PER CURIAM.
An arbitrator found defendant Township of Middletown (the Township) violated the terms of a collective bargaining agreement by failing to pay overtime to police officers who appeared, without notice to the Township, at a colleague's disciplinary hearing. However, the arbitrator also reached an apparently inconsistent conclusion that the Township was not required to pay the officers overtime. Plaintiff Policemen's Benevolent Association, Local 124 (PBA) appeals from the latter conclusion in the arbitration decision and an order confirming the arbitration award, arguing the arbitrator exceeded his authority. For the reasons that follow, we affirm.
The Township served Sergeant William Colangelo with preliminary notice for a minor disciplinary action, seeking to impose a minor discipline that included a fine of approximately $250, the estimated cost to the Township for reimbursing the towing costs of a motorist whose vehicle was ordered towed in violation of Middletown Police Department (the Department) rules. Sergeant Colangelo requested an internal hearing before the Township Administrator. Sergeant Colangelo asked four other officers, Bernard Chenoweth, Kimberly Best, Adam Colfer and Larry Schachtel (collectively, the grievants), to testify on his behalf at the hearing at the Township Municipal Building on April 25, 2007. Sergeant Colangelo told the grievants, each of whom was scheduled to be off-duty that day, that the Superior Officers' Association (SOA) attorney would have subpoenas available for them on the morning of the hearing.
The grievants appeared as requested but the SOA attorney did not have subpoenas for them. They were told that subpoenas would be faxed to them that afternoon after the attorney returned to his office. The grievants waited in the officers' room to be called as witnesses but their testimony was not needed because the Township and Sergeant Colangelo settled the disciplinary matter. They received the subpoenas that afternoon and submitted them in support of requests for overtime.
Relevant provisions of the collective bargaining agreement between the Township and the PBA (the Agreement) state in pertinent part:
The Township denied the grievants any payment for their attendance. The PBA filed a grievance on behalf of the four officers, alleging a violation of Article XI — Overtime, ¶ F, and demanding payment of four hours pay at overtime rates for responding to Sergeant Colangelo's request. After the grievances were denied by the Township in the internal steps of the contractual grievance procedure, the PBA filed for binding arbitration pursuant to the Agreement.
In his opinion, the arbitrator summarized the testimony at the hearing. The Chief of Police, Robert Oches, testified the grievants failed to comply with the requirement of Department Rules and Regulations, 4.12.7, to notify him immediately regarding the subpoena.
PBA President Chenoweth testified that the practice in the department was that officers subpoenaed for an appearance on a day on which they were scheduled to be off-duty were not required to give advance notice of the appearance.
The arbitrator found the matter governed by Article XI, ¶ F of the Agreement, and concluded that the Township was contractually obligated to honor subpoenas by attorneys in administrative disciplinary proceedings pursuant to the second sentence, which requires overtime to be paid for a "response to subpoenas from any court, on call attendance in court, in lieu of subpoena arraigned (i.e., called before the court) by . . . attorneys representing parties on civil litigation, criminal prosecution or defense or administrative hearing." The arbitrator rejected the Township's argument that the subpoenas issued for a police disciplinary hearing are not binding because the agreement did not limit the payment of overtime to responses to lawful subpoenas. The arbitrator also discounted the fact that no subpoenas were served prior to the settlement of the matter, finding it a common practice for witnesses to be advised that subpoenas would be served on the day of a hearing and the failure to so serve was not due to any fault of the officers.
Although the arbitrator found the Township had violated the Agreement by failing to pay overtime to the grievants, the arbitrator also concluded that such violation did not warrant the remedy sought. The arbitrator found it significant that the subpoenas were not for a routine court matter but for a matter arising out of department employment, which triggered the requirement under ¶ 4.12.7 of the Department's Rules and Regulations that officers immediately notify the Chief of Police if subpoenaed in such matters. The arbitrator stated the Chief had the right to know who was subpoenaed and found credible his testimony that it was likely an agreement would have been reached, obviating the need for the grievants to appear, if he had notice of the subpoenas. The arbitrator concluded he would not order the Township to pay the grievants overtime because they failed to notify the department of the subpoenas.
The PBA filed a complaint, seeking to vacate the arbitration award. The Township filed an answer and counterclaim, seeking to confirm and/or modify the award. Both parties filed motions for summary judgment. The trial court granted the Township's motion to confirm the award and denied the PBA's motion.
In this appeal, the PBA presents the following issues for our consideration:
Our review of an arbitration award is very limited. There is "a strong preference for judicial confirmation of arbitration awards,"
The statutory grounds upon which a reviewing court may vacate an arbitration award are set forth in
The PBA asserts the arbitration award should be vacated pursuant to
An arbitrator may not, therefore, "disregard the terms of the parties' agreement" or "rewrite the contract for the parties."
Article XXII, ¶ C of the Agreement describes the authority granted to the arbitrator here as follows:
The PBA argues the arbitrator exceeded his authority in two ways: by looking beyond the four corners of the Agreement to the departmental rules and by rewriting the Agreement to make compliance with departmental rules a pre-condition to the payment of overtime.
The PBA
As a result, we need not review this conclusion to determine whether it is a reasonably debatable interpretation of the agreement. The PBA's challenge is directed to the arbitrator's later, seemingly inconsistent, conclusion:
Our review is therefore limited to whether this conclusion represents a reasonably debatable interpretation of the Agreement.
Although the arbitrator may not contradict unambiguous language in the Agreement, he is not limited to a perfunctory application of Article XI, ¶ F, in isolation and without consideration of other provisions in the Agreement. It is his construction of the Agreement as a whole that is bargained for by the parties.
The arbitrator identified two paragraphs of Article XI as pertinent to the issues to be decided. Paragraph B explicitly subjects the right to receive overtime payment to the authorization of the Chief of Police as it states unambiguously, "Employees shall not be paid overtime . . . unless such overtime is authorized by the Chief of Police or the officer in charge of the shift." Paragraph F establishes that any employee whose presence is required in court when not on duty shall be paid at the rate of time and a half. As the arbitrator noted, Paragraph F does not explicitly state that the employee must obtain the authorization of the Chief before appearing in court. However, more important, there is nothing in this paragraph that exempts the employee from the limitation imposed by Paragraph B, that no overtime will be paid unless authorized by the Chief of Police or officer in charge. And, obviously, there can be no authorization without notice.
To read Paragraph F as the PBA argues, to the exclusion of Paragraph B, would effectively cede a significant management prerogative, the control of overtime payments, to the individual officer without any recourse for management. This interpretation conflicts not only with Paragraph B but also with Article XXIX, ¶ A2 of the Management Rights Clause, which recognizes that the Township has retained and reserved the right
There is nothing in Paragraph F or any other provision of the Agreement to support a conclusion that Paragraph F was intended to exclude overtime payments for court appearances from the management rights retained by the Township. Thus, while Paragraph F provides a mechanism for defining the availability and calculating the payment of overtime for court appearances, the "essence" of the Agreement firmly establishes the Township's right to control such costs by requiring authorization before overtime may be paid.
Plainly, the mandate in Paragraph B that no overtime be paid without authorization cannot be implemented unless notice is provided. The arbitrator's reference to the departmental rules does not, therefore, constitute a re-writing of the Agreement to include requirements not agreed-upon by the parties but merely a reference to the rules known to the parties.
Even the limited record here demonstrates the potential havoc the PBA's construction would pose to the right of the Township to manage its budgetary considerations. The minor disciplinary action here concerned a fine of approximately $250, an amount commensurate with the cost of reimbursing a motorist's towing costs. Four officers applied for overtime for coming to the Municipal Building in the event their testimony was required by Sergeant Colangelo. The record does not reflect the experience level or salary of the grievants. However, Article XXIII of the Agreement sets forth the annual base salary ranges for officers from the "academy rate" of $30,000 to $89,001, salaries that are also subject to longevity increments after five years of service. Focusing only on the annual base salary ranges, the overtime the Township would be required to pay for the grievants' attendance on April 27 for four hours at time and one-half their regular salary would be a minimum of approximately $90 each for an "academy" level officer to $240 each for officers at the high end of the base salary range. As a result, the Township's overtime costs would exceed, perhaps even grossly, the amount of reimbursement sought in the disciplinary hearing. Nonetheless, the construction urged by the PBA would require the Township to bear that burden as an unanticipated and unmanageable expense.
The arbitrator's conclusions that "the grievants were . . . obligated to notify the department of the subpoenas" and "the Chief [of Police] had the right to know who was subpoenaed" reflects his interpretation of the provisions of the Agreement he identified as pertinent.
Although the arbitrator's conclusion may appear to be inconsistent with the language of Article XI, Paragraph F, the contract as a whole supports his interpretation. His construction of the Agreement preserves the rights of management expressly reserved in the Agreement in a manner consistent with the apparent intent of the parties. We are satisfied that, notwithstanding the references to the departmental rules and the apparent inconsistency within the arbitration decision, the award is drawn from the "essence" of the Agreement and, because the arbitrator's interpretation is "justifiable," it meets the "reasonably debatable" standard.
We are satisfied the trial court properly affirmed the arbitration award and that the argument presented in Point II of plaintiff's brief lacks sufficient merit to warrant discussion in a written opinion.
Affirmed.
