] T[ime]."[1] On Saturday, September 25, Patrolman Robert Buell left duty due to seasonal allergies and Ciser advised Buell that he would need a doctor's note before returning to work. Buell procured a note from First Care Medical Center, the Borough's authorized health care provider, and presented it and the First Care invoice to the department on returning to work.

On September 26, 2010, the PBA, the exclusive collective bargaining representative for all full-time law enforcement personnel employed by the Borough, filed a grievance "concerning Brother Robert Buell being ordered to provide a doctor's note before returning to work, after going home sick on September 25, 2010." The grievance was denied by the Borough through the three steps of the parties' grievance process. The parties agree that at no time during the internal grievance process was payment of the First Care invoice ever part of the grievance.

The PBA subsequently filed a petition for grievance arbitration before PERC, limited to the Borough's implementation of the sick leave policy with Buell. Thereafter, on November 4, 2010, counsel for the PBA wrote to the Borough business administrator demanding that the Borough negotiate the changes in sick leave policy, including impact negotiations regarding payment of any expenses the officers might incur in obtaining a doctor's note. Specifically, the PBA sought to address seventeen enumerated "impact matters."

1. Payment for any expenses incurred in obtaining a sick note.
2. Payment for all time spent obtaining a sick note. (The PBA demands Double [T]ime)[.]
3. The rate of pay for time spent at the doctor[']s office.
4. Direction of which facility to obtain a doctor[']s note for weekends, holidays, vacation and any time an officer's private physician is unavailable.
5. Timing of when doctor[']s notes must be obtained.
6. Information required on any doctor[']s note and privacy, confidentiality protocols to comply with HIPPA, Family Leave Act, and ADA.
7. Procedures for any occasion in which a doctor[']s note is challenged, a schedule of possible penalties and an appeal procedure.
8. Payment for time spent preparing and traveling to doctor[']s visits.
9. Minimum call in pay for doctor[']s visits.
10. Penalties for non-compliance with privacy safeguards.
11. Notification procedures and contact numbers. (i.e.: The employer may not phone in middle of the night, waking up family members)[.]
12. Designation of what may constitute pattern or excessive use of sick leave.
13. Approval procedures.
14. All other similarly related impact matters which commonly flow from the sick leave policies sought to be implemented.
15. Designation of a medical officer.
16. Requirements for notes for chronic, recurring or periodic sick leave or long term leave.
17. If sick leave is due to a family member, the method and manner of the application of items 1 through 16.

In the last paragraph of that five-page letter, counsel wrote

Lastly, on behalf of the PBA please accept this letter as an amendment and modification to the formal grievance already filed concerning Office Robert Buell on September 26, 2010 concerning the employer's violation of the collective bargaining agreement and past practice to incorporate the items addressed above.

PBA counsel did not copy the letter to either his adversary, the Borough's counsel, or PERC.

Although never having sought to amend its grievance petition to include the issue of payment for the doctor's visit necessary for Buell to secure the doctor's note, the PBA sought to include this issue in the PERC arbitration hearing held on May 5, 2011 at Borough Hall. Buell testified at the hearing that Ciser left him a note a few weeks after he visited First Care ordering him to pay the bill. The PBA did not produce the note, and the arbitrator refused the PBA's demand, made at the hearing, that the Borough produce a copy of it.

Borough counsel, having not been made aware before the hearing that payment of the invoice was at issue, did not have a witness to testify whether the Borough had paid the First Care invoice. He advised the Chancery judge at argument that he "walked around Borough Hall" during a break to "find someone who could testify whether the bill was paid." Borough counsel was unable to find anyone present who could testify as to either payment of the First Care invoice or the mechanism for the Borough to obtain insurance reimbursement for Buell's visit. The PBA was apparently likewise unprepared to address payment of the bill, as it asked the arbitrator, after the hearing, to hold the record open "so that this very relevant and important evidence may be supplied."

The record was not held open, however, as the arbitrator had already filed her decision. She concluded that the Borough had a managerial prerogative and a contractual right to implement the sick leave policy. The arbitrator also determined to address the PBA's claim regarding payment of the invoice. Although acknowledging that "this was not part of the PBA's original grievance, " the arbitrator determined to "nevertheless consider it." The arbitrator stated:

It was evident that both parties were fully prepared to present evidence at the arbitration hearing about this issue. It would be inefficient and a waste of the parties' resources to make the PBA "start over" with a new grievance on this issue.

The arbitrator found that "[n]o one at the arbitration hearing could say definitively whether the First Care invoice had ever been paid." She "inferred" from the testimony "that the department has had little[, ] if any[, ] experience with payment methods for First Care invoices." Notwithstanding the admitted dearth of testimony on this late-raised issue, the arbitrator nevertheless interpreted the parties' agreement to require that the Borough pay the First Care invoice by "direct payment, not through an intermediate source, " and that "[a]ny directive for the employee to arrange for payment, either personally, or through the insurance carrier, would be in conflict with the contract's specific wording."

She interpreted the contract's reference to insurance reimbursement for such visits to mean that the Borough could ask, but not compel, an employee to sign an insurance claim form and submit it to the Borough's carrier for reimbursement. She noted that the task of completing the form and submitting it to the insurance carrier was not contemplated by the collective bargaining agreement and thus would have "to be negotiated." She determined that the Borough violated the contract "by requiring Officer Buell to arrange for payment of the First Care invoice" and directed the Borough, "[i]f it has not already done so, " to "directly pay First Care for Officer Buell's office visit on September 25, 2010."

The Borough filed a complaint in the Chancery Division seeking to vacate or modify that portion of the arbitrator's award addressing the Borough's obligation "to directly pay" the invoices of First Care and the means by which the Borough could obtain insurance reimbursement for doctor visits occasioned by its sick leave policy. The PBA counterclaimed to confirm the arbitration award.

The parties' arguments before the Chancery Court centered on an issue not directly addressed in the arbitration - the officer's obligation to present his or her employer-provided insurance card to First Care. The Borough contended that the implication of the arbitration award was that officers had no obligation to present their insurance cards to First Care, thus depriving the Borough of insurance benefits it spent hundreds of thousands of dollars annually to procure on behalf of its police officers. The Borough argued the payment issue was not properly before the arbitrator and that its being raised at the arbitration deprived the Borough of the ability to present witnesses who could testify as to the Borough's insurance program.

Although acknowledging that the payment and insurance reimbursement issue was not originally made part of its grievance, the PBA contended that the Borough was on notice of the issue which was properly addressed by the arbitrator. The PBA contended that its members need not produce their insurance cards and that the arbitrator was correct in interpreting the contract to require the Borough to negotiate the officers' assistance in obtaining reimbursement.

After hearing argument, the Chancery judge entered an order confirming that portion of the award validating the Borough's managerial prerogative to require a sick note from officers returning to work, and, because it was not opposed by the Borough, that portion determining that it was inappropriate to require Buell to advance the costs of the First Care visit himself. The order further provided that "[t]o the extent the award validated the non-production of the insurance card, the issue was not properly the subject of the arbitration or determination, is not affirmed, and is vacated." The parties agreed, and it was included in the order, that either could relitigate the issue before PERC or in some other forum. This appeal followed.

A court may set aside a public-sector arbitration award only for the limited grounds specified in the Arbitration Act, N.J.S.A. 2A:24-8, or because the award is contrary to public policy, or a result of a mistake of law. Policeman's Benevolent Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392, 400-01 (1999). Although "arbitration awards are given a wide berth, with limited bases for a court's interference, " Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013), we agree with the Chancery judge that this case warrants that interference.

The PBA filed its grievance, and pursued it through its petition to PERC, limited to the Borough's implementation of the sick leave policy applied to Buell. The arbitrator acknowledged that payment of First Care's invoice was not a part of the PBA's grievance. In nevertheless considering it, the arbitrator exceeded the scope of her powers pursuant to N.J.S.A. 2A:24-8(d). See County College of Morris Staff Ass'n v. County College of Morris, 100 N.J. 383, 391 (1985) (when parties have agreed, through a contract, on defined rules to govern the arbitration process, an arbitrator exceeds his powers when he ignores the limited authority that the contract confers). Having acknowledged that the issue was not properly before her, the arbitrator was not free to address it merely because "it would be inefficient and a waste of the parties' resources to make the PBA 'start over' with a new grievance on this issue."

Adequate notice and an opportunity to prepare are essential to any fair adjudicatory proceeding. See Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978). Although the arbitrator concluded that "both parties were fully prepared to present evidence at the arbitration hearing about this issue, " the record makes clear that neither party was prepared to do so. The arbitrator noted that no one at the hearing "could say definitively" whether the bill was even paid by the Borough, and she inferred that "the department has had little[, ] if any[, ] experience with payment methods for First Care invoices." The Borough objected to the payment issue being addressed by the arbitrator. Its counsel stated, without contradiction, that he was reduced to canvassing the Borough's offices during a break in the hearing to find a witness who could testify about the Borough's policy on reimbursement. Further, the PBA asked the arbitrator weeks after the hearing to hold the record open to allow it to procure and present evidence on this point.

We express no opinion on the correctness of the arbitrator's interpretation of the contract provisions at issue. We hold simply that the only issue properly before the arbitrator was the issue the PBA grieved, implementation of the sick leave policy. Accordingly, we decline the Borough's request in its cross-appeal that we exercise our original jurisdiction and interpret the parties' contract to hold that an officer has an obligation to present his or her insurance card to the Borough's medical provider. The parties have agreed in their contract to a clearly-outlined grievance procedure. They are free to resort to it for resolution of this issue. Affirmed.

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