B.C. VS. V.C. (FV-03-1788-16 AND FV-03-1789-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3523-15T2
STATE OF NEW JERSEY
(DIVISION OF STATE POLICE),
Plaintiff-Respondent,
v.
STATE TROOPERS FRATERNAL
ASSOCIATION,
Defendant-Appellant.
___________________________________
Argued March 28, 2017 - Decided April 13, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-132-16.
Michael A. Bukosky argued the cause for
appellant (Loccke, Correia, & Bukosky,
attorneys; Lauren Sandy, of counsel and on the
briefs).
Christopher J. Hamner, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Sally Ann Fields, Senior
Deputy Attorney General, on the brief).
PER CURIAM
Defendant State Troopers Fraternal Association (Association)
appeals from an April 14, 2016 order granting an application by
plaintiff Division of State Police (Division) to vacate an
arbitration award, and from a second order of the same date denying
the Association's application to confirm the award. The
arbitration concerned a dispute over whether the Division was
required to reimburse State Troopers for their personal commuting
expenses on the State's major toll roads. We affirm for the
reasons stated by the motion judge in his oral opinion issued
April 14, 2016, and for the reasons stated below.
The essential facts were stipulated before the arbitrator,
and they can be summarized briefly. For many years, the New Jersey
Turnpike Authority and the South Jersey Transportation Authority
- independent authorities that operate the State's major toll
roads - allowed State Troopers to travel over those roads in their
personal vehicles without paying tolls. As a result, the Troopers
were able to commute to and from work without incurring that
expense.
Nothing in the collective negotiation agreement (CNA)
specifically addressed that issue. The Division never
contractually agreed to pay the Troopers' travel expenses to get
2 A-3523-15T2
to and from work, and never previously reimbursed them for their
toll expenses. The Division had no agreement with the Authorities
providing that those entities would give the Troopers free toll
passage, and the Division "does not have any control over the
[Authorities'] policies governing free toll passage."
As of November 2010, the two Authorities notified the Division
that they would no longer provide toll-free passage for Troopers
commuting to and from work. When the Division declined to
reimburse the Troopers for their toll-related commuting expenses,
the Association filed a grievance, claiming that the "unilateral
suspension of non-revenue toll road passage" for their commuting
violated the CNA.
The Association relied, in pertinent part, on Article XXVI
of the CNA (the preservation of rights clause), which provided
that "all mandatorily negotiable benefits, terms and conditions
of employment relating to the status of Troopers . . . covered by
this Agreement shall be maintained at standards existing at the
time of the agreement." However, the only pertinent commuting
expense covered by the CNA was in Article X, which provided a
mileage expense for Troopers who had to commute more than twenty
miles from their homes to their place of assignment.
The arbitrator reasoned that toll-free passage was a benefit,
of a type that was negotiable. He also reasoned that the provision
3 A-3523-15T2
of toll-free passage was an established "past practice." He
reasoned that it therefore must be "an established term and
condition of employment." The arbitrator acknowledged that the
CNA specifically provided a mileage allowance and had no provision
for toll-free commuting, but reasoned that the mileage allowance
was "not at variance with the provision of free tolls."
In addressing the Division's argument that "the benefit was
provided by the Authorities and as such it cannot be held
responsible for the elimination of the benefit," the judge reasoned
that "the [Association] has no relationship with the Authorities;
its contractual relationship is with the State."
We agree with the motion judge that the arbitrator exceeded
his authority and made a mistake of law, by reading into the
contract a term that was not found there and was not "reasonably
debatable" as an interpretation of the contract. See N.J.S.A.
2A:24-8(a), (d); Borough of E. Rutherford v. E. Rutherford PBA
Local 275, 213 N.J. 190, 203 (2013); Office of Emp. Relations v.
Commc'ns Workers of Am., 154 N.J. 98, 111-12 (1998). The fact
that toll-free passage or toll reimbursement was "negotiable" did
not mean that the parties in fact negotiated for it. To the
contrary, they clearly did not, because the contract addressed
commutation expenses in the form of a mileage allowance and did
not provide for toll reimbursement.
4 A-3523-15T2
Moreover, the arbitrator's discussion of the third-party
nature of the benefit was illogical. Under the stipulated facts,
the privilege of toll-free commutation was a gratuitous benefit
provided by the Authorities, and not a benefit provided by, agreed
to, or controlled by the Division. The toll-free arrangement was
a "past practice" between the Authorities and the Troopers, not
between the Troopers and the Division. State Troopers Fraternal
Association v. State, 149 N.J. 38 (1997), on which the Association
relies, is not on point, because that case concerned payments the
Division had traditionally made to retired Troopers.
The Association's reliance on Borough of East Rutherford,
supra, is likewise misplaced. That case concerned an increase in
the co-payment charged to employees under a health care plan.
However, in that case, the CNA specifically provided that the
employer would pay for the employees' health care coverage and
would pay any increases in premiums that might occur during the
contract period. In those circumstances, the arbitrator
reasonably "characterized the former level of co-payment required
of PBA members as a past practice between the Borough and the
PBA," which "must be maintained" under the preservation of rights
clause in the CNA. Borough of E. Rutherford, supra, 213 N.J. at
204.
5 A-3523-15T2
Unlike the co-payments, which were an integral part of a
contractually-provided health care benefit, the privilege of toll-
free passage did not relate to any agreed-on benefit in the
contract. In fact, the contract only provided a mileage allowance,
in limited circumstances. Nor was toll-free commutation ever a
benefit actually provided by the employer, either directly or
under an agreement with the Authorities. Therefore, it was not a
past practice between the parties and it was not covered by the
preservation of rights clause.
Affirmed.
6 A-3523-15T2