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

Before Judges Nugent and Suter.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Middlesex County, Docket No. C000134-18.

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).

NOT FOR PUBLICATION WITHOUT THE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.

June 25, 2020
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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 
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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. 
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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 
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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 
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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. 
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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 mid2018, 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 
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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 
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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.
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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
11 A-2277-18T3

(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)).]
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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 
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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 
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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 clear 

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.