*1 ASSOCIATION, POLICEMEN’S BENEVOLENT LOCAL NO. PLAINTIFF-RESPONDENT, TRENTON, v. OF CITY DEFENDANT-APPELLANT.
Argued January 31, Decided March2011. Rabner, C.J., opinion dissented and filed in which Rivera-Soto and Hoens, JJ., joined. *3 (Ruderman S.
Steven Glickman argued appellant the cause Prusinowski, & Knapp, Glickman and Trimboli & attorneys; Marmion, Stephen E. briefs). Molly Trimboli S. on the (Kroll Raymond G. Heineman argued for respondent the cause Heineman, attorneys). opinion
Justice LONG the the delivered Court. appeal At issue on this application “reasonably the of the governs judicial debatable” standard that public review of a em- ployment An interpreted phrase arbitration award. arbitrator a (the bargaining agreement Agreement)—“no a collective over- paid period prior time shall be for a ten minute to the commence- a permit payment ment of tour”—to of compensation the is whether that period. question The straight-time rates for that reasonably debatable. was conclusion, on the actual arbitrator relied reaching his the provisions, together relevant Agreement, its wove words provisions. emphasizing isolated holistically, without read it result, regarding its mean- plausible conclusion As a he derived employees the receive ing—that parties intended that if the had worked, they would have said so. actually time pay no all for not, that the concluded they arbitrator Because did contemplated. period for the was muster only the one sure, interpretation was not To arbitrator’s may Agreement and not even flowed from the that could have All to be. that was one. It did need have been the best reasonably de- conclusions be arbitrator’s was they were, Appellate Division and we affirm the batable. Because for confirmation the award. trial court remand matter I. ll(PBA) Association, No. Benevolent Local Policemen’s police organization represents non-supervisory offi- labor employed by City (City). At all times relevant of Trenton cers City Agreement. to the appeal, PBA and the were to this began an order dispute disseminated The instant when employees report for “muster” ten minutes requiring certain *4 pay. without to time of their shifts prior the scheduled start prescribed Employees report to within the timeframe who failed explained subject discipline. City policy the new as were to The “complet[e] to roll call and stemming the need for officers from promptly deployed to to preliminary in ... be other duties time brought developments patrol” up-to-date on in and “to be ability “respond to in sacrificing their to calls patrol areas” without manner, notwithstanding change a is timely the fact that shift a occurring!)]” City authority
The its to require uncompensated based an ten- minute Agreement, muster on Section 8.03 of the which reads: recognized It is that be for the of employees may muster at the required purpose starting commencement of a to tour advance of the tour time and report for the making of at the end of a tour to at the purpose [a] remain termination of report recognition, tour. In this accordance with no shall be overtime for a ten paid minute to the commencement of for a or a ten minute period prior tour, period the termination of a but in the tour, event an to earlier employee report than ten minutes to the or commencement of a tour to remain prior ten beyond minutes after the tour, the end of shall be the overtime rate for all employee paid eight
time worked in the work of, excess of hours. day consecutive provision, City That never utilized the before the events forming appeal, of part the substance this been a has contract Agreement since if not earlier. A revised which left negotiated Section signed 8.03 unaltered was recently as as 2000.
Section part Agreement 8.03 is of Article VIII of the which is “Compensation entitled for Overtime.” Section 8.01 of that article provides: Whenever member of the Division of work week shall any Police, any be to directed or authorized work for excess required, of the normal any periods hours of defined in as Article 7.01 employment VII, Section he shall be herein, paid (1® benefits) regular (including the rate of of time and one-half his rate all such if an overtime. shall Thus, directed or employee authorized to required, regularly work in excess of number of the consecutive hours in his scheduled work regardless he shall be overtime for such day, excess time of the total paid number during of hours worked that and if he week, directed or authorized to required, (40)
work for more than hours in one he shall be forty any week, overtime for paid regardless during such the excess time total number of worked that week. days grievance challenging right filed City period demand an pay. additional ten-minute of work without The dispute eventually binding was submitted to arbitration and on September 13, Arbitrator Gerard G. Restaino sustained grievance finding PBA’s report early officers who are entitled “at the rate.” ruling, point the arbitrator made there are no provisions provisions “stand-alone” that all harmoniously.” “must be point read With that his depar- as ture, recognized right arbitrator to issue the *5 Agree- He looked to the memorandum. then ten-minute-muster ment, whole, Pivotal to to the issue. as resolve Agreement, the the that in sections of the arbitrator was other of that would exclude parties demonstrated command B, dealing any example, Appendix with compensation. all For and hours, training clearly evidenced that intent: additional worked members and the fewer hours requires by Because new schedule weekly during training to allow normal work hours, does not sufficient provide manpower training working outside will be to certain normal report members at no hours additional compensation. added).] (Emphasis [ arbitrator, preclude
According parties had intended to to the if the muster, they all of would compensation for the extra ten minutes language present specific the unmistakable have used and Appendix B. It the that the “no overtime was arbitrator’s view 8.03, the “no paid” language shall of Section unlike additional be B, regarding compensation” language Appendix was silent strong to the straight-time compensation and thus failed overcome presumption pay for work. judge trial
PBA moved to confirm the award. The determined any compen- plain language Agreement precluded that the period: sation for ten-minute-muster syllogistic to hours it The contract this form normal and speaks speaks straight regard. time. It’s very explicit Anything anything given over over the in a week is hours, days the 40 number unambiguous going clear, to be overtime to the very very pursuant express, language of the contract.... agreed was that ten minutes would not be ... What this rate that it that is time and by, could by only compensated compensated it defined in the contract. half because was not considered as overtime as judge advanced The trial concluded that reasonably arbitrator was not debatable. Division, dissent, re- appealed Appellate over a judge’s ruling the trial and reinstated the arbitration
versed majority “interpretation held the arbitrator’s award. The bargaining agreement ‘reasonably debatable’ collective was *6 given Agreement the actual text of the and principles fundamental panel of construction.” The reasoned that if the intended permit to an uncompensated they ten-minute muster would have used the same respect as used with training to time and that the “plausible arbitrator’s view was at reasonably least debatable.”
The dissent echoed the judge, rationale of the trial explaining Agreement that the compensation: contains two schemes of day normal work rates and additional work at overtime According dissent, rates. to the specifically barring muster, overtime early the ten-minute which “would overtime,” payable otherwise constitute Agreement unambigu- ously precludes any compensation for that additional time. Ac- cordingly, the dissent concluded that the interpreta- arbitrator’s tion was “reasonably not debatable.” The appeals right. as of 2:2—1(a)(2). B.
II. us, City argues Before phrase that the “no overtime shall be paid” inquiry. should end According City, to the because the overtime, ten-minute muster is reading arbitrator’s of permit straight-time compensation is reasonably not debatable.
PBA counters that the properly arbitrator considered the con- tract as a whole rather than confining himself to an isolated provision contractual although and that interpretations other are possible, the arbitrator’s reasonably debatable upheld. and should be
III. Courts engaged have in an extremely deferential review a party when to a bargaining collective agreement sought has vacate an standard, arbitrator’s award. The well-established most recently reaffirmed in Linden Board Education v. Linden
429
Mizichko,
A .2d
N.J.
997
202
ex rel.
Association
Education
long
‘so
will
confirmed
(2010),
award
“an arbitrator’s
is that
185
”
276, 997 A .2d
202 N.J. at
reasonably debatable.’
the award is
as
Twp. Middle
Local
v.
Twp. PBA
Middletown
(quoting
185
(2007)).
town,
A.2d 516
strong public
from the
springs
high
of deference
That
level
labor-manage
resolve
arbitration to
favoring “the use of
policy
Tpk.
275-76,
(quoting N.J.
disputes.” Id.
ment
196, I.F.P.T.E.,
920 A.2d
v. Local
Auth.
way
inexpensive
(2007)). Indeed,
be a fast
arbitration should
way-
merely
“a
disputes and
of such
final resolution
to achieve
*7
276,
185
997 A .2d
Id. at
to the courthouse.”
on route
station
Workers,
State,
Emp.
v. Commc’ns
Relations
(quoting
Office of
(1998)).
98, 111, 711 A.2d300
N.J.
154
agreement pro
Moreover,
bargaining
a collective
where
arbitration,
construction
arbitrator’s
“it is the
binding
vides for
Ibid.
for,”
construction.
not a court’s
bargained
and
is
153,
v.
Employees Int’l Union
&
(quoting Local No.
Profl
Office
(1987)).
“[S]o
N.J.,
That is not to “award Indeed, that an arbitrator’s it is axiomatic ous to attack. from the collective long it its essence legitimate only as draws so manifest an words agreement. the arbitrator’s bargaining When but to refuse have no choice infidelity obligation, courts to this 1361, 597, 4 L.Ed.2d Id. at 80 S.Ct. of the award.” enforcement at 1428. as not reason-
Thus, awards have vacated arbitration our courts have, example, new added arbitrators ably when debatable See, e.g., language. ignored its clear agreement an or terms to Coll, Coll, Morris, 100 N.J. Cnty. Ass’n v. Cnty. Morris Staff 430
383, 397-98,
(1985)
495 A.2d
(declining
to sustain arbitration
award which
unambiguous
declared
meaning of clause and inter
preted
contrary by
term);
it
adding
extra
Ass’n of
Supervisors
Dist.,
Operated
& Adm’rs v. State
Sch.
N.J.Super.
300, 312, 709
(App.Div.1998)
A.2d 1328
(rejecting arbitration
past
award which
practices
“ignor[ed]
relied on
the clear
agreement”);
Twp.
Local 160 v.
N.
Brunswick,
467,
N.J.Super.
475,
(App.Div.)
Although
may
arbitrators
beyond
not look
the four cor
ners of a contract to
unambiguous
alter
language,
where
term is
defined, may
it
necessary
for an “arbitrator to fill in the
gap
give meaning
Educ.,
to that term.” Linden
supra,
Bd. of
202 N.J. at
Furthermore,
IV. standards, Applying those we are satisfied that the arbitra Agreement and, tor’s plausible thus, the rea- Agree- to the ruling, In the arbitrator looked sonably debatable. together its relevant integrated whole and wove ment as an compensation clause the overtime provisions to ascertain how Operations, supra, N.J. Transit Bus interpreted. be See should analysis his was the 209. Included in 902 A.2d 187 N.J. statement Agreement, the need for clear structure of the compensated, to be and presumption that all work is overcome the clearly all eliminated contrasting language provision of a the (“no compensa- any compensation at rate additional entitlement tion”). He said: negotiations. to collective They were not novices The framers negotiated intelligently to reach a and alertly comprehen-
were skilled hands who training agreement. attend B references that would sive employees Appendix regular Section 8.03 additional hours of work without compensation. beyond If the ten minute muster. not be overtime for references that will they paid and, that ten minute all wanted to exclude any payment parties specifically for supplied)!.] (emphasis The fact they were free to do so. period they certainly glaring It is that not a omission or of omission. type simply did not is any during that of time. that overtime would not be period addressed parties only paid night shift detectives It difficult for me to the fact that officers accept police without be to work their normal tour duty compensation would beyond Agreement. in the To that end when parties unless delineated specifically agreed training to the amount of B, referenced the Appendix they specifically (emphasis supplied)!.] training and that there would be no additional compensation, training agreed sessions without that Officers would attend those They straight- straightl-Jtime never referenced that for or overtime compensation. They the ten muster time within minute period. is that overtime will not be The unmistakable intent of the in Article 8.03 unambiguous. is clear and for those ten minutes in That paid question. referenced overtime alternative any The parties specifically compensation, argument It in contract construction must be set aside. is axiomatic overtime for the ten minute muster period that to exclude only payment expressly for those ten minutes. is to allow for payment expressly Kearny justifiable interpretation Agreement. of the See That is 223-24, Kearny, 405 A.2d PBA Local # v. Town (1979) (constructions they reasonably debatable if are are record”). “justifiable” “fully supportable or Indeed, Agreement plainly supports the interpretation. Appendix B declares that “no addi- arbitrator’s normal compensation” paid training outside tional shall contrast, that “no over- working provides Section 8.03 hours. *9 432 paid” period begins.
time shall be for the ten-minute before a shift arbitrator, presume Like the we that the choice of different words Indus., signifies Taracorp, a different intention. See Inc. v. NL Cir.1996) Inc., (7th 738, (holding 744 F.3d where language parallel “it same contract use different to address issues they language is to infer that intend this to mean reasonable 7.11, things”); § different see also 2 Farnsworth on Contracts 1998). (2d meaning n. 12 ed. that can One clear be ascribed language parties agreed in is that the that differences there compensation training would be no whatsoever for outside normal hours, that work but rate of would interpreta be available for the first ten minutes of That muster. essentially paid” tion “no overtime in reads shall Section 8.03 as a reference to the overtime “rate” established support Section 8.01 and thus in the finds itself. suggest City’s interpretation That is not to that the is not a interpreta viable one. Nor is it a conclusion that the arbitrator’s tion is the best one. That is not the standard. isWhat support Agree that the arbitrator’s finds ment, it and does.
Here,
parties, bargaining fairly
length,
the two
at arm’s
mutually-selected,
determined that a
neutral arbitrator would
interpret
Agreement in
dispute.
their
the event of a
Because “it
for,”
bargained
arbitrator’s
that is
construction
we will not
merely
perceive
that
disturb
construction
because we
that there is
arguably
of Educ., supra,
an
better view.
Bd.
Linden
(quoting
supra,
Local No.
V. judgment Appellate The of the Division is affirmed. The matter is remanded to the trial court for confirmation of the arbitration award. RABNER, dissenting. Justice
Chief
many
This Court has held on
occasions that an arbitrator’s
long
“reasonably
award will be confirmed as
as it is
debatable.”
See,
Ass’n,
268,
e.g., Linden Bd.
v. Linden Educ.
202 N.J.
of Educ.
(2010) (citation
276,
omitted);
Twp.
Middleton
Middletown,
Twp.
Local
v.
193 N.J.
A.2d
(2007);
196, I.F.P.T.E.,
Tpk.
Auth. v. Local
(2007). Today,
The this case stems from the arbitrator’s resolution dispute bargaining a of a agreement about the terms collective (Agreement). parties disagreed police The over whether Trenton compensated up officers were to be to ten minutes of muster time before the start of their normal conflict shift. The was call; right compensation general about the in for muster or roll dispute compen- centered around whether the extra time was light specific language Agreement. sable in parties’ in the Acting fall of Di- Trenton’s Police Director and rector that announced roll calls were to start ten minutes before Relying provision Agreement, each scheduled shift. on a plan did not additional for that time. 11(PBA) Association, Local No. The Policemen’s Benevolent grievance. hearing, that filed a After an arbitrator concluded period for straight-time pay applied to the ten-minute muster— Agreement supports though even no determi- effect, arbitrator, injected By way, ruling nation. result, parties’ term into the contract. As a the arbitrator’s new “reasonably award cannot withstand review under the debatable” standard. why. straightforward reading
A reveals Arti- *11 explicitly “Compensation for Overtime.” It con- cle VIII covers grievance: tains two sections relevant to this 8.01 and 8.03. There meaning It dispute no about the or of Section 8.01. is requires any periods that “work for in excess of the normal hours paid employment of ... shall be at the rate of time and one-half ... for all such overtime.”
Instead, principal appeal meaning this is on of the focus of the 8.03, report requires which members to for muster before Section employment after their normal hours of and addresses how compensated. that time is to be The Section reads as follows: recognized [1] It be for the of muster at employees may required purpose starting in the commencement of a tour to advance of the tour time and for report making at the termination the of at the end of a tour to remain of purpose report recognition, [a] [2][i] tour. In accordance with this no overtime shall be for paid to commencement of a or for a ten minute tour, ten minute period prior period [ii] at the termination of a but in the event an tom1, employee report to the commencement of a tour or to remain earlier than ten minutes prior beyond tour, ten minutes after the end of a shall be the overtime rate employee paid eight the work of consecutive hours. of, for all time worked excess day numbering [Bracketed added.] any analysis plain language of starting point The for is the Section, of animated in this case careful consideration the order appear. sets phrases in which the words and The first sentence may report requirement: employees forth a basic be called on beyond working normal hours. Had Section 8.03 for muster there, pay stopped only rate of for muster would have been in Section 8.01. As counsel for the the overtime rate established properly argument, straight pay at oral could not conceded 8.01, any light language in time for apply. of the clear Section beyond employment” normal hours of would muster normal “the necessarily paid as overtime. have been treated and What, then, accom- does the second sentence Section 8.03 2(i) above, directly plish? part, Its first labeled states “no periods or paid” overtime for ten-minute muster before shall words, by parties, agreement a tour. In other of the after expressly extinguished only rate of second sentence up periods available for muster to ten minutes. The periods for short thus eliminated muster. arbitrator, though, interpreted
The the above to re quire straight-time pay periods. non-existent for short muster No specific Agreement supports text that conclu basis Indeed, nothing provides sion. in the contract for overtime at arbitrator, effect, any rates context. The improperly parties’ agreement thereby rewrote the exceeded Coll, authority. Cnty. Cnty. his Morris Ass’n v. See Coll. of Staff (1985) (“[A]n Morris, 100 N.J. arbitrator may disregard parties’ agreement, may the terms of the nor (citations omitted); parties.”) he rewrite the contract for the In re Co., Arbitration Between Grover & Universal Underwriters Ins. 221, 230-31, (1979) (same). A 403 .2d448 *12 8.03, The remainder of the sentence of Section second labeled 2(ii) above, reinforces the conclusion that no is due periods for short of muster. The second half of that sentence if period, declares that muster exceeds a ten-minute all time day paid worked in of a full excess “shall be the overtime rate.” muster, spent That directive reinstates overtime for all at time but only comparable in language the circumstances defined. No affix- straight-time any pay periods. es or other to shorter parties better—language
Could the have chosen different—even express agreement? many to their That is true in situations. But it plain meaning does not alter the construction and of Section 8.03 as drafted. to part looked to another
The arbitrator
Appendix
B which
justify the award. He cited
training hours: “Because the new schedule
addressed additional
weekly
by members and does not
requires fewer
hours worked
manpower
training during normal work
provide sufficient
to allow
hours,
report
training
to
for certain
members will be
compensation.”
hours at no
additional
working
outside normal
added).
arbitrator,
par-
According to the
because the
(emphasis
language in
ties could have used the above underscored
Section
muster,
for ten minutes of
8.03 to avoid
they
straight-
to
failure to
so meant that
did
intend
exclude
do
periods.
wages
time
for short muster
rule,
entirely
general
As a
it is
reasonable to consider the
Operations,
whole,
see N.J. Transit Bus
Inc. v.
contract as
Union,
N.J.
Amalgamated Transit
437 N.J., 442, Employees Int’l v. Co. N.J. Union Trust 105 Prof'l of (1987) (citation omitted). 452, Nonetheless, 522 A .2d992 it is well that settled bargain- an arbitrator is confined to of the collective interpretation application
ing agreement;
justice.
he does not sit to
his own brand of industrial
He
dispense
guidance
legitimate
look
of course
from
his award is
may
sources,
many
yet
long
bargaining agreement.
so
as it draws its essence from the collective
only
obligation,
When the arbitrator’s words manifest an
to this
courts have no
infidelity
choice but to
enforcement
refuse
of the award.
[United Steelworkers v. Enter.
& Car
363
593, 597,
1358,
Wheel
U.S.
80 S.Ct.
Corp.,
1428 (1960).]
4
1361,
1424,
L.Ed.2d
law,
Jersey
reviewing
Under New
the award of an arbitrator
collectively negotiated agreement must be enforced if the arbitra
interpretation
“reasonably
tor’s
of the contract
debatable.”
Educ.,
(citation
276,
supra,
Linden Bd.
Int’l Bhd. Schaefer 520,528-29, (App.Div.1988). N.J.Super. 539A.2d case, dissenting member trial court and the as both the In this found, contrary to arbitrator’s award is panel appellate remaining Agreement. Instead of language of the plain struck, the arbitrator effec- faithful to the rate of contract and created tively rewrote their that, By doing the arbitrator so periods of muster. pay for short cannot scope authority that the award proper of his exceeded the upheld. I, therefore, respectfully dissent. LONG, remandment—Justices
For affirmance LaVECCHIA, ALBIN and STERN—4. RABNER and Justices RIVERA- reversal—Chief Justice
For HOENS—3. SOTOand A.3d 332 PLAINTIFF-RESPONDENT, JERSEY, OF NEW
STATE MCLEAN, L. KEVIN v. KELVIN MCLEAN A/K/A DEFENDANT-APPELLANT. 2011. Argued Decided March November