JERSEY CITY PUBLIC EMPLOYEES, INC., LOCAL 245 VS. CITY OF JERSEY CITY (L-1733-20, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4558-19
JERSEY CITY PUBLIC
EMPLOYEES, INC.,
LOCAL 245,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY,
Defendant-Respondent.
Submitted March 17, 2021 – Decided May 27, 2021
Before Judges Alvarez and Geiger
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1733-20.
Castronovo & McKinney, LLC, attorneys for appellant
(Thomas A. McKinney and Julie S. Alarcón, of counsel
and on the briefs).
Rainone Coughlin Minchello, LLC, attorneys for
respondent (Louis N. Rainone and Charles R.G.
Simmons, of counsel and on the brief; Ruben D. Perez,
on the brief).
PER CURIAM
Plaintiff Jersey City Public Employees, Local 245, filed a grievance
alleging defendant City of Jersey City violated the parties' Collective
Negotiations Agreement (CNA) by failing to pay members double time for
working through a weather-related state of emergency. The grievance was
submitted for arbitration to the Public Employment Relations Commission
(PERC). The parties disputed the meaning of Article 15(B)(11), which provides:
"Employees who work during a State of Emergency covering the City of Jersey
City, as declared by the Governor of New Jersey, will receive[] double time pay
for all hours worked during the State of Emergency." We now reverse the Law
Division's confirmation of the arbitrator's award, finding his interpretation of
the language was not reasonably debatable.
On March 6, 2018, the Governor issued a state-wide weather-related
executive order declaring a state of emergency, which was not rescinded until
March 13 at 10:00 a.m. City workers were notified on March 7 that municipal
offices would close at 1:00 p.m., and only essential employees would remain.
Normal operations resumed on March 8. Only essential workers received double
pay for the balance of the day when normal operations ceased.
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The arbitrator found the language of Article 15(B)(11) "ambiguous" and
therefore heard extensive extrinsic evidence regarding the parties' intended
meaning. The City's witnesses testified that the parties meant to provide a
premium rate of pay for essential service employees who were required to work
outside of normal operations, not to provide double time pay for non-essential
employees performing regular duties after the City returned to ordinary business
operations even if the state of emergency was still in effect. The arbitrator
deemed the reference to a "[s]tate of [e]mergency covering the City of Jersey
City," also found in Article 15(B)(11), to be ambiguous. He construed it to
require double time pay only when a declaration of a state of emergency actually
alters City operations and only to essential workers.
On February 12, 2020, in reliance on that testimony, the arbitrator issued
an order and award denying plaintiffs' grievance. On May 6, the union filed a
verified complaint and order to show cause seeking to vacate the award, while
the City cross-moved to confirm it. In a July 10, 2020 written decision denying
the union's application to vacate the award, the Law Division judge concluded
he could not overturn the arbitrator's decision, which was entitled to great
deference. The court found the arbitrator's analysis to be reasonably debatable
and confirmed it.
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On appeal, the union contends the language is not reasonably debatable,
and that the arbitrator's award must be vacated. The union also contends that
the arbitrator's award failed to follow relevant precedent that requires ambiguous
terms to be construed against the City—a rule of construction he did not employ.
"As the decision to vacate an arbitration award is a decision of law, this
court reviews the denial of a motion to vacate an arbitration award de novo."
Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010). Additionally,
"[w]hether a term is clear or ambiguous is . . . a question of law." Nester v.
O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (alteration in original)
(quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F.Supp. 275, 282
(D.N.J. 1992)).
However, the courts apply "an extremely deferential [standard of] review
when a party to a collective bargaining agreement [seeks] to vacate an
arbitrator's award." Policemen's Benevolent Ass'n v. City of Trenton, 205 N.J.
422, 428 (2011). "[A]n arbitrator's award will be confirmed 'so long as the
award is reasonably debatable.'" Id. at 429 (quoting Linden Bd. of Educ. v.
Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "It is the
arbitrator's construction which was bargained for; and so far as the arbitrator's
decision concerns construction of the contract, the courts have no business
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overruling him because their interpretation of the contract is different from his."
Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 202
(2013) (quoting Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 433
(1996)).
The City contends that rational minds can differ as to the meaning of the
language in the CNA. The union, to the contrary, interprets Article 15(B)(11)
to mean that all members who worked from the date the state of emergency was
declared to the date it was cancelled are entitled to double time pay.
The reasonably debatable standard calls for the arbitrator's interpretation
to be "based on a reasonable interpretation of the contractual language." N.J.
Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 555
(2006). Where arbitration awards have added new terms or ignored the clear
language of a provision, such awards have been vacated. Trenton, 205 N.J. at
429; see also City Ass'n of Sup'rs and Adm'rs v. State Operated School Dist. of
City of Newark, 311 N.J. Super. 300, 312 (App. Div. 1998) ("The arbitration
panel exceeded its authority by ignoring the clear and unambiguous language of
the agreement concerning the manner in which vacation days were earned.");
Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 397
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(1985) (overturning an arbitrator's decision adding a requirement not in the plain
language of the agreement).
In this case, the arbitrator did not explain the reason he found the state-
of-emergency language in the CNA to be ambiguous, requiring testimony
outside the four corners of the contract. The trial court did not offer an
explanation either.
We do not see an ambiguity in the language, and consider the meaning to
be self-evident and straightforward. In those cases, arbitration decisions may
be reversed. See City of Newark, 311 N.J. Super. at 313.
The phrase regarding an emergency declaration "covering the City of
Jersey City" is modified by the language which follows: "as declared by the
Governor of New Jersey . . . ." The language could have said, but did not,
"covering the City of Jersey City as established by a closure of City Hall, " or
"covering the City of Jersey City as determined by interference with normal City
operations." The negotiated language was precise. It simply stated if the
Governor issued a declaration of a state of emergency, then City employees were
entitled to double time pay.
The City's position that the language should be interpreted to be a
reference to normal operations is understandable. However, that reading of the
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agreement has no support in the wording of the plain language of the section.
Nor does the language distinguish between essential and non-essential workers,
in addition to not requiring City operations be disrupted.
In fact, in other places in the CNA, the City did make reference to "normal
operations of the City." This is the case in Article 4, and in Article 21,
forbidding unions from interfering with the normal operations of business. The
City could have made reference to disruption of City functions attributable to a
weather-related Governor's executive order, but simply failed to do so.
The City argues that public policy militates in favor of affirming the
arbitrator's award—but that argument falls outside the scope of the standard
rules of interpretation applicable to employment contracts, even where a
governmental entity is involved. City Hall resumed normal operations on
March 8. But the result to which the City objects does not justify applying a
different, tailor-made set of rules, in the interest of expediency, to Article
15(B)(11). Thus, the arbitrator's decision was not reasonably debatable and
must be vacated.
Reversed.
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