New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

On June 25, 2009, the Appellate Division decided IAFF, Local 1197 v. Township of Edison, Docket No.: A-0194-08T1. In the case, IAFF, Local 1197 appeals from an order entered by the trial court on August 4, 2008, denying its motion for an award of attorneys’ fees and costs incurred in this action to enforce an arbitration award against defendant Township of Edison (“Township”) and for interest on the arbitration award.

Plaintiff is the exclusive representative for firefighters and certain other emergency workers employed by the Township. A collective bargaining agreement between the parties had been in effect from January 1, 2001 to December 31, 2004. The parties engaged in negotiations, but were unable to reach an agreement on a new contract. 

Consequently, on May 12, 2005, plaintiff initiated compulsory interest arbitration by filing a petition with the Public Employment Relations Commission (“PERC”). The proceedings ultimately resulted in a decision by the arbitrator on April 7, 2008, which granted the affected employees retroactive and future salary increases.

On April 25, 2008, plaintiff’s counsel wrote to the Township and inquired as to when the arbitration award would be implemented. The Township responded that the award would be implemented when the new agreement was executed. Plaintiff asserted that arbitrator’s award should be implemented immediately. On May 8, 2008, the Township sent plaintiff a draft of the new contract. Plaintiff responded on May 22, 2008 and informed the Township that the salary rates in the draft agreement had not been calculated correctly. Thereafter, Plaintiff provided the Township with its own salary schedule.

By letter dated May 29, 2008, the Township advised Plaintiff that it was reviewing the salary rates submitted by Plaintiff to determine if they were correct. The Township also informed Plaintiff that retroactive payments would be made as soon as it concluded its review of the salary rates. 

On May 30, 2008, Plaintiff filed a petition in the trial court to enforce the arbitration award. On June 9, 2008, the Township advised Plaintiff that it had completed its review of the salary rates submitted by Plaintiff and had determined that the rates were correct. The Township informed Plaintiff, however, that retroactive payments could not be processed until it received information concerning contributions by the employees to the Township’s deferred compensation plan. On July 1, 2008, the Township provided Plaintiff with its calculations of the retroactive payments due to the affected employees.

The trial court heard oral argument on July 3, 2008. The Township did not oppose Plaintiff’s application to enforce the arbitration award, but argued that the court should not award Plaintiff attorneys’ fees, costs, or interest on the award because it had been actively implementing the award.

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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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