On October 21, 2009, the Appellate Division decided Township of Irvington v. Irvington P.B.A. Local 29, Docket No.: A-0152-08T1. In the case, the Township of Irvington appealed from Law Division orders of April 13, 2007 and July 25, 2008 that respectively confirmed an arbitration award and supplemental arbitration award rendered in arbitration proceedings resulting from grievances filed by Irvington PBA Local 29 and Irvington Superior Officers Association (hereinafter “unions”).

In December 2003, Township officials notified all salaried Township employees that in the upcoming year, instead of their annual salaries being divided by twenty-six, they would be divided by twenty-seven and be paid in twenty-seven biweekly pay periods. Of course, each paycheck would be smaller than if the twenty-six pay period schedule was followed. After some objections and discussions, the Township changed its position. Employees would be paid in twenty-six pay periods, and their annual salaries would be divided by twenty-six, but some of the mid-year pay dates would be adjusted so the pay periods were longer than fourteen days.

On July 30, 2004, the unions filed a grievance claiming that the Township’s adjustment to the four pay dates violated the terms of their collective bargaining agreements. The unions requested that the Township refrain from adjusting the payroll dates, or else pay all union members the eighty “unpaid” hours at the overtime rate of time and one half. After going through all of the required procedural steps for a grievance, the matter was presented to Arbitrator Gerard Restaino.

In his initial award, Arbitrator Restaino required the Township to pay the employees represented by the unions for an additional two-week pay period in 2004. The trial court affirmed the award, but remanded the matter to Arbitrator Restaino for further consideration of the remedy, namely the manner in which the Township would be required to pay the award, in light of the Township’s claim that payment of the total amount required would cause it a severe adverse financial impact. In a supplemental award, the arbitrator modified the remedy to lessen the fiscal impact on the Township. This appeal ensued.

In its brief, the Township argued: (1) the initial award should not have been confirmed because the arbitrator exceeded his authority by disregarding the clear terms of the parties’ collective bargaining agreements; and (2) the supplemental award should not have been confirmed because the arbitrator did not adequately consider the fiscal impact on the Township, and because the court incorrectly ruled as a matter of law that it lacked authority to determine the public policy impact of the award. The unions disputed the arguments raised by the Township, and further argued that the supplemental award was properly confirmed because the Township’s motion to vacate it was untimely.

At oral argument, the Township withdrew argument (1) described above, and advised the Court that it was limiting its argument to the fiscal impact issue. The Appellate Division, after considering the same, affirmed the determination of the trial court. After a thorough review of the record, the Court was satisfied that the trial court did not err in finding that the arbitrator sufficiently considered and addressed the fiscal impact issue in rendering his supplemental award. As a result, the Court found the award was properly confirmed.

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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.