NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0086-04T20086-04T2

NEW JERSEY TRANSIT BUS

OPERATIONS, INC.,

Plaintiff-Appellant,

v.

AMALGAMATED TRANSIT UNION,

NEW JERSEY STATE COUNCIL,

Defendant-Respondent.

_________________________________________________

Argued September 21, 2005 -- Decided

Before Judges Conley, Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, C-41-04 and C-51-04.

Douglas Solomon argued the cause for appellant (Genova, Burns & Vernoia, attorneys; Angelo J. Genova, of counsel; Mr. Solomon and Timothy Averell, on the brief).

Raymond G. Heineman argued the cause for respondents (Kroll Heineman Giblin, attorneys; Mr. Heineman, on the brief).

PER CURIAM

New Jersey Transit Bus Operations, Inc. (NJT), appeals a final judgment entered on July 19, 2004, confirming two arbitration awards relating to certain benefits for part-time bus operators. On appeal, NJT contends that the arbitrator's awards were premised upon an incorrect legal rule and, therefore, procured by undue means, Liberty Mut. Ins. Co. v. Open MRI of Morris & Sussex, 356 N.J. Super. 567, 580 (Law Div. 2002), and, also, exceeded the scope of the arbitrator's authority, City Ass'n of Sup'rs & Adm'rs v. State Operated Sch. Dist. of the City of Newark, 311 N.J. Super. 300, 312 (App. Div. 1998). See N.J.S.A. 2A:24-8(a),(d). Since we agree as to the latter, we only briefly touch upon the former.

NJT and Amalgamated Transit Union, New Jersey State Council (ATU) executed a collective bargaining agreement covering bus operators and maintenance department employees effective July 1, 2002 through June 30, 2005. NJT provides public bus and subway transportation services. It is a wholly owned subsidiary of New Jersey Transit Corporation, which was created by the New Jersey Legislature pursuant to the Public Transportation Act of 1979 to provide, amongst other things, "efficient, coordinated, safe and responsive public transportation. . . . " N.J.S.A. 27:25-2a. ATU is a labor union representing NJT's employees.

Pursuant to the agreement, ATU filed a contractual grievance on behalf of a part-time bus operator who had been disciplined for not reporting to work five minutes prior to his scheduled pull-out time for a bus run. In its grievance, ATU contended that it was a violation of the agreement for NJT to discipline a part-time operator for failing to timely report because NJT did not pay for that five minute, pre-scheduled pull-out reporting time.

ATU also filed a contractual grievance on behalf of part-time operators who were required to fill out accident reports but were not compensated therefor. This contractual grievance and the non-compensated, five-minute reporting contractual grievance were consolidated and decided by an arbitrator designated by the New Jersey State Board of Mediation, as provided for in the agreement. In entering the awards in favor of ATU, the arbitrator concluded that, when read as a whole, the agreement required part-time operators to be paid for the five minute report-in time prior to pull-out and for the time to fill out accident reports, pointing to 7(B) and (D) which so provide.

But these provisions apply to full-time operators only. As to part-time operators, the agreement is rather clear. It states:

Notwithstanding any other provision of the collective bargaining agreement, the Company may employ part-time operators. The use of such part-time operators is subject to the restrictions and limitations imposed by this section. Part-time operators will only receive pay and benefits specifically provided for in this section.

[ 16(P)(a) (emphasis added).]

Pay for the five minute report-in time prior to pull-out and for the time to fill out accident reports is not within the "pay and benefits specifically provided for" in 16(P). Thus, under the plain terms of this provision, part-time operators are not entitled to extra pay therefor.

Clearly, "'where an arbitration award does not draw its essence from the bargaining agreement, it will not be enforced by the courts.'" County Coll. of Morris Staff Ass'n v. County Coll. of Morris, 100 N.J. 383, 392 (1985) (quoting Belardinelli v. Werner Cont'l Inc., 128 N.J. Super. 1, 7 (App. Div. 1974)). If an arbitrator exceeds the scope of that authority, then his or her decision may be vacated on statutory grounds pursuant to N.J.S.A. 2A:24-8(d), which permits such vacation where "arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made." See City Ass'n of Sup'rs & Adm'rs v. State Operated Sch. Dist. of City of Newark, supra, 311 N.J. Super. at 311-12 (finding that the arbitration panel, which had "no power to add to, delete from, or modify" the parties' agreement's provisions, exceeded its authority by adding to the agreement the concept of past practices, thereby ignoring the clear and unambiguous language of the agreement concerning the manner in which vacation days were earned and reaching a different result than that bargained for). Indeed, the agreement between the parties here expressly provides in 1(A) that an arbitrator "shall not have any authority whatsoever to alter, amend, or modify any of the provisions of this agreement."

That is what occurred here. Section 16(P)(a) states that "[p]art time operators will only receive pay and benefits specifically provided for in this section." That cannot be any clearer or plainer. The arbitration awards here give the part-time operators pay that is not provided for in 16(P).

ATU contends that to the extent that the part-time operators are compensated for some, but not all hours, their average wage rate falls below the hourly rate paid to full-time operators, who are compensated for all work performed, and, thus, contrary to 16(P)(h). Not so. With two exceptions not at issue here, 16(P)(h) provides: "Part-time operators shall receive the same hourly rate as full-time operators." Parity in hourly rates, simply, does not equate to parity in pay. Section 16 does not give part-time operators parity with full-time operators in their pay.

We, of course, recognize that an "arbitrator's award is not to be cast aside lightly." Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979). Arbitrators in the private sector have broad discretion in determining legal issues, Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 357 (1994), but they may not disregard terms and conditions set forth in the agreement. In re Arbitration Between Grover and Universal Underwriters Ins. Co., 80 N.J. 221, 230-31 (1979). And, to be sure, in the public sector, as well as the private, in matters of interpretation, our scope of review is limited to determining whether the interpretation of the contractual language is reasonably debatable. Kearny PBA Local #21 v. Town of Kearny, supra, 81 N.J. at 221.

The parties do not raise any issue as to whether the arbitrator's awards here are governed by the private sector scope of review or the public sector scope of review. See generally Matter of N.J. Transit Bus Operations, Inc., 125 N.J. 41, 59 (1991) ("NJT employees were never public employees; they began their employment in the private sector and were assured that their private sector labor rights would be retained after NJT's takeover."). In any event, our decision is premised upon the arbitrator's exceeding the scope of his authority under the agreement, a limitation application to both private and public sector arbitrations.

Reversed.

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A-0086-04T2

September 30, 2005