                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0176-19T2

IN THE MATTER OF
TOWNSHIP OF BEDMINSTER,

       Respondent-Respondent,

and

PBA LOCAL 366,

     Petitioner-Appellant.
____________________________

                Submitted June 1, 2020 – Decided July 27, 2020

                Before Judges Messano, Ostrer and Susswein.

                On appeal from the New Jersey Public Employment
                Relations Commission, P.E.R.C. No. 2020-11.

                Mets Schiro & McGovern, LLP, attorneys for appellant
                PBA Local 366 (Leonard C. Schiro, of counsel and on
                the briefs; Suzanne M. Brennan, on the briefs).

                Apruzzese, McDermott, Mastro & Murphy, PC,
                attorneys for respondent Township of Bedminster
                (Arthur Richard Thibault, of counsel and on the brief;
                H. Thomas Clarke, on the brief).
               Christine Lucarelli, General Counsel, attorney for
               respondent New Jersey Public Employment Relations
               Commission (Frank C. Kanther, Deputy General
               Counsel, on the statement in lieu of brief).

PER CURIAM

      The Policemen's Benevolent Association, Local 366 (the PBA) is the

exclusive representative of police officers and sergeants employed by the

Township of Bedminster (the Township). The existing collective negotiations

agreement (CNA) was to expire on December 31, 2018, and the parties were

unable to reach agreement on a successor CNA. The PBA filed a petition to

initiate compulsory interest arbitration, see N.J.S.A. 34:13A-16(b)(2), and the

Public Employment Relations Commission (PERC) appointed an arbitrator

through the random selection procedure outlined in N.J.S.A. 34:13A-16(e)(1).

After mediation failed to produce an agreement, the dispute proceeded to

arbitration.

      Neither the PBA nor the Township called any witnesses, and both agreed

to review the submitted documentary evidence and amend or supplement as

necessary on the next scheduled hearing day. Both sides submitted additional

documents, which, in the PBA's case, the arbitrator accepted subject to the

Township's objection.      Thereafter, both sides filed post-hearing written

statements.

                                                                       A-0176-19T2
                                       2
      The arbitrator's award set salary levels for four years commencing in

2019. The award froze the salaries at the step levels in the 2018 salary guide in

the existing CNA and added a two percent salary increase for officers "at the top

step and [s]ergeant position." Officers not already at the top step of the 2018

guide would advance on the steps set forth in the current CNA. The award

provided for a 2% salary increase at every step level in 2020, along with step

movement for all officers not at the top step. For 2021, the award froze the 2020

salary guide and awarded a 2% salary increase for officers at the top step and

sergeant level, and continued the step advancement for officers not at the top

step. The 2022 salary award maintained the frozen 2020 salary guide, provided

a 2% increase for officers at the top step and sergeant level, and continued the

salary guide advancement for officers not at the top step.

      The award also provided that PBA members would continue to contribute

toward the cost of health insurance consistent with Chapter 78, Tier 4 levels.1

Additionally, effective January 1, 2020, the award eliminated Article 28, "Pool




1
  This is commonly used shorthand for the Pension and Health Care Benefits
Act, L. 2011, c. 78 (Chapter 78). See Matter of Ridgefield Park Bd. of Educ. &
Ridgefield Park Educ. Ass'n, 459 N.J. Super. 57 (App. Div. 2019) (explaining
Chapter 78 and tier contribution implementation).
                                                                         A-0176-19T2
                                       3
Time," in the existing CNA. The arbitrator replaced it with a new article, "Police

Training[,]" which combined some language proposed by both sides.

      The PBA appealed to PERC, which rendered its final decision on August

15, 2019. After discussing and rejecting the issues raised by the PBA, PERC

affirmed the award, and this appeal followed.

      The PBA contends we should reverse PERC's decision and remand the

matter to a different arbitrator because: the arbitrator failed to sufficiently

analyze the factors enumerated in N.J.S.A. 34:13A-16(g) (the statutory factors);

the award violated the New Jersey Arbitration Act, specifically, N.J.S.A. 2A:24-

8; the arbitrator failed to provide any analysis concerning the health benefit

contributions' impact on the salary and other provisions of the award; the

arbitrator mistakenly assumed the PBA had agreed to the Township's proposal

regarding training; and, the arbitrator failed to disclose a disqualifying conflict

of interest. We have considered these arguments in light of the record and

applicable legal principles and affirm.

                                          I.

      "Judicial scrutiny in public interest arbitration is more stringent than in

general arbitration[] . . . [because] such arbitration is statutorily-mandated and

public funds are at stake." Hillsdale PBA Local 207 v. Borough of Hillsdale,


                                                                           A-0176-19T2
                                          4
137 N.J. 71, 82 (1994) (citing Amalgamated Transit Union v. Mercer City

Improv. Auth., 76 N.J. 245, 253 (1978)). We have described "the 'scope of our

review of PERC's decisions reviewing arbitration [as] "sensitive, circumspect,

and circumscribed."'" In re State, 443 N.J. Super. 380, 385 (App. Div. 2016)

(quoting In re City of Camden & the Int'l Ass'n of Firefighters, Local 788, 429

N.J. Super. 309, 327 (App. Div. 2013)).

        We will generally defer to PERC's interpretation of its enabling statute,

the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1

to -21, unless "its interpretation is 'plainly unreasonable, contrary to the

language of the Act, or subversive of the Legislature's intent[.]'"       City of

Camden, 429 N.J. Super. at 328 (alteration in original) (quoting In re N.J. Tpk.

Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997)). Additionally,

"because of [PERC's] expertise," our review is deferential, and we "will only

reverse if the decision is clearly demonstrated to be arbitrary, capricious, or

unreasonable." In re State, 443 N.J. Super. at 386 (citing In re Hunterdon Cty.

Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989)).

        In perfecting his or her award, the arbitrator must consider the statutory

factors.2 "In general, the relevance of a factor depends on the disputed issues


2
    We have included the statutory factors as an Appendix to this opinion.
                                                                          A-0176-19T2
                                         5
and the evidence presented. The arbitrator should determine which factors are

relevant, weigh them, and explain the award in writing. In brief, the arbitrator's

opinion should be a reasoned explanation for the decision." Hillsdale, 137 N.J.

at 82 (internal citations omitted). "No one factor is dispositive. Yet, the factors

themselves reflect the significance of fiscal considerations." City of Camden,

429 N.J. Super. at 326–27 (citing Hillsdale, 137 N.J. at 83–84). "An arbitrator

need not rely on all factors in fashioning the award, but must consider the

evidence on each." In re State, 443 N.J. Super. at 384 (citing Hillsdale, 137 N.J.

at 83–84).

      In turn, PERC's role is to

             determine whether: (1) the arbitrator failed to give due
             weight to the [statutory] factors he deemed relevant to
             the resolution of the specific dispute; (2) the arbitrator
             violated the standards in N.J.S.A. 2A:24-8 and -9; or
             (3) the award is not supported by substantial credible
             evidence in the record as a whole.

             [Id. at 385 (citing Hillsdale, 137 N.J. at 82).]

      We consider the PBA's specific arguments within this framework.

                                         II.

                                         A.

      The PBA contends the arbitrator "failed to provide an independent

analysis of the statutory factors and relevant evidence[,]" and "provided mere

                                                                           A-0176-19T2
                                         6
recitations of the arguments, with only a glancing mention of the statutory

factors." The only provision of the award cited by the PBA in its brief as

reflecting these inadequacies is the salary award. In large part, the PBA's

challenge focuses on the disparity after year four between the salary of an officer

on the penultimate step on the pay scale and an officer on the final step. In 2018,

the last year of the existing CNA, that difference was approximately $7400 for

officers hired before January 1, 2014, and $6400 for officers hired after that

date. These differences were generally consistent with differences between each

of the eight steps on the pre-2014 scale, and twelve steps on the post-2014 scale.

Under the award, in year four, 2022, the difference was more than $14,700 on

the pre-2014 scale, and $13,600 on the post-2014 scale. The PBA argues there

is no rational justification for this "balloon step[.]" It also argues, as it did before

PERC, that the arbitrator failed to consider settlements surrounding

municipalities reached with their police unions. We are unpersuaded.

      The arbitrator devoted significant and specific discussion to the statutory

factors and each party's offer and evidence. Contrary to the PBA's assertion, the

arbitrator considered the salary of the union's members in comparison to other

police departments and other Township employees. In affirming the award,

PERC found that


                                                                               A-0176-19T2
                                           7
            the arbitrator gave due weight to the [statutory] factors,
            explaining the relative significance he gave to each factor
            in crafting his award. . . . The arbitrator demonstrated his
            consideration of the parties' evidence and arguments on
            each proposal, and explained his reasoning for accepting,
            rejecting, or modifying their proposals in the context of the
            statutory factors he found most relevant. . . . Accordingly,
            we reject the PBA's assertions that the award failed to
            adequately apply the [statutory] factors . . . .

PERC's findings and conclusions are amply supported by the analysis in the

award. The PBA may object to the effect the award has on the step scale, but it

has failed to demonstrate PERC's decision was arbitrary, capricious, or

unreasonable. Id. at 386.

                                         B.

      The PBA argues the award failed to comply with the New Jersey

Arbitration Act. N.J.S.A. 2A:24-8(a) defines one of those narrow circumstances

in which an award may be vacated, specifically, "[w]here [it] was procured by

corruption, fraud[,] or undue means[.]" The PBA reprises its contention that the

arbitrator failed to appropriately consider the statutory factors and asserts that

means the award was "procured by undue means[.]" The argument does not

require extensive discussion in a written opinion. R. 2:11-3(e)(1)(E).

      We have said that "an arbitrator's failure to follow the substantive law may

also constitute 'undue means' which would require the award to be vacated."


                                                                            A-0176-19T2
                                         8
City of Camden, 429 N.J. Super. at 332 (quoting Jersey City Educ. Ass'n, v. Bd.

of Educ. of Jersey City, 218 N.J. Super. 177, 188 (App. Div. 1987)). We have

already rejected the PBA's claim that the arbitrator failed to give adequate

consideration to the statutory factors or inadequately analyzed them.

      In little more than a single sentence, the PBA also asserts the award must

be set aside under N.J.S.A. 2A:24-8(d), because the arbitrator "so imperfectly

executed [his] powers that a mutual, final[,] and definite award upon the subject

matter submitted was not made." Id. at 325. The PBA contends the award was

"so unclear and imprecise that the parties cannot decipher it[.]"

      "An argument based on conclusory statements is insufficient to warrant

appellate review." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J.

Super. 448, 482 n.12 (App. Div. 2012) (citing Nextel of N.Y. v. Borough of

Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003)).

Moreover, there is nothing confusing about the award.

                                       C.

      The PBA contends that the award failed to consider the effect of Chapter

78 health benefit contributions on actual salaries, and the evidence it submitted

that other police unions have effectuated settlements that provide relief through

either higher wages or employer contributions to health care costs. However,


                                                                         A-0176-19T2
                                        9
PERC found the arbitrator specifically addressed the increased health care

contributions mandated by Chapter 78 in rejecting the PBA's proposal. PERC

cited the arbitrator's conclusion that the evidence submitted by the PBA did "not

include any Somerset County municipalities" or any concessions via employer

contributions to health care costs except in the context of "settlement . . .

mutually embraced by the parties during negotiations[.]" Moreover, although

not cited by PERC, we note that the arbitrator refused to award the Township's

proposal on health care that sought to limit new officers to membership in only

certain health plans. We reject the PBA's argument in this regard.

      Additionally, the PBA argues that the arbitrator mistakenly thought it had

accepted the Township's proposal to eliminate Article 28 of the previous CNA,

"Pool Time[,]" and replaced it with the PBA's proposal of a new Article 28,

"Police Training[.]" We need not get into the particulars of the two provisions,

because the argument lacks any merit and is belied by the record.

      PERC concluded the arbitrator was not mistaken about the PBA's

acceptance of the Township's proposal to eliminate the "Pool Time" provision.

It cited to the PBA's post-hearing brief, which contained an explicit acceptance

of the Township's proposal to eliminate "Pool Time" and in return, replace it

with a new Article 28 concerning "Police Training" that the PBA had proposed.


                                                                         A-0176-19T2
                                      10
A copy of the post-hearing brief is in the appellate record, and that is indeed

what counsel for the PBA represented.

                                             III.

      The PBA contends the arbitrator failed to disclose a disqualifying conflict

of interest that requires us to vacate the award. It alleges that the arbitrator was

"the former managing partner" of a law firm that represented the Township in

civil lawsuits brought by two of its members. The PBA argues the arbitrator

was duty bound to "disclose a clear conflict of interest" under the "Code of

Professional Responsibility for Arbitrators of Labor-Management Disputes"

(the Code), which PERC incorporates by regulation and to which its eligible

pool of arbitrators must adhere. See N.J.A.C. 19:16-5.10. The PBA also notes

that N.J.S.A. 2A:24-8(b) permits the vacation of an award "[w]here there was

either evident partiality or corruption in the arbitrator[.]"

      PERC squarely addressed the issue in its decision. It noted that under the

Code, an arbitrator must "disclose any current or past managerial,

representational, or consultative relationship with any company or union

involved in a proceeding in which the arbitrator is being considered for

appointment."     PERC correctly found that the PBA "neither alleged nor

show[ed] that the arbitrator had any direct involvement" in the two civil suits,


                                                                            A-0176-19T2
                                        11
in which his firm was "representing the Township's insurance carrier." It noted

that the Township asserted the arbitrator "had no direct involvement and did not

represent them." Additionally, PERC concluded that the arbitrator had fully

disclosed "his role as a management representative in labor relations matters,"

which was publicly available on PERC's website.

      Our review of this issue is somewhat hampered by the lack of any record.

For example, the appellate record does not include the PBA's submission to

PERC or the Township's response. In its brief, the Township makes several

factual assertions that lack any citation to the record. For example, it asserts

that one of the plaintiffs in the civil litigation was part of the PBA's negotiating

committee, and the PBA's counsel represented the officer in contemporaneous

disciplinary proceedings and was intimately familiar with the civil litigation and

the involvement of the arbitrator's former law firm.

      However, we are persuaded by what is undisputed in the record that

reversal is unwarranted. First, the PBA does not dispute PERC's factual findings

regarding the arbitrator's lack of involvement with the two civil lawsuits, or that

his former firm represented the Township through assignment by its insurance

carrier. The PBA simply asserts those facts do not matter.




                                                                            A-0176-19T2
                                        12
      In addition, the PBA does not dispute the contents of the arbitrator's

resume, which was on PERC's website and is in the record. The resume fully

disclosed the arbitrator's former affiliation with the law firm as an attorney

representing management in labor disputes. The record further discloses that

the PBA received notice of the arbitrator's appointment months in advance of

the actual hearing. It is also undisputed that the PBA never raised any issue of

a potential conflict during the mediation or proceedings before the arbitrator,

and only did so after it received the award and filed an appeal with PERC. See

Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div. 1978) (holding that

judge's alleged conflict of interest was "inappropriately raised on . . . appeal

because the plaintiff never moved to challenge the judge himself, as would have

been the proper practice").

      Our conclusion is also supported by what the PBA has left unexplained in

the record. The PBA provides no information whatsoever as to when, and under

what circumstances, it first discovered the arbitrator's former employment with

the law firm, or, first discovered the law firm's representation of the Township

in these two civil lawsuits.   A party must raise the disqualification issue "at the

earliest possible moment after obtaining knowledge of facts demonstrating the

basis for such a claim." Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333


                                                                            A-0176-19T2
                                        13
(2d Cir. 1987). "[A] movant may not hold back and wait, hedging its bets against

the eventual outcome." Id. at 334. The same principles apply to disqualification

of an arbitrator.

      The Township argues the PBA is barred from raising this issue by the

doctrine of invited error. "Under that settled principle of law, trial errors that

'were induced, encouraged or acquiesced in[,] or consented to by defense

counsel ordinarily are not a basis for reversal on appeal.'" State v. Bailey, 231

N.J. 474, 490 (2018) (emphasis added) (quoting State v. A.R., 213 N.J. 542, 561

(2013)). "The doctrine prevents litigants from 'playing fast and loose' with, or

otherwise manipulating, the judicial process." Ibid. (quoting State v. Jenkins,

178 N.J. 347, 359 (2004)). The undisputed and unexplained facts permit us to

conclude that the PBA acquiesced in the arbitrator's appointment, despite having

adequate knowledge of his former position, and never raised the issue until after

the award was made. We refuse to vacate the award on these grounds.

      Affirmed.




                                                                          A-0176-19T2
                                       14
                         APPENDIX
      STATUTORY FACTORS CONTAINED IN N.J.S.A. 34:13A-16(g)

(1) The interests and welfare of the public. Among the items the arbitrator or
panel of arbitrators shall assess when considering this factor are the limitations
imposed upon the employer by [N.J.S.A.]40A:4-45.1 et seq.[].

(2) Comparison of the wages, salaries, hours, and conditions of employment of
the employees involved in the arbitration proceedings with the wages, hours,
and conditions of employment of other employees performing the same or
similar services and with other employees generally:

             (a) In private employment in general; provided,
             however, each party shall have the right to submit
             additional evidence for the arbitrator’s consideration.

             (b) In public employment in general; provided,
             however, each party shall have the right to submit
             additional evidence for the arbitrator’s consideration.

             (c) In public employment in the same or similar
             comparable jurisdictions, as determined in accordance
             with . . . [N.J.S.A.] 34:13A-16.2[]; provided, however,
             that each party shall have the right to submit additional
             evidence concerning the comparability of jurisdictions
             for the arbitrator’s consideration.

(3) The overall compensation presently received by the employees, inclusive of
direct wages, salary, vacations, holidays, excused leaves, insurance and
pensions, medical and hospitalization benefits, and all other economic benefits
received.

(4) Stipulations of the parties.


                                                                          A-0176-19T2
                                       15
(5) The lawful authority of the employer. Among the items the arbitrator or
panel of arbitrators shall assess when considering this factor are the limitations
imposed upon the employer by [N.J.S.A.]40A:4-45.1 et seq.[].

(6) The financial impact on the governing unit, its residents, the limitations
imposed upon the local unit’s property tax levy pursuant to . . . [N.J.S.A.] 40A:4-
45.45[], and taxpayers. When considering this factor in a dispute in which the
public employer is a county or a municipality, the arbitrator or panel of
arbitrators shall take into account, to the extent that evidence is introduced, how
the award will affect the municipal or county purposes element, as the case may
be, of the local property tax; a comparison of the percentage of the municipal
purposes element or, in the case of a county, the county purposes element,
required to fund the employees’ contract in the preceding local budget year with
that required under the award for the current local budget year; the impact of the
award for each income sector of the property taxpayers of the local unit; the
impact of the award on the ability of the governing body to (a) maintain existing
local programs and services, (b) expand existing local programs and services for
which public moneys have been designated by the governing body in a proposed
local budget, or (c) initiate any new programs and services for which public
moneys have been designated by the governing body in a proposed local budget.

(7) The cost of living.

(8) The continuity and stability of employment including seniority rights and
such other factors not confined to the foregoing[,] which are ordinarily or
traditionally considered in the determination of wages, hours, and conditions of
employment through collective negotiations and collective bargaining between
the parties in the public service and in private employment.

(9) Statutory restrictions imposed on the employer. Among the items the
arbitrator or panel of arbitrators shall assess when considering this factor are the
limitations imposed upon the employer by . . . [N.J.S.A.]40A:4-45.45[].




                                                                            A-0176-19T2
                                        16
