TOWNSHIP OF WAYNE VS. WAYNE TOWNSHIP PRIMARY LEVEL SUPERVISORS ASSOCIATION (C-000026-19, PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4663-18T2
TOWNSHIP OF WAYNE,
a Municipal Corporation
of the State of New Jersey,
Plaintiff-Appellant,
v.
WAYNE TOWNSHIP PRIMARY
LEVEL SUPERVISORS
ASSOCIATION,
Defendant-Respondent.
_____________________________
Argued telephonically March 18, 2020 —
Decided April 21, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No. C-
000026-19.
Lisa Michelle Scorsolini, Assistant Township Attorney,
argued the cause for appellant (Matthew Joseph
Giacobbe, Township Attorney, attorney; Matthew
Joseph Giacobbe, of counsel; Lisa Michelle Scorsolini,
on the briefs).
Arnold S. Cohen argued the cause for respondents
(Oxfeld Cohen PC, attorneys; Arnold S. Cohen, of
counsel and on the brief).
PER CURIAM
Plaintiff Township of Wayne appeals from a May 22, 2019 order
confirming an arbitration award and dismissing its complaint against defendant
Wayne Township Primary Level Supervisors Association. We affirm.
The dispute centered on the pay of plaintiff's chief sanitarian, Thomas
Cantisano. The chief sanitarian position is a grade P10 on the parties' salary
guide and he reports to the Township of Wayne Board of Health. Cantisano is
licensed as a registered environmental health specialist.
After the prior collective negotiations agreement (CNA) expired, the
parties entered into negotiations to implement a new CNA for the period from
January 1, 2015 to December 31, 2018. Cantisano's salary was $87,881 at the
time the prior CNA expired, the maximum salary for the P10 salary range.
Cantisano served as defendant's vice president and a member of the bargaining
team that negotiated the CNA and participated in preparing defendant's
proposals for the 2015-2018 salary ranges. Following more than a year of
negotiations, the parties entered into a Memorandum of Agreement (MOA)
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outlining terms for the CNA. The Municipal Council adopted a resolution
ratifying the MOA, and the parties entered into the CNA.
The MOA and the CNA contained a salary guide incorporating defendant's
proposed adjustments to the P9 and P10 maximums, which resulted in a 7.46%
salary increase for Cantisano. Plaintiff did not raise Cantisano's salary as
required, defendant grieved the issue, and pursuant to the CNA the matter was
submitted to binding arbitration.
The arbitrator sustained the grievance and found as follows:
[T]he Supreme Court held that statutes and
regulations applicable to employers in a particular
bargaining unit are effectively incorporated by
reference as terms of any collective agreement covering
the unit. The statute on which [defendant] relies is
N.J.S.A. 26:3-25.1 which states:
Every person holding a license issued
under section 41 of P.L.1947, c.177
(C.26:1A-41), who is employed in a
position for which this license is required
by any board of health, municipality or
group of municipalities shall receive the
maximum salary in the person's range,
within five years from the date of
appointment to this position if the majority
of the person's job performance
evaluations are satisfactory.
The [g]rievant is a person occupying a position
requiring the designated license. He has held the
license of a Registered Environmental Health Specialist
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for more than five years in his current position with the
Township Board of Health. He completed five years in
the title of [c]hief [s]anitarian on November 1, 2011. It
appears to the undersigned that the plain language of
[N.J.S.A.] 26:3-25.1 does apply. The parties' course of
dealing in administering its salary guides with respect
to similarly situated licensed employees supports this
conclusion.
The Notices of Payroll Changes in the record
document substantial increases to four Township
employees, including the [g]rievant, between 2000 and
2010. Each contains the statement that, "In accordance
with N.J.S.A. 26:3-25.1 which requires Registered
Environmental Health Specialists [or 'Sanitarians'] to
be at maximum salary within [five] years of the date of
the appointment." . . .
. . . [T]he [g]rievant was entitled to move to the new
maximum when it became effective under the 2015-
2018 CNA, i.e. on January 1, 2015. . . .
[Plaintiff]'s accusations that the [g]rievant acted
in bad faith by proposing adjustments to the maximums
of the P9 and P10 salary ranges are not borne out by the
record evidence submitted about the parties'
negotiations for their 2015-2018 agreement. It is true
that the [g]rievant drafted [the] proposal . . . increasing
the range maximums of P9 and P10 and then adding the
[across-the-board] increase of 1.5%. The Township's
response, however, was that it was willing to discuss
the proposal and included the adjustments in its
proposed salary guides which appear in the MOA, and
the ratified bargaining agreement.
Plaintiff filed a complaint and order to show cause in the Chancery
Division to vacate the arbitration award. The trial judge upheld the
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determination. The judge found no basis to conclude Cantisano surreptitiously
engineered a greater raise for himself for the same reasons the arbitrator
expressed. The judge also pointed out the raise was not limited to Cantisano,
the union as a whole ratified the increases, and defendant had no obligation to
point out the applicability of N.J.S.A. 26:3-25.1 "or, that . . . Cantisano would
be the only employee to presently personally benefit from the adjustment to the
salary guide." The judge noted the attachment detailing the salary adjustments
was plainly noticeable by plaintiff and
became part of the [MOA] and, ultimately the signed
CNA has the mathematical numbers themselves. In
other words, the salary numbers, not percentages. And,
very simple mathematical calculation would determine,
or, verify the percentage changes that were set forth on
the salary guide. In fact, it shows the various negotiated
adjustments. But, one would have to perform that
calculation.
The judge found the arbitrator had not misinterpreted the applicability of
N.J.S.A. 26:3-25.1. He concluded as follows:
Cantisano fits squarely within the statutory provision,
holding a license as required by . . . [plaintiff]. Also,
[plaintiff] has a constituted board of health, the
documentation that was admitted into evidence during
the arbitration on which the arbitrator relied shows that
the Township [council] is the board of health. The
members of the [council] . . . are the named board
members for the board of health. And, there are filings
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that have occurred based on the fact that the [council]
is the board of health.
I.
Pursuant to the New Jersey Arbitration Act, a court
shall vacate the award in any of the following cases:
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
in refusing to postpone the hearing, upon sufficient
cause being shown therefor, or in refusing to hear
evidence, pertinent and material to the controversy, or
of any other prejudicial to the rights of any party;
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.]
We "review[] the denial of a motion to vacate an arbitration award de novo."
Minkowitz v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013) (citing Manger
v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).
On appeal, plaintiff argues the trial judge ignored the public interest by
rewarding Cantisano's bad faith negotiation of a pay increase for himself, while
failing to consider the budgetary and financial impact consequences of the
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negotiated raise. Plaintiff asserts it never agreed to the 7.46% increase in
Cantisano's salary, and the arbitrator and trial judge ignored the testimony
adduced from both parties proving neither intended such a result. Plaintiff
argues N.J.S.A. 26:3-25.1 applies to autonomous boards of health, which it is
precluded from having under its mayor-council form of government.
A.
"[A] court 'may vacate an award if it is contrary to
existing law or public policy.'" Middletown Twp. PBA
Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)
(quoting N.J. Tpk. Auth. v. Local 196, 190 N.J. 283,
294 (2007)). However, "[r]eflecting the narrowness of
the public policy exception, that standard for vacation
will be met only in rare circumstances." N.J. Tpk.
Auth., 190 N.J. at 294. The arbitrator's award—"and
not the conduct or contractual provision prompting the
arbitration"—is the focus of that review. Public policy
is ascertained by "reference to the laws and legal
precedents and not from general considerations of
supposed public interests." Weiss v. Carpenter,
Bennett & Morrissey, 143 N.J. 420, 434-35 (1996)
(quoting W.R. Grace & Co. v. Rubber Workers, 461
U.S. 757, 766 (1983)); Middletown Twp. PBA Local
124, 193 N.J. at 11. And, even when the award
implicates a clear mandate of public policy, the
deferential "reasonably debatable" standard still
governs. Weiss, 143 N.J. at 443. Thus, "[i]f the
correctness of the award, including its resolution of the
public-policy question, is reasonably debatable,
judicial intervention is unwarranted." Ibid.
[Borough of E. Rutherford v. E. Rutherford PBA Local
275, 213 N.J. 190, 202-02 (2013).]
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We are satisfied the public policy exception does not apply and does not
require vacating the arbitration award. The arbitrator's analysis of the parties'
record of negotiations leading up to the CNA, which included prior substantial
increases in employees' salaries upon reaching the five-year period under
N.J.S.A. 26:3-25.1, demonstrates the amount and nature of Cantisano's pay raise
and its impact on plaintiff's budget was a known fact.
B.
The arbitrator did not ignore the testimony adduced on plaintiff's behalf
intended to prove it did not agree to a 7.46% raise for Cantisano. Nor was the
arbitration award the product of the arbitrator's failure to recognize bad faith.
Arbitration awards may be set aside when "procured by . . . undue means."
N.J.S.A. 2A:24-8(a). "Undue means" includes an arbitrator's "mistake of fact or
an inadvertent mistake of law that is either apparent on the face of the record or
admitted to by the arbitrator." Hillsdale PBA Local 207 v. Borough of Hillsdale,
263 N.J. Super. 163, 181 (App. Div. 1993) (citing Held v. Comfort Bus Line,
Inc., 136 N.J.L. 640, 641-42 (Sup. Ct. 1948)).
The record reveals no such mistake because both the MOA and the CNA
memorialized the parties' express agreement to adjust the maximum salary
range. This raised Cantisano's pay by 7.46%, by operation of the bargained-for
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increase in the P10 salary grade, and the applicability of N.J.S.A. 26:3-25.1. As
the trial judge noted, whether there was a mutual intent to particularly raise
Cantisano's pay was not the issue because the arbitrator never made such a
finding and only found it was the intent of the parties to adjust the maximum
salary range, and the raise was not uniquely ascribed to Cantisano.
Further, the arbitrator did not err by finding no bad faith. As the trial
judge stated, the increase in the maximum salary levels "never came off the table
[because plaintiff] . . . didn't reject that. It was on the table, and, ultimately
ended up being what was attached to the [MOA]." The mathematical
calculations became part of the CNA, which as the judge noted, rebutted
plaintiff's assertion "of any deceit, or, trickery on the part of Mr. Cantisano."
Moreover, no law supports plaintiff's contention Cantisano was obligated to
disclose the applicability of N.J.S.A. 26:3-25.1 to the negotiations.
C.
We reject plaintiff's argument that N.J.S.A. 26:3-25.1 did not apply to it
because it operates with a department of health as opposed to an autonomous
board of health.
N.J.S.A. 26:3-1 states:
There shall be a board of health in every municipality
in this state, which board shall consist of members
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appointed or designated, or both, as provided by this
chapter, except that in any municipality operating under
laws establishing a form of government for such
municipality under which the full powers of a local
board of health cannot be exercised by a local board of
health so appointed or designated, the respective
functions of a local board of health shall be exercised
by such boards, bodies, or officers as may exercise the
same according to law.
The trial judge found plaintiff historically applied N.J.S.A. 26:3-25.1. He
stated:
The arbitrator indicated that the notice of payroll
changes in the record documents substantial increases
to four Township employees . . . inclu[d]ing the
grievant, between 2000[] and[] 2010. Each of those
payroll change notices contained the statement that, "In
accordance with N.J.S.A. 26:3-25.1 which requires
registered environmental health specialists, or,
sanitarians to be at maximum salary within five years
of the date of appointment." And . . . those were
documents that were admitted into evidence at the time
of the arbitration . . . and [the] arbitrator noted that three
out of the four salary adjustments occurred after the
[c]ourt decided [plaintiff's cited case law to support it
was not subject to N.J.S.A. 26:3-25].
Based on the evidence admitted during arbitration, the judge concluded plaintiff
had a constituted board of health, namely, the Township council itself.
Our de novo review likewise convinces us N.J.S.A. 26:3-25.1 applied to
plaintiff as a matter of fact and law. Plaintiff's remaining arguments are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
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