NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

The City of Paterson (City) appeals the July 15, 2013 order of the Chancery Division confirming an arbitration award resolving a grievance filed by respondents Paterson Police PBA Local 1 (PBA) and Paterson Police PBA Local 1 Superior Officers

Association (SOA) on behalf of Captain Richard Macchiarelli. Macchiarelli and SOA filed a grievance against the City claiming that when the City reassigned Macchiarelli, it violated various sections of the collectively negotiated agreement (CNA) that govern union members' employment with the City.

Arbitrator Gerard G. Restaino sustained the grievance after conducting a hearing. Restaino ordered the City to pay Macchiarelli a 5% night differential, to pay him for two hours each day he was in Administrative Command, and to pay him sixty days of pay because the City violated the Stipulation of

Settlement.

The PBA and SOA filed a complaint to confirm the arbitration award before Judge Margaret Mary McVeigh. Judge McVeigh confirmed the arbitration award, finding the arbitrator's decision reasonably debatable.

The City appeals, claiming the arbitration award violated N.J.S.A. 2A:24-8, the arbitrator exceeded his authority, and the arbitration award was procured by undue means. We are not persuaded by these arguments and affirm substantially for the reasons contained in the thorough and well-reasoned decision of

Judge McVeigh.

I.

Richard Macchiarelli has been a police officer for over twenty-eight years and a Captain in the Paterson Police Department since 2003. In October 2011, Captain Macchiarelli submitted his 2012 squad selection form, indicating that he wanted to continue as Patrol Captain with Patrol Division, Platoon B, Squad 3. Macchiarelli was planning to retire and wanted the 5% night differential that this assignment offered to increase his monthly pension. On December 30, 2011, an order for the monthly detail for the period January 8, 2012 through February 4, 2012 was issued, and Macchiarelli was assigned to the position he requested.

Macchiarelli was on vacation from December 24, 2011 through December 31, 2011. After laying off over 100 officers in April 2011, the Paterson Police Department was understaffed. There were concerns that Platoon B, Squad 3 would be short-staffed during the early morning hours of New Year's Day, so Lieutenant Arroyo consulted with Platoon B, Squad 1 Lieutenant McIvor, and they asked Squad 1 officers to commence their shifts about three hours early and finish them early without overtime pay. Seven officers agreed to this.

At around 4:00 a.m. on New Year's Day, an incident occurred where a police officer shot a suspect. Deputy Chief Fraher and a Squad 1 lieutenant appeared at the scene with the Squad 1 officers who had voluntarily commenced work early. There was a dispute at the hearing about whether Fraher knew that the officers had volunteered to report early without compensation. Fraher told Arroyo that the officers were to be paid for the time they were working.

On January 2, 2012, Macchiarelli learned that Fraher directed the seven officers to work through the end of their original shift and approved overtime pay for them. Macchiarelli then approved their overtime payments.

Detective Sergeant Manuel Hernandez, from the Internal Affairs Department, sent an official report to Macchiarelli on January 2, 2012, concerning the New Year's Day incident and the amount of Platoon B personnel who were given December 31, 2011 off. Hernandez concluded that because personnel for Squads 1, 2, 3, and 4 were given sick or personal leave, there would have been only seven units in service if Squad 1 did not report at 1:00 a.m. on January 1, 2012.

Additionally, Captain Angelo Palatucci, also from the Internal Affairs Division, sent Macchiarelli a memo on January 6, 2012, referencing Hernandez's report and stating,

Palatucci ordered Macchiarelli to provide an official report addressing three inquiries:

Macchiarelli responded that all but one of the officers were granted their leave in November 2011. The other officer was granted leave two weeks prior to New Year's Eve. Macchiarelli also noted that Squad 1 initially volunteered to begin their shift early; however, he rethought that and decided to offer overtime according to the contractual guidelines.

Palatucci found sufficient evidence to support a complaint against Macchiarelli and recommended counseling and an assignment change. On January 4, 2012, Wittig submitted a personnel order reassigning Macchiarelli from Platoon B to Administrative Services.

On March 15, 2012, Macchiarelli and SOA filed a grievance against the City, claiming the City violated the CNA and a Stipulation of Settlement when it reassigned Macchiarelli.

The parties mutually chose Gerard G. Restaino as their arbitrator. The hearings occurred on September 19, 2012 and January 24, 2013 at the City's offices, and "each party had a full and complete opportunity to present evidence and testimony on their behalf, to examine and cross-examine witnesses under oath and to argue their respective positions." The parties stipulated to two issues:

The arbitrator issued his opinion on April 8, 2013, finding that the City took disciplinary action against Macchiarelli for the December 31, 2011 to January 1, 2012 incident. He also found that patrol lieutenants rather than captains, make scheduling decisions, and Macchiarelli approved the schedules and leaves provided by the lieutenants of the squads for Platoon B. He further found that Palatucci's letter requiring oral counseling and an assignment change and referring to grievance procedures proved that there was a disciplinary action in this matter.

In addition, the arbitrator found that the City did not have just cause for the disciplinary action taken against Macchiarelli. The arbitrator stated that the Rules and Regulations, specifically Section 18, provide for the disciplinary action that may be taken against members of the Police Department, and that none of the enumerated penalties allow for an assignment change. According to the arbitrator, Section 18.4 appoints final disciplinary authority to the Director of Public Safety, and "Acting Chief Fraher and Chief Wittig certainly are not the Director of Public Safety." Therefore, "[t]he City violated its obligation to conduct a fair, open and honest investigation and then to utilize the disciplinary procedures found in the Rules and Regulations of the Paterson Police Department."

The arbitrator additionally found that under Section 3.12 of the CNA, the City has the right "to suspend, demote, discharge or take appropriate action for just cause, and to lay off employees for lack of work or for other legitimate reasons." However, the arbitrator noted that Macchiarelli was not present when the incident occurred; therefore, he did not neglect his duty. The arbitrator found that Fraher was obligated, when he knew that the Department would be short-staffed for New Year's Eve, to discuss it with the lieutenants and the Chief. However, he did not do that "and he can't turn around and blame Captain Macchiarelli for the Squads being short-staffed."

Moreover, the arbitrator found that Section 10.1's maintenance of standards provision in the CNA "is an absolute and requires all benefits and privileges enjoyed by the employees prior to the effective date of the Agreement to be retained unless they are specifically abridged or modified by the Agreement and the Rules and Regulations, except as otherwise prescribed by law[,]" and Article 7.1.2 was not modified. Article 7.1.2 requires the assignment of employees and their tours of duty to be made by seniority and selected annually by the employee, and also mandates that the employee remain on that squad for the following year. Thus, Macchiarelli's rights were breached when he was reassigned from Platoon Captain to Administrative Captain.

Because Macchiarelli was improperly reassigned from the Platoon B Command, the arbitrator determined that he was deprived of the 5% night differential. Therefore, he was entitled to the differential "for the entire calendar year as the language of Section 29.7 requires." The arbitrator explained that "[t]he City cannot rely upon a managerial prerogative to set aside clear irrefutable contract language."

Additionally, the arbitrator found, "in accordance with the Weiss Award,1 which was sustained by the Superior Court ... Macchiarelli is entitled to compensation as per Section 27.7 of the Agreement, which requires that he is to receive two hours pay for every day that he was put into the Administrative Command[,]" and was therefore to receive compensation for the period from January 8, 2012 through December 31, 2012.

Further, the arbitrator found that the city violated Paragraph 3 of the Stipulation of Settlement dated June 30, 2009, which requires the city to abide by Section 7.1.2 of the Agreement, "and in the event that they do not allow a Patrol Captain to exercise his seniority concerning his selection of tours of duty, the City is obligated to pay the affected Captain sixty (60) days' pay in addition to whatever other remedy he may be entitled to."

Based on the foregoing, the arbitrator awarded the following:

Judge McVeigh confirmed the arbitration award.

II.

Arbitration awards are granted considerable deference by courts. Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013). 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). "`[T]o ensure finality, as well as to secure arbitration's speedy and inexpensive nature, there exists a strong preference for judicial confirmation of arbitration awards.'" Ibid. (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 10 (2007)). "Arbitration should spell litigation's conclusion, rather than its beginning ... and arbitration of public-sector labor disputes, in particular, should be a fast and inexpensive way to achieve final resolution of such disputes and not merely a way-station on route to the courthouse[.]" Ibid. Therefore, courts give arbitration awards "wide berth, with limited bases for a court's interference." Ibid.

Generally, when a court reviews an arbitration award, the arbitrator's interpretation of the contract controls. Ibid. "Under the reasonably debatable standard, a court reviewing [a public-sector] arbitration award may not substitute its own judgment for that of the arbitrator, regardless of the court's view of the correctness of the arbitrator's position." Id. at 201-02. A court may not "second-guess" an arbitrator's interpretation, because

A.

There are four statutory bases for vacating an arbitration award. Under the New Jersey Arbitration Act, a court may vacate an award

A court may also vacate an arbitration award "`if it is contrary to existing law or public policy.'" Borough of E. Rutherford, supra, 213 N.J. at 202 (quoting Middletown Twp., supra, 193 N.J. at 11). However, "reflecting the narrowness of the public policy exception, that standard for vacation will be met only in rare circumstances." Ibid.

The City argues that it had just cause to discipline Macchiarelli pursuant to Section 3.2 of the CNA because he was responsible for the staffing and management for Platoon B, and he failed to make sure that the platoon was adequately staffed for New Year's Eve.

The arbitrator found that the City did not have just cause for disciplining Macchiarelli. Additionally, the arbitrator looked to Sections 18 and 18.4 of the Rules and Regulations and found that the disciplinary actions that may be taken do not include assignment change. Further, the arbitrator found that the City violated Sections 10.1 and 7.1.2.

As previously mentioned, we reviewed an arbitrator's decision involving the same parties, with different officers and facts. Paterson Police PBA Local 1 v. City of Paterson (Paterson I), No. A-1482-12 (App. Div. Jan. 30, 2014). Much of our analysis and holding of that decision apply here as well.

In Paterson I, the City argued that the arbitrator exceeded his authority in granting overtime pay. Id. at 16. We found that position inconsistent with the City's stipulation to the issue submissions before the arbitrator. Ibid. When parties stipulate to the issues that the arbitrator is to determine, the parties stipulate to "what the arbitrator [has] jurisdiction to consider[.]" Linden Bd. of Educ. v. Linden Educ. Ass'n. ex rel. Mizichko, 202 N.J. 268, 281-82 (2010) (Rivera-Soto, J., concurring).

The parties agreed to vest the arbitrator with the authority to determine whether the City violated the CNA, therefore the arbitrator did not exceed that authority by finding that the CNA was violated when Macchiarelli was reassigned. Although the arbitrator did not exceed his authority, we must still determine whether his interpretation of the CNA is reasonably debatable.

Section 3.2 of the CNA provides,

Section 7.1.2 provides,

Section 10.1 of the CNA provides,

Clearly, Section 3.2 is subject to Sections 7.1.2 and 10.1, meaning that the City may assign or transfer employees, but only upon just cause. Otherwise, once an employee selects a squad, the employee is entitled to remain on that squad for a full year.

The Rules and Regulations Section 18 addresses employee discipline. Specifically, Section 18.1 provides that an employee will be subject to discipline for "failure, either willfully or through negligence or incompetence, to perform the duties of their assigned rank or position[.]" Section 18.3 enumerates the penalties that may be assessed in a disciplinary action. That list includes "oral reprimand; written reprimand; surrender of time off in lieu of other action; fine; suspension; demotion; [and] dismissal from the department." Finally, Section 18.4 states, "Final disciplinary authority and responsibility rests with the Director of Public Safety[,]" and allows certain disciplinary actions by the Chief of Police, Command, and Supervisory Personnel Command, none of which permit reassignment or transfer.

Based on these provisions, the arbitrator's finding that the City violated provisions of the CNA when it reassigned Macchiarelli was reasonably debatable. The evidence presented showed that Macchiarelli was on leave when the Department realized that it would be short-staffed for New Year's Eve. Further, Macchiarelli was not in charge of scheduling, but the lieutenants were. Moreover, the disciplinary action of reassignment taken by the City is not one of the measures enumerated in Section 18.3, and it was not taken by the Director of Public Safety as required by Section 18.4. Therefore, the arbitrator's decision was reasonably debatable and the trial court appropriately confirmed the award.

B.

The City contends that the arbitrator exceeded his authority when he found that the City did not have the managerial prerogative, pursuant to CNA Section 3.3, to reassign Macchiarelli. The City cites to In re of Atlantic City and PBA, Local 24, 11 NJPER 16062 (1985) and states that "the Public Employment Relations Commission [(PERC)] held that the City had the nonnegotiable right to assign its personnel based on its assessment of employees' qualifications." The City asserts that the Chief of Police has the managerial prerogative to assign staff based on work performance and skill level; therefore, his reassigning of Macchiarelli did not violate the CNA.

The arbitrator found that CNA Section 36 provides that the agreement is final and can only be modified in writing by both parties. Thus, the arbitrator found that Sections 7.1.2, 29.7, and 10.1 "have the same force and weight," and managerial prerogative does not allow the City to set aside "clear irrefutable contract language" because "[t]o do so sets labor relations in the public sector in the City of Paterson back prior to 1968, the year of the first bargaining law for public employees." Moreover, the arbitrator found that the City did not have the managerial right to reassign Macchiarelli because he did not neglect his duty.

We addressed a similar issue in Paterson I, and much of our analysis applies here. In Paterson I, the trial court confirmed the arbitrator's finding that "the City's managerial prerogative argument `fall[s] in the face of the clear contractual language [of Section 7.1.2].'" Paterson I, supra, slip op. at 28. The arbitrator based this finding on the fact that "the City failed to prove that either officer had to have their tours changed because of the financial crisis ..., since the positions previously held [by the officers] were all assigned to other officers." Ibid. Moreover, the City's assertion that one of the officers did not have a contractual right to remain in a chosen assignment for a full year because she was not assigned to a patrol division was a reasonably debatable interpretation of the CNA. Ibid.

CNA Section 3.3 provides:

Section 36 provides that the CNA "represents and incorporates the complete and final understanding and settlement by the parties" and "shall not be modified in whole or in part by the parties except by an instrument in writing only executed by both parties."

As in Paterson I, the arbitrator here found that the City could not rely on managerial prerogative because Macchiarelli did not neglect his duty. This decision is reasonably debatable. Because Macchiarelli did not neglect his duty, the reassignment was not a reasonable order. Further, because the CNA and the Rules and Regulations provide for the proper procedure and discipline in this type of situation, and because there is no signed writing by both parties altering those provisions, the City was required to follow those provisions.

The City suggests that it has a nonnegotiable right to assign personnel. A contract provision must be negotiable in order to be arbitrable. See Lacey Twp. Bd. of Educ. v. Lacey Twp. Educ. Ass'n, 259 N.J.Super. 397, 399-400 (App. Div. 1991), aff'd o.b., 130 N.J. 312 (1992). This means that the contractual subject matter is not exclusively a management prerogative. Ibid.

N.J.S.A. 34:13A-5.4(d) states that PERC "shall at all times have the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations." This gives PERC primary jurisdiction to answer this question. Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978).

"Absent a pre-arbitration scope petition asserting that negotiations are not permitted on a subject, the parties are deemed to have agreed to arbitrate all unresolved issues." Twp. of Teaneck v. Teaneck Firemen's Mut. Benevolent Ass'n Local No. 42, 353 N.J.Super. 289, 299 (App. Div. 2002), aff'd o.b., 177 N.J. 560 (2003). Moreover, "[a] party cannot go through the negotiations process and then argue it was not required to engage in that process because the subject was not mandatorily negotiable." Ibid.

Here, the City did not file a pre-arbitration scope petition, nor did the City contest the negotiability of Section 7.1.2 during the hearing before the trial court. Therefore, the City waived this argument. Given the arbitrator's finding that Macchiarelli did not neglect his duty, the arbitrator's decision was reasonably debatable.

C.

The City claims that the arbitrator exceeded his authority by finding that Macchiarelli was entitled to overtime pay under CNA Section 27.7, as that section applies only to a situation where an officer's hours change by more than one hour during the course of a monthly detail, which "can only be interpreted to mean while a Monthly Detail is in effect." Because Macchiarelli's hours were not changed during the course of a monthly detail, the City claims that the arbitrator rewrote the overtime provision and exceeded his authority.

The arbitrator found that the City improperly removed Macchiarelli from Platoon B Command, which deprived him of the night differential under Section 29.7. Therefore, the arbitrator found that Macchiarelli was "entitled to the night differential for the entire calendar year as the language of 29.7 requires." The arbitrator also found that the original tour hours for Macchiarelli were 3:15 p.m. to 2:30 a.m., and changed to 8:00 a.m. to 4:00 p.m., and this was "a change which impacted upon [Macchiarelli] because his tour of duty was extended by more than one hour and Section 27.7 requires compensation for that." Relying on the Weiss Award, the arbitrator found that Macchiarelli was entitled to two hours pay for every day that he was reassigned to the Administrative Command, which covered the period from January 8, 2012 until

December 31, 2012.

We addressed the same issue in Paterson I. There, the City also argued that awarding two hours of overtime pay under Section 27.7 during the time that the officer was subject to a time change exceeded the arbitrator's authority. Paterson I, supra, slip op. at 16. We found that argument inconsistent with the City's stipulation to the issue submissions before the arbitrator. Ibid.

As in Paterson I, the parties here stipulated to the issues before the arbitrator and therefore stipulated to the arbitrator's authority to determine a remedy if he found a violation of the CNA. The arbitrator did not exceed his authority when he granted Macchiarelli overtime pay pursuant to Section 27.7.

The award is not inconsistent with any other provision, and the arbitrator explained the contractual basis for his decision, namely that the City violated the CNA when it reassigned Macchiarelli, causing his tour of duty to be extended by more than one hour, which is not disputed by the City.

D.

The City argues that the arbitrator exceeded his authority when he found that the City violated the Stipulation of Settlement, claiming the arbitrator "ignored the clear and unambiguous terms of the Stipulation of Settlement when he granted Macchiarelli an additional sixty (60) days' pay." The City contends that the Stipulation of Settlement "explicitly reserved the [City's] right to assign any patrol captain, including Macchiarelli, to any other division within the Police Department."

The arbitrator found that Paragraph 3 of the Stipulation of Settlement

Paragraph 1 of the Stipulation of Settlement states that "the City shall retain the right to make assignments and reassignments concerning patrol captains vis-a-vis assignments in and out of patrol." It further states that "the patrol captains shall be entitled to exercise their seniority to select assignments...." Moreover, Paragraph 3 states that

Here, the parties stipulated to the following issue: "Did the city violate ... the June 30, 2009, Stipulation of Settlement in AR-2000-065 and/or AR-2005-376 in the City's action in reassigning Capt. Richard Macchiarelli from Squad 3, effective January 8, 2012?" Therefore, the arbitrator did not exceed his authority when he determined that the City violated the Stipulation of Settlement.

Moreover, the Stipulation of Settlement expressly states that the City must abide by Section 7.1.2, and if it does not, the employee is entitled to sixty days' pay. Therefore, the arbitrator's finding that the City violated the Stipulation of Settlement when it reassigned Macchiarelli, depriving him of his seniority rights, was reasonably debatable and the trial court's confirmation of the award was proper.

E.

Finally, the City argues that the portion of the arbitration award granting Macchiarelli overtime pay pursuant to Section 27.7 of the CNA was procured by undue means. The City asserts that the arbitrator added new terms to the CNA and also made a mistake when he ignored the evidence and determined that Macchiarelli should receive overtime compensation under Section 27.7 and sixty days' pay pursuant to the Stipulation of

Settlement.

"`[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[.]'" Borough of E. Rutherford, supra, 213 N.J. at 203 (quoting New Jersey Office of Emp. Relations v. Commc'ns Workers of Am., 154 N.J. 98, 111 (1998)). "The judicial inquiry must consider more than whether a mere mistake occurred." Minkowitz, supra, 433 N.J. Super. at 150 (citing Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 356-57 (1994)). To find undue means,

When reviewing an arbitrator's decision for a mistake, an appellate court will usually accept an arbitrator's interpretation of a contract if it is reasonably debatable. Office of Emp. Relations, supra, 154 N.J. at 112. An award is not reasonably debatable if it adds new terms to an agreement or ignores an agreement's clear language. Policemen's Benevolent Ass'n, supra, 205 N.J. at 429.

We addressed this issue as well in Paterson I and found that there was nothing indicating or suggesting that the arbitrator misapplied the law to the facts or misunderstood the legal rule. Paterson I, supra, slip op. at 23-24. The same is true here. The arbitrator applied the relevant CNA provisions to the remedy awarded to Macchiarelli pursuant to Section 27.7. Therefore, the award was not procured by undue means, and the trial court properly confirmed it.

Affirmed.