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Policemen’s Benevolent Association Local Number 258 (PBA 258), the union which represents all of Ocean County's correctional police officers, has just slammed the County with a lawsuit over a dispute relating to the Officer's Bereavement Leave clause in their collective negotiation agreement (their union contract).

The heart of the matter in dispute is whether or not a step-parent is considered a parent for purposes of Bereavement Leave.

The union contract provides up to 3 days of Bereavement Leave "in the event of the death of a spouse, child, son-in-law, daughter-in-law, parent, father-in-law, mother-in-law, brother, brother-in-law, sister, sister-in-law, grandparent, grandchild, aunt, uncle, common law spouse and any other member of the immediate household."

On or about September 12, 2021, following the death of his stepfather, County Correctional Police Corporal and PBA 258 member, Frederick Piontek, Jr., submitted a request for 3 days of bereavement leave to attend the memorial service.

Though the request was initially approved by his shift commander, Lieutenant Joshua Dickinson, it was subsequently “disapproved” by the administrative captain at the jail, Captain Michael Archibald on the basis that Bereavement Leave is only afforded for a parent and not afforded for a step-parent.

As a result of the County’s denial of Corporal Piontek’s bereavement leave request, Piontek was forced to utilize 3 days from his own accrued leave time in order to attend the memorial service for the death of his stepfather.

In response, the Union filed a grievance with the County, seeking to overturn the denial of Corporal Piontek's bereavement leave request. The County Director of Employees Relations denied the Union’s grievance on the basis that he did not deem the reference to “parent” in the Union's Bereavement Leave policy to include a stepparent.

Moving things forward to the next level, on October 11, 2021, the Union filed a formal request with the New Jersey Public Employment Relations Commission (“PERC”) to advance the matter to arbitration.

On April 8, 2022, PERC assigned the matter to Arbitrator Ira Cure for further proceedings. The dispute proceeded to arbitration on August 25, 2022.

During the arbitration, the Union contended that their contract simply says "parent" with no distinguishment between a biological parent, stepparent, or adoptive parent because the contract did not intend to be exclusive of one over the other.

More importantly, the Union expressly argued that the State Statute which governs civil service jurisdictions includes “step-relatives” in its definition of “immediate family” and “stepparent” in the definition of “parent.”

In particular, the State Statute provides that "immediate family" means an employee's spouse, domestic partner civil union partner, child, legal ward, grandchild, foster child, father, mother, legal guardian, grandfather, grandmother, brother, sister, father-in-law, mother-in-law, and other relatives residing in the employee's household or any other individual whose close association
with the employee is the equivalent of a family relationship, such as a step-relative

In addition, in the state family leave statute for state and local employees, "parent" means "a person who is the biological parent, adoptive parent, foster parent, step-parent, parent-in-law or legal guardian, having a ‘parent-child relationship’ with a child as defined by law, or having sole or joint legal or physical custody, guardianship, or visitation with a child."

On September 13, 2022, Arbitrator Cure issued his award in this matter denying the Union’s grievance. He based his decision on the State's provision of inheritance rights which does distinguish between adoptive and stepparents, and concluded that the County was within their rights to conclude that their Bereavement Leave policy also distinguished between parents and step-parents.

Despite the Union expressly providing the civil service administrative code to the Arbitrator, he made no reference to or mention of it in his decision.

The New Jersey Arbitration Act provides that a party to an arbitration may, within 3 months after the award is received, commence a summary action in Superior Court to vacate the arbitration award in the following circumstances:

a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evident partiality or
corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefore, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
d. 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.

Case law from PBA Local 160 v. Twp. of North Brunswick found that “Undue means” ordinarily encompasses situations where the arbitrator has made a mistake of fact or law that is either apparent on the face of the record or acknowledged by the arbitrator.

The United States Supreme Court, in the United
Steelworkers case, held that:
…an arbitrator is confined to interpretation and
application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to
refuse enforcement of the award.

As such, New Jersey Courts, such as in County College of Morris Staff Association v. County College of Morris, have vacated arbitration awards as not “reasonably debatable” when arbitrators have, for example, added new terms to an agreement or ignored its clear language finding that "an arbitrator can neither disregard the terms of a collective bargaining agreement nor rewrite the agreement for the parties."

As such, the Union has now filed a lawsuit in Superior Court seeking to vacate the award on the basis that "the arbitrator's determination to deny the Union’s grievance was procured by undue means as the arbitration award ignored the express wording of the union agreement at issue and effectively rewrote the parties’ agreement by imposing strict limitations on what constitutes the term “parent,” when there were no such qualifiers placed on the term as used in the contract provision in question. The award likewise ignores the relevant law and relies on statutory provisions that have no applicability in the instant matter. As a result, the arbitration award rendered was not a “reasonably debatable” interpretation of the collective negotiations agreement. As such, the Arbitrator undoubtedly exceeded his powers and, in turn, the arbitration award was procured by undue means."

The lawsuit, which was just filed by Hamilton Attorney Michael P. DeRose, Esq. of Crivelli, Barbati, & DeRose, LLC , seeks judgment vacating and reversing the arbitrator's decision, directing the County to designate Corporal Piontek’s leave dates of September 17, 2021, September 18, 2021, and September 19, 2021, as Bereavement Days, and to replenish his leave bank with the Personal, Vacation and/or Sick days that he was forced to use by virtue of the County’s denial of his Bereavement Leave request.

The lawsuit also seeks attorneys fees and filing costs.

The Verified Complaint also includes an Order to Show Cause as a Summary Proceeding which seeks for a judge to schedule a hearing order the County to "show cause" why an Order should not be entered as to why judgment should not be entered as the Union seeks.

As the lawsuit was just filed, the hearing date has not yet been scheduled.

Attorneys for Ocean County have not responded to the lawsuit.

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