                        NOT FOR PUBLICATION WITHOUT THE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-4344-15T4


TEAMSTERS LOCAL UNION
NO. 469, AN UNINCORPORATED
LABOR ORGANIZATION AND
ROBERT YAK,

        Plaintiffs-Respondents,

v.

STAFFORD TOWNSHIP AND MAYOR,
TOWNSHIP ADMINISTRATOR AND
ELECTED OFFICIALS OF SAID
TOWNSHIP,

     Defendants-Appellants.
_______________________________

              Argued April 30, 2018 - Decided August 1, 2018

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Ocean County, Docket No.
              C-000177-15.

              Jerry J. Dasti argued the cause for
              appellants (Dasti, Murphy, McGuckin, Ulaky,
              Koutsouris & Connors, attorneys; Jerry J.
              Dasti, of counsel and on the brief; Martin
              J. Buckley, on the brief).

              Timothy R. Hott argued the cause for
              respondents.
PER CURIAM

     Defendant Stafford Township appeals from a final order

confirming a hearing officer's decision to recommend

reinstatement and a sixty-day suspension of Township employee

Robert Yak pursuant to a grievance filed by Yak's union,

plaintiff Teamsters Local Union No. 469, following his

termination by the Township.   We reverse.   The hearing officer's

decision was only a recommendation, which the Township could

elect to accept or reject in accordance with the authority it

reserved to itself in the parties' collective negotiations

agreement.    The hearing officer's decision was not an

arbitration award subject to confirmation by the court under the

Arbitration Act, N.J.S.A. 2A:24-1 to -11.

     Although there is obviously a "back story" we are not privy

to,1 the essential facts necessary to resolve this appeal are

undisputed.   The Township suspended and then fired Yak, its

Network Administrator, an eighteen-year employee with an


1
   We refer to a related unfair practice charge the Union filed
alleging the Township discriminated against Yak, a member of the
Union's negotiating committee, "for his support of and
membership in a labor organization." It was that charge and the
Union's allegation the Township Administrator pursued a
"personal vendetta" against Yak that, among other things,
necessitated the Administrator's recusal and the appointment of
an independent hearing officer whose decision gave rise to this
appeal.


                                 2                         A-4344-15T4
unblemished record, for conduct unbecoming a public employee.

Specifically, the Township alleged Yak accessed and read

confidential email of other Township personnel he was not

authorized to read.

    Following Yak's suspension, the Union filed a grievance on

Yak's behalf in accordance with Article XXXI of the parties'

collective negotiations agreement.   We quote the provision in

full:

                         ARTICLE XXXI
                      GRIEVANCE PROCEDURE

         A. The purpose of this Article is to provide
         for a peaceful and equitable means of
         resolving differences between the parties.

         B. A grievance shall be defined as any
         claim, breach, misinterpretation, or
         misapplication of any express provision of
         this Agreement. Disciplinary action with
         just cause may be the subject of a grievance
         under this Agreement.

         C. The following procedure shall be used to
         resolve grievances as an exclusive method.
         All time frames shall be strictly complied
         with. Failure to comply with said time
         frame shall constitute a waiver by either
         party.

                           Procedure

         The grievant shall submit a written
         grievance giving rise to the issue. The
         grievance shall be submitted within five
         days of the discipline issued to the
         Township Administrator. The Township
         Administrator shall notify the grievant of a

                               3                           A-4344-15T4
         hearing date within 15 working days after
         submission of the grievance. The hearing
         shall take place approximately 15 working
         days after the submission of the grievance,
         and a written answer shall be provided to
         the grievant within 10 working days after
         the hearing. Representatives of the union
         shall be present during any hearing
         including the shop steward of record and any
         witnesses needed. After receiving the
         answer of the administrator the grievant
         shall have fifteen days from that point to
         either except [sic] his response or move it
         to the arbitration level for a final
         determination. The arbitrator shall be
         assigned by PERC [Public Employment
         Relations Commission] and his decision shall
         be final and binding on all parties. The
         cost of arbitrator shall be shared equally
         by both parties.

         [Emphasis is ours.]

    When negotiations between the lawyers for the Township and

the Union to permit Yak to resign in good standing broke down,

after the Township Council refused to accept the terms the

lawyers had negotiated, the Union reactivated its grievance.

Counsel for the Union closed his letter to the Township's lawyer

confirming that fact with the following offer:

         Finally, so that no more time be pointlessly
         wasted, I propose that you and I, on behalf
         of our respective clients, agree to forego
         the rest of the grievance procedure and move
         to the final step by submitting the matter
         to the New Jersey Public Employment
         Commission for appointment of an arbitrator
         to hear and decide the issue in final and
         binding arbitration as called for in the
         collectively negotiated agreement. I look

                               4                        A-4344-15T4
         forward to your prompt reply to this
         proposal.

The Township refused that offer, insisting the grievance proceed

in the normal course to an internal hearing before the matter

could be moved "to the arbitration level for a final

determination."

    Because of the Union's pending unfair practice charge

against the Township Administrator, and that he would likely be

called as a witness against Yak, the Administrator could not

preside over the hearing contemplated by the grievance

procedure.   Accordingly, the Township, by resolution of the

Township Council, appointed Bonnie Peterson, a licensed New

Jersey attorney, to serve as the "hearing officer for the

Township of Stafford . . . with regard to the pending employment

related grievance filed by an employee of the Township."

    Nothing in the resolution, however, suggested the Township

had reversed position on refusing to submit the matter to

binding arbitration or that it was ceding any of the "Management

Rights" it "retain[ed] and reserve[d] unto itself" in Article

III of the parties' collective negotiations agreement, including

"[d]isciplinary action included but not limited to suspension,




                                5                          A-4344-15T4
demotion, discharge, or . . . other appropriate disciplinary

action against any employee for good and just cause."2




2
    Article III provides as follows:

                            ARTICLE III
                         MANAGEMENT RIGHTS

           A.   Management Rights

           The Employer hereby retains and reserves
           unto itself, without limitations, all
           powers, rights, authority, duties and
           responsibilities conferred and vested in it
           prior to the signing of this Agreement by
           the laws and Constitutions of the State of
           New Jersey and of the United States;
           including, but without limiting the
           generality of the foregoing, the following
           rights:

                1.   All management functions and
           responsibilities which the Employer has not
           expressly modified or restricted by a
           specific provision of this Agreement.

                2.   The right to establish and
           administer policies and procedures related
           to personnel matters, Employer control
           activities, training, operational functions,
           performance of services and maintenance of
           the facilities and equipment of the
           Employer.

                3.   Disciplinary action included but
           not limited to suspension, demotion,
           discharge, or takes other appropriate
           disciplinary action against any employee for
           good and just cause.

                                                         (continued)

                                6                          A-4344-15T4
(continued)
              4.   To hire, promote, transfer,
         assign, schedule, reassign, lay-off, and
         recall employees to work.

              5.   To determine the number of
         employees and the duties to be performed.

              6.   To maintain the efficiency of
         employees; to establish, expand, reduce,
         alter, combine, consolidate, or abolish any
         job or job classification, department or
         operation or service.

              7.   To determine staffing patterns and
         areas worked, to control and regulate the
         use of facilities, supplies, equipment,
         materials and any other property of the
         Employer.

              8.   To determine the number, location
         and operation of divisions, departments,
         work selections, and all other work units of
         the Employer, the assignment of work, the
         qualifications required the performance
         standards and the size and composition of
         the work force.

              9.   To subcontract for any existing or
         future services as determined necessary by
         the Employer.

              10. To make or change Employer rules,
         regulations, policies, and practices
         consistent with the specific terms and
         provisions of this Agreement.

              11. And otherwise to generally manage
         the affairs of the employer, attain and
         maintain full operating efficiency and
         productivity and to direct the work force.

                                                       (continued)

                              7                          A-4344-15T4
    Following three days of hearings involving the testimony of

three fact witnesses, including both the Township Administrator

and Yak, one forensic computer expert and the admission of

nineteen exhibits, Peterson issued a fifty-seven page "decision

as hearing officer, concerning [the] disciplinary charges filed

by Stafford . . . against employee, Mr. Robert Yak."    Peterson

explained her role as "the hearing officer [was] to make

findings of fact and credibility to determine whether the

employer has established the disciplinary charges against Mr.

Yak by a fair preponderance of credible evidence."   Finding the

Township proved Yak improperly accessed email but did not

establish he read them or passed them to others, it was her

"recommendation, that Mr. Robert Yak receive a sixty (60) day

suspension, without pay, from his employment."

    Nowhere in Peterson's detailed and comprehensive opinion

does she suggest she was rendering a final decision binding the



(continued)
              The exercise of the foregoing powers,
         rights, authority, duties and
         responsibilities of the Employer shall be
         limited only to the specific and expressed
         terms of this Agreement and then only to the
         extent such specific and express terms
         hereof are in conformance with the
         Constitution and laws of the State of New
         Jersey and rules and regulations.


                               8                           A-4344-15T4
parties.3   To the contrary, Peterson noted the Township's

rejection of Yak's proposal "to bypass the hearing officer stage

of the disciplinary proceedings, and to proceed directly to

PERC"; referred to the Township's election "in order to preserve

impartiality, . . . and independence in the hearing process

. . . to appoint [her] as an independent hearing officer, as an

individual professional, rather than an in-house, Stafford

Township official"; underscored Yak's entitlement to have the

charges against him "explored fully in the hearing process,

prior to any final determination, and most importantly, prior to

any formal final disciplinary action to be taken"; referred to

her decision as "the undersigned hearing officer's recommended

disciplinary action"; and "[p]arenthetically" observed that "the

parties [might] wish still to engage in discussions, as to

amicable means to resolve all issues and to give both sides

closure."

     A week after Peterson issued her decision, before the

Township had taken any action in response, counsel for Yak wrote

to the lawyer for the Township advising him "that the Union and

Mr. Yak hereby give notice of their respective acceptance of the

3
   We, of course, are not reviewing the hearing officer's
decision and have no ability to do so as neither the transcripts
of the hearing nor the exhibits entered in evidence are
available to us.


                                9                            A-4344-15T4
decision rendered by [the] hearing officer" and demanded Yak's

immediate reinstatement.   A few weeks later, counsel for the

Township wrote to the Union's lawyer to advise that the Township

Council at a recent meeting had reaffirmed its prior decision to

terminate Yak and, thus, his "termination remains in full force

and effect."   The Union's lawyer replied, asserting that "the

Township designated Attorney Peterson as the hearing officer to

conduct the hearing in place of the Township Administrator.     She

issued her decision.   Once Mr. Yak accepted her 'recommendation'

the Township had no further rights under the Grievance

Procedure."

    The Union and Yak thereafter filed a verified complaint and

proposed order to show cause "to confirm a decision arising from

a collectively negotiated agreement in accordance with N.J.S.A.

2A:24-1, et seq."   Specifically, plaintiffs sought "the court's

equitable power and authority to enforce the decision and

recommendation of the Hearing Officer."   On the return of the

order to show cause, the Township argued there was no

jurisdiction in the court to enforce the recommendation of a

hearing officer, relying on Padovano v. Borough of East Newark,

329 N.J. Super. 204, 219 (App. Div. 2000).

    The trial court entered judgment for plaintiffs, finding

the decision of the hearing officer "is final and binding in

                               10                        A-4344-15T4
favor of Plaintiffs" and ordered the Township to reinstate Yak

in accordance with the hearing officer's decision.   The court

found:

         In contrast to Padovano, the [collective
         negotiations agreement] in this case
         reflects that the decision of the Hearing
         Officer with regard to "whether a municipal
         employee should be retained or dismissed"
         was intended to bind the parties if accepted
         by the Union. The language of the
         [collective negotiations agreement] does not
         reserve to the Township any right for
         further action after the grievant accepts
         the Hearing Officer's decision. The
         [collective negotiations agreement] provides
         in relevant part: "[a]fter receiving the
         answer of the administrator the grievant
         shall have fifteen days from that point to
         either except [sic] his response or move it
         to the arbitration level for a final
         determination." The express terms of the
         [collective negotiations agreement] reserves
         only to the grievant the right to either
         accept the decision or move it to binding
         arbitration. The Township unilaterally
         appoints the Hearing Officer, and plaintiffs
         may not object without just cause the
         appointment. This procedure — to utilize a
         hearing officer — is clearly for the purpose
         of containing costs in disputed labor
         matters.

              The Court finds that the [collective
         negotiations agreement] "clearly and
         unmistakably established" that the Township
         waived its right to pursue further action
         once the Hearing Officer makes a
         determination and the Union accepts the
         disposition or penalty of the Hearing
         Officer. The Court finds that the Township
         intended to vest the Hearing Officer with
         the power to determine the public employment

                              11                         A-4344-15T4
          dispute and to thereby divest the parties
          from binding arbitration once the Union
          accepted the recommendations of the Hearing
          Officer as to discipline. The Hearing
          Officer's determination is binding on the
          Township pursuant to "Article XXXI Grievance
          Procedure" of the [collective negotiations
          agreement].

     The Township appeals, contending the hearing officer's

recommendation was not a final decision binding the parties, and

that the Union's appeal from the Township's decision rejecting

the hearing officer's recommendation was to PERC for the

appointment of an arbitrator.   We agree.

     The decision before us for review is whether the trial

court was correct that the hearing officer's decision was one

subject to confirmation pursuant to N.J.S.A. 2A:24-7, which

permits "[a] party to the arbitration" within three months of

the award to "commence a summary action . . . for the

confirmation of the award or for its vacation, modification or

correction."4   Not even the Union, however, asserts that the


4
   The question being one of law, our review is de novo. See
Jones v. Morey's Pier, Inc., 230 N.J. 142, 153 (2017); Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). Accordingly, we reject the Union's assertion that our
role is limited to determining whether the hearing officer's
interpretation of the contract was reasonably debatable. That
is the standard courts apply to review of an arbitrator's
interpretation of a collective negotiations agreement. N.J.
Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187
N.J. 546, 553 (2006). It has no application here.


                                12                         A-4344-15T4
proceeding before the hearing officer was an arbitration.     Its

claimed basis for jurisdiction in the trial court to confirm the

decision of the hearing officer, which it concedes was not an

arbitration award, was that the Arbitration Act applies "to an

arbitration or dispute arising from . . . a collectively

negotiated agreement."   [Emphasis is the Union's.]

    Although it is certainly true that N.J.S.A. 2A:24-3 permits

a court to compel an uncooperative party to arbitrate a

"dispute" "in the manner provided for in the [parties']

agreement," see Barcon Assocs., Inc. v. Tri-County Asphalt

Corp., 86 N.J. 179, 187 (1981), the Union has not provided us

any authority suggesting a court, acting under the Arbitration

Act, could affirm, vacate or modify a decision not the product

of an arbitration, and our own research has not uncovered such

authority.   Surely there would have been no role for the court

in confirming the decision had the Township Administrator not

recused himself.   The decision would have remained an internal

one, which the Union, if unwilling to accept, could have

"move[d] . . . to the arbitration level for a final

determination" by an arbitrator assigned by PERC.

    Had Yak and the Union instead accepted the Administrator's

decision, there would likewise have been no jurisdiction in the

Superior Court to confirm the Administrator's decision under the

                               13                          A-4344-15T4
Arbitration Act.   We see no reason to conclude the Township's

appointment of an external hearing officer to conduct the

internal hearing afforded Yak under the collective negotiations

agreement, based solely on a conflict preventing the designated

Township official from presiding, changed the character of this

pre-arbitration stage of the grievance procedure.    The decision

rendered by the hearing officer remained the product of an

internal hearing conducted by the Township in accordance with

the grievance procedure negotiated by the parties, not subject

to confirmation under the Arbitration Act.

    There is another reason the hearing officer's decision was

not one that could be confirmed as an arbitration award under

the Act; it was not a final decision, by an arbitrator or anyone

else.   It was only a recommendation by the hearing officer to

the Township.   Again, focusing on the question of what would

have been different had the Township Administrator presided over

the hearing is useful.    Here, it illuminates the meaning of the

words the parties chose to govern the "procedure [to] be used to

resolve grievances as an exclusive method" in their collective

negotiations agreement.

    The trial court focused, appropriately enough, on the

language of the grievance procedure explaining the process after

the grievant is in receipt of "the answer of the administrator"

                                14                        A-4344-15T4
following the hearing.   That provision provides the grievant

fifteen days "to either except [sic] his response or move it to

the arbitration level for a final determination."    But the

court, at the urging of the Union, analyzed the language using a

phrase, "hearing officer," not included in the text.

    Substituting "hearing officer" for "Township Administrator"

in Article XXXI, the court concluded the collective negotiations

agreement "'clearly and unmistakably established' that the

Township waived its right to pursue further action once the

Hearing Officer makes a determination and the Union accepts the

disposition or penalty of the Hearing Officer," and that "the

language . . . does not reserve to the Township any right for

further action after the grievant accepts the Hearing Officer's

decision."   The court's focus on the role of "the hearing

officer" in this particular case obscured what we think is the

obvious plain meaning of the text of Article XXXI.

    The grievance procedure does not "reserve to the Township

any right of further action" following the grievant's receipt of

"the answer of the administrator," because it is the answer of

the Administrator, that is, the Township.   The Township

obviously has no right of appeal from its own decision.     It has

not "waived" anything.   If the grievant accepts the decision of

the Township to impose discipline, that is the end of it.      If

                               15                          A-4344-15T4
not, he has fifteen days to "move it to the arbitration level

for a final determination."

    But an independent hearing officer, unlike the

Administrator, is not the Township.   The Township had to act to

accept or reject the hearing officer's recommendation, thereby

rendering a decision on the grievance, before there was any

right in the grievant to accept the Township's decision or move

it to the level of binding arbitration.   The Union's attempt to

accept the hearing officer's recommendation as if it were the

Township's decision, short-circuited the grievance process and,

if allowed to stand, would convert what was to be an internal

hearing into the equivalent of binding arbitration.

    That a hearing officer had to be appointed in place of the

Administrator to preside over the hearing because of an unfair

practice charge the Union had pending against him did not alter

the character of this internal hearing.   It simply required the

Township to act on the recommended decision of the hearing

officer in order for the grievant to "receive the answer of the

[Township] administrator" on the grievance filed by Yak and the

Union, which they could then accept or move to the level of

binding arbitration.

    The trial court, again focusing on a phrase not included in

the text of Article XXXI, found "that the Township intended to

                              16                         A-4344-15T4
vest the Hearing Officer with the power to determine the public

employment dispute and to thereby divest the parties from

binding arbitration once the Union accepted the recommendations

of the Hearing Officer as to discipline."    But ceding the

Township's management right of discipline of employees,

expressly reserved in Article III, to a person not employed by

the Township or elected by its citizens, and thereby "divesting"

both parties of their bargained for right of "binding

arbitration" to resolve their "public employment dispute" would

be extraordinary and there is no support for it, either in the

language of the collective negotiations agreement or in the

record.

    We considered whether a hearing officer's recommended

discipline of a police officer was binding on his municipal

employer in Padovano.   There the municipality served

disciplinary charges on a twenty-year member of the police force

and appointed a hearing officer to hear the charges.    329 N.J.

Super. at 208.   The hearing officer sustained three of the

charges, including conduct unbecoming.    Ibid.   Although

initially recommending Padovano's termination, the hearing

officer granted Padovano's motion for reconsideration and

amended his recommendation to a 120-day suspension in light of

Padovano's unblemished record.    Ibid.   The Borough disregarded

                                 17                          A-4344-15T4
the hearing officer's amended recommendation and dismissed

Padovano from the police force.         Id. at 208-09.   The question on

appeal, as pertinent here, was whether the municipality was

required to follow the hearing officer's recommendation.              Id. at

218.

       We held "the status of the hearing officer, who was

independent of either party, requires a conclusion that his

determinations about an appropriate penalty were no more than

recommendations, which the Borough could elect to adopt or

disregard in its sound discretion."        Id. at 219.    We reasoned

that "[a]dopting Padovano's argument" that the municipality was

bound by the hearing officer's recommendation, "would require a

conclusion that the Borough intended to vest in an independent

party the decision whether a municipal employee should be

retained or dismissed."    Ibid.    We found "nothing to indicate

that the Borough intended to vest the hearing officer with such

sweeping powers or that it was authorized by statute to do so."

Ibid.

       The trial court declined to follow Padovano based on its

view that the collective negotiations agreement "reflects that

the decision of the Hearing Officer with regard to 'whether a

municipal employee should be retained or dismissed' was intended

to bind the parties if accepted by the Union."           As we have

                                   18                            A-4344-15T4
already explained, the Agreement does not express such an

intent.   To the contrary, the Agreement reflects that the

decision to retain or dismiss a municipal employee is the

Township's, which the employee may either accept or move to

binding arbitration.   We find the reasoning of Padovano

unassailable and follow it here.5

     The undisputed evidence in the record likewise supports the

conclusion the Township did not cede the decision to suspend or

terminate Yak to the hearing officer.   The Township expressly

rejected the Union's suggestion that the parties bypass the

internal Township hearing called for in the grievance procedure

in favor of simply submitting the matter to binding arbitration

in the first instance before an arbitrator appointed by PERC.

The resolution appointing the hearing officer does not state the

Township was submitting the parties' dispute to the hearing

officer for resolution.   Instead, it states only that "the

filing of a grievance requires the Township to appoint a hearing

officer to carefully consider all of the evidence."   It

certainly did not state the Township was transferring to the


5
   The Union argues Padovano turned on the plaintiff's status as
a police officer. The Padovano court's use of the term
"municipal employee" rather than "police officer" in the
sentence we quoted suggests the opinion was not so limited. See
329 N.J. Super. at 219.


                               19                          A-4344-15T4
hearing officer the power it reserved to itself in Article III

to take "appropriate disciplinary action against any employee

for good and just cause."

    Further, Peterson's decision makes clear she understood her

charge as limited to hearing the evidence, determining whether

the Township had carried its burden and, if so, making a

recommendation as to discipline, in other words, to act as a

hearing officer.   The many references in her opinion we quoted

make clear beyond doubt that she did not believe she was either

acting as an arbitrator or had been asked to assume the role of

Yak's employer.

    In sum, because the hearing officer's decision was not an

arbitration award subject to confirmation by the court under the

Arbitration Act, and, indeed, was only a recommendation, which

the Township could elect to accept or reject in its discretion,

we reverse the judgment in favor of plaintiffs and remand for

entry of an order dismissing their complaint.

    Reversed.




                               20                          A-4344-15T4
