SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3864-16T4

CITY OF CAMDEN,

Plaintiff-Appellant,

v.

CWA LOCAL 1014 and

RODNEY WEARING,

Defendants-Respondents.

______________________________

Argued March 15, 2018 – Decided

Before Judges Simonelli, Haas and Rothstadt.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-1345-17.

Michael J. Watson argued the cause for appellant 

(Brown & Connery, LLP, attorneys; Michael J. Watson, 

on the briefs).

James Katz argued the cause for respondents (Spear 

Wilderman, PC, attorneys; James Katz, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

September 26, 2018
2

A-3864-16T4

PER CURIAM

Plaintiff City of Camden (City) appeals from the May 5, 2017 Law 

Division order, which denied its motion to vacate an arbitration award requiring 

the City to provide severance pay and retiree health benefits to defendant 

Rodney Wearing, and confirmed the award.

1 For the following reasons, we 

affirm.

I.

Wearing was employed as a heavy laborer with the City's Department of 

Public Works (DPW) from September 1984, until August 2016. As of August 

25, 2016, he had more than twenty-five years of service with the City and more 

than twenty-five years of service credit with the Public Employees' Retirement 

System (PERS). 

Wearing's employment was governed by a collective bargaining 

agreement (CBA) between the City and defendant CWA Local 1014 (the Union). 

 

1

 The City did not address the trial court's confirmation of the award of 

severance pay in its merits brief, and stated in its amended reply brief that it's 

"appeal does not seek this [c]ourt's review of the [a]ward with regard to 

Wearing's [s]everance [b]enefits." The issue regarding the award of severance 

pay was appealable notwithstanding the trial court's stay of payment. Thus, the 

issue is deemed waived. N.J. Dep't of Envtl Prot. v. Alloway Twp., 438 N.J. 

Super. 501, 505 n.2 (App. Div. 2015) (citation omitted); see also Pressler & 

Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018). 
3

A-3864-16T4

CBA Article IX.B provides, in pertinent part: "If an employee leaves the service 

of the City after January 1st, but prior to December 31st, in good standing, such 

employee shall receive longevity pay based on their length of service, prorated, 

and paid at time of termination" (emphasis added). CBA Article XIV.B provides 

that an employee with more than twenty-five years of service shall receive five 

full weeks of severance pay. CBA Article XV.B provides that continued health 

benefits for a retiree "is established by Chapter 57 of the Camden Code." 

Camden Code § 57-2.A requires the City to provide continued health 

benefits to retirees from the date of retirement to age sixty-five. Camden Code 

§ 57-3.B requires the City to provide continued health benefits to employees 

who have retired after twenty-five years or more of service credit in a State 

retirement system and not less than twenty-five years of service to the City. 

Camden Code § 57-3.D, which is at issue here, provides that "employees . . . are 

not entitled to continued health benefits if the employee is separated for cause 

by the City . . . for an incident that took place prior to the approval date of his/her 

retirement . . . pension." 

Pursuant to the City's policy, DPW employees are subject to random drug 

testing on a periodic basis. On July 16, 2013, Wearing was selected for a random 

drug test, and tested positive for drugs. On July 29, 2013, Wearing and the City 
4

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entered into a "Last Chance Agreement," which the City claimed provided that 

Wearing would be terminated from his employment if he tested positive for 

drugs or alcohol or refused to submit to a drug or alcohol test. Wearing denied 

the agreement provided for his termination if he tested positive for drugs or 

alcohol or refused to submit to a drug or alcohol test.2 

On Saturday, August 6, 2016, Wearing's son was shot and hospitalized. 

Commencing the week of August 8, 2016, Wearing took approved vacation 

leave to care for his son. Wearing was his son's primary caretaker, and his son 

was released into his care from the hospital. 

According to the City, on August 22, 2016, Wearing came to work at the 

Parks and Recreation building and was transported to the DPW building. The 

DPW's assistant superintendent, Mitchell Richardson, advised the City's 

Director of Public Works, Patrick Keating, that Wearing requested vacation 

leave. Keating advised Richardson that Wearing was scheduled for a drug test 

and had to take the test that morning. Wearing then called Keating and said he 

was taking vacation, effective immediately. Keating told Wearing he was on 

the list for a random drug test and had to take the test. Wearing left without 

 

2

 If the "Last Chance Agreement" was in writing, the City has not provided it 

on appeal. 
5

A-3864-16T4

taking the drug test. According to Wearing, he went to the Parks and Recreation 

Building on August 22, 2016, not to work, but to obtain additional time off to 

care for his son. The parties stipulated that Wearing received vacation pay for

August 22, 23, 24 and 25, 2016. 

On August 25, 2016, Wearing submitted to Keating and the City's 

Business Administrator an "irrevocable letter of retirement," which stated:

After [thirty-two] years of service with the City . . . I 

am hereby providing my irrevocable notice of 

retirement effective August 25, 2016 due to recent 

events involving my family. I have already submitted 

a pension application to the New Jersey Division of 

Pensions and Benefits. I do not intend to return to 

work.

Please advise the appropriate City representatives of 

my retirement. I ask that the necessary steps be taken 

in order to provide me with benefits afforded retirees 

through the CWA Local 1014 contract with the City. 

Your anticipated cooperation with this request is 

greatly appreciated.

[(Emphasis added).]

Also on August 25, 2016, Wearing filed a retirement application with 

PERS, which listed August 25, 2016 as his last day of employment with the City, 

and the Union's president advised Keating that Wearing filed the application that 

day and would not be returning to work. The CBA did not require him to take 

any further action for his "irrevocable letter of retirement" to become effective 
6

A-3864-16T4

on August 25, 2016. Wearing did not return to work thereafter, and there was 

no evidence he was required to do so. PERS approved his pension application 

on September 21, 2016, retroactive to September 1, 2016, which was the earliest 

date he could begin receiving pension payments pursuant to N.J.A.C. 17:2-6.1.

3

 

In connection with his retirement, in an August 26, 2016 letter, the 

Division of Pension and Benefits (Division) offered Wearing the opportunity to 

enroll in health benefits coverage through the Retired Group of the State Health 

Benefits Program "based on [his] retirement from full-time employment." The 

letter also indicated that Wearing may be eligible for employer paid health 

benefits. 

At the time Wearing submitted his "irrevocable letter of retirement" and 

pension application, he had not been served with a notice of disciplinary action 

seeking removal from employment, was not advised the City was seeking his 

removal, and Keating had not prepared a report requesting that the City 

discipline Wearing. The City presented no evidence that on August 25, 2016, 

Wearing was aware it contemplated disciplinary action against him. Notably, 

the City stipulated that Wearing received a pro rata share of longevity pay for 

 

3

 Pursuant to N.J.A.C. 17:2-6.1(a), regardless of the day of the month the 

employee permanently ceases employment, the earliest a retirement can become 

effective and pension checks commence is the first day of the following month.
7

A-3864-16T4

eight months in 2016, up to the week of August 19, 2016. Wearing was only 

entitled to longevity pay under the CBA Article IX if he left his employment in 

good standing. 

Nevertheless, on August 26, 2016, Keating issued a report, detailing the 

incident on August 22, 2016, confirming that Wearing had "been out of work 

for the past two weeks because his son had been shot and wounded[,]" and 

recommending that the City suspend Wearing, retroactive to August 22, 2016,

pending a disciplinary hearing. Keating did not recommend Wearing's removal. 

On August 26, 2016, the City issued a Preliminary Notice of Disciplinary 

Action (PNDA), which notified Wearing the City sought his suspension or 

removal under N.J.A.C. 4A:2-2.3(a) for insubordination, conduct unbecoming a 

public employee, neglect of duty, and other sufficient causes, "including 

violation of the City[’s] . . . Municipal Personnel Policies, Chapter III, Section 

9, Substance Abuse; Chapter III, Section 10, Drug and Alcohol Screening 

Policy; and Violation of Agreement." The PNDA based the charges on the "Last 

Chance Agreement" and incident on August 22, 2016. The PNDA was mailed 

to Wearing by certified or registered mail on August 26, 2016. 

Following a departmental hearing, the hearing officer recommended 

Wearing's removal from employment, effective August 22, 2016. On October 
8

A-3864-16T4

7, 2016, the City issued a Final Notice of Disciplinary Action (FNDA),

removing Wearing from his employment, retroactive to August 22, 2016.

4

 

Wearing was already receiving his pension benefits by the time the City issued 

the FNDA. 

The City did not respond to the Union's letters asking it to provide retiree 

benefits to which Wearing was entitled under the CBA. As a result, the Union

filed a grievance on Wearing's behalf, asserting he was entitled to severance pay 

and retiree health benefits under the CBA. After the City denied the grievance, 

the Union filed a demand for arbitration with the Public Employment Relations 

Commission. 

At the arbitration, the City confirmed that the merits of Wearing's removal 

was not before the arbitrator. The City asserted that Wearing was not entitled 

to severance pay because he did not terminate his employment voluntarily.

Rather, he was terminated based on the issuance of the PNDA on August 26, 

2016, which resulted in the FNDA on October 7, 2016, terminating his 

employment for cause retroactive to August 22, 2016. The City also asserted 

that Wearing was not entitled to retiree health benefits because he was 

 

4

 Wearing appealed his removal to the Civil Service Commission and 

subsequently withdrew the appeal. 
9

A-3864-16T4

terminated for cause for an incident that took place on August 22, 2016, prior to 

PERC's approval of his retirement pension on September 1, 2016. 

The City argued that accepting Wearing's claim he retired on August 25, 

2016, based on his "irrevocable letter of retirement" would lead to an impractical

"paper race" where an employee could race to submit a letter of retirement

before the City could take disciplinary action in order to immunize himself from 

the City's claim it separated the employee for cause. The City also argued there 

would be no deterrent against misconduct for retirement-eligible employees if 

this practice were allowed. Lastly, citing administrative cases,5the City argued 

it could apply a termination date retroactively to the date the misconduct 

occurred.

In a March 21, 2017 opinion and award, the arbitrator determined that 

Wearing was entitled to severance pay. The arbitrator found:

The undisputed facts establish that . . . Wearing 

submitted an "irrevocable letter of retirement" with the 

City on August 25, 2016. It was received by the City 

on that date, the City was advised of same orally on that 

date. . . . Wearing filed for retirement with the State of 

New Jersey on that date and never returned to work 

thereafter as an employee of the City. There is no 

evidence that he remained employed after August 26, 

 

5

 The City cited In the Matter of Ciuppa, 2014 N.J. AGEN LEXIS 206 (May 16, 

2013); In the Matter of Love, 2007 N.J. AGEN LEXIS 828 (Nov. 14, 2007) and 

Burke v. Twp. of Washington, 1999 N.J. AGEN LEXIS (Mar. 2, 1999).
10 A-3864-16T4

2016 or that his separation from employment was 

contingent on City approval nor is there any evidence 

that the City rejected his termination of employment . . 

. Wearing's retirement filing on August 25, 2016 was 

received and responded to by the Division of Pensions 

and benefits on August 26, 2016 and processed to 

finality based upon his decision to terminate his 

employment on August 25, 2016 due to retirement.

The arbitrator found no merit in the City's argument that Wearing's employment 

was not terminated voluntarily, but rather, he was terminated based on the 

issuance of the PNDA. The arbitrator determined:

There is no record evidence that at the time of . . . 

Wearing's separation from employment the City ever 

indicated to him or anyone else that disciplinary action 

was either contemplated or would be taken against him 

despite three days having passed since the alleged 

incident occurred. The [PNDA] was not issued until 

the following day. His length of service entitled him to 

severance pay pursuant to the negotiated schedule of 

payments and the City violated Article XIV.B.2 when 

it did not make the payment after he voluntarily 

separated his employment with the City because of a 

retirement program.

The arbitrator applied the same analysis to retiree health benefits, but 

under the language in Camden Code § 57-3.D. The arbitrator found the City did 

not contest that Wearing submitted a letter of retirement on August 25, 2016, 

filed a retirement application with PERS that day, and no longer worked for the 
11 A-3864-16T4

City thereafter. The arbitrator rejected the City's "paper race" argument, 

finding:

the record is barren of any evidence that . . . Wearing's 

decision to retire, three days after August 22, 2016 and 

one day prior to the [PNDA], was motivated by 

avoiding the impact of disciplinary action that was 

unknown by him at the time of his letter of retirement. 

Moreover, . . . Wearing's personal life and the 

caretaking of his son resulting in uncontested paid 

absences from work beginning August 8, 2016 do not, 

in the absence of credible evidence to the contrary, 

suggest that his separation from employment on August 

25, 2016 was a bad faith attempt to circumvent benefits 

due to an employee with thirty-one years of service. 

Any other conclusion would be speculative and based 

upon insufficient record evidence.

The arbitrator rejected the City's argument that Wearing was not entitled 

to retiree health benefits because he was terminated for cause for an incident 

that took place on August 22, 2016, prior to PERC's approval of his retirement 

pension on September 1, 2016. The arbitrator found the Division's August 26, 

2016 letter granted Wearing the opportunity to enroll in New Jersey State Health 

Benefits "based on his retirement from full-time employment." The arbitrator

also found that under N.J.A.C. 17:2-6.1(a), retirements cannot become effective 

until the first day of the month following receipt of the retirement application,

unless the applicant seeks a later retirement date. The arbitrator did not interpret 

the term "approval date" in Camden Code § 57-3.D to mean the date of formal 
12 A-3864-16T4

approval of a retirement by the Division rather than the date an employee 

actually retires from employment with the City.

The arbitrator also rejected the City's argument that it may apply a 

termination date retroactively to the date the misconduct occurred. The 

arbitrator emphasized that Wearing retired and was no longer an employee of 

the City when the City issued the PNDA and FNDA. Accordingly, the arbitrator 

found the administrative cases the City cited in support of its argument did not 

apply, stating:

In all of the cited cases, the retroactive dates for 

removal were tied to either the dates of the [PNDA] or 

shortly thereafter, and all involved matters in which the 

affected individual was an employee of the public 

employer and had not separated from employment due 

to retirement. In this instance, the City seeks to reach 

back before the [PNDA] to effectuate a retroactive 

discharge before . . . Wearing's retirement. Regardless 

of the merits or validity of the Notices of Disciplinary 

Action taken by the City or . . . Wearing's appeal [to the 

Civil Service Commission], which are not before me, 

such action is not supported by the precedent cited by 

the City.

[(Emphasis added).]

The arbitrator concluded that the Union established that the City violated CBA 

Article XIV.B by not providing severance pay to Wearing and CBA Article 

XV.B by not providing continued health benefits to him after his retirement after 
13 A-3864-16T4

more than twenty-five years of service with the City and more than twenty-five 

years of service credit with the PERS. 

The City filed a verified complaint and motion, seeking to vacate the 

arbitration award, and the Union and Wearing filed a verified counterclaim and 

cross-motion, seeking to confirm the arbitration award. In a May 5, 2017 order 

and oral opinion, the trial court denied the City's motion, granted the crossmotion, and confirmed the arbitration award "in all respects." This appeal 

followed.

"As the decision to vacate an arbitration award is a decision of law, [we]

review[] the denial of a motion to vacate an arbitration award de novo." Manger 

v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010). In our de novo review, 

we have the right to review the record and make our own findings of fact. In re 

Phillips, 117 N.J. 567, 578 (1990); Grasso v Borough Council of Glassboro, 205 

N.J. Super. 18, 25 (App. Div. 1985). 

"Judicial review of an arbitration award is very limited." Bound Brook 

Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. 

v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "Courts have 

engaged in an extremely deferential review when a party to a collective 

bargaining agreement has sought to vacate an arbitrator's award. The well-
14 A-3864-16T4

established standard . . . is that 'an arbitrator's award will be confirmed "so long 

as the award is reasonably debatable." Policemen's Benevolent Ass'n v. City of 

Trenton, 205 N.J. 422, 428-29 (2011) (quoting Linden Bd. of Educ., 202 N.J. at 

276).

"That high level of deference springs from the strong public policy 

favoring 'the use of arbitration to resolve labor-management disputes.'" Id. at 

429 (quoting Linden Bd. of Educ., 202 N.J. at 275-76). "Moreover, where a 

collective bargaining agreement provides for binding arbitration, 'it is the 

arbitrator's construction that is bargained for,' and not a court's construction." 

Ibid. (quoting Linden Bd. of Educ., 202 N.J. at 276). "That is not to suggest that 

an arbitrator's award is impervious to attack.” Ibid. "Indeed, it is axiomatic that 

an arbitrator's 'award is legitimate only so long as it draws its essence from the 

collective bargaining agreement. When the arbitrator's words manifest an 

infidelity to this obligation, courts have no choice but to refuse enforcement of 

the award.'" Ibid. (quoting United Steelworkers v. Enter. Wheel & Car Corp., 

363 U.S. 593, 597 (1960)). "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." Ibid. 
15 A-3864-16T4

The court may vacate an arbitration award only in these limited 

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.

[N.J.S.A. 2A:24-8.]

The claim of error in this case implicates subsection (a), which provides 

for vacation of an arbitration award "[w]here the award was procured by 

corruption, fraud or undue means." "'[U]ndue means' ordinarily encompasses a 

situation in which the arbitrator has made an acknowledged mistake of fact or 

law or a mistake that is apparent on the face of the record[.]" Borough of E. 

Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (first 

alteration in original) (quoting N.J. Office of Emp. Relations v. Commc'ns 

Workers of Am., 154 N.J. 98, 111-12 (1998)). "[A]n arbitrator's failure to follow 
16 A-3864-16T4

the substantive law may . . . constitute 'undue means' which would require the 

award to be vacated." In re City of Camden, 429 N.J. Super. 309, 332 (App. 

Div. 2013) (quoting Jersey City Educ. Ass'n, Inc v. Bd. of Educ., 218 N.J. Super 

177, 188 (App. Div. 1987)). 

The claim of error in this case also implicates subsection (d), which 

provides for vacation of an arbitration award where the arbitrator exceeded his 

power. An arbitrator may not exceed the power authorized by the parties'

collectively negotiated agreement. Commc'ns Workers of Am., Local 1087 v. 

Monmouth Cty. Bd. of Soc. Servs., 96 N.J. 442, 452 (1984). "Although 

arbitrators may not look beyond the four corners of a contract to alter 

unambiguous language, where a term is not defined, it may be necessary for an 

'arbitrator to fill in the gap and give meaning to that term.'" City of Trenton, 

205 N.J. at 430 (quoting Linden Bd. of Educ., 202 N.J. at 277). "Furthermore, 

an arbitrator may 'weav[e] together" all those provisions that bear on the relevant 

question in coming to a final conclusion." Ibid. (alteration in original) (quoting

N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 

555 (2006)). "When that occurs, even if the arbitrator's decision appears to 

conflict with the direct language of one clause of an agreement, so long as the 
17 A-3864-16T4

contract, as a whole, supports the arbitrator's interpretation, the award will be 

upheld." Ibid. As our Supreme Court has held:

Courts are not to "second-guess" an arbitrator's 

interpretation, because "the question of interpretation 

of the collective-bargaining agreement is a question for 

the arbitrator. 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 overruling him because their interpretation 

of the contract is different from his."

[Borough of E. Rutherford, 213 N.J. at 202 (quoting 

Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 

420, 433 (1996)).]

In addition, the court may vacate an arbitration award for public policy 

reasons. Ibid. "However, '[r]eflecting the narrowness of the public policy 

exception, that standard for vacation will be met only in rare circumstances.'" 

Ibid. (alteration in original) (quoting N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 

190 N.J. 283, 294 (2007)). Public policy is ascertained by 'reference to the laws 

and legal precedents and not from general considerations of supposed public 

interests. Id. at 202-03 (quoting Weiss, 143 N.J. at 434-35). 

"[E]ven when the award implicates a clear mandate of public policy, the 

deferential 'reasonably debatable' standard still governs. Thus, '[i]f the 

correctness of the award, including its resolution of the public-policy question, 

is reasonably debatable, judicial intervention is unwarranted.'" Id. at 203 
18 A-3864-16T4

(alteration in original) (quoting Weiss, 143 N.J. at 443). As the Court explained, 

"[a]ssuming that the arbitrator's award accurately has identified, defined, and 

attempted to vindicate the pertinent public policy, courts 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, 143 N.J. at 443. 

Applying the above standards, we discern no reason to disturb the 

arbitration award.

II.

On appeal, the City contends the record demonstrated that Wearing is 

ineligible for retiree health benefits under Camden Code § 57-3.D because he 

was terminated for cause under the Civil Service removal procedures for an 

incident that occurred prior to PERC's approval of his retirement pension. Thus, 

the City argues the arbitration award must be vacated pursuant to N.J.S.A. 

2A:24-8(a) because it was based on dispositive mistakes of fact, which 

prevented the arbitrator from correctly applying the record to Camden Code § 

57-3.D. 

The City's argument focuses on its right to remove Wearing from his 

employment retroactively for cause in accordance with Civil Service 
19 A-3864-16T4

disciplinary regulations. However, the City cited no authority permitting it to 

discipline and retroactively remove a former employee under those regulations.

Nor is there any such authority, as the disciplinary regulations do not apply to 

former employees, but "applies only to permanent employees in the career 

service or a person serving a working test period." N.J.A.C. 4A:2-2.1(a)

(emphasis added). Only "[a]n employee" can be disciplined under the 

regulations. N.J.A.C. 4A:2-2.3. "Employee" is defined as "[a] person who 

works in the service of another person (the employer) under an express or 

implied contract of hire, under which the employer has the right to control the 

details of work performance." Black's Law Dictionary 693 (10th ed. 2014). 

Wearing was not an employee of the City when it issued the PNDA. Thus, he 

was not subject to the Civil Service disciplinary regulations, and his removal 

under those regulations was irrelevant to the arbitrator's determination of his 

grievance.

The only issue before the arbitrator was whether Wearing was 

contractually entitled to severance pay and retiree health benefits. The arbitrator 

found Wearing was entitled to severance pay, as he terminated his employment 

voluntarily on August 25, 2016, because of retirement, not because of the 

issuance of the PNDA or FNDA, or a termination for cause. The City did not
20 A-3864-16T4

challenge this finding on appeal. In addition, the City does not dispute it

provided longevity pay to Wearing, which he could only receive if he left his 

employment in good standing.

Nevertheless, there was no mistake of fact or law here. The record 

supports the arbitrator's finding that Wearing retired on August 25, 2016, and 

had twenty-five or more years of credit in a State retirement system and not less 

than twenty-five years of service to the City at that time. The record also 

supports the arbitrator's finding that Wearing was not separated from his 

employment for cause, but rather, he separated voluntarily on August 25, 2016

because of a retirement program, and whatever actions the City took subsequent 

to August 25, 2016, were contractually and legally irrelevant and 

inconsequential to Wearing's contractual right to retiree health benefits. Thus, 

the arbitrator correctly concluded the City violated CBA Article XV.B and 

Camden Code § 57-3.A and B in denying Wearing retiree health benefits. 

Having reached this conclusion, we need not address the City's argument 

that the arbitrator exceeded his authority under the CBA by relying on his selfdefined "actual date of retirement" instead of the "approval date" of Wearing's 

retirement application as stated in Camden Code § 57-3.D. 
21 A-3864-16T4

However, we address the City's contention that the arbitration award must 

be vacated under N.J.S.A. 2A:24-8(a) because arbitrator and trial court made a 

mistake of law by considering Wearing's motivation to avoid discipline as a 

dispositive legal issue. The City argues that Wearing's motivation to avoid 

discipline was immaterial to a proper analysis of Camden Code § 57-3.D. We 

disagree. Wearing’s motivation was not immaterial to a proper analysis of 

Camden Code § 57-3.D, as it was directly relevant to the validity of his August 

25, 2016 "irrevocable letter of retirement." If Wearing knew the City was going 

discipline him and his motivation in retiring was solely to “beat the clock” to 

obtain continued health benefits, then the outcome may have been different. 

However, as the arbitrator found, the record was devoid of evidence that at the 

time he submitted his "irrevocable letter of retirement" and retired, Wearing 

knew the City contemplated disciplinary action against him or that his decision 

to retire was motivated by avoiding the impact of disciplinary action. Thus, 

there was no mistake of law warranting vacation of the arbitration award.

III.

The City contends the award of retiree health benefits to Wearing is 

contrary to public policy because it supersedes a Civil Service employer's right 

to discipline and remove employees who commit misconduct and ignores this 
22 A-3864-16T4

court's warning against allowing a "beat the clock" and "paper race" mentality 

in the public employment context.6 

The City's relies on on Port Authority Police Sergeants Benevolent Ass'n 

of N.Y., N.J. v. Port Authority of N.Y., N.J., 340 N.J. Super. 453 (App. Div. 

2001), to support this argument. There, a police officer allegedly brandished his 

weapon at a third party while off duty. Id. at 454. A warrant was issued for his 

arrest, he was suspended without pay, and a grand jury indicted him. Ibid. He 

voluntarily retired prior to the institution of departmental disciplinary 

proceedings and resolution of the criminal charges. Id. at 454-55. A jury found 

him not guilty of the criminal charges. Id. at 455.

An arbitrator found the officer was entitled to back pay from the date of 

his suspension until the date of his retirement. Id. at 456. We reversed, finding 

that:

The arbitrator failed to consider the ramifications of her 

decision on the public interest. Her decision basically 

encourages suspended police officers, who face both 

criminal and departmental charges, to remain on 

 

6

 We decline to address the City's additional argument that Wearing did not 

resign in good faith, as he did not provide fourteen days' notice prior to 

resigning, in violation of N.J.A.C. 4A:2-6.1(a) and N.J.A.C. 4A:2-6.2(2), which 

prevents him from obtaining benefits. The City did not raise this issue before 

the arbitrator and trial court, it is not jurisdictional in nature, and it does not

substantially implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-

27 (2014) (citation omitted).
23 A-3864-16T4

suspension for a protracted period of time while 

disciplinary charges are prepared. However, just before 

such charges are resolved, the officers can conveniently 

retire, safe in the knowledge that if they successfully 

defend against the pending criminal charges, they will 

reap a financial windfall in the form of back pay from 

the date of their initial suspensions. By employing this 

strategy, they will have successfully undermined the 

department's ability to prosecute the disciplinary 

charges pending against them, and the department will 

have lost, by virtue of the voluntary retirement, the 

opportunity to eliminate any back pay award, one of the 

remedies available in the disciplinary forum. The 

public interest would thereby be subverted.

[Id. at 461-62.]

The City also relies on New Jersey Highway Authority v. International 

Federation of Professional and Technical Engineers, Local 193, 274 N.J. Super. 

599 (App. Div 1994). There, the employee was arrested for admittedly stealing 

toll receipts and charged with theft. Id. at 603-04. The employer suspended him 

without pay, issued disciplinary charges against him, and informed him there 

would be a disciplinary hearing. Id. at 604. Prior to the hearing, the employee 

tendered a letter of resignation, asking the employer to accept his resignation. 

Id. at 604-05. The employer rejected his resignation and, after a hearing, found 

him guilty of the charges and terminated his employment. Id. at 605.

In vacating the arbitrator's award in the employee's favor, we noted the 

arbitrator acted contrary to the public interest by failing to recognize the purpose 
24 A-3864-16T4

and effect of the employee's suspension without pay pending a disciplinary 

hearing, which occurred prior to the employee's attempt to resign. Id. at 610. 

We determined the arbitrator should have found the disciplinary hearing 

effectively terminated the employee as of the date of his arrest, and thus, the 

employee's attempted resignation after that date is ineffective. Id. at 610-11. 

We concluded:

in awarding sick benefits, the arbitrator in essence 

granted [the employee] a two month cushion to put his 

affairs in order prior to bearing any responsibility for 

his breach of public trust. The effect was to allow a 

race to resignation before the grievance machinery 

could conclude. To put the point differently, the 

arbitration award condoned a "beat the clock" 

mentality, i.e., could NJHA have afforded [the 

employee] a full and fair hearing before he sought to 

vest his benefits and before imposition of any penalties 

or exclusionary provisions contained in the contract. In 

our view such action cannot allow a defalcating public 

employee to betray the public trust by stealing public 

funds and avoid any impact with regard to his benefits. 

Public policy militates against such a result.

[Id. at 611-12 (footnote omitted).]

In contrast, at the time Wearing submitted his "irrevocable letter of 

retirement," he was not suspended, did not face criminal and departmental 

charges or a departmental hearing. In addition, there was no evidence 

whatsoever that he knew the City contemplated disciplinary action against him 
25 A-3864-16T4

or that he retired to "beat the clock" to avoid disciplinary action. The competent 

evidence in this case shows clearly that Wearing retired to care for his son. We 

are satisfied the arbitration award did not contravene a clear mandate of public

policy.

Affirmed.