SCOTT CHARD VS. STATE OF NEW JERSEY (L-1281-15, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-5208-15T4
SCOTT CHARD and ROBERT
COLLINS,
Plaintiffs-Appellants,
v.
STATE OF NEW JERSEY and
DEPARTMENT OF CORRECTIONS,
Defendants-Respondents.
__________________________________
Argued November 13, 2017 – Decided July 24, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
1281-15.
Frank M. Crivelli argued the cause for
appellants (Crivelli & Barbati, LLC,
attorneys; Frank M. Crivelli, on the brief).
Christopher W. Weber, Deputy Attorney General,
argued the cause for respondents (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Christopher W. Weber, on the
brief).
PER CURIAM
An arbitrator rejected plaintiffs' grievances that they were
denied the appropriate salary increases upon their promotion to
sergeant in the Department of Corrections. The Law Division then
confirmed the arbitrator's decision. Plaintiffs appeal, contending
the arbitrator misinterpreted the law, and the trial court should
have vacated his decision.
At the heart of the appeal is an apparent inconsistency
between the promotional salary provision in the governing
collective negotiations agreement (Agreement), and the Civil
Service Commission regulation on promotional salary increases,
specifically a subsection pertaining to employees like plaintiffs,
who had been at the top of their pay range for thirty-nine pay
periods or more. The arbitrator reasonably determined that
interpreting the regulations fell outside the scope of arbitration
authorized by the Agreement, and plaintiffs received the increase
due under the Agreement. Therefore, the confirmation of the award
was warranted unless plaintiffs could show that it was procured
by undue means, or it would violate law or offend public policy.
As we conclude plaintiffs failed to make that showing, we affirm.
I.
The Agreement followed an interest arbitration award between
the State and plaintiffs' union, the New Jersey Law Enforcement
Supervisors Association (NJLESA). Under the Agreement, an
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employee promoted to a new job title must be placed on the lowest
step of the appropriate salary guide that would still provide an
increase of the old salary. Article 13(B)(3) states:
Salary Upon Promotion: Effective as soon as
practicable following issuance of the Interest
Arbitration Award, any employee who is
promoted to any job title represented by
NJLESA shall receive a salary increase by
receiving the amount necessary to place them
on the appropriate salary guide . . . on the
lowest Step that provides them with an
increase in salary . . . .
The provision purported to supersede regulations that provided
more generous promotional increases, by stating: "Notwithstanding
any regulation or authority to the contrary, no employee shall
receive any salary increase greater than the increase provided for
above, upon promotion to any job title represented by NJLESA."
When the Agreement was adopted in 2009, the governing Civil
Service regulations required more generous promotional salary
increases. N.J.A.C. 4A:3-4.9(a) (2009) stated:
(a) Employees who are appointed to a title
with a higher class code shall receive a
salary increase equal to at least one
increment in the salary range of the former
title plus the amount necessary to place them
on the next higher step in the new range.
Moreover, the regulations authorized even more generous increases
for employees who were essentially frozen at the top of their old
3 A-5208-15T4
salary range for an extended period of time. N.J.A.C. 4A:3-4.9(c)
(2009) stated:
(c) When an employee has been at the maximum
of his or her previous salary range for at
least 39 pay periods, and the salary increases
after workweek adjustment would be less than
two increments in the employee's previous
range, the employee shall receive an
additional increment in the new range,
providing the employee is not already at the
maximum of the new range.
Although both subsections (a) and (c) were at odds with the
Agreement, the Governor's Office of Employee Relations (OER) asked
the Commission only to relax subsection (a) to allow the Agreement
to control promotional salary increases. However, the
Commission's subsequent order was not so restricted, stating
"Therefore, it is ordered that these requests be granted and future
promotional movements for the above listed titles be processed in
accordance with the terms of . . . the Interest Arbitration Award
between the State and NJLESA until June 30, 2011." (Emphasis
added).
As the Commission's order would expire at the end of June
2011, OER petitioned the Commission to amend its regulation to
allow continued implementation of the Agreement. According to the
Commission, OER "ask[ed] for an amendment to N.J.A.C. 4A:3-4.9
that would permit a different advancement pay adjustment than
provided in the rule if the pay adjustment is established by a
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collective negotiations agreement." 43 N.J.R. 903(a) (Apr. 18,
2011). However, OER apparently suggested only an amendment to
subsection (a). As the Commission stated, "To prevent the need
for further rule relaxations in case of agreements similar to
those described above, the petitioner suggested an amendment to
N.J.A.C. 4A:3-4.9(a), allowing for the calculation of a different
salary when 'a different promotional procedure is established by
a collective negotiations agreement.'" Ibid.; see also 43 N.J.R.
747(b) (Mar. 21, 2011) (Notice of Action on Petition for
Rulemaking). Consequently, the Commission revised only subsection
(a), to state:
Employees who are appointed to a title with a
higher class code shall receive a salary
increase equal to at least one increment in
the salary range of the former title plus the
amount necessary to place them on the next
higher step in the new range, unless a
different salary adjustment is established in
a collective negotiations agreement . . . .
[N.J.A.C. 4A:3-4.9(a) (2011) (emphasis
added), adopted at 43 N.J.R. 2168(a) (Aug. 15,
2011).]
No change was made to subsection (c).
After the 2011 rule adoption, the Commission – at least in
some cases – implemented the regulation to authorize promotional
salary increases pursuant to subsection (c) for those employees
who satisfied the subsection's requirements. In a March 2013
5 A-5208-15T4
letter to the Commission, OER contended that was mistaken, as the
Agreement took precedence.
The Commission then reversed itself. It proposed another
amendment to N.J.A.C. 4A:3-4.9. 46 N.J.R. 473(a) (Mar. 17, 2014).
The Commission stated that its implementation of subsection (c)
had been "erroneous" and a "mistake." Ibid. This time, the
Commission proposed an amendment that expressly stated that a less
generous collective negotiations agreement would predominate over
both subsections (a) and (c) – which were redesignated as
subsections (b) and (d). Ibid. The Commission then adopted the
proposal. 46 N.J.R. 1815(a) (Aug. 18, 2014).
The new regulation states:
(a) Unless a different salary adjustment is
established in a collective negotiations
agreement, the following provisions shall be
applied when employees are appointed to a
title with a higher class code, except that
in no event shall such adjustment result in a
higher salary than that provided for in this
section.
(b) Employees who are appointed to a title
with a higher class code shall receive a
salary increase equal to at least one
increment in the salary range of the former
title plus the amount necessary to place them
on the next higher step in the new
range. . . .
. . . .
(d) When an employee has been at the maximum
of his or her previous salary range for at
6 A-5208-15T4
least 39 pay periods, and the salary increases
after workweek adjustment would be less than
two increments in the employee's previous
range, the employee shall receive an
additional increment in the new range,
providing the employee is not already at the
maximum of the new range.
[N.J.A.C. 4A:3-4.9 (2014).]
II.
Against this regulatory backdrop, plaintiffs were promoted
in 2012. The Agreement was still in effect, as it had been
extended according to its terms after its original 2011 end date.
Both plaintiffs had been at the "maximum of [their] . . . previous
salary range for at least 39 pay periods . . . ." N.J.A.C. 4A:3-
4.9(c) (2012). Before promotion, Chard and Collins were at the
same salary range for at least forty-four and 120 weeks,
respectively. Nonetheless, they received promotional pay raises
under the Agreement, and not subsection (c). At stake was almost
$3000 a year in added salary. They both filed grievances, which
were unsuccessful at the initial stages. They then sought
arbitration.
The arbitrator held that according to the plain language of
the Agreement, plaintiffs received the appropriate increase. The
arbitrator noted that plaintiffs met the prerequisites of
subsection (c). However, the Agreement clearly stated it took
precedence, providing that "[n]otwithstanding any regulation or
7 A-5208-15T4
authority to the contrary, no employee shall receive any salary
increase greater than the increase provided for above, upon
promotion to any job title represented by NJLESA."
The arbitrator acknowledged, but declined to consider,
plaintiffs' argument that N.J.A.C. 4A:3-4.9(c) superseded the
Agreement's promotional salary increase provision; and that the
first regulatory amendment applied only to subsection (a). The
arbitrator relied upon the Agreement's provisions on arbitration.
The Agreement identifies two forms of grievances: a
"contractual grievance" and a "non-contractual grievance." The
former is "[a] claimed breach, misinterpretation or improper
application of the terms of this Agreement" and the latter is "[a]
claimed violation, misinterpretation or misapplication of rules
or regulations, existing policies, letters or memoranda of
agreement, administrative decisions, or laws applicable to the
agency or department which employs the grievant affecting the
terms and conditions of employment and which are not included [in
the definition of contractual grievance]."
The Agreement provides for arbitration only of contractual
grievances. "In the event that the grievance has not been
satisfactorily resolved at Step Two, and the grievance involves
an alleged violation of the Agreement as described in the
definition in A.1 above [the definition of contractual grievance],
8 A-5208-15T4
then a request for arbitration may be brought only by the
Association . . . ." The Agreement expressly limited the
arbitrator to interpreting the Agreement: "The arbitrator shall
not have the power to add to, to subtract from, or modify the
provisions of this Agreement or laws of the State, or any written
policy of the State or sub-division thereof and shall confine his
decision solely to the interpretation and application of this
Agreement." (Emphasis added).
The arbitrator concluded, "Simply stated, I have no authority
to decide the Association's claim that the State violated 'the
mandates of the applicable version of N.J.A.C. 4A:3-4.9(c).'"
Plaintiffs followed with their complaint to vacate the
arbitrator's decision. Defendants filed a counterclaim seeking
confirmation. The parties then filed cross-motions for summary
judgment. The trial judge held that the arbitrator's decision was
reasonably debatable, and therefore should be confirmed, citing
Linden Board of Education v. Linden Education Association ex rel.
Mizichko, 202 N.J. 268 (2010). The court rejected plaintiffs'
argument that the arbitrator issued the award through "undue
means," see N.J.S.A. 2A:24-8(a), by mistakenly applying the
regulations. The court noted the Agreement limited the scope of
the arbitrator's authority.
9 A-5208-15T4
On appeal, plaintiffs renew their argument that they were
entitled to promotional salary increases pursuant to subsection
(c), and not the Agreement's less generous provision. They argue
the history of the Commission's administrative and regulatory
responses to the Agreement reflect the intent to preserve the
special salary increase for persons at the same pay range for
thirty-nine pay periods or more, as subsection (c) provides. They
argue that even the 2014 amendment was prospective, and did not
affect their right to a salary increase under what is now
subsection (d).
We review the trial court's summary judgment decision de
novo, applying the same standard as the trial court. Henry v.
N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). As there
are no genuine issues of material fact, the question before us is
a legal one. Ibid. Furthermore, "[a]s the decision to vacate an
arbitration award is a decision of law, this court reviews the
denial of a motion to vacate an arbitration award de novo." Manger
v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010).
We exercise limited review of the arbitrator's interpretation
of the Agreement. A court may determine a question of substantive
arbitrability – whether the grievance falls within the arbitration
clause. Amalgamated Transit Union, Local 880 v. N.J. Transit Bus
Operations, Inc., 200 N.J. 105, 115 (2009). However, the court
10 A-5208-15T4
may not pass on the merits of the parties' dispute over the proper
interpretation of their contract. Id. at 119. The court may not
substitute its interpretation of the contract for the
arbitrator's. Policemen's Benevolent Ass'n v. City of Trenton,
205 N.J. 422, 429 (2011).
"The well-established standard . . . is that 'an arbitrator's
award will be confirmed so long as the award is reasonably
debatable.'" Id. at 428-29 (quoting Linden Bd. of Educ., 202 N.J.
at 276). This applies to an arbitrator's interpretation of a
contract. Office of Emp. Relations v. Commc'ns Workers of Am.,
154 N.J. 98, 112 (1998). "[O]ur 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.
"[A]rbitrators may not look beyond the four corners of a contract
to alter unambiguous language . . . ." Id. at 430.
The parties' agreement defines and limits the scope of an
arbitrator's authority. See Port Auth. Police Sergeants
Benevolent Ass'n of N.Y., N.J. v. Port Auth. of N.Y. and N.J., 340
N.J. Super. 453, 458-60 (App. Div. 2001) (describing limitation
on arbitrator's authority as defined by public sector collective
bargaining agreement); City Ass'n of Supervisors and Admin'rs v.
State Operated School Dist. of Newark, 311 N.J. Super. 300, 310
11 A-5208-15T4
(App. Div. 1998) (same). "If an arbitrator exceeds the scope of
that authority, then his [or her] decision may be vacated on
statutory grounds pursuant to N.J.S.A. 2A:24-8." City Ass'n of
Supervisors and Admin'rs, 311 N.J. Super. at 310. In particular,
"language limiting the arbitrator's authority to the resolution
of grievances arising out of the terms of the agreement and denying
him the authority to add to, subtract from, or modify its terms
is typical of a narrow, as distinguished from a broad, arbitration
clause." Commc'ns Workers of Am., Local 1087 v. Monmouth Cnty.
Bd. of Social Servs., 96 N.J. 442, 449 (1984).
Of relevance to this case, a court may vacate an arbitrator's
award that was procured by "undue means." N.J.S.A. 2A:24-8(a).1
"The statutory phrase 'undue means' ordinarily encompasses a
situation in which the arbitrator has made an acknowledged mistake
of fact or law or a mistake that is apparent on the face of the
record." Office of Emp. Relations, 154 N.J. at 111. An
"acknowledged mistake" is one admitted by the arbitrator. N.J.
1
This case does not implicate the other statutory grounds for
vacatur: corruption and fraud, N.J.S.A. 2A:24-8(a); "evident
partiality or corruption in the arbitrators," N.J.S.A. 2A:24-8(b);
misconduct in scheduling the hearing, or receipt of evidence,
N.J.S.A. 2A:24-8(c); or 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(d).
12 A-5208-15T4
Highway Auth. v. Int'l Fed'n of Prof'l and Tech. Eng'rs, Local
193, 274 N.J. Super. 599, 609 (App. Div. 1994).
However, in public sector arbitration, the court exercises
an additional level of review. "When reviewing an arbitrator's
interpretation of a public-sector contract, in addition to
determining whether the contract interpretation is reasonably
debatable, the court must ascertain whether the award violates law
or public policy." Office of Emp. Relations, 154 N.J. at 112; S.
Plainfield Bd. of Educ. v. S. Plainfield Educ. Ass'n ex rel.
English, 320 N.J. Super. 281, 288 (App. Div. 1999). An award
violates law or offends public policy when it falls into a non-
negotiable matter of governmental policy. Office of Emp.
Relations, 154 N.J. at 113. "[A] subject is negotiable between
public employers and employees when . . . the subject has not been
fully or partially preempted by statute or regulation . . . ."
Ibid. (quoting Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393,
404-05 (1982)). Thus, an award that is preempted by regulation
violates law or public policy, and may not be confirmed. See
ibid.Applying these principles, we discern no basis to disturb the
trial court's order confirming the arbitrator's award. First, the
arbitrator adhered to the scope of his authority. The Agreement
included a "narrow" arbitration clause. The arbitrator was
13 A-5208-15T4
authorized only to address a contractual grievance. He was thus
limited to the "four corners of the contract."
Plaintiffs do not genuinely dispute the arbitrator's
interpretation of the Agreement's language. The plain language
was not debatable. It granted plaintiffs a promotional salary
increase that placed them on the lowest step possible in their new
position, which still generated an increase over their previous
salary. The Agreement required that result "notwithstanding any
regulation . . . to the contrary" that might authorize a greater
salary increase. In sum, it would be unreasonable to debate the
correctness of the arbitrator's interpretation of the Agreement's
terms.
The gist of plaintiffs' argument is that subsection (c)
superseded the Agreement's plain language. However, we reject
plaintiffs' contention that the arbitrator's decision was procured
by "undue means." The arbitrator did not acknowledge a mistake
of law or fact. Nor is a mistake evident on the face of the award.
Rather, plaintiffs' claim of a legal error requires a detailed
examination of the Commission's treatment of the Agreement, both
by its initial order, and its two rounds of regulatory amendments.
Consequently, we must consider whether the arbitrator's award
violates law – specifically the regulation's subsection (c). "The
same rules of construction that apply to the interpretation of
14 A-5208-15T4
statutes guide our interpretation of regulations." Headen v.
Jersey City Bd. of Educ., 212 N.J. 437, 451 (2012). We may resort
to extrinsic materials if the language is ambiguous. See In re
Kollman, 210 N.J. 557, 568 (2012) (stating that "[i]f the language
of the statute is ambiguous, a court may resort to extrinsic
evidence for guidance, including legislative history").
As a threshold matter, we conclude the plain meaning of the
pre-2014 regulation is ambiguous. The 2011 rulemaking amended
only subsection (a) with the language, "unless a different salary
adjustment is established in a collective negotiations agreement
. . . ." One may reasonably disagree over whether the "unless"
clause was also intended to address persons at the maximum of
their salary range for thirty-nine pay periods or more, as
addressed in subsection (c). Therefore, it is appropriate to
resort to extrinsic materials.
Upon our careful review of the regulatory record, we are
persuaded that the Commission did not intend to preserve the
enhanced promotional pay raises authorized by subsection (c),
while removing those authorized by subsection (a). Despite the
references to subsection (a), the operative language of the 2010
waiver order made clear that the Agreement was intended to
supersede any regulation to the contrary that provided a more
generous promotional salary increase. Nothing in the regulatory
15 A-5208-15T4
record indicated an intention to treat differently persons who
were at the maximum of their salary for an extended period of
time.2
We recognize that the agency's implementation of the 2011
regulation is reflective of its own interpretation, which in turn
is entitled to some weight. However, the implementation was
apparently inconsistent and short-lived. See State, Dep't of
Envtl. Prot. v. Stavola, 103 N.J. 425, 435 (1986) (suggesting that
long-standing agency interpretation of a statute carries "greater
force" than "its first application . . . to a new situation").
The Commission thereafter amended the regulation, conceding that
it mistakenly and erroneously continued to apply subsection (c)
in cases where a collective negotiations agreement provided for a
less generous promotional salary increase. The agency
characterized the 2014 amendment as clarifying.
"Deference to an agency decision is particularly appropriate
where interpretation of the Agency's own regulation is in issue."
I.L. v. N.J. Dep't of Human Servs., Div. of Med. Assistance &
Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006). We
2
We recognize that one might contend that persons frozen at the
top of their salary range for such an extended period of time were
entitled to a more generous promotional salary increase than those
who were not. However, there is no evidence in the regulatory
history that the parties to the Agreement, or the Commission,
intended to afford special treatment for such persons.
16 A-5208-15T4
therefore conclude that the regulation, in its 2011 version as
well as its 2014 version, was intended to elevate a collective
negotiations agreement over the regulation, if the former was less
generous than the latter. Consequently, the arbitrator's decision
does not violate law or offend public policy.
Affirmed.
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