Arbitrator’s ‘Release Time’ Opinion Upheld

For years, the collective bargaining agreement (CBA) between Hudson County, New Jersey and Local 109 of the Police Benevolent Association (PBA) has had a provision that “the PBA president shall be granted reasonable release time from work duties to attend to union business during work time, provided that such release time shall in no way interfere with the operation or normal routine of the correctional facility or any other County department, office or function, and provided further that the PBA president first secures permission from the Director or his designee to utilize such release time, which permission shall not be unreasonably denied.”

Commencing in 1995, the PBA president was afforded full release time from work duties to attend to union business, and was assigned to the 9 a.m. to 5 p.m. tour with weekends off. On July 19, 2012, Kirk Eady, Deputy Director of the County’s Department of Corrections, issued a memorandum to the President titled “Shift Schedule,” which abolished “the practice of the PBA president having full release time.” It further stated that the president’s shift would be changed and that he was obligated to report to duty in full uniform.

The PBA filed a grievance challenging the change in practice. An arbitrator held that reading all of the release time provisions in the contract together, the solution was an assignment of the president to the day shift, full release time for the last three hours of the president’s shift, and release time during the first five hours of the shift subject to 48-hours’ notice and the County’s reasonable operating needs.

When the County then challenged the arbitrator’s decision in court, an appeals court upheld the decision. The Court held that its practice was to engage in “an extremely deferential review when a party to a collective bargaining agreement has sought to vacate an arbitrator’s award. Generally, when a court reviews an arbitration award, it does so mindful of the fact that the arbitrator’s interpretation of the contract controls. Our review of an arbitrator’s interpretation is confined to determining whether the interpretation of the contractual language is reasonably debatable.”

The Court also noted that New Jersey statutes provided four possible bases for overturning an arbitrator’s opinion: (1) Where the award was procured by corruption, fraud or undue means; (2) where there was either evident partiality or corruption in the arbitrators, or any thereof; (3) where the arbitrators were guilty of misconduct; or (4) 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. In addition, the Court noted that under various court decisions, a court “may vacate an award if it is contrary to existing law or public policy.”

The Court found none of the exceptions applied to the arbitrator’s “release time” decision. The Court observed that “as noted in the Arbitrator’s decision, several terms of the CBA were ambiguous, which resulted in his consideration of the parties’ past practices. By his consideration of these practices, the Arbitrator did not exceed his authority. Our Supreme Court has held that where there is an apparent ambiguity, consideration of extrinsic proofs may shed light on the mutual understanding of the parties.

“Although the arbitrator is not free to contradict the express language of the contract, an arbitrator may fill gaps in the contract so as to give meaning to an undefined term and weave together provisions that bear on the relevant question in coming to a final conclusion. When that occurs, even if the arbitrator’s decision appears to conflict with the direct language of one clause of an agreement, so long as the contract, as a whole, supports the arbitrator’s interpretation, the award will be upheld. Based on our review of the record, we conclude that there was ample support for the arbitrator’s decision.”

The County next argued that the award violated public policy because the arbitrator did not consider public policy, namely the safety and security of correction officers and the conservation and efficient allocation of taxpayer monies. The Court was unconvinced, finding: “Here, the award permits one officer, in a collective bargaining unit consisting of approximately 450 officers, release time for part of his work day to attend to PBA activities. Given the limitation of release time to one officer for only a part of the workday, it is inconceivable that the award could involve an issue of safety or security or the inefficient use of taxpayer monies such as to frustrate and thwart public policy.”

County of Hudson v. PBA Local 109, 2017 WL 1832420 (N.J. App. 2017).