CITY OF CAMDEN VS. CWA LOCAL 1014 (L-1345-17, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3864-16T4

CITY OF CAMDEN,

Plaintiff-Appellant,

v.

CWA LOCAL 1014 and
RODNEY WEARING,

Defendants-Respondents.
______________________________

Argued March 15, 2018 – Decided September 26, 2018

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).
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).
A-3864-16T4
2
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

A-3864-16T4
3
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.
A-3864-16T4
4
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

A-3864-16T4
5
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.
A-3864-16T4
6
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

A-3864-16T4
7
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.
A-3864-16T4
8
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, 5 the 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).
A-3864-16T4
9
 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, 20 16,

filed a retirement application with PERS that day, and no longer worked for the

A-3864-16T4
10
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

A-3864-16T4
11
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

A-3864-16T4
12
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 cross-

motion, 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 -

A-3864-16T4
13
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.

A-3864-16T4
14
 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

A-3864-16T4
15
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

A-3864-16T4
16
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

A-3864-16T4
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(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

A-3864-16T4
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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

A-3864-16T4
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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 self-

defined "actual date of retirement" instead of the "approval date" of Wearing's

retirement application as stated in Camden Code § 57-3.D.

A-3864-16T4
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 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

A-3864-16T4
21
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).
A-3864-16T4
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 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

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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

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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.

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