New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

In the case of Grasso v. Fraternal Order of Police, Glassboro Lodge No. 108, 33-2-1617, the Superior Court of New Jersey, Appellate Division, held that under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et.seq, the Defendants owed no duty to the Plaintiff to represent him in a dispute with the Borough of Glassboro due to his status of not being an "employee" as defined under the act.

Grasso initially filed suit against the Borough of Glassboro for their failure to reimburse him for Medicare Part B. premiums pursuant to a collective bargaining agreement.  Some time during the suit Grasso called on the FOP for representation as the matter dealt with an issue related to the collective bargaining agreement.  The FOP declined representation of Grasso, and following his success in the underlying action against the Borough, Grasso then moved against the FOP for their failure to represent him.

The Appellate Panel affirmed the Trial Court's decision to grant Summary Judgment in favor of the FOP due to the fact that Grasso can not be considered an employee under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et.seq. 

This case is important to both collective bargaining units and retired Public Safety Officers alike as it clearly defines the roles and responsibilities of each party under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et.seq

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On September 11, 2008, the New Jersey Law Enforcement Supervisors Association (“NJLESA”) and New Jersey Law Enforcement Commanding Officers Association (“NJLECOA”), jointly filed a lawsuit in the Superior Court of New Jersey, Law Division, Mercer County against the State of New Jersey challenging the viability of N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13, the provisions of New Jersey law providing convention leave for State employees.

It is alleged that on or around July 15, 2008, NJLESA, the exclusive representative of those employees in the primary level supervisory law enforcement unit, and NJLECOA, the exclusive representative of superior officers and other command law enforcement personnel holding the rank of Captain or its equivalency in classified career service, requested a leave of absence with pay for certain union officials and duly authorized delegates within their organizations to attend a state convention jointly hosted by NJLESA and NJLECOA. In response, the New Jersey State Office of Employee Relations denied the request and took the position that it was not permitted to grant plaintiffs’ request because neither NJLESA nor NJLECOA were affiliated with any of the organizations delineated in N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 which are entitled to convention leave.

The complaint asserts N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are arbitrarily exclusive in conferring the benefit of convention leave on certain fraternal organizations while excluding others, thereby violating certain provisions of the United States and New Jersey Constitutions. Consequently, NJLESA and NJLECOA seek a declaration that N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are unconstitutional or, alternatively, for an order directing the State of New Jersey to award convention leave to members of their organization. It will be interesting to see how this suit develops and how the state of New Jersey reacts to preserving this piece of legislation.

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The Superior Court of New Jersey, Law Division, Passaic Vicinage, (DeLuccia, J.S.C.) recently interpreted a collective bargaining agreement (CBA) pertaining to discipline in the case of Whitaker v. Passaic County Sheriff's Department, 33-3-139.  In this case the Plaintiff appealed her right to challenge minor disciplinary charges which were previously dismissed for alleged failure to exhaust administrative remedies under the CBA. 

Instead of proceeding with the grievance procedure as outlined under the CBA, Whittaker opted to challenge the minor discipline at a disciplinary hearing.  After the disciplinary hearing was decided, Whittaker next attempted to appeal the decision through the grievance procedure as outlined in the CBA.  Whittaker was denied the right to grieve the charges by her employer stating that she was precluded from doing so due to the fact that she had chosen to challenge the charges at a hearing and is thus not entitled to pursue the case by way of grievance. 

The Superior Court of New Jersey, Law Division, took the liberty to interpret the CBA and held that a reasonable interpretation of the agreement would permit an employee charged with a minor disciplinary infraction to proceed first to an administrative hearing to challenge the charges and then, if adverse action is taken by the employer, to demand arbitration of the dispute under the CBA. 

This is an interesting case in that it appears to give a Public Safety Officer "two bites at the apple" when challenging minor disciplinary charges.  Furthermore, we normally do not see Superior Court Judges stepping into disputes between public employers and employees especially when it comes to the interpretation of a CBA.  Interpretation of agreements is traditionally left to the Public Employment Relations Commission (PERC) and the Appellate Division.  I think what we should take away from this case is that there is always more than one reasonable interpretation of a collective bargaining agreement, and Public Safety Officers should not be afraid or hesitate in certain circumstances to challenge their employers in the Superior Court of New Jersey, Law Division.

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