Township of Piscataway v. Policemen's Benevolent Association Local 93

NOT FOR PUBLICATION WITHOUT THE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-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-2340-23.

Leonard C. Shiro argued the cause for appellants
(Mets Schiro & McGovern, L.L.P., attorneys; Nicholas
P. Milewski, of counsel and on the briefs).

Michael R. Burns argued the cause for respondent
(Rainone Coughlin Minchello, LLC, attorneys; Michael
R. Burns, of counsel and on the brief).

PER CURIAM
 This dispute—which the parties have litigated before a labor arbitrator, a

Superior Court judge, and then this appellate court—concerns whether a

municipal police officer should have been allowed to 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 not 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 employer 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 consideration of whether the

calculation of applicable manpower levels within the officer's squad should have

included an officer who was out on family leave.

As explained in this opinion, we affirm the trial court'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.

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 Defendant-appellant Policeman's Benevolent Association Local 93 ("the

PBA") is the labor union that represents the police officers employed by the

Township.

To understand the background of this matter concerning an officer's use

of a personal day, we present several of the relevant portions of the applicable

Collective Negotiations Agreement ("CNA") between the Township and the

PBA.1

Most pertinent here is Article XIV entitled "Personal 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 Agreement.
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 personnel
policy so that, to the greatest extent possible, such
personal days may be taken by employees when
requested.

Section 2. For the purposes of two of the personal days,
an individual may give four (4) hours notice. In the
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 opinion.
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 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 position.
The Watch Commander shall not unreasonably deny
any request. Personal emergency situations shall not be
limited by the context of the above language.

[(Emphasis added).]

As counsel on the appeal agreed during oral argument, the term "duty

requirements" used in Section 2 of Article XIV above 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 pertinent 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 Section. On
those occasions when there is insufficient man-power,
the Shift Supervisor shall make all efforts possible to
request or hire additional man-power to fulfill this
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."

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shall 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 unless a
police 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 this 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 opportunity
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 day
shift, shift strength will be at least seven (7) officers.

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 prescribed by
law and 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.

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 Additionally, Section 14 of Article V(A) specifies what is termed a

"manpower alternative" procedure, whereby an officer who requests time off

may be permitted to propose another colleague to take the officer's place to meet

minimum manpower requirements, subject to the approval 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 which
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 duties and
departmental regulations as if he had been normally
scheduled to work on that date.

[(emphasis added).]

Bearing in mind these provisions, the relevant sequence of events is as

follows. On January 30, 2021, Police Officer Nicholas Vaughn requested to

take a personal day off two days later, on February 1, 2021. His request was not

based on any personal emergency.

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 Vaughn's supervisor initially approved the request. However, the

approval was rescinded after the supervisor concluded that allowing Vaughn to

take the day off would drop the squad's staffing below minimum manpower

requirements. According to the Township, that is because two other officers

would not be working that day: one officer who already had obtained a personal

day off and another who was out on family leave pursuant to the Family and

Medical Leave Act ("FMLA"), 29 U.S.C.A. § 2612.

Vaughn declined to exercise his once-per-year right 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 his 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 another officer overtime

to replace Vaughn, and, as the arbitrator found, did not attempt to secure a

replacement. Consequently, Vaughn was unable to take 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 refusing to seek a replacement.

The grievance was referred to an arbitrator by the Public Employment Relations

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Commission. The arbitrator considered testimony over 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 withdrawing approval for a

personal day for Officer Nicholas Vaughn? If so, what shall be the remedy?"

On January 25, 2023, the arbitrator issued an award in favor of the PBA.

Among other things, Vaughn had made a timely request 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 the employer had made "no

effort" to seek a replacement officer. The arbitrator 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 replacement overtime. In that

regard, the arbitrator focused on the language within Section 1 that directs the

employer to "make every effort to revise such personnel policy [allotting four

personal days] so that, to the greatest extent possible, 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 judge

3
We have not been furnished with transcripts of the testimony.
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issued an order and written opinion on June 14, 2023, vacating the award. The

judge found that the arbitrator had "overstepped" his authority 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 practice and the way the [Police]

Department functions." As such, "[t]he reach of this arbitration award was never

intended by the parties, and it amounts to the arbitrator exceeding his powers."

Accordingly, the trial court remanded the matter and directed the

arbitrator to re-examine the matter, this time with a narrower focus.

Specifically, the court instructed the arbitrator to 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 had made the correct

decision and that his decision should be reinstated. At the very least, the PBA

contends the arbitrator's ruling was "reasonably debatable," and therefore should

not be disturbed by the court. The Township disagrees. It has not cross-

appealed the remand ordered by the trial court on the FMLA issue.

II.

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 Briefly stated, the applicable principles that guide our review are well

established. The New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -36,

enumerates several narrow grounds for a court to set 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, final and definite award upon

the subject matter submitted was not made."

As the trial court recognized, the court's authority 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).

That said, as the trial court also recognized, in numerous situations the

courts have set aside arbitrator decisions where they have misapplied the

governing law or contract provisions, and the rulings are not "reasonably

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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. Super. 300, 312 (App. Div.

1998) (setting aside an arbitration award that misinterpreted the clear language

of the parties' agreement); PBA Local 160 v. Twp. of N. Brunswick, 272 N.J.

Super. 467, 475 (App. Div. 1994) (overturning an arbitration award that

disregarded an explicit term of a negotiated agreement).

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 erred and exceeded his

authority by adopting an overly expansive interpretation of the Township's

obligations 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, the 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, when

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the officer seeks to use the first two of four allotted personal days, which counsel

have explained to us are known as "paid" personal days. Once those two eligible

paid days are exhausted, the watch commander no longer has an obligation to

seek a replacement.

Here, Vaughn apparently did not ask to use one of his 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 another 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 take into proper account the

declaration expressed in Article VI(A), Section 6 of the CNA, in which the

parties agreed that "the manning, overtime decisions and assignments are solely

the prerogative of the Employer to the extent prescribed 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 upon Section

1 of Article XIV, which confers an obligation upon the employer to "make every

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effort to revise such personnel policy" to assure that personal days can be used

by officers to the greatest extent possible. (emphasis added). Section 1 literally

is about the adoption of personnel "policy," not individualized day-to-day

staffing decisions such as the one here involving Vaughn.

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 PBA says no. The CNA

contains no explicit language resolving this fundamental question.

The arbitrator's decision is not entirely clear on this point, as it seemingly

assumed the officer on FMLA leave "used up" one of the two allowable

reductions from the minimum manpower level, but nevertheless concluded the

CNA "still required the Employer to make an effort to allow Vaughn the day

off." The arbitrator's decision is manifestly "imperfect" on this critical point.

The trial court sensibly recognized that and directed the FMLA question to be

analyzed more closely by the arbitrator on remand. 4

We therefore affirm the trial court's decision, albeit based on somewhat

4
During oral argument before us, counsel acknowledged it is conceivable that
either side might prevail on the remand. The losing side, of course, could pursue
a new appeal for review by the Law Division.
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amplified and clarified grounds. The remaining arguments raised by the PBA

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

Affirmed.

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