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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2277-18T3

BOROUGH OF CARTERET,
a municipal corporation of the
State of New Jersey,

          Plaintiff-Appellant,

v.

FIREFIGHTERS MUTUAL
BENEVOLENT
ASSOCIATION, LOCAL 67,

     Defendant-Respondent.
____________________________

                   Submitted November 14, 2019 – Decided June 25, 2020

                   Before Judges Nugent and Suter.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Middlesex County, Docket No. C-
                   000134-18.

                   McManimon, Scotland & Baumann, LLC, attorneys for
                   appellant (Ted Del Guercio, III, on the briefs).

                   Kroll Heineman Carton, LLC, attorneys for respondent
                   (Raymond G. Heineman, of counsel and on the brief).
PER CURIAM

      Plaintiff, Borough of Carteret, appeals from a Chancery Division order that

confirmed a labor arbitration award interpreting a collective negotiations agreement

(CNA) between plaintiff and defendant Local 67 of the Firefighters Mutual

Benevolent Association (FMBA). Because the arbitrator's interpretation of the

disputed CNA clause was not a reasonably debatable construction of the clause as

written, and because the arbitrator construed the clause by implying terms neither

contained in the clause nor intended by the parties, we reverse the Chancery Division

order and vacate the arbitration award.

      The record on appeal includes the following facts. The Borough and

FMBA were parties to a CNA effective January 1, 2011, through December 31,

2015. Article VIII, Section 5 (the Disputed Clause), entitled "Acting Captains,"

states:

             There shall be a Captain assigned to each tour of duty,
             referred to as a Shift Captain. Whenever a Shift
             Captain is off, the senior firefighter on duty shall
             assume the responsibilities of Acting Captain and shall
             receive the rate of pay of a Captain for each day of such
             service, providing this does not conflict with Civil
             Service regulations.

      Between 2011 and 2013, the Borough fire department consisted of

approximately forty firefighters. There were four fire captains and one fire


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                                          2
chief. FMBA represented the firefighters and the captains but not the chief.

The CNA's salary guide reflects the department's structure during those years,

namely, the firefighters, the captains, and the chief.

      In 2012, the Borough adopted an ordinance that restructured the fire

department, creating four positions for fire lieutenants. With the approval of the

Civil Service Commission, the Borough used the "existing Fire Captain Roster"

to appoint the new lieutenants. The Borough also amended its salary ordinance

to include the position of fire lieutenant. According to the arbitration decision,

fire lieutenants were paid more than "a top-paid firefighter" but less than fire

captains. In July 2013, the Borough appointed four lieutenants. For the next

four years, the lieutenants executed the duties of fire lieutenants at the pay rate

for lieutenants.   Nothing in the record indicates that during those years

lieutenants made a demand to be compensated at a captain's rate of pay when

"[acting] in the place of a Fire Captain in his/her absence"—a duty included in

the Civil Service Commission's "Job Specification 01843" for a fire lieutenant.

      By 2018, the four captains had either retired or had been demoted, and not

one had been replaced. Two retired in 2015, the third was demoted in 2016, and

the fourth retired in March 2018.




                                                                           A-2277-18T3
                                         3
      In August 2017, FMBA filed a grievance with the Borough seeking

retroactive captain's pay for all lieutenants who had acted in the place of absent

captains. The Borough denied the grievance and it ultimately was arbitrated.

While the arbitration was pending, the four fire lieutenants filed classification

appeals with the Civil Service Commission pursuant to N.J.A.C. 4A:3-3.9(d),

which authorizes employees to petition the Commission for both a determination

whether the duties they are performing conform to the specification for their title

and a change in title.

      According to the arbitration decision, the parties stipulated the issue the

arbitrator was to decide: "Did the Borough violate Article 8, Section 5, of the

collective negotiations agreement by failing to pay acting captain's pay to

lieutenants who assumed the responsibilities of acting captains since August 7,

2017? If so, what shall be the remedy?" The arbitrator answered the first

question in the affirmative and directed the Borough to compensate all

lieutenants "at the acting captain pay rate for each shift which they worked to

which no captain was assigned from August 7, 2017 forward."

      According to the arbitrator's written decision, three witnesses testified: the

Fire Chief, who was a former FMBA Local 67 president; an FMBA State

delegate, Tom Reynolds; and the current FMBA Local 67 president, Jason


                                                                            A-2277-18T3
                                         4
Kurdyla. Reynolds and Kurdyla confirmed that after the last captain left in

2018, the lieutenants assumed all the duties previously performed by captains,

including running the shift and taking command at the fire scene. In addition,

they testified FMBA members never held a vote or moved to modify the existing

CNA.

       The Borough Fire Chief, who had become the chief in April 2013 while

finishing his tenure as Local 67 president, which ended in August 2013, gave

contrasting testimony. According to the Chief, the lieutenant positions, which

became effective in January 2013, were to be compensated at a rate slightly

higher than that of a firefighter but lower than that of a captain. Lieutenants

were to assume a greater supervisory role at fires, enhance the chain of

command, and fill in for unavailable fire captains. The Chief also testified the

Borough and FMBA had extensive discussions about the new lieutenant position

between 2012 and 2013. He asserted the parties agreed if the Borough created

four new lieutenant positions, FMBA would waive any acting captain's pay




                                                                        A-2277-18T3
                                       5
provided in the contract. He produced meeting minutes to verify the members

had voted to ratify this agreement. 1

      The arbitrator found the Borough had violated the CNA by failing to allot

acting captain's pay to lieutenants after August 7, 2017, the date FMBA filed the

grievance. She did not credit the Chief's testimony but instead concluded the

Borough failed to prove there was any agreement to modify the CNA. She

reached this conclusion because the Chief did not identify any of the negotiators

for either the Borough or the Union, the minutes of the Union meetings for 2012

and 2013 included no notation of a membership vote, and the Chief's

overlapping roles as Acting Chief and Union President tainted any purported

negotiations over the new lieutenant positions. Conversely, the arbitrator found

credible Reynolds' and Kurdyla's testimony that no vote or agreement had

occurred to modify the existing CNA.

      The arbitrator found FMBA's grievance was timely, though filed several

years after creation of the lieutenant position, because it related to "a continuing

violation." She reasoned that each time a lieutenant did not receive acting



1
  Although handwritten meeting minutes are included in the record, they are
mostly illegible. It is difficult to discern from them what exactly took place at
those meetings.


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                                         6
captain's pay, the violation constituted a new occurrence. However, because

FMBA did not file the grievance until August 7, 2017, lieutenants could only

recover retroactive pay from that date forward.

      The arbitrator explained that the Disputed Clause supported acting

captain's pay for lieutenants after August 7, 2017:

            At the time that the CNA was negotiated and ratified by
            the parties, the position of Fire Lieutenant did not exist
            -- the unit was then composed of rank-and-file
            firefighters and captains. Effective January 1, 2012, a
            year after the current contract took effect, a Borough
            ordinance created new lieutenant positions, and
            unilaterally set the compensation for the positions at
            approximately $1,500 above . . . that of a firefighter at
            the top step of the salary guide. . . .

                  ....

                   At the time that the current Article 8, Section 5
            of the contract became effective on January 1, 2011,
            there were four fire captains; between 2013 and mid-
            2018, all four had either retired or been demoted. . . . In
            the absence of any sitting captains the duties attached
            to that position must be performed. There is no
            testimony or other evidence in the record that the duties
            of captains are being performed by the Chief Hruska.
            There is, however, unrebutted testimony from Kurdyla
            that the lieutenants are performing the duties of shift
            commanders. I conclude, based upon the testimony and
            the full record before me that lieutenants are
            performing the duties previously performed by
            captains. In effect, whether intentional or not, what the
            Borough has done is to replace captains with
            lieutenants, at a lower pay rate. The lieutenants are

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                                        7
            entitled to pay as acting captains for every day since
            August 7, 2017 when they assumed the responsibilities
            of an acting captain, and . . . the Borough's failure to
            compensate them is a violation of Article 8, Section 5
            of the collective negotiations agreement.

The arbitrator further concluded the alleged past practice of withholding acting

captain's pay could not supersede the Disputed Clause's unambiguous contract

language.

      FMBA filed a petition to confirm the arbitration award, and the Borough

filed a verified complaint seeking to vacate the arbitration award. Following a

hearing, the trial court issued a written decision confirming the award.

Agreeing with the arbitrator's award, the court noted, among other reasons:

            The Borough, found by the Arbitrator, assigned the
            duties of the captain, including the five administrative
            duties, to lieutenants. Thus, Lieutenants who are doing
            the duty of an acting captain, should be paid acting pay
            pursuant to the contract and civil service. Therefore,
            the Arbitrator correctly found that fire lieutenants who
            assumed the duties of a shift captain were entitled to the
            payment of an acting captain pay. The Borough has
            continued to maintain duties of shift captain on each
            shift and has those duties conveyed to fire lieutenants,
            in the absence of fire captains.

The court concluded the arbitrator did not exceed her powers under N.J.S.A.

2A:24-8(d), and that her interpretation of the CNA was reasonably debatable.

      The Borough filed a notice of appeal. The trial court denied the Borough's


                                                                         A-2277-18T3
                                        8
motion for a stay pending appeal. After the Borough filed its notice of appeal,

the Civil Service Commission, Division of Agency Services, rejected the four

lieutenants' classification appeals. For each lieutenant, the Division determined

"the current duties and responsibilities assigned to the position are

commensurate with the title Fire Lieutenant (01843)."           We granted the

Borough's motion to supplement the appellate record with these determinations.

The Borough has since submitted the final administrative decision of the Civil

Service Commission upholding the Division of Agency Services determinations.

      On appeal, the Borough argues the trial court erred by not setting aside

the arbitration award because the arbitrator imperfectly executed her powers,

misinterpreted the Disputed Clause's plain language, ignored, among other

things, the parties' past practice, and improperly disregarded the Fire Chief's

testimony.   The Borough also argues the trial court's affirmation of the

arbitrator's award impinges upon managerial prerogative concerning shift

scheduling and staffing.       The Borough emphasizes the Civil Service

Commission's final agency decision confirms the arbitrator's and the trial court's

mistaken conclusions that the fire lieutenants are performing the duties of fire

captains.




                                                                          A-2277-18T3
                                        9
      FMBA responds that the arbitrator's factual determinations are not subject

to de novo review, her award is not contrary to public policy, and the award

represents a rational interpretation of the parties' agreement. FMBA disputes

the desk audit decisions of the Civil Service Commission are dispositive.

      The Borough replies that the practical result of the arbitration award is to

require captains on each duty shift, issues involving staffing are matters of

managerial prerogative, the Borough has paid the back pay as a result of the

Chancery Division's decision, and the desk audit responses are persuasive.

      Our review of the trial court's decision is de novo. Minkowitz v. Israeli,

433 N.J. Super. 111, 136 (App. Div. 2013).           In contrast, our review of

"arbitration awards is extremely limited and an arbitrator's award is not . . . set

aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J.

505, 513 (2001) (citing Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208,

221 (1979)).    Neither the trial court nor this court may second-guess the

arbitrator's interpretation of the CNA, so long as her construction is reasonably

debatable. Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J.

1, 11 (2007).    A construction is reasonably debatable if it is "plausible,"

Policemen's Benevolent Ass'n Local No. 11 v. City of Trenton, 205 N.J. 422,

430-31 (2011), or "justifiable" or "fully supportable in the record," id. at 431


                                                                           A-2277-18T3
                                       10
(quoting Kearny PBA Local #21, 81 N.J. at 223-24). Under that standard, an

arbitrator's interpretation of a CNA need not be the only interpretation or the

best one. Id. at 432. "What is required is that the arbitrator's interpretation finds

support in the Agreement . . . ." Ibid.

      Arbitrators "may not look beyond the four corners of a contract to alter

unambiguous language . . . ." Id. at 430. "Thus, our courts have vacated

arbitration awards as not reasonably debatable when arbitrators have, for

example, added new terms to an agreement or ignored its clear language." Id.

at 429.

      In addition, "in rare circumstances" an arbitration award may be

overturned where it violates public policy. Borough of E. Rutherford v. E.

Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (citation omitted).

             "For purposes of judicial review of labor arbitration
             awards, public policy sufficient to vacate an award
             must be embodied in legislative enactments,
             administrative regulations, or legal precedents," and
             may not be "based on amorphous considerations of the
             common weal." Moreover, the public policy exception
             is triggered when "a labor arbitration award—not the
             grievant's conduct—violates a clear mandate of public
             policy . . . ."

             [Middletown Twp. PBA Local 124, 193 N.J. at 11
             (quoting N.J. Tpk. Auth. v. Local 196, 190 N.J. 283,
             295, 300 (2007)).]


                                                                             A-2277-18T3
                                          11
      Having reviewed the record under the foregoing standard, we conclude

the arbitrator's construction of the Disputed Clause is not reasonably debatable

and therefore must be vacated.      To arrive at the construction she did, the

arbitrator in effect engrafted terms concerning lieutenants onto the Disputed

Clause, terms that are contrary to the Disputed Clause's plain language and were

unintended by the parties when they negotiated the CNA.

      When the Disputed Clause was negotiated, lieutenants did not exist in the

fire department. That fact is undisputed. Undisputed, too, is the Civil Service

Commission job specification for a firefighter, admitted as an exhibit during the

arbitration. Absent from that specification is any provision that suggests the job

includes performing duties when a captain is absent from a shift. Consequently,

when a firefighter performs a captain's duties, the firefighter is performing work

beyond the job description and assuming greater responsibilities than those

delineated in the job specification. The Disputed Clause thus compensates a

firefighter when performing the duties of an acting captain. That is precisely

what the plain and unambiguous language of the Disputed Clause provides.

      In contrast to the position of firefighter, included in the Civil Service

Commission job specification for a fire lieutenant is this example of a




                                                                          A-2277-18T3
                                       12
lieutenant's work: "[a]cts in the place of a Fire Captain in his/her absence." This

is one of many duties that distinguishes a lieutenant from a firefighter.

      We point out the contrasting duties because the arbitrator concluded the

Disputed Clause clearly and unambiguously entitled lieutenants to the captain's

pay rate when performing duties in a captain's absence. Yet, the Disputed

Clause is devoid of any language concerning lieutenants, and nothing in the

record suggests a reason why lieutenants should receive extra compensation for

performing work within their job description. Of course, here the record is

undisputed that neither FMBA nor the Borough contemplated such a result when

they negotiated the Disputed Clause, because FMBA did not represent any

lieutenants, as there were none.

      It is not insignificant the arbitrator rejected the Borough's "past practice"

argument and gave virtually no consideration to the lieutenants performing their

job duties, including acting in the place of a fire captain in his or her absence,

for four years without a request for any pay beyond that to which they were

entitled under the Borough's salary ordinance.       The arbitrator rejected the

Borough's argument that the four-year past practice was significant on the basis

the Disputed Clause was clear and unambiguous. Yet, the clause as written, if

attempted to be applied to lieutenants, is anything but clear. The clause as


                                                                            A-2277-18T3
                                       13
written mandates that a senior firefighter assume the responsibilities of acting

captain when a shift captain is off, "providing this does not conflict with Civil

Service Regulations." This plain language, if followed after the creation of

lieutenant positions, would violate Civil Service Regulations by mandating a

firefighter assume the responsibilities of a captain and perform work beyond his

or her job description, rather than a lieutenant, whose job description includes

such responsibility.

      As previously noted, the Supreme Court has recognized that "our courts

have vacated arbitration awards as not reasonably debatable when arbitrators

have, for example, added new terms to an agreement or ignored its cl ear

language." Policemen's Benevolent Ass'n, Local No. 11, 205 N.J. at 429-430.

Here, the arbitrator interpreted the disputed clause contrary to its clear and

unambiguous language and construed the clause by implying terms concerning

lieutenants. Her construction, engrafting onto the Disputed Clause terms neither

contained nor intended to be contained in the clause, and ignoring the clause's

clear language, which neither applied to nor was intended to apply to lieutenants,

was not reasonably debatable. Accordingly, we reverse the trial court's order

upholding the arbitration award and vacate the award.

      Reversed and vacated.


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                                       14
