Court Holds Military Leave Benefits Bargainable for Newark Firefighters

The Appellate Division of the New Jersey Superior Court has ruled that the City of Newark must comply with an arbitrator’s ruling requiring the city to continue military leave benefits to deployed firefighters. That ruling essentially restores the city’s past practice that was put in place after 9-11.

The case has its origins in 2015 when Mayor Ras J. Baraka rescinded a 2001 Executive Order that required the city to provide firefighters serving in the military with “military differential pay, and the continuation of their health benefits and pension contributions, while on military leave.” Mayor Baraka made the decision to eliminate the benefits unilaterally without consulting with the Newark Firefighters Union.

The Firefighters Union grieved the change, and when the parties reached impasse, the matter was submitted to arbitration. The city contended that because the benefits were provided by executive order, and more particularly by an executive order from a prior administration, Mayor Baraka had the managerial prerogative to change or eliminate the practice. The union contended that due to the length of time (14 years), the fact that the parties had bargained over these issues in the intervening years, and that they involved mandatory subjects for bargaining (wages, hours, and other terms and conditions of employment), the city should not be allowed to unilaterally change the benefits.

The arbitrator agreed with the union, and when the city refused to honor the decision, the union sued to enforce the arbitrator’s decision. The city cross-filed seeking to vacate the arbitrator’s decision as exceeding his authority. In upholding the arbitration decision, the trial judge concluded “the arbitrator fully reviewed the issues and gave what was a very reasoned decision.” The city appealed that ruling to the Appellate Division.

In ruling in favor of the union, the Appellate Division held (internal cites and quotation marks removed for ease of reading):

  • A court must afford an arbitrator’s award considerable deference because there exists a strong preference for judicial confirmation of arbitration awards.
  • Under a court’s extremely deferential review of an arbitration award rendered pursuant to a collective negotiations agreement, the award will be confirmed so long as the award is reasonably debatable.
  • An arbitrator’s interpretation of a collective negotiations agreement is reasonably debatable, if it is justifiable or fully supportable in the record.
  • If two or more interpretations of a labor agreement could be plausibly argued, the outcome is at least reasonably debatable.
  • The City claims the arbitration award was obtained through undue means and exceeded the arbitrator’s authority because the arbitrator disregarded the terms of the CNA [collective negotiations agreement] and effectively amended the CNA by finding the past practice of paying the military leave differential constituted a legally binding contractual obligation.
  • It is fundamental that an arbitrator may not disregard the terms of the parties’ agreement, nor may he or she rewrite the contract for the parties.
  • Contrary to the City’s implicit contention, the scope of the military 15 A- 2405-20 leave authorized under the provision is not limited to the military leaves authorized by N.J.S.A. 38:23-1 and N.J.S.A. 38A:4-4.
  • Thus, the military leave and concomitant pay differential set forth in N.J.S.A. 38:23-3 is expressly authorized by the CNA’s military leave provision.
  • We therefore reject the claim the arbitrator exceeded his authority by finding the City had a contractual obligation under the CNA’s military leave provision to pay the military leave differential pursuant to N.J.S.A. 38:21 -3.
  • The arbitrator’s finding draws its essence from the military leave provision’s plain language.
  • We therefore discern no basis to reverse the court’s rejection of the City’s claim the arbitration award should be vacated because the arbitrator exceeded his authority, or the award was procured through undue means.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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