On May 4, 2009, the Appellate Division decided City of Clifton v. Clifton P.B.A. Local #36, Docket No.: A-4806-07T3. In the case, Defendant, Clifton P.B.A. Local #36, appealed from a trial judge’s decision vacating an arbitrator’s award of thirteen (13) shift differential (SD) days to police detectives. 

The trial judge ruled that, in a case in which the union’s grievance was filed eighteen (18) months after the alleged wrong first occurred, and not within the twenty (20) days provided for in the collective bargaining agreement, the arbitrator exceeded his powers when stated that he had waived the twenty (20) day contractual time limit. In reaching that conclusion, the judge discussed the Supreme Court’s decision in Board of Ed. Of Borough of Alpha v. Alpha Ed. Ass’n, a case in which the Court recognized and applied the continuing violation doctrine to preserve a late-filed grievance by the union resulting from the Board’s cessation of payment of health insurance benefits. Because the trial judge found that the arbitrator exceeded his powers in considering the matter, the judge did not render an opinion on any substantive issue raised by the parties.

On appeal, the union claimed that the award was timely pursuant to the continuing violation doctrine as recognized by the Supreme Court. The City of Clifton argued, like the trial judge, that the arbitrator did not find a continuing violation to have occurred, but rather, determined to waive the contractual twenty (20) day requirement.

The Appellate Division determined the arbitrator’s decision is susceptible to both interpretations. According to the Court, the arbitrator’s decision suggests that he nominally declined to decide the applicability of the continuing violation doctrine, instead couching his decision in terms of waiver. However, the result reached was identical to the one reached in Alpha by application of the continuing violation doctrine. Consequently, the Court remanded the matter to the arbitrator for clarification of the basis for his decision on the timeliness of the action.

 

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.