BOROUGH OF CARTERET VS. FIREFIGHTERS MUTUAL BENEVOLENT ASSOCIATION, LOCAL 67 (C-000134-18, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2277-18T3
BOROUGH OF CARTERET,
a municipal corporation of the
State of New Jersey,
Plaintiff-Appellant,
v.
FIREFIGHTERS MUTUAL
BENEVOLENT
ASSOCIATION, LOCAL 67,
Defendant-Respondent.
____________________________
Submitted November 14, 2019 – Decided June 25, 2020
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No. C-
000134-18.
McManimon, Scotland & Baumann, LLC, attorneys for
appellant (Ted Del Guercio, III, on the briefs).
Kroll Heineman Carton, LLC, attorneys for respondent
(Raymond G. Heineman, of counsel and on the brief).
PER CURIAM
Plaintiff, Borough of Carteret, appeals from a Chancery Division order that
confirmed a labor arbitration award interpreting a collective negotiations agreement
(CNA) between plaintiff and defendant Local 67 of the Firefighters Mutual
Benevolent Association (FMBA). Because the arbitrator's interpretation of the
disputed CNA clause was not a reasonably debatable construction of the clause as
written, and because the arbitrator construed the clause by implying terms neither
contained in the clause nor intended by the parties, we reverse the Chancery Division
order and vacate the arbitration award.
The record on appeal includes the following facts. The Borough and
FMBA were parties to a CNA effective January 1, 2011, through December 31,
2015. Article VIII, Section 5 (the Disputed Clause), entitled "Acting Captains,"
states:
There shall be a Captain assigned to each tour of duty,
referred to as a Shift Captain. Whenever a Shift
Captain is off, the senior firefighter on duty shall
assume the responsibilities of Acting Captain and shall
receive the rate of pay of a Captain for each day of such
service, providing this does not conflict with Civil
Service regulations.
Between 2011 and 2013, the Borough fire department consisted of
approximately forty firefighters. There were four fire captains and one fire
A-2277-18T3
2
chief. FMBA represented the firefighters and the captains but not the chief.
The CNA's salary guide reflects the department's structure during those years,
namely, the firefighters, the captains, and the chief.
In 2012, the Borough adopted an ordinance that restructured the fire
department, creating four positions for fire lieutenants. With the approval of the
Civil Service Commission, the Borough used the "existing Fire Captain Roster"
to appoint the new lieutenants. The Borough also amended its salary ordinance
to include the position of fire lieutenant. According to the arbitration decision,
fire lieutenants were paid more than "a top-paid firefighter" but less than fire
captains. In July 2013, the Borough appointed four lieutenants. For the next
four years, the lieutenants executed the duties of fire lieutenants at the pay rate
for lieutenants. Nothing in the record indicates that during those years
lieutenants made a demand to be compensated at a captain's rate of pay when
"[acting] in the place of a Fire Captain in his/her absence"—a duty included in
the Civil Service Commission's "Job Specification 01843" for a fire lieutenant.
By 2018, the four captains had either retired or had been demoted, and not
one had been replaced. Two retired in 2015, the third was demoted in 2016, and
the fourth retired in March 2018.
A-2277-18T3
3
In August 2017, FMBA filed a grievance with the Borough seeking
retroactive captain's pay for all lieutenants who had acted in the place of absent
captains. The Borough denied the grievance and it ultimately was arbitrated.
While the arbitration was pending, the four fire lieutenants filed classification
appeals with the Civil Service Commission pursuant to N.J.A.C. 4A:3-3.9(d),
which authorizes employees to petition the Commission for both a determination
whether the duties they are performing conform to the specification for their title
and a change in title.
According to the arbitration decision, the parties stipulated the issue the
arbitrator was to decide: "Did the Borough violate Article 8, Section 5, of the
collective negotiations agreement by failing to pay acting captain's pay to
lieutenants who assumed the responsibilities of acting captains since August 7,
2017? If so, what shall be the remedy?" The arbitrator answered the first
question in the affirmative and directed the Borough to compensate all
lieutenants "at the acting captain pay rate for each shift which they worked to
which no captain was assigned from August 7, 2017 forward."
According to the arbitrator's written decision, three witnesses testified: the
Fire Chief, who was a former FMBA Local 67 president; an FMBA State
delegate, Tom Reynolds; and the current FMBA Local 67 president, Jason
A-2277-18T3
4
Kurdyla. Reynolds and Kurdyla confirmed that after the last captain left in
2018, the lieutenants assumed all the duties previously performed by captains,
including running the shift and taking command at the fire scene. In addition,
they testified FMBA members never held a vote or moved to modify the existing
CNA.
The Borough Fire Chief, who had become the chief in April 2013 while
finishing his tenure as Local 67 president, which ended in August 2013, gave
contrasting testimony. According to the Chief, the lieutenant positions, which
became effective in January 2013, were to be compensated at a rate slightly
higher than that of a firefighter but lower than that of a captain. Lieutenants
were to assume a greater supervisory role at fires, enhance the chain of
command, and fill in for unavailable fire captains. The Chief also testified the
Borough and FMBA had extensive discussions about the new lieutenant position
between 2012 and 2013. He asserted the parties agreed if the Borough created
four new lieutenant positions, FMBA would waive any acting captain's pay
A-2277-18T3
5
provided in the contract. He produced meeting minutes to verify the members
had voted to ratify this agreement. 1
The arbitrator found the Borough had violated the CNA by failing to allot
acting captain's pay to lieutenants after August 7, 2017, the date FMBA filed the
grievance. She did not credit the Chief's testimony but instead concluded the
Borough failed to prove there was any agreement to modify the CNA. She
reached this conclusion because the Chief did not identify any of the negotiators
for either the Borough or the Union, the minutes of the Union meetings for 2012
and 2013 included no notation of a membership vote, and the Chief's
overlapping roles as Acting Chief and Union President tainted any purported
negotiations over the new lieutenant positions. Conversely, the arbitrator found
credible Reynolds' and Kurdyla's testimony that no vote or agreement had
occurred to modify the existing CNA.
The arbitrator found FMBA's grievance was timely, though filed several
years after creation of the lieutenant position, because it related to "a continuing
violation." She reasoned that each time a lieutenant did not receive acting
1
Although handwritten meeting minutes are included in the record, they are
mostly illegible. It is difficult to discern from them what exactly took place at
those meetings.
A-2277-18T3
6
captain's pay, the violation constituted a new occurrence. However, because
FMBA did not file the grievance until August 7, 2017, lieutenants could only
recover retroactive pay from that date forward.
The arbitrator explained that the Disputed Clause supported acting
captain's pay for lieutenants after August 7, 2017:
At the time that the CNA was negotiated and ratified by
the parties, the position of Fire Lieutenant did not exist
-- the unit was then composed of rank-and-file
firefighters and captains. Effective January 1, 2012, a
year after the current contract took effect, a Borough
ordinance created new lieutenant positions, and
unilaterally set the compensation for the positions at
approximately $1,500 above . . . that of a firefighter at
the top step of the salary guide. . . .
....
At the time that the current Article 8, Section 5
of the contract became effective on January 1, 2011,
there were four fire captains; between 2013 and mid-
2018, all four had either retired or been demoted. . . . In
the absence of any sitting captains the duties attached
to that position must be performed. There is no
testimony or other evidence in the record that the duties
of captains are being performed by the Chief Hruska.
There is, however, unrebutted testimony from Kurdyla
that the lieutenants are performing the duties of shift
commanders. I conclude, based upon the testimony and
the full record before me that lieutenants are
performing the duties previously performed by
captains. In effect, whether intentional or not, what the
Borough has done is to replace captains with
lieutenants, at a lower pay rate. The lieutenants are
A-2277-18T3
7
entitled to pay as acting captains for every day since
August 7, 2017 when they assumed the responsibilities
of an acting captain, and . . . the Borough's failure to
compensate them is a violation of Article 8, Section 5
of the collective negotiations agreement.
The arbitrator further concluded the alleged past practice of withholding acting
captain's pay could not supersede the Disputed Clause's unambiguous contract
language.
FMBA filed a petition to confirm the arbitration award, and the Borough
filed a verified complaint seeking to vacate the arbitration award. Following a
hearing, the trial court issued a written decision confirming the award.
Agreeing with the arbitrator's award, the court noted, among other reasons:
The Borough, found by the Arbitrator, assigned the
duties of the captain, including the five administrative
duties, to lieutenants. Thus, Lieutenants who are doing
the duty of an acting captain, should be paid acting pay
pursuant to the contract and civil service. Therefore,
the Arbitrator correctly found that fire lieutenants who
assumed the duties of a shift captain were entitled to the
payment of an acting captain pay. The Borough has
continued to maintain duties of shift captain on each
shift and has those duties conveyed to fire lieutenants,
in the absence of fire captains.
The court concluded the arbitrator did not exceed her powers under N.J.S.A.
2A:24-8(d), and that her interpretation of the CNA was reasonably debatable.
The Borough filed a notice of appeal. The trial court denied the Borough's
A-2277-18T3
8
motion for a stay pending appeal. After the Borough filed its notice of appeal,
the Civil Service Commission, Division of Agency Services, rejected the four
lieutenants' classification appeals. For each lieutenant, the Division determined
"the current duties and responsibilities assigned to the position are
commensurate with the title Fire Lieutenant (01843)." We granted the
Borough's motion to supplement the appellate record with these determinations.
The Borough has since submitted the final administrative decision of the Civil
Service Commission upholding the Division of Agency Services determinations.
On appeal, the Borough argues the trial court erred by not setting aside
the arbitration award because the arbitrator imperfectly executed her powers,
misinterpreted the Disputed Clause's plain language, ignored, among other
things, the parties' past practice, and improperly disregarded the Fire Chief's
testimony. The Borough also argues the trial court's affirmation of the
arbitrator's award impinges upon managerial prerogative concerning shift
scheduling and staffing. The Borough emphasizes the Civil Service
Commission's final agency decision confirms the arbitrator's and the trial court's
mistaken conclusions that the fire lieutenants are performing the duties of fire
captains.
A-2277-18T3
9
FMBA responds that the arbitrator's factual determinations are not subject
to de novo review, her award is not contrary to public policy, and the award
represents a rational interpretation of the parties' agreement. FMBA disputes
the desk audit decisions of the Civil Service Commission are dispositive.
The Borough replies that the practical result of the arbitration award is to
require captains on each duty shift, issues involving staffing are matters of
managerial prerogative, the Borough has paid the back pay as a result of the
Chancery Division's decision, and the desk audit responses are persuasive.
Our review of the trial court's decision is de novo. Minkowitz v. Israeli,
433 N.J. Super. 111, 136 (App. Div. 2013). In contrast, our review of
"arbitration awards is extremely limited and an arbitrator's award is not . . . set
aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J.
505, 513 (2001) (citing Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208,
221 (1979)). Neither the trial court nor this court may second-guess the
arbitrator's interpretation of the CNA, so long as her construction is reasonably
debatable. Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J.
1, 11 (2007). A construction is reasonably debatable if it is "plausible,"
Policemen's Benevolent Ass'n Local No. 11 v. City of Trenton, 205 N.J. 422,
430-31 (2011), or "justifiable" or "fully supportable in the record," id. at 431
A-2277-18T3
10
(quoting Kearny PBA Local #21, 81 N.J. at 223-24). Under that standard, an
arbitrator's interpretation of a CNA need not be the only interpretation or the
best one. Id. at 432. "What is required is that the arbitrator's interpretation finds
support in the Agreement . . . ." Ibid.
Arbitrators "may not look beyond the four corners of a contract to alter
unambiguous language . . . ." Id. at 430. "Thus, our courts have vacated
arbitration awards as not reasonably debatable when arbitrators have, for
example, added new terms to an agreement or ignored its clear language." Id.
at 429.
In addition, "in rare circumstances" an arbitration award may be
overturned where it violates public policy. Borough of E. Rutherford v. E.
Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (citation omitted).
"For purposes of judicial review of labor arbitration
awards, public policy sufficient to vacate an award
must be embodied in legislative enactments,
administrative regulations, or legal precedents," and
may not be "based on amorphous considerations of the
common weal." Moreover, the public policy exception
is triggered when "a labor arbitration award—not the
grievant's conduct—violates a clear mandate of public
policy . . . ."
[Middletown Twp. PBA Local 124, 193 N.J. at 11
(quoting N.J. Tpk. Auth. v. Local 196, 190 N.J. 283,
295, 300 (2007)).]
A-2277-18T3
11
Having reviewed the record under the foregoing standard, we conclude
the arbitrator's construction of the Disputed Clause is not reasonably debatable
and therefore must be vacated. To arrive at the construction she did, the
arbitrator in effect engrafted terms concerning lieutenants onto the Disputed
Clause, terms that are contrary to the Disputed Clause's plain language and were
unintended by the parties when they negotiated the CNA.
When the Disputed Clause was negotiated, lieutenants did not exist in the
fire department. That fact is undisputed. Undisputed, too, is the Civil Service
Commission job specification for a firefighter, admitted as an exhibit during the
arbitration. Absent from that specification is any provision that suggests the job
includes performing duties when a captain is absent from a shift. Consequently,
when a firefighter performs a captain's duties, the firefighter is performing work
beyond the job description and assuming greater responsibilities than those
delineated in the job specification. The Disputed Clause thus compensates a
firefighter when performing the duties of an acting captain. That is precisely
what the plain and unambiguous language of the Disputed Clause provides.
In contrast to the position of firefighter, included in the Civil Service
Commission job specification for a fire lieutenant is this example of a
A-2277-18T3
12
lieutenant's work: "[a]cts in the place of a Fire Captain in his/her absence." This
is one of many duties that distinguishes a lieutenant from a firefighter.
We point out the contrasting duties because the arbitrator concluded the
Disputed Clause clearly and unambiguously entitled lieutenants to the captain's
pay rate when performing duties in a captain's absence. Yet, the Disputed
Clause is devoid of any language concerning lieutenants, and nothing in the
record suggests a reason why lieutenants should receive extra compensation for
performing work within their job description. Of course, here the record is
undisputed that neither FMBA nor the Borough contemplated such a result when
they negotiated the Disputed Clause, because FMBA did not represent any
lieutenants, as there were none.
It is not insignificant the arbitrator rejected the Borough's "past practice"
argument and gave virtually no consideration to the lieutenants performing their
job duties, including acting in the place of a fire captain in his or her absence,
for four years without a request for any pay beyond that to which they were
entitled under the Borough's salary ordinance. The arbitrator rejected the
Borough's argument that the four-year past practice was significant on the basis
the Disputed Clause was clear and unambiguous. Yet, the clause as written, if
attempted to be applied to lieutenants, is anything but clear. The clause as
A-2277-18T3
13
written mandates that a senior firefighter assume the responsibilities of acting
captain when a shift captain is off, "providing this does not conflict with Civil
Service Regulations." This plain language, if followed after the creation of
lieutenant positions, would violate Civil Service Regulations by mandating a
firefighter assume the responsibilities of a captain and perform work beyond his
or her job description, rather than a lieutenant, whose job description includes
such responsibility.
As previously noted, the Supreme Court has recognized that "our courts
have vacated arbitration awards as not reasonably debatable when arbitrators
have, for example, added new terms to an agreement or ignored its cl ear
language." Policemen's Benevolent Ass'n, Local No. 11, 205 N.J. at 429-430.
Here, the arbitrator interpreted the disputed clause contrary to its clear and
unambiguous language and construed the clause by implying terms concerning
lieutenants. Her construction, engrafting onto the Disputed Clause terms neither
contained nor intended to be contained in the clause, and ignoring the clause's
clear language, which neither applied to nor was intended to apply to lieutenants,
was not reasonably debatable. Accordingly, we reverse the trial court's order
upholding the arbitration award and vacate the award.
Reversed and vacated.
A-2277-18T3
14