Opinion
A-2956-21
03-22-2023
THE PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC., and MICHAEL O'BRIEN, Plaintiffs-Respondents, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Appellant.
Karla Denalli (Port Authority Law Department) of the New York bar, admitted pro hac vice, argued the cause for appellant (Michael Farbiarz, General Counsel, Port Authority of New York and New Jersey Law Department, attorney; Paulo C. Alves and Karla Denalli, on the briefs). Catherine M. Elston argued the cause for respondents (C. Elston &Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the brief; Cathlene Y. Banker, on the brief).
This opinion shall not "constitute precedent or be binding upon any court." 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.
Argued March 13, 2023
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3612-21.
Karla Denalli (Port Authority Law Department) of the New York bar, admitted pro hac vice, argued the cause for appellant (Michael Farbiarz, General Counsel, Port Authority of New York and New Jersey Law Department, attorney; Paulo C. Alves and Karla Denalli, on the briefs).
Catherine M. Elston argued the cause for respondents (C. Elston &Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the brief; Cathlene Y. Banker, on the brief).
Before Judges Gooden Brown and Fisher.
PER CURIAM
In 2009, the Port Authority of New York and New Jersey sought to terminate a police officer, Michael O'Brien, for harassing a civilian and engaging in other related misconduct deemed violative of the Port Authority's rules and regulations. In adhering to a memorandum of agreement (MOA) between the Port Authority and the Port Authority Police Benevolent Association, the parties engaged in an unsuccessful grievance proceeding before moving to arbitration.
The MOA required the arbitrator to determine "whether good and sufficient cause or reason existed to support the imposition of major discipline" on O'Brien (emphasis added). After an evidentiary hearing, the arbitrator rendered a thorough written decision, finding "just cause" for O'Brien's dismissal (emphasis added). Because the arbitrator's use of "just cause" appears to be at variance with the MOA's labeling of the applicable test, the PBA and O'Brien filed this civil action and obtained an order requiring the Port Authority to show cause why the arbitration award should not be vacated. After receiving and considering the parties' moving and opposing submissions, and after hearing their arguments, the judge entered an order vacating the award. The judge held that O'Brien was to "be afforded another hearing under the proper standard of review" contained in the MOA, for the reasons set forth in his written decision.
The arbitrator was appointed on April 1, 2015. The hearing last six, nonconsecutive days over a four-year period that ended on June 23, 2020. The award was issued on February 11, 2021.
The Port Authority appeals, arguing the arbitration award adhered to the essence of the MOA, the arbitrator's decision was "reasonably debatable," and the judge failed to give deference to the award and erroneously substituted the arbitrator's view of the facts with his own judgment. We agree that reversal and reinstatement of the arbitration award is warranted.
To start, we recognize that a court may vacate an arbitration award in only four general instances. N.J.S.A. 2A:24-8. The only statutory category offered to vacate the award is the fourth: "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). The PBA argues that the judge properly set aside the award because the arbitrator exceeded his authority by applying a "just cause" standard that, according to the PBA, is inconsistent with the "good and sufficient cause or reason" standard imposed by and defined in the MOA. The PBA also contends - and we do not disagree - that when parties enter into an agreement that defines the scope of an arbitration process, the arbitrator is precluded from "exercis[ing] greater authority than the contract confers." Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 149 (1995).
Considering, however, the overriding statutory desire that courts not promote their own views of controversies over those expressed by arbitrators, Weiss v. Carpenter, Bennett &Morrissey, 143 N.J. 420, 442-43 (1996), or second-guess an arbitrator's decision, State v. Int'l Fed'n of Profl &Tech. Eng'rs, Loc. 195, 169 N.J. 505, 514-15 (2001), a holding that the arbitrator invoked a "just cause" standard instead of the MOA's "good and sufficient cause or reason" standard is simply too facile an approach when applying N.J.S.A. 2A:24-8(d). Under this statute, a court's power to vacate an award applies only when arbitrators "exceed[]" or "imperfectly execute[]" their powers. A review of the arbitrator's forty-eight-page award reveals that he thoroughly canvassed the evidence and made clear and specific findings; unfortunately, the arbitrator misspoke when labeling the standard applied.
To explain, we note that the MOA defines "good and sufficient cause or reason" as including:
Substantial or repeated neglect or failure of the employee properly to perform his duties; substantial or repeated violation of rules and regulations; conduct seriously prejudicial to the Port Authority or the public interest.
While the arbitrator may have placed the wrong label on his findings, we are satisfied his findings adhered to - and did not exceed - this definition of the MOA's "good and sufficient cause or reason" standard.
That is, the arbitrator found that the Port Authority provided credible evidence of the four specifications that we paraphrase as follows:
• O'Brien was arrested and charged with official misconduct, N.J.S.A. 2C:30-2, and, in fact, admitted that he improperly, and through the use of falsehoods, obtained information about the victim;
• O'Brien, while on duty, "fabricated a vehicle stop of" the victim, and provided another officer with the license information to obtain the victim's home address;
• O'Brien engaged in various conduct that constituted stalking of the victim after she ended their relationship, and he caused the victim "to be fearful for herself and her family"; the arbitrator recognized that O'Brien was not convicted of stalking, but he was satisfied from the credible evidence before him that O'Brien "engaged in a
pattern of conduct towards [the victim] which reasonably caused her to be alarmed and intimidated" and that O'Brien engaged in this conduct "while on duty and in uniform";
• the sentencing judge found, from O'Brien's "inappropriate behavior," the need to impose a no-contact order for the victim's benefit.
Defendant pleaded guilty, pursuant to a plea agreement, to a violation of N.J.S.A. 2C:28-4(b) (providing a false report), in exchange for a dismissal of all other charges, including the official misconduct charge.
The arbitrator further elaborated on why he found the need for O'Brien's termination because of this misconduct:
It is fundamental in order to properly fulfill the responsibilities as a police officer, [that an officer] must be truthful. By calling . . . and requesting a license check under the false pretense he had stopped [the victim] who was not able to produce her license, [O'Brien] committed serious misconduct. I find this act, alone, compromised O'Brien's ability to continue serving as a police officer. I specifically reject any assertion this misconduct was not tied to O'Brien's work as a police officer ....
[O'Brien's] dishonesty for his personal gain demonstrated he could no longer be relied upon to provide accurate and truthful information and reports concerning official police business. [His] untruthful statements . . . to gain information from the police database go to the very essence of a police officer's function to gather and report information accurately and testify credibly as a fact witness to an alleged crime.
When combined with the inappropriate conduct . . . towards [the victim], I conclude [O'Brien] irreparably damaged his ability to continue the essential roles of a police officer. [O'Brien] was entrusted with the
responsibility of protecting the public. [B]y engaging in a course of conduct towards [the victim], both on and off duty, [O'Brien] failed to fulfill that responsibility ....
These factual findings are unimpeachable and do not exceed the proper scope of the arbitration. The limited statutory authority given to courts to vacate arbitration awards does not allow courts to disregard factual findings like these or the many others contained in the arbitrator's thorough decision. See East Rutherford v. PBA Local 275, 213 N.J. 190, 202-03 (2013); Weiss, 143 N.J. at 443. Our concern here is limited to the indisputable fact that the arbitrator repeatedly referred to these findings as constituting "just cause" - instead of "good and sufficient cause or reason" - for O'Brien's termination. So, in assessing the significance of the arbitrator's mistake, we must accept as given the specific factual findings about O'Brien's conduct and consider whether they may be said to constitute "good and sufficient cause or reason" for O'Brien's termination as a police officer for the Port Authority.
We are thoroughly satisfied that the award should not be vacated simply because the arbitrator mislabeled the contractual standard. It has not been shown that "just cause" is not or cannot be the same as "good and sufficient cause or reason," nor does it matter since the MOA explained that "good and sufficient cause or reason" included: repetitive neglectful failures to perform an officer's duties; substantial or repeated violations of the Port Authority's rules and regulations; and conduct "seriously prejudicial to the Port Authority or the public interest." The specific conduct found by the arbitrator fell well within these specified types of misconduct and constituted "good and sufficient cause or reason" for O'Brien's termination from his employment with the Port Authority. In short, we are satisfied that the test applied by the arbitrator fully conformed to the "good and sufficient cause or reason" standard adopted by the parties in their MOA.
It would exalt form over substance - and defeat the legislative intent and public policy underlying N.J.S.A. 2A:24-8(d) - to allow the arbitrator's mislabeling of the contractual standard, see Liberty Mut. Ins. Co. v. Garden State Surgical Ctr., LLC, 413 N.J.Super. 513, 523 (App. Div. 2010), to undo all the time, energy and expense that produced an otherwise fair and reasonable arbitration award.
The order vacating the arbitration award is reversed and the matter remanded to the trial court for entry of an order confirming the arbitration award. We do not retain jurisdiction.