                        NOT FOR PUBLICATION WITHOUT THE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-1470-16T1

CITY OF NEWARK,

        Plaintiff-Appellant,

v.

SEIU LOCAL 617,

        Defendant-Respondent.

___________________________

              Argued August 14, 2018 – Decided September 4, 2018

              Before Judges Messano and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              C-000218-15.

              Cheyne R. Scott argued the cause for appellant
              (Chasan Lamparello Mallon & Cappuzzo, PC,
              attorneys; Cindy Nan Vogelman, of counsel and
              on the briefs; Qing H. Guo, on the brief).

              William P. Hannan          argued the cause for
              respondent (Oxfeld         Cohen, PC, attorneys;
              William P. Hannan,         of counsel and on the
              brief).

PER CURIAM

        Plaintiff City of Newark appeals from the trial court's order

confirming       an   arbitration     award.       Employee    Marvin    Harrison
received a three-day suspension for insubordination.              Defendant

Service Employees International Union Local 617 (the Union) filed

a grievance on his behalf.      The dispute proceeded to final and

binding arbitration for determination of the following issues:

"Was there just cause for the suspension of [Harrison] for three

(3) days?    If not, what shall be the remedy?"              The arbitrator

rendered    an   award   sustaining       the   grievance,    reducing   the

discipline to a corrective conference, and restoring the three

days of lost compensation, finding Newark had not carried its

burden of proving Harrison knowingly and willfully engaged in an

act of insubordination.     We reverse.

                                  I.

     The Union represents blue collar, non-supervisory workers

employed by Newark.      Harrison has been employed by Newark as a

garbage truck driver for seventeen years.           Newark and the Union

entered into a collective bargaining agreement (the Agreement)

effective January 1, 2012 to December 31, 2014.               Under Article

XXIX of the Agreement, Newark retained and reserved, without

limitation, the right "[t]o suspend, demote, discharge or take

other disciplinary action for good and just cause according to the

law."   However, Article VIII requires Newark to apply progressive

discipline unless the misconduct falls within certain categories,

including insubordination.    Pertinent to this appeal, it provides:

                                      2                            A-1470-16T1
               The City of NEWARK shall follow a
          remedial system of progressive discipline in
          an   attempt   to   bring    employee's    work
          performance   and/or   conduct     up   to    a
          satisfactory level.       The steps of the
          progressive discipline shall include:

               (a)   Corrective Conference – the
               Division    Manager   or   his/her
               designee will discuss any work
               performance problem or misconduct
               with the employee . . . .

               (b)   Written Reprimand – If the
               employee fails to improve his/her
               work    performance     within    a
               reasonable time established at the
               corrective conference, or if the
               employee violates the same or
               another policy, rule or regulation,
               the Division Manager shall issue a
               written reprimand. . . .

                    . . . .

               (c)    A department Director may
               bypass the progressive discipline
               system in the case(s) of acts of
               violence, criminal intent, bodily
               harm, or insubordination.       The
               parties agree that if management
               abuses     the    infraction     of
               insubordination, the Union reserves
               the right to invoke the grievance
               procedures.

The Agreement does not define "insubordination" or "good and just

cause."

     Article VII sets forth the five-step procedure for resolving

grievances, culminating in arbitration.   It imposes the following

limitations on the arbitrator:

                                 3                          A-1470-16T1
                  The arbitrator shall be bound by the
             provisions of this Agreement and restricted
             to the application of the facts involved in
             the grievance as presented to him [or] her.
             The arbitrator shall not have the authority
             to add to, modify, detract from or alter in
             any way the provisions of the Agreement or any
             amendment or supplement thereto.

     The arbitrator conducted an evidential hearing on July 1,

2015 and found the following facts.1         On December 3, 2014, Harrison

was assigned to perform bulk trash pick-ups.           After completing his

normal route, but before the end of his shift, Harrison was

commanded by his supervisor, William Lane, to perform certain

additional bulk trash pick-ups.            Harrison refused and left the

work site.     As a result of his refusal, Harrison was suspended for

three days for insubordination.       The Union grieved the suspension,

which ultimately proceeded to final and binding arbitration.

     Newark argued Harrison's supervisor directed him to do the

additional trash pick-ups but he refused, claiming employees of a

contractor, who should have done the pick-ups, were not doing

their   job.     Newark   contended       Harrison's   refusal   constituted

insubordination and, therefore, progressive discipline was not

required.      Newark also contended the three-day suspension was

reasonable discipline for Harrison's insubordination.



1
   The record does not include a transcript of the arbitration
hearing.

                                      4                             A-1470-16T1
     The union claimed Harrison was asked to perform extra duties

at the end of his shift when he still had to transport his load

to the landfill and refuel at a second location, further extending

his anticipated overtime.   The Union argued since Harrison was not

warned about the consequences if he refused to perform the extra

work, he could not be disciplined for insubordination.     The Union

also argued the overtime was not mandatory because Newark did not

assign the overtime properly.    Finally, the Union argued Newark

failed to offer an alternative accommodation to Harrison to reduce

his overtime on December 3, 2014.

     In his written opinion and award, the arbitrator sustained

the grievance, engaging in the following analysis:

               It is well accepted that an employee's
          refusal to obey a supervisor's instructions,
          absent a threat to his health or safety, may
          subject   an   employee   to  discipline   for
          insubordination.    However, before a refusal
          to obey rises to the level of insubordination,
          arbitrators have long-held that it must be
          clear that the supervisor's directive was in
          the nature of a command and that the employee
          had been warned that his refusal will subject
          him to discipline. Therefore, for an act of
          insubordination to occur, an employee must be
          on notice of the consequences of his refusal
          to follow the supervisor's orders.

               This methodology is consistent with the
          parties[']     Agreement      which     places
          insubordination in the same category as acts
          of violence, criminal intent, and bodily harm,
          none of which require progressive discipline.
          Unlike insubordination, the other categories

                                 5                          A-1470-16T1
of misconduct are, on their face so serious
that no notice to an employee is necessary to
advise the employee that such misconduct will
result in serious disciplinary consequences
without    prior    resort    to    progressive
discipline. On the other hand, a failure or
refusal to obey an order does not, on its face,
rise to the level of insubordination unless
an employee is fully apprised that serious
disciplinary     consequences      –     beyond
progressive discipline – will occur if the
employee's behavior continues.

     In the instant matter, the Union does not
contend that Mr. Lane failed to issue a clear
directive to [Harrison]. Indeed, [Harrison's]
response to the order – "no" – verifies that
[Harrison] understood that a command had been
issued. Rather, the Union contends that since
the order to perform the additional work
violated the overtime distribution rules,
[Harrison] was not obligated to comply.      I
disagree.   Even if [Harrison] believed that
the   instructions   violated   the   overtime
distribution rules of the Agreement, he
nevertheless had to comply since there was no
risk to his health or safety.      It is well
accepted that the employee must obey the
supervisor's orders and utilize the grievance
procedure for relief. This is often referred
to as the "obey now-grieve later" rule.

     Once, however, Mr. Lane commanded Mr.
Harrison to perform the added work, and he
refused,   before   Mr.    Harrison   can   be
disciplined for insubordination, it was
incumbent on Mr. Lane to follow-up by advising
Mr. Harrison of the disciplinary consequences
of his continued refusal to perform the
assignment. This, he failed to do. Indeed,
on cross-examination, Mr. Lane admitted that
he never threatened Mr. Harrison after he told
Mr. Lane that he would not do so as he was
directed. Thus, Mr. Lane did not provide Mr.
Harrison with the opportunity to fully

                      6                           A-1470-16T1
              appreciate the probable consequences of his
              refusal or to reconsider his refusal to avoid
              such consequences. Accordingly, I find that
              the City has not carried its burden of proving
              that [Harrison] knowingly and willfully
              engaged in an act of insubordination.

         Although he found Harrison was not advised of the disciplinary

consequences      of    his   continued    refusal   to   perform     the     work

assignment,       the    arbitrator   determined      Harrison      should       be

disciplined in the form of a corrective conference, the first step

under the progressive discipline system.

         Newark filed this action to vacate the arbitration award,

alleging the award was procured through undue means (count one)

and the award resulted from the arbitrator exceeding his authority

and disregarding the terms of the Agreement (count two).                        The

Union counterclaimed to confirm and enforce the award. The parties

filed cross-motions for summary judgment.            Following oral argument

on October 14, 2016, the motion judge rendered a preliminary

decision on November 14, 2016, indicating he was inclined to vacate

the award and remand to the arbitrator to conduct a just cause

analysis.

         In reaching that tentative conclusion, the judge stated the

arbitrator "puts forth his own definition of insubordination which

is   a    term   of   ordinary   meaning,"   in   which   he   adds   a    notice

requirement, "which is not part of the definition," citing Ricci


                                       7                                  A-1470-16T1
v. Corporate Express of the East, Inc., 344 N.J. Super. 39, 45

(App. Div. 2001) and County College of Morris Staff Association

v. County College of Morris Staff Association, 100 N.J. 383 (1985).

The judge also stated, "the arbitration award needs to be vacated,

because [the arbitrator] doesn't have the authority to . . .

provide his own definition of a plain common term," "essentially

adding a term to the contract that doesn't exist in the contract."

The judge indicated he was going to vacate the award and remand

the grievance to the arbitrator because the arbitrator did not

address the just cause standard, express his reasons, or engage

in any analysis.

     In an oral decision rendered four days later, the judge

reached a different result, granting summary judgment to the Union,

confirming the award, and dismissing the complaint, concluding the

court could not remand the matter to the arbitrator due to the

passage of time.   The judge reached this decision despite finding

the arbitrator's conclusion that "for an act of insubordination

to occur, an employee must be on notice of the consequences of his

refusal to follow the supervisor's order" to be "in conflict with

other parts of his decision."

     After noting the arbitrator's opinion "is not one the [c]ourt

would have issued" and that the arbitrator's just cause analysis

"was not complete and thorough," the judge concluded the court did

                                 8                         A-1470-16T1
not have the authority to overturn it because the opinion was

"reasonably debatable."         Although he sustained the award, the

judge reiterated the arbitrator did "not have . . . the right to

insert a term in the contract that the parties did not bargain

for."     This appeal followed.

       Newark primarily argues the trial court erred by confirming

the arbitration award even though the arbitrator exceeded his

authority by imposing additional terms that were neither present

in the Agreement nor agreed to by the parties.            More specifically,

Newark argues the arbitrator improperly required the application

of   progressive   discipline     for   insubordination     and   adopted    an

improper definition of insubordination.

                                      II.

       "The public policy of this State favors arbitration as a

means of settling disputes that otherwise would be litigated in a

court." Badiali v. N.J. Mfrs. Ins. Group, 220 N.J. 544, 556 (2015)

(citing Cty. Coll. of Morris Staff, 100 N.J. at 390).             "Consistent

with    the   salutary   purposes    that   arbitration    [promotes]   as    a

dispute-resolution mechanism" of labor-management issues, "courts

grant arbitration awards considerable deference."             Borough of E.

Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201

(2013).       "[A]rbitration    of   public-sector   labor     disputes,     in

particular, 'should be a fast and inexpensive way to achieve final

                                        9                            A-1470-16T1
resolution   of    such   disputes.'"    Ibid.    (quoting   Policemen's

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

429 (2011)).      "Thus, arbitration awards are given a wide berth,

with limited bases for a court's interference."        Ibid.

     "We review the court's decision on a motion to vacate an

arbitration award de novo." Bound Brook Bd. of Educ. v. Ciripompa,

442 N.J. Super. 515, 520 (App. Div. 2015) (citation omitted).

However, "an arbitrator's award will be confirmed 'so long as the

award is reasonably debatable.'"        Policemen's Benevolent Ass'n,

205 N.J. at 428-29 (quoting Linden Bd. of Educ. v. Linden Educ.

Ass'n., 202 N.J. 268, 276 (2010); see also Off. of Emp. Rels. v.

Comms. Workers of Am., 154 N.J. 98, 112 (1998)).

     Under the Arbitration Act, N.J.S.A. 2A:24-1 to -11, a court

shall vacate an arbitration award:

          a. Where the award was procured by corruption,
          fraud or undue means;

          b. Where there was either evident partiality
          or corruption in the arbitrators, or any
          thereof;

          c. Where the arbitrators         were    guilty    of
          misconduct . . . ; [or]

          d. Where the arbitrators exceeded or so
          imperfectly executed their powers that a
          mutual, final and definite award upon the
          subject matter submitted was not made.

          [N.J.S.A. 2A:24-8.]


                                   10                             A-1470-16T1
     "[U]ndue means" encompasses a situation in which the arbitrator

has made a mistake of law, "whereas an arbitrator exceeds his or her

'authority by disregarding the terms of the parties' agreement.'"

Borough of E. Rutherford, 213 N.J. at 203 (alteration in original)

(quoting Off. of Emp. Rels., 154 N.J. at 111-12).

     Whether the arbitrator exceeded his authority "entails a two-

part inquiry: (1) whether the agreement authorized the award, and (2)

whether the arbitrator's action is consistent with applicable law."

Id. at 212 (citing Comms. Workers v. Monmouth Cty. Bd. of Soc. Servs.,

96 N.J. 442, 451-53 (1984)).

     "[A]n arbitrator may not disregard the terms of the parties'

agreement, nor may he rewrite the contract for the parties."              Cty.

College of Morris, 100 N.J. at 391 (citing State v. State Troopers

Fraternal Ass'n, 91 N.J. 464, 469 (1982)).      Moreover, "the arbitrator

may not contradict the express language of the contract."         Linden Bd.

of Educ., 202 N.J. at 276. "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."    Policemen's Benevolent Ass'n, 205 N.J. at 429-30 (citing

Cty. Coll. of Morris, 100 N.J. at 397-98).

                                    III.

     Newark argues the arbitrator exceeded his authority by: (1)

imposing additional terms to the collective bargaining agreement that



                                    11                              A-1470-16T1
were neither present in agreement nor agreed to by the parties; and

(2) by converting the issue of just cause for the three-day suspension

to an issue regarding the definition of insubordination.

     We first examine if the arbitrator exceeded his authority by

disregarding the terms of the parties' agreement.

     Newark imposed minor discipline in the form of a three-day

suspension.   See N.J.A.C. 4A:2-3.1 ("Minor discipline is a formal

reprimand or a suspension or fine of five working days or less.").

The Agreement did not require Newark to apply progressive discipline

for insubordination.2    Instead, Newark retained the right to impose

major or minor discipline, up to and including termination, "for good

and just cause."       Thus, discipline for insubordination could be

imposed without first undertaking a corrective conference or issuing

a written reprimand.

     Without citing any authority, the arbitrator concluded Newark

had not proved Harrison knowingly and willfully engaged in an act of

insubordination because Lane did not warn Harrison that his refusal

to perform the assigned work would subject him to discipline.       The



2
   The record before the trial court, but not the arbitrator,
indicates Harrison had previously received a corrective conference
and a written warning in September 2013. Because Newark did not
contend it had applied progressive discipline before the
arbitrator, and did not brief this issue on appeal, we consider
it waived.   See Pressler & Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2018) (citing Gormley v. Wood El, 218 N.J. 72,
95 n.8 (2014); Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J.
Super. 501, 505 n.2 (App. Div. 2015)).

                                  12                          A-1470-16T1
arbitrator ruled "for an act of insubordination to occur, an employee

must be on notice of the consequences of his refusal to follow the

supervisor's        orders."         Therefore,        the    employee      must   be     "fully

apprised that serious disciplinary consequences – beyond progressive

discipline – will occur if the employee's behavior continues."                                 The

arbitrator      exceeded       his    powers      by    engrafting        these    additional

requirements.

      "Insubordination"              is     not    defined          in     the     Agreement.

Consequently, "we are obliged to accept its ordinary definition since

it   is   not   a    technical       term    or   word       of   art    and   there     are    no

circumstances indicating that a different meaning was intended by the

parties."       Ricci, 344 N.J. Super. at 345 (citing Deerhurst Estates

v. Meadow Homes, Inc., 64 N.J. Super. 134, 150 (App. Div. 1960)).

      Insubordination has been defined as: "'a willful refusal of

submission' to the authority of her superiors," Laba v. Newark Bd.

of Educ., 23 N.J. 364, 385 (1957) (quoting Harrisonon v. State Bd.

of Educ., 134 N.J.L. 502, 505 (Sup. Ct. 1946)); the "willful disregard

of an employer's instructions," Black's Law Dictionary 802 (7th ed.

1999); or an "act of disobedience to proper authority," ibid.                                  See

also N.J.A.C. 12:17-10.5(a)(1).                Insubordinate is defined as "[n]ot

submitting to authority; disobedient; mutinous."                         Webster's Third New

International       Dictionary        1172   (1971).          The   ordinary       meaning      of

insubordination does not include a requirement that the employer



                                             13                                         A-1470-16T1
advise    the    employee   of    the     disciplinary        consequences   of    his

continued refusal to perform the work assignment.

     As recognized by the arbitrator, "an employee's refusal to obey

a supervisor's instructions, absent a threat to his health or safety,

may subject an employee to discipline for insubordination."                        The

Union does not contend Lane failed to issue a clear directive to

Harrison.       Harrison understood the order to perform the additional

trash pick-ups.       Harrison's response to the directive verified he

understood a command had been issued.              Harrison was obliged to comply

with the directive since there was no risk to his health or safety.

Pursuant to the "obey now-grieve later" rule, Harrison was required

to obey Lane's order and utilize the grievance procedure for relief.

Harrison refused to perform the added work and left the work site.

By doing so, he was insubordinate.              Newark was not required to engage

in progressive discipline.              There was good and just cause for the

minor discipline imposed.

     The Agreement did not require Newark to follow the remedial

system    of    progressive      discipline      for   acts    of   insubordination.

Consequently, Newark was not required to first conduct a corrective

conference or issue a written reprimand before suspending Harrison

for insubordination.          Accordingly, pursuant to this bargained-for

provision, Newark was not required to "discuss any work performance

problem    or    misconduct      with    the    employee"     during   a   corrective



                                           14                                A-1470-16T1
conference before suspending Harrison.   As a member of the bargaining

unit, Harrison had constructive notice of the terms of Article VIII.

     "Where contracting parties have manifested their intentions by

a written agreement, they are bound thereby and their intentions as

so expressed must be enforced."   Bd. of Review v. Bogue Electric Co.,

37 N.J. Super. 535, 539 (App. Div. 1955).        As a member of the

bargaining unit, Harrison is legally bound by the terms of the

Agreement.   Ibid. (citing Christiansen v. Local 680 Milk Drivers &

Dairy Emps. of N.J., 126 N.J. Eq. 508, 512 (Ch. Div. 1940)).

     "[A]n arbitrator's 'award is legitimate only so long as it draws

its essence from the collective bargaining agreement.         When the

arbitrator's words manifest an infidelity to this obligation, courts

have no choice but to refuse enforcement of the award.'"    Policemen's

Benevolent Ass'n, 205 N.J. at 429 (quoting United Steelworkers v.

Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).       "Arbitrators

who add terms to the actual language of a contract exceed their

authority in a manner that requires their award be vacated."         Id.

at 437 (Rabner, C.J., dissenting) (citing Cty. Coll. of Morris, 100

N.J. at 397-98 (vacating award made by "arbitrator [who] exceeded his

authority by adding a new term to the contract"); PBA Local 160 v.

Twp. of N. Brunswick, 272 N.J. Super. 467, 474 (App. Div. 1994)).

"Likewise, an award that ignores the clear language of a contract

cannot be sustained."   Ibid. (quoting Office of Emp. Rels., 154 N.J.



                                  15                           A-1470-16T1
at 112 (stating arbitrators "exceed their authority by disregarding

the terms of the parties' agreement"); see also Local 462, Int'l Bhd.

of Teamsters v. Charles Schaefer & Sons, Inc., 223 N.J. Super.

520, 528-29 (App. Div. 1988)).           In particular, arbitrators are not

"free to impose a progressive disciplinary scheme upon the parties

where the contract did not so provide."           Local 462, 23 N.J. Super.

at 528.    "Thus, our courts have vacated arbitration awards . . .

when arbitrators have . . . added new terms to an agreement or ignored

its clear language."       Policemen's Benevolent Ass'n, 205 N.J. at 429

(citations omitted).

      Applying those standards, the arbitrator's interpretation of

the Agreement is not reasonably debatable.         The arbitrator was bound

by the provisions of the Agreement and did not have the authority to

add to or modify its terms.            Because the arbitrator exceeded his

authority by engrafting additional warning requirements contrary to

the   ordinary   meaning    of   the    express   terms   of   the   Agreement,

effectively requiring Newark to apply progressive discipline, the

award cannot be upheld.      Accordingly, we vacate the award.

      Reversed and remanded to the Law Division for entry of an

order vacating the arbitration award, reinstating the three-day

suspension, and dismissing the counterclaim.




                                       16                              A-1470-16T1
17   A-1470-16T1
