SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3175- 22

TOWNSHIP OF PISCATAWAY, Plaintiff-Respondent,

v. POLICEMEN'S BENEVOLENT ASSOCIATION LOCAL 93, Defendant-Appellant.

___________________________

Argued January 8, 2023

– Decided January 17, 2024 Before Judges Sabatino and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L- 2340

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. Leonard C. Shiro argued the cause for appellants (Mets Schiro & McGovern, L.L.P., attorneys; Nichola s P. Milewski , of counsel and on the briefs ). Michael R. Burns argued the cause for respondent (Rainone Coughlin Minchello, LLC, attorneys; Michae l R. Burns , of counsel and on the brief).

PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3175 -22

This dispute

— which the parties have litigated before a labor arb itrator, a Superior Court judge, and then this appellate court

— concerns whether a municipal police officer should have been allowed t o take a single day off from work three years ago. Upon interpreting the police union 's contract with the municipality, the

arbitrator ruled the officer was no t technically entitled to his requested day off, but that his employer was obligated to try to find another officer to replace him and "unreasonably denied" his request. The employe r appealed, and the trial judge vacated the award pursuant to N.J.S.A. 2A:24 -8(d). The judge remanded

the matter back to the arbitrator for further consi deration of whether the calculation of applicable manpower levels within th e officer's squad should have included an officer who was out on family leave. As explained in this opinion, we affirm the trial c ourt's order, with a slight amplification of its reasoning. The remand to the arbitrator should now proceed

as ordered.

I. Plaintiff-respondent Township of Piscataway ("the Township" or "the employer") employs approximately forty to forty-two law enforcement officers. Seven officers usually work per each shift.3 A- 3175 -22

Defendant-appellant Policeman's Benevolent Associa tion Local 93 ("the PBA") is the labor union that represents the police officers employed by the Township. To understand the background of this matter concer ning an officer's use of a personal day , we present several of the relevant portions of the applicable Collective Negotiations Agreement ("CNA") between t he Township and the

PBA. 1 Most pertinent here is Article XIV entitled "Person al Days." The two

Sections of Article XIV state as follows:

ARTICLE [] XIV PERSONAL DAYS Section 1. Each Employee shall be allowed four (4) personal days in each calendar year of this Agreeme nt. One (1) additional personal day is allowed in lieu of one -half (1/2) day off Christmas Eve and one-half (1/2 ) day off New Year's Eve. The Employer shall, furthermore, make every effort to revise such perso nnel policy so that, to the greatest extent possible, su ch personal days may be taken by employees when requested.

Sec tion 2. For the purposes of two of the personal days, an individual may give four (4) hours notice. In t he event the Watch Commander determines that he must have the position staffed as a result of duty requirements, the Watch commander shall have the

1 We were advised by counsel that the CNA is about to be re-negotiated this year, which diminishes the significance of our opin ion.4 A- 3175 -22 responsibility of obtaining a replacement. If a replacement is obtained the officer will be granted the personal day and the replacement shall receive the proper overtime compensation for filling the positi on. The Watch Commander shall not unreasonably deny any request. Personal emergency situations shall n ot be limited by the context of the above language. [( Emphasis added).] As counsel on the appeal agreed during oral argume nt, the term "duty requirements" used in Section 2 of Article XIV abov e means the same thing as "manpower requirements" 2 as set forth in Article V(A), the "Patrol Section" part of the CNA. Section 6 of Article V(A) reads in per tinent part as follows: Article V(A) Patrol Section

. . . .

Section 6: Man-Power Requirements The following Man-Power Requirement shall be in effect for all squads assigned to the Patrol Sectio n. On those occasions when there is insufficient man-powe r, the Shift Supervisor shall make all efforts possibl e to request or hire additional man-power to fulfill thi s requirement. Due to the increase in the minimum man power requirement on the day shift (from 5 to 6 officers minimum), those officers on day shift (squads A & B )

2 Sometimes variously expressed in the CNA as "man- power ," "man power," and "manning."5 A- 3175 -22 sha ll have one (1) day per year in which they can use their contractual leave time (and compensatory time ) and have the minimum man power requirement drop by one (1) officer from six (6) to five (5). They can use this one day at their discretion unles s a pol ice emergency exists which would make dropping the minimum manning requirement inappropriate and except on Memorial Day, July 4th and Election Day ( in November). If more than one officer per shift wants to use thi s day at the same time there by reducing minimum manning by two or more, only one (1) officer will be granted the time off in order of seniority so that minimum man power will be reduced by only one officer. The minimum shift strength will always be at least two (2) officers above the minimum manning requirement for any given shift thereby providing the opportuni ty for at least two (2) to be off at a time on any given shift except in the event of a police emergency. For example, should minimum manning requirement be reduced from six (6) back to five officers on the d ay shift, shift strength will be at least seven (7) of ficers. Notwithstanding anything else to the contrary contained herein, the parties agree that manning , overtime decisions and assignments are solely the prerogative of the Employer to the extent prescribe d by law and are not subject to negotiations or arbitrat ion, except to the extent that impact negotiations on te rms and conditions of employment may be, by law, requir ed as the result of new managerial decisions by the Employer.6 A- 3175 -22

Additionally, Section 14 of Article V(A) specifies what is termed a "manpower alternative" procedure, whereby an office r who requests time off may be permitted to propose another colleague to ta ke the officer's place to meet minimum manpower requirements, subject to the appro val of the squad supervisor: Section 14: Manpower Alternative

On those occasions when a member of any squad shall request time off which cannot be approved due to manpower requirement, said member may be allowed to have another member of equal rank work in said member's place. However, the member requesting the time off must obtain written agreement from the alternative employee and approval from his or her squad supervisor prior to that date, indicating whi ch member shall be reporting for duty. Any member who shall agree to work another member's tour of duty shall be held responsible for all duti es and departmental regulations as if he had been normally scheduled to work on that date. [(emphasis added).] Bearing in mind these provisions, the relevant seq uence of events is as follows. On January 30, 2021, Police Officer Nicho las Vaughn requested to take a personal day off two days later, on February 1, 2021. His request was not based on any personal emergency.7 A- 3175 -22

Vaughn's supervisor initially approved the request. However, the approval was rescinded after the supervisor conclud ed that allowing Vaughn to take the day off would drop the squad's staffing be low minimum manpower requirements. According to the Township, that is b ecause two other officers would not be working that day: one officer who alr eady had obtained a personal day off and another who was out on family leave pur suant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C.A. § 2612. Vaughn declined to exercise his once-per-year righ t under the second unnumbered paragraph of Section 6 of Article V(A ) to use his contractual leave time to have the minimum manpower requirement for h is shift lowered by one officer. He instead attempted under Section 14 of Article V(A) to find another officer to cover for him that day, without success. The supervisor, meanwhile, did not want to pay anot her officer overtime to replace Vaughn, and, as the arbitrator found, di d not attempt to secure a replacement. Consequently, Vaughn was unable to ta ke the day off on February 1, 2021. Following these events, the PBA filed a grievance on Vaughn's behalf, contending the Township violated the CNA by refusin g to seek a replacement. The grievance was referred to an arbitrator by the Public Employment Relations8 A- 3175 -22

Commission. The arbitrator considered testimony ov er two days from several police witnesses 3 as well as various documents, including the CNA. The parties stipulated that the question for the arbitrator to resolve was "Whether the employer violated Article XIV of the [CNA] in withd rawing approval for a personal day for Officer Nicholas Vaughn? If so, what shall be the remedy?" On January 25, 2023, the arbitrator issued an awar d in favor of the PBA. Among other things, Vaughn had made a timely reques t for a personal day off , meeting the four-hour notice period as mandated by Section 2 of Article XIV. Despite that proper notice, the arbitrator found th e employer had made "no effort" to seek a replacement officer. The arbitra tor reasoned that the employer had an obligation under Sections 1 and 2 of Article XIV to make such an effort, even if it would cause the employer to pay the repl acement overtime. In that regard, the arbitrator focused on the language with in Section 1 that directs the employer to "make every effort to revise such perso nnel policy [allotting four personal days] so that, to the greatest extent poss ible, such personal days may be taken by employees when requested." The Township appealed the arbitrator's decision to the Law Division pursuant to N.J.S.A. 2A: 24-8. After considering the matter, the trial j udge

3 We have not been furnished with transcripts of th e testimony.9 A- 3175 -22

issued an order and written opinion on June 14, 202 3, vacating the award. The judge found that the arbitrator had "overstepped" his aut hority in construing the CNA to require the employer to "always" seek replacement coverage for the officer in the circumstances presented. As described by the judge, the arbitrator "significantly altered a larger Township-wide pract ice and the way the [Police] Department functions." As such, "[t]he reach of th is arbitration award was never intended by the parties, and it amounts to the arbi trator exceeding his powers." Accordingly, the trial court remanded the matter a nd directed the arbitrator to re-examine the matter, this time with a narrower focus. Specifically, the court instructed the arbitrator t o address solely the appropriate "consideration of FMLA [absences of officers] as a category for [calculating] minimum manpower staffing [levels]." The PBA now appeals, urging that the arbitrator ha d made the correct

decision and that his decision should be reinstated . At the very least, the PBA contends the arbitrator's ruling was "reasonably de batable," and therefore should not be disturbed by the court. The Township disagr ees. It has not crossappealed the remand ordered by the trial court on t he FMLA issue.

II

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Briefly stated, the applicable principles that gui de our review are well established. The New Jersey Arbitration Act, N.J.S .A

. 2A:23 B-1 to - 36 , enumerates several narrow grounds for a court to se t aside an arbitration award. One of those grounds, which was relied upon by the trial court, is set forth in subsection (d) of N.J.S.A. 2A:24-8. "Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, fi nal and definite award upon the subject matter submitted was not made." As the trial court recognized, the court's authori ty to set aside an

arbitration award under N.J.S.A. 2A:24 -8(d) is not to be exercised lightly. To promote a sense of finality and to ensure judicial efficiency, there is "a strong preference for judicial confirmation of arbitration awards." Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 10 (2007) (quoting N.J. Tpk. Auth. v. Local 196, 190 N.J. 283, 292 (2007)). In public sector arbitration, courts are to accept an arbitrator's award so long as the award is "reasonably

debatable." Ibid. See also Policemen's Benevolent Ass'n, Local 11 v. City of Trenton, 205 N.J. 422, 429 (2011).

Tha t said, as the trial court also recognized, in nume rous situations the

courts have set aside arbitrator decisions where th ey have misapplied the governing law or contract provisions, and the rulin gs are not "reasonably11 A- 3175 -22

debatable." See, e.g. , Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (in which the Court held that an arbitrator had applied the wrong legal standard to a public employee's conduct); City Ass' n of Supervisors and Adm'rs v. State Operated Sch. Dist. of Newark, 311 N.J. Su per. 300, 312 (App. Div. 1998) (setting aside an arbitration award that misi nterpreted the clear language of the parties' agreement); PBA Local 160 v. Twp. o f N. Brunswick, 272 N.J. Super. 467, 475 (App. Div. 1994) (overturning an ar bitration award that disregarded an explicit term of a negotiated agreem ent). We review the trial court's decision vacating the arbitration award de

novo. Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019). Having done so, we affirm the trial court, with a slight amplification of its reasoning. As the trial court recognized, the arbitrator erre d and exceeded his authority by adopting an overly expansive interpret ation of the Township's

obl igations to find a replacement officer whenever an officer requests a personal day off that would entail reducing the coverage on the shift below minimum manpower levels. Under Section 2 of Article XIV, t he watch commander only has such an obligation in certain defined instances . As the first sentence of Section 2 provides, those instances only can arise twice per calendar year, when12 A- 3175 -22

the officer seeks to use the first two of four allo tted personal days, which counsel have explained to us are known as "paid" personal d ays. Once those two eligible paid days are exhausted, the watch commander no lon ger has an obligation to seek a replacement. Here, Vaughn apparently did not ask to use one of h is two "paid" personal days. Nor did he invoke his annual one-time right to have the minimum manpower level reduced by one officer. Instead, he placed the onus on his supervisor to either find a replacement or pay anot her officer overtime. The arbitrator failed to recognize that under Section 2 , the Township does not "always" have a duty to find a replacement. Moreover, the arbitrator's reasoning failed to tak e into proper account the declaration expressed in Article VI(A), Section 6 o f the CNA, in which the parties agreed that "the manning, overtime decisions and a ssignments are solely the prerogative of the Employer to the extent presc ribed by law." Such prerogatives "are not subject to negotiations or arbitration, except to the extent that impact negotiations on terms and conditions of employment may be, by law, required as the result of new managerial decisions by the Employer." The arbitrator further went astray in placing undue reliance up on Section 1 of Article XIV, which confers an obligation upon the employer to "make every13 A- 3175 -22

effort to revise such personnel policy" to assure t hat personal days can be used by officers to the greatest extent possible. (emph asis added). Section 1 literally is about the adoption of personnel "policy," not in dividualized day- to -day staffing decisions such as the one here involving V aughn. As the trial judge correctly perceived it, the real nub of the dispute here is

about a threshold manpower question. Is it appropriate, or not, under the CNA

to count officers who are on FMLA leave towards the calculation of minimum manpower levels? The Township says yes, and the PB A says no. The CNA contains no explicit language resolving this fundam ental question. The arbitrator's decision is not entirely clear on this poi nt, as it seemingly assumed the officer on FMLA leave "used up" one of the two allowable reductions from the minimum manpower level, but nev ertheless concluded the CNA "still required the Employer to make an effort to allow Vaughn the day off." The arbitrator's decision is manifestly "imp erfect" on this critical point. The trial court sensibly recognized that and direct ed the FMLA question to be analyzed more closely by the arbitrator on remand. 4 We therefore affirm the trial court's decision, alb eit based on somewhat

4 During oral argument before us, counsel acknowled ged it is conceivable that either side might prevail on the remand. The losin g side, of course, could pursue a new appeal for review by the Law Division.14 A- 3175 -22

amplified and clarified grounds. The remaining arg uments raised by the PBA

lack sufficient merit to warrant discussion. R. 2:11 -3(e)(1)(E).

Affirmed.