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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, walked out of a court hearing in smiles after Judge Valter Must ruled that a step-parent is considered a parent for purposes of Bereavement Leave.

Judge Must's ruling vacates a previous arbitration award which ruled differently.

At the heart of the dispute was the union contract which 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."

In September 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 the contract only provides Bereavement Leave for a parent and not 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 it 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 simply 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 recently filed a lawsuit in Ocean County 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 filed by Hamilton Attorney Michael P. DeRose, Esq. of Crivelli, Barbati, & DeRose, LLC , sought judgment vacating and reversing the arbitrator's decision, directing the County to designate Corporal Piontek’s leave dates 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.

Toms River Attorney Robert Budesa, representing the County opposed the relief, writing that "the arbitration award was appropriate... The contract provides an extensive and exhaustive list of relations that will entitle the employee to Bereavement Leave. The fact that the Civil Service definition may encompass step-relatives does not supersede the express specific agreement between the parties."

Mr. Budesa also wrote that this same wording is included in all of the County's union contracts and the County has never awarded Bereavement Leave for a step-parent.

"Therefore, it is submitted that the language that is being attempted to be foisted upon this contract by this Plaintiff is not appropriate and the specific language of the contract in its plain meaning excludes any step-relationships for bereavement purposes. Therefore the arbitrator came to the appropriate conclusion that the matter before him did not entitle Officer Pontek to a Bereavement Leave for the death of his step-father... There were no 'undue means' employed or evident in reaching the decision and the Court should not interpose a possible different interpretation of the clear and specific contract that was in existence between the parties and has been in such existence for many years," Mr. Budesa concluded.

At a short hearing held on Friday in Ocean County Superior Court, Judge Must handed the winning trophy to the Union, saying "the whole purpose of Bereavement Leave is not for the dead as they are already in the ground, rather it's to offer comfort and consolation to the grieving mother. I find it so anomalous that this union agreement would purport to permit grieving a father-in-law but not a step-father, therefore I agree with the union that the plain reading of the wording 'parent' is inclusive of a step-parent and does include it."

Crivelli, Barbati & DeRose, L.L.C. has successfully represented labor unions over the last 20 years. They currently serve as General Counsel for over 20 Law Enforcement Bargaining Units at the State, County and Municipal levels of government.

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