Employer Ordered To Promote Sergeant To Lieutenant’s Position

When the Borough of Glassboro, New Jersey Police Department had an opening for the position of police lieutenant, three sergeants, Peter Amico, William Highley, and Gregory Bruynell submitted their applications. Amico had placed first in the first two phases of the promotional process. Following the conclusion of the third phase of the promotional process – an interview by the Borough’s Public Safety Committee – the Borough promoted Highley. Amico’s labor organization, Lodge No. 108 of the Fraternal Order of Police, filed a grievance against the Borough contesting the promotion.

An arbitrator upheld the grievance. The Arbitrator concluded that he had “nothing in the record to determine as to what factors in phase three caused Amico to drop to second place except the suggestion from the testimony of the Borough witnesses that it must have been the fact that Amico, a long-time resident of Glassboro and a graduate of its high school, had recently moved away from the Borough.”

The Arbitrator also noted that Amico had substantially greater seniority and education level attainment than Highley, and should have been promoted to lieutenant.

The Borough challenged the Arbitrator’s decision in court, citing the significant latitude it was given under New Jersey law to make promotional decisions. The New Jersey Court of Appeals nonetheless turned away the Borough’s challenge.

The Court did observe that “a municipality’s decision in the promotional process may not be disturbed by an arbitrator unless it is clearly arbitrary, capricious or unreasonable.” However, once an arbitrator had made a decision, the Court held, a court is only able to overturn the decision if it was not “reasonably debatable” for the arbitrator to have found that the decision of the Borough was arbitrary. If the arbitrator’s decision was “reasonably debatable,” then the arbitrator’s decision would be required to be upheld.

The Borough argued that there were concrete factors in evidence that it evaluated during the third phase of the promotional process that belied the Arbitrator’s finding that he had nothing on the record before him to support the decision to promote Highley over Amico. The Court was not impressed with the argument, noting that the record consisted of a series of questions asked Amico and Highley as well as some notes jotted in the corner of the pages containing the questions. The trial judge cited the Arbitrator’s opinion that “I don’t know what these numbers mean. They are not specified. They don’t have anything from anyone that says whether this was being scored, how it was being scored, and how the participants scored pursuant to these questions. And so I have raw data, but it doesn’t mean anything to me. And I assume the Arbitrator was presented with the same file. He may have been presented with raw data, but it wasn’t made sensible to him that it showed how the Borough distinguished Highley from Amico.”

The Borough also argued that the Arbitrator’s decision was contrary to the public interest, contending that “a ruling against the Borough would disturb the chain of command, and create confusion in the promotional process, thereby making objective tests the only permissive standard.” The Court did not agree with the Borough’s argument, finding that “it was not the mere subjectivity of their three-step promotional process that caused it to be arbitrary. It was the absence of any explanation of how the Borough distinguished Highley from Amico. There is no well-defined and dominant public policy that is at issue here. Despite the Borough’s protestations, there is nothing in the award that would prevent any municipality from utilizing a subjective test in its promotions, in whole or in part, so long as it articulates the basis upon which it scored that examination.”

Borough of Glassboro v. Fraternal Order of Police, Lodge No. 108, 2007 WL 2429994 (N.J.Super. 2007).

This article appears in the November 2007 issue