October 15, 2013
NEW JERSEY TURNPIKE AUTHORITY, Plaintiff-Appellant,
LOCAL 194, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2013
On appeal from Superior Court of New Jersey, General Equity Part, Middlesex County, Docket No. C-51-12.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for appellant (John J. Peirano, of counsel and on the brief; Elena Chkolnikova, on the brief).
Mets Schiro & McGovern, LLP, attorneys for respondent (Leonard C. Schiro, of counsel and on the brief; Alan R. Niedz, on the brief).
Before Judges Graves, Ashrafi, and Guadagno.
Mark Mather, an employee of the New Jersey Turnpike Authority (the Authority), was terminated from his position following a drunk-driving accident. Defendant Local 194, International Federation of Professional and Technical Engineers, AFL-CIO (the Union) filed a grievance on Mather's behalf. Following arbitration, the Authority was ordered to reinstate Mather. The Authority appeals from an April 20, 2012 Law Division order, which confirmed the arbitrator's decision. For the reasons that follow, we affirm.
Mather has been employed by the Authority as a toll electronic maintenance technician since January 12, 2004. The Authority provided Mather with a van for work-related and commuting purposes.
On April 24, 2010, Mather was scheduled to work from 6:00 a.m. to 2:00 p.m., and he had agreed to work an overtime shift from 2:00 p.m. to 10:00 p.m. While working the overtime shift, Mather left work without notifying anyone from the Authority. An E-Z Pass record confirms Mather exited the New Jersey Turnpike at interchange 15E at 6:59 p.m. in the direction of Harrison, New Jersey. At approximately 7:12 p.m., Mather struck two parked vehicles on Davis Avenue in Harrison. Police responded to the scene, and Mather subsequently failed a breathalyzer test, registering a blood alcohol content of .16%. Mather was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50.
The next day, Mather telephoned his supervisor and requested four hours of sick leave from 6:00 p.m. to 10:00 p.m. on April 24, 2010. Mather did not report the accident or the DWI charge in his phone call. On April 26, 2010, Mather telephoned the manager of his division, Brad Gilbert, and informed him of the incident. Mather explained that on the night of the accident, he became intoxicated while at a friend's house sometime after 6:00 p.m. Gilbert approved Mather's request for retroactive sick leave.
On May 5, 2010, the Authority issued a Notice of Disciplinary Action, charging Mather with "gross willful misconduct arising from a series of events on April 24, 2010." The notice specified that Mather violated the Authority's alcohol and drug use policy, misused an Authority vehicle, and violated the general rules for Authority personnel. Mather was suspended without pay pending the outcome of the charges.
In a memo to the Toll Collection Director dated May 6, 2010, Gilbert recommended that Mather's employment be terminated. Gilbert stated his reasons were as follows:
1. It is apparent that Mr. Mather had been drinking on the clock during his shift from 2:00 p.m. – 10:00 p.m. on April 24, 2010.
2. It is apparent that Mr. Mather was using his [Authority] van for transportation unrelated to his employment on the Turnpike.
3. It is apparent that Mr. Mather falsified his payroll hours and lied to [his supervisor] in an attempt to cover his apparent drinking on the job.
Gilbert also explained that he approved Mather's request for four hours sick time on April 24, 2010, "because the payroll deadline for approval was imminent."
A disciplinary hearing was held on September 15, 2010. Following the hearing, the charges were sustained and Mather was terminated effective October 2, 2010. The hearing officer concluded:
The offenses that Mr. Mather committed on April 24, 2010, were acts that were highly recognized by the public. These acts were in violation of Authority policy and procedures that cannot be tolerated. Driving an Authority vehicle while under the influence of alcohol while on-duty, leaving the job site without notifying his supervisor and not reporting in a timely manner his involvement in a vehicle accident are all serious violations. In addition, Mr. Mather provided false information to his supervisors by claiming he was on sick time at the time of the accident to make appearance this was an off-duty incident.
On October 14, 2010, the Union appealed the hearing officer's decision to the Authority's Executive Director, but the decision was upheld. Thereafter, pursuant to the parties' collective bargaining agreement,  the Union filed a demand for arbitration with the New Jersey Public Employment Relations Commission.
The arbitration hearing was held on January 13, 2011. On February 2, 2012, the arbitrator determined that the Authority had not established a summary discharge policy regarding alcohol use and ruled that the evidence presented by the Authority did not support Mather's termination:
I am satisfied that the [Authority] has demonstrated that [Mather] is guilty of on-duty intoxication and a subsequent off-duty, but related accident involving use of his assigned van. The [Authority] has demonstrated that [Mather] did not initially disclose to Mr. Gilbert the likely time and place of his consumption of alcohol (on-duty verses off-duty). All other allegations either lack merit or do not provide a fair and meaningful basis to enhance a major disciplinary penalty. . . .
After carefully reviewing the uncontested facts of this matter, existing law, and the [Authority's] application of its policies in other cases,  I am persuaded that [Mather] should be provided with a second/last chance at maintaining his employment and that his current separation from employment since October 2, 2010, constitutes a substantial disciplinary penalty in relation to his proven misconduct. Although [Mather] operated a van as part of his employment, he did not operate heavy equipment, hold a safety-sensitive position, or engage in work activities that would preclude a second chance at employment. Additionally, [Mather] had no prior discipline, appeared to be in good standing with his supervisors, he suffered from an undiagnosed psychological condition, i.e., bipolar disorder, he unwittingly resorted to alcohol as a form of self-medication and he subsequently availed himself of both inpatient and outpatient treatment and recovery programs to bring about a balance to his personal and professional lives. In my opinion, under a just cause standard, the aforementioned factors of mitigation militate in favor of providing [Mather] with a second/last chance at employment.
Additionally, my review of the [Authority's] policies leads to a similar conclusion. I observe that under the Personnel Polices & Procedures Guide, Section 308, Article 2.0, the [Authority] did not establish a summary discharge policy regarding alcohol and/or drug use by employers. Rather, an employee who consumes alcoholic beverages on Authority premises is subject to "disciplinary proceedings, including, where appropriate, termination." Likewise, the [Authority's] Policy does not call for summary discharge for a first offense of operation causing an avoidable or preventable accident and/or driving a vehicle under the influence of alcohol or narcotics defined by state statutes. By clear implication, the [Authority's] policy provides for the imposition of lesser penalties.
In summary, I find and conclude that under a just cause standard, the aforementioned factors of mitigation militate in favor of providing [Mather] with a second/last chance employment. The [Authority] must immediately offer reinstatement to Mather subject to a standard return to work medical evaluation. [Mather's] continued employment is subject to a last chance warning regarding (1) job-concerned alcohol and/or drug consumption; (2) operating his assigned vehicle under the influence of alcohol or drugs; and/or (3) dishonesty in reporting an incident to his supervisors or during a job-related investigatory proceeding. The parties will share the arbitration fee on an equal basis.
The Authority filed a verified complaint on February 24, 2012, seeking to vacate the arbitration award, and the Union filed a counter-claim to confirm the award. Oral argument took place on April 9, 2012.
In a written decision on April 20, 2012, the trial court denied the Authority's request to vacate the arbitration award and granted the Union's application to confirm the award. The court ordered the Authority to comply with the terms of the arbitration award and to reinstate Mather "with back pay and all other benefits owed to him retroactive to the date of [the arbitration award] on February 2, 2012." The court stated:
Although the Authority feels the record does not support the arbitrator's conclusion, the fact remains that Mather was granted retroactive sick leave, at least arguably making Mather off-duty at the time of his accident. Therefore, there is evidence in the record to support the arbitrator's conclusion that Mather was off-duty at the time of his accident. This court finds that the arbitrator's findings are supported by the record and will not vacate the arbitration award on the grounds of undue means.
The Authority's other argument is that the arbitrator's award is violative of public policy and must therefore be vacated. It argues that this case presents a rare circumstance in which public policy requires the court to overturn the arbitrator's award. It sets forth the following facts in support of its public policy argument: Mather started drinking while on-duty, Mather was driving an Authority van and damaged public property, Mather attempted to cover up aspects of his misbehavior in the days following his accident, and the award reinstating Mather implicates New Jersey's policy against drunk driving.. . . .
The Authority's focus on Mather's conduct, and not the actual reinstatement, is misplaced. [N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283 (2007)] clearly instructs trial and appellate courts to examine the reinstatement itself and whether that reinstatement is violative of public policy. It is undisputed that New Jersey public policy strongly discourages drunk driving. Nowhere does Local 194 assert that drunk driving is not a serious offense or that it should be condoned. Similarly, the arbitrator did not condone Mather's behavior and did find Mather guilty of violating the Authority's policies. The arbitrator further punished Mather's behavior by giving him an unpaid fifteen (15) month suspension and reinstated him with a last chance warning, subject to a medical evaluation. The arbitrator found that there was just cause for discipline, but not just cause for termination based on several mitigating factors.
In this case, Mather received a substantial punishment in the form of the arbitrator's award. Further, Mather was employed by the Authority as a toll technician. His job responsibilities included maintaining the functioning of toll equipment and electronic speed signs at toll plazas. To facilitate his job, the Authority assigned Mather a van to use during the workday and to travel to and from work. Mather's job did not involve driving hazardous material, nor did it involve driving people. The fact that Mather needed to drive during his job was incidental to his responsibilities of maintaining the functioning of equipment at toll plazas. Reasonable minds may disagree about whether Mather's punishment was sufficient and whether reinstatement or termination is the appropriate remedy, however, this court finds that the parties in this matter have received an award that is, at the very least, "reasonably debatable."
The Authority argues on appeal that the decision to reinstate Mather violates the "fundamental New Jersey public policy against drunk driving." The Authority also argues the arbitrator erred by finding Mather was off-duty at the time of the accident. Even though we might disagree with the arbitrator's fact finding, the scope of review under N.J.S.A. 2A:24-8 does not allow us to set aside the arbitrator's decision.
The New Jersey Supreme Court has reiterated "the fundamental principle that New Jersey law encourages the use of arbitration to resolve labor-management disputes." N.J. Tpk. Auth., supra, 190 N.J. at 291. "Arbitration is 'an integral part of our economic life and welcomed as a practical and expeditious means of disposition of industrial disputes.'" Ibid. (quoting Jersey Cent. Power & Light Co. v. Local Union No. 1289 of the Int'l Bhd. of Elec. Workers, 38 N.J. 95, 103-04 (1962)). "Indeed, 'the role of the courts in reviewing arbitration awards is extremely limited and an arbitrator's award is not to be set aside lightly.'" Id. at 292 (quoting State v. Int'l Fed'n of Prof'l & Technical Eng'rs, Local 195, 169 N.J. 505, 513 (2001)). Therefore, we will uphold an arbitral decision so long as the award is "reasonably debatable." Policemen's Benev. Ass'n, Local No. 11 v. City of Trenton, 205 N.J. 422, 430-31 (2011).
The New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, permits courts to vacate an arbitration award in the following circumstances:
a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
Additionally, "in rare circumstances a court may vacate an arbitration award for public-policy reasons." Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994). "The arbitrator's award—'and not the conduct or contractual provision prompting the arbitration'—is the focus of that review." Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (quoting N.J. Tpk. Auth., supra, 190 N.J. at 296). "[C]ourts should not disturb the award merely because of disagreements with arbitral fact findings or because the arbitrator's application of the public-policy principles to the underlying facts is imperfect." Weiss v. Carpenter, 143 N.J. 420, 443 (1996). Thus, "even when the award implicates a clear mandate of public policy, the deferential 'reasonably debatable' standard still governs." Borough of E. Rutherford, supra, 213 N.J. at 202.
In this case, the record supports the trial court's conclusion that the arbitrator's award is, "at the very least, 'reasonably debatable.'"