Opinion
DOCKET NO. A-3959-11T4
04-03-2013
FRATERNAL ORDER OF POLICE PENN-JERSEY LODGE 30, Plaintiff-Appellant, v. DELAWARE RIVER PORT AUTHORITY, Defendant-Respondent.
Charles T. Joyce argued the cause for appellant (Spear Wilderman, P.C., attorneys; Mr. Joyce, on the brief). Mary Theresa Metzler (Ballard Spahr LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent (Ballard Spahr LLP, attorneys; Ms. Metzler, Kelly T. Kindig, and Amy L. Bashore, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5914-11.
Charles T. Joyce argued the cause for appellant (Spear Wilderman, P.C., attorneys; Mr. Joyce, on the brief).
Mary Theresa Metzler (Ballard Spahr LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent (Ballard Spahr LLP, attorneys; Ms. Metzler, Kelly T. Kindig, and Amy L. Bashore, on the brief). PER CURIAM
Plaintiff, Fraternal Order of Police, Penn-Jersey Lodge 30, appeals from a February 24, 2012 order of the Law Division affirming a labor arbitration award issued under a collective bargaining agreement between plaintiff and defendant, Delaware River Port Authority (DRPA). The arbitrator's award upheld defendant's decision to terminate the employment of Corporal Anthony Lukosius, a DRPA police officer, due to his involvement in an off-duty bar fight during which he allegedly choked, struck and injured a female civilian.
On appeal, as it did in the trial court, plaintiff raises two arguments. First, plaintiff contends that the arbitrator fundamentally erred and deprived him of a fair hearing when he excluded a dental expert's hearsay report and affidavit offering an opinion as to the cause of the injuries inflicted by Lukosius on the female civilian. Second, plaintiff maintains that the arbitrator's finding, that Lukosius engaged in "smack talking" and taunting behavior toward members of the female civilian's party outside the bar after the fight, is not supported by the record. We disagree and affirm.
I
These are the pertinent facts established before the arbitrator. On July 18, 2009, Lukosius and a fellow police officer, John D'Amico, were off-duty at a bar in Philadelphia. They were accompanied by two women; Krista Stella, who is Lukosius' fiancé, and Stella's friend, Sharon Gahagan.
Around 11:30 p.m., Cecilia Ortiz and her friend, Rosa Martinez, both of whom weigh roughly 130 pounds, entered the bar and went downstairs to the restroom. Lukosius, D'Amico, Ortiz, and Martinez had each consumed significant amounts of alcohol. Ortiz and Stella got into an altercation. Lukosius became involved in separating them. Ortiz testified that, in the course of doing so, Lukosius pushed her against a wall and choked her. Ortiz then panicked and attempted to free herself by grabbing and breaking the chain Lukosius was wearing. Ortiz claimed that, in response, Lukosius hit her in the face. According to Lukosius, he only intervened to defuse the situation in a manner consistent with his police training, and insisted that he did not hit Ortiz.
Ortiz and Martinez initially filed private criminal complaints against D'Amico and Lukosius; however, the complaints were withdrawn shortly thereafter. In November 2009, Ortiz and Martinez filed a civil lawsuit in Pennsylvania, naming as defendants DRPA, Lukosius, D'Amico, Stella, the City of Philadelphia, and Sergeant Paul Sprigg of the DRPA. The complaint alleged that Lukosius assaulted Ortiz, causing her to suffer physical injuries, pain and suffering, and emotional distress.
Lukosius's homeowner's insurance carrier assumed his defense in the civil lawsuit. During discovery, Lukosius's attorney arranged for Ortiz to attend an independent dental examination by Dr. Rande S. Kaminsky, D.M.D. After examining Ortiz and reviewing her medical records, as well as reviewing Ortiz and Lukosius's statements and depositions, Dr. Kaminsky prepared an expert report dated December 17, 2010 and submitted a sworn affidavit on March 14, 2011. The three-page report stated, in pertinent part, Dr. Kaminsky's opinion that Ortiz suffered "injuries to her temporomandibular joints" from the altercation at the bar, but that these injuries "were not a result of [her] being punched by" Lukosius. [Emphasis added]. Dr. Kaminsky's report further stated:
[a]fter examining all the information presented to me, examining [Ortiz] and considering the substantial size differences between Ms. Ortiz and Mr. Lukosius, it is my opinion that Ms. Ortiz's injuries were more likely sustained when Mr. Lukosius attempted to separate the two combating women. Due to the significant differences in their statures, it is my opinion that had [Lukosius] struck [Ortiz] as described by Ms. Ortiz, there would have been more physical damage sustained by her, such as a fractured mandible, fractured teeth, lacerations with bleeding, and significant swelling internally and externally. It is more likely that as described . . . [by] Mr. Lukosius, during his attempts to separate the women, his forearm came in contact with Ms. Ortiz's mandible, as he pushed the women apart.
[(Emphasis added).]
In December 2010, Dr. Kaminsky's report was sent to DRPA's counsel and presumably counsel for the other parties in the suit. His deposition was not taken. The civil suit was subsequently settled in July 2011.
In July 2009, Ortiz and Martinez filed an administrative complaint with DRPA alleging that they had been assaulted by Lukosius and D'Amico. DRPA conducted an internal investigation, led by Sergeant Raymond Paterno, which consisted of taking statements from those involved in the altercation and other witnesses. An internal report containing Paterno's findings and conclusions was submitted to DRPA Chief David McClintock on September 22, 2009. The report found that Lukosius had "inflicted serious injuries upon both" Ortiz and Martinez. It concluded that both D'Amico and Lukosius "violated DRPA Police Department Rules, Regulations and Procedures by engaging in conduct to bring discredit, ridicule, and criticism to the DRPA Police Department."
An initial pre-disciplinary hearing was conducted in October 2009, which led to additional investigation by Paterno after plaintiff asserted that his investigation was incomplete. Paterno thereafter advised McClintock that his subsequent questioning of officers from the Philadelphia Police Department, who had responded to the bar the night of the incident, corroborated the testimony of the earlier witnesses.
On October 27, 2009, McClintock wrote a letter to DRPA Acting Chief Public Safety Officer, Michael E. Joyce, recommending that Lukosius be terminated because "[t]he level of violence and injury present in this assault . . . concerns me greatly and causes me to question Lukosius' ability to remain calm and defuse violent incidents at the DRPA." McClintock's letter observed that, as a corporal, Lukosius is held to a "higher standard than [DRPA] police officers who he is expected to set an example for." McClintock further cited Lukosius's disciplinary record, which included one prior suspension and four instances resulting in verbal counseling, to support his recommendation.
Joyce forwarded Paterno's investigation and McClintock's recommendations, along with his concurrence to the recommended discharges, to DRPA Chief Executive Officer, John Mattheussen. Lukosius was then terminated on November 19, 2009 at the direction of Mattheussen.
D'Amico was also terminated (but later reinstated by the arbitrator) for allegedly pushing Ortiz and Martinez from the bar.
Lukosius and D'Amico, using the grievance procedures set forth in the parties' bargaining agreement, challenged their terminations as lacking just and proper cause. A hearing on their grievances was held in Philadelphia under the auspices of the American Arbitration Association (AAA), before Arbitrator Timothy J. Brown, Esq., who was selected by the parties as the neutral arbitrator. The hearing took place over seven days between June 1, 2010 and April 1, 2011. The arbitrator heard testimony from fifteen witnesses, including Lukosius, Ortiz, Martinez, and various Philadelphia police officers.
During the arbitration the parties argued over whether plaintiff could present Dr. Kaminsky's expert report and affidavit without calling him as a witness, thereby depriving DRPA of the opportunity for cross-examination. Plaintiff asserted that it would be prohibitively expensive to produce Dr. Kaminsky and that his written evidence should be admitted because DRPA already had a prior opportunity, which it did not utilize, to cross-examine Dr. Kaminsky during discovery in the civil case.
Plaintiff represented that Dr. Kaminsky would charge $10,000 to appear and testify.
The arbitrator did not allow the affidavit and accompanying report to be submitted. He reasoned that although AAA Labor Arbitration Rule 29 (AAA Rule 29) allows him to accept expert opinions in hearsay form, it is a discretionary decision "based . . . [on] the equities involved." Because the evidence was offered to prove "a core issue," and the expert was available, the arbitrator concluded "I have a fundamental problem with putting in a statement [from the expert] and not letting a party have the opportunity to cross-examine[.]" The arbitrator also explicitly stated that he would "permit either party to subpoena the expert for purposes of introducing the statement and offering cross-examination."
The Arbitrator's Award and Decision was issued on October 31, 2011. In his thirty-nine-page decision the arbitrator concluded that DRPA had met its burden of showing just cause to terminate Lukosius. With respect to D'Amico, however, the arbitrator determined that DRPA failed to meet its burden for termination, but did satisfy the burden for significant discipline.
As already noted, D'Amico's sanction was reduced by the arbitrator to a suspension without pay for sixty calendar days. His appeal is not before us.
The arbitrator began his discussion by noting that he agreed with plaintiff that there were "significant flaws" in DRPA's investigation. Specifically, DRPA improperly relied upon two witnesses who supported Ortiz's version even though "there was no real effort made by [DRPA] to determine whether these two witnesses were independent and disinterested or whether [they had] some connection to complainants . . . there was no good reason for [DRPA] to rely upon the[se] statements[.]" The arbitrator also found Paterno's rationale in crediting the testimony of Ortiz and Martinez — because they were so emotionally charged — to be flawed. Rather, in considering their testimony, the arbitrator reasoned that "an individual's strong emotional connection to an event can interfere with the individual's ability to accurately observe and later recall specifics and details of the event."
However, the arbitrator found that "the investigation . . . was much more than the telephone interviews of questionable witnesses . . . and [Paterno's] reliance upon the emotional presentation of Ortiz and Martinez." The arbitrator ultimately concluded that DRPA's "investigation was conducted in good faith, was adequate in its reach, and was fair. The investigation conducted by [DRPA] satisfied the requirements of just cause."
The arbitrator did make some factual findings that supported certain aspects of the grievance. Specifically, he found that (1) Lukosius, D'Amico, Ortiz, Martinez and witnesses Sierra and Crespo had all consumed significant amounts of alcohol, which reduced the arbitrator's confidence in their ability to accurately observe and recall details of that evening; (2) the altercation was brief and chaotic, and the circumstances were such that no one witness had the opportunity to observe everything that occurred; and (3) there was a bar fight, and that fight was caused by one or more members of the Ortiz party and one or more members of the grievants' party. Nevertheless, the arbitrator ultimately found these points insufficient to overcome DRPA's proofs as to Lukosius.
With respect to Lukosius, the arbitrator observed that Lukosius is an imposing man and, in contrast, Ortiz and Martinez are "only half [his] size." The arbitrator noted, however, that "relative size does not . . . predetermine . . . [who was] likely to be aggressive" and, "[i]n fact, the evidence establishes that . . . both parties were aggressive." Specifically, he found that Ortiz was "being aggressive" and "Lukosius responded accordingly . . . meeting aggression with aggression and, I find, that is the problem." (Emphasis added).
The arbitrator explicitly discredited Lukosius's claim that he had only reacted to defuse the situation, and instead found that Lukosius was "angry when Ortiz caused an important chain and crucifix of his father's to break from around his neck." He reasoned that "whether with his open palm and forearm or with a single hand around the woman's throat, the record establishes that Ortiz was choked," and later, when "Ortiz panicked and attempted to free herself and grabbed and broke the corporal's chain, Lukosius hit her." The arbitrator explained that "[a]lthough the emotion of, and alcohol consumed by, Ortiz . . . does not give me confidence in some of the intricate details she testified about, particularly relating to events after she was punched, I am convinced that she accurately recalled the big picture." (Emphasis added). The arbitrator further reasoned:
Additionally, and acknowledging that the actual physical altercation at the bar that evening could be measured in only very few minutes if not seconds, the behavior of Lukosius outside of the bar, as witnessed by Philadelphia police officers whom I credit, as taunting Ortiz and her companions is consistent with an individual who had had a personal confrontation with someone. The behavior of Lukosius outside of the bar makes little sense if, as he claimed, he was in control of his actions and exercised his training as a police officer to defuse the situation. If he was so keen on defusing the situation, he would not have been "sma[c]k-talking" outside of the bar. In making this finding I am not suggesting that Ortiz and her companions were not also engaging in the taunting behavior of Grievants and their party. But, the fact is Grievants are police officers and are held to a high standard relating to both their on-duty and off-duty conduct. Moreover, as a corporal, Grievant Lukosius should be held to an even higher standard.
[(Emphasis added).]
As a final matter, the arbitrator determined that the alleged separate interaction between Lukosius and Martinez did not itself constitute just cause to terminate. The arbitrator "d[id] not believe [Martinez] actually knows that she was intentionally punched or [,] if she was punched, who hit her that evening. Nor do I find that the evidence establishes that she can reliably recall how she was removed from the bar that evening."
The arbitrator concluded that: "I find based upon the record as a whole that Grievant Lukosius, as found by the Employer, aggressively choked and punched Ortiz and engaged in hostile, taunting and threatening behavior toward members of the public outside of the [bar]."
In assessing whether the discipline imposed was appropriate for the conduct that occurred, the arbitrator explained that Lukosius's "misconduct of choking and hitting Ortiz and behaving inappropriately outside of the [bar] was significant. Given his length of employment and history of discipline, discipline that includes at least one suspension, I find that [DRPA] has met its burden of establishing just cause for the termination of Lukosius." (Emphasis added).
In December 2011, plaintiff filed a complaint in the Law Division to vacate the arbitration award. After briefing and oral argument, the judge issued an oral decision and corresponding order on February 24, 2012 denying that relief and confirming the arbitration award. The judge began by addressing the arbitrator's decision to exclude Dr. Kaminsky's affidavit and expert report. The judge noted that the Rules of Evidence are relaxed in arbitration and that AAA Rule 29 leaves it to the discretion of the arbitrator whether to consider evidence by affidavit.
With regard to the arbitrator's analysis of the testimony, the judge stated that "there's been no showing under the standards of undue means, or corruption, or the . . . other parts of the Title 24 [sic] which would allow this [c]ourt at this time to vacate the arbitration award. The [c]ourt's function is very limited in this matter and, therefore, the [c]ourt must deny the motion."
The judge apparently meant Title 2A:24.
II
At the outset, we acknowledge that we engage "in an extremely deferential review when a party to a collective bargaining agreement has sought to vacate an arbitrator's award." Police Benev. Ass'n, Local 11 v. City of Trenton, 205 N.J. 422, 428 (2011). "That high level of deference springs from the strong public policy favoring 'the use of arbitration to resolve labor management disputes.'" Id. at 429 (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 275-76 (2010)). See also Borough of East Rutherford v. East Rutherford Police Benev. Ass'n, Local 275, _____ N.J. __, _____ (2013) (slip op. at 14). Our role "in reviewing arbitration awards is extremely limited and an arbitrator's award is not . . . set aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513 (2001) (citing Kearny PBA Local 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)).
We will not substitute our judgment for that of a labor arbitrator, and we will uphold an arbitral decision so long as the award is "reasonably debatable." Police Benev. Ass'n, Local 11, supra, 205 N.J. at 430-31; see also N.J. Tpk. Auth. v. Local 196, 190 N.J. 283, 301 (2007); Borough of East Rutherford, supra, _____ N.J. at _____, (slip op. at 26-27). "Reasonably debatable" means fairly arguable in the minds of ordinary laymen. See Standard Oil Dev. Co. Emps. Union v. Esso Research & Eng'g Co., 38 N.J. Super. 106, 119 (App. Div.), sustained on rehearing, 38 N.J. Super. 293 (App. Div. 1955). However, our Supreme Court permits an arbitrator's award to be vacated "if it is contrary to existing law or public policy." N.J. Tpk. Auth., supra, 190 N.J. at 293-94 (citation and internal quotation marks omitted).
III.
We recognize the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, which applies to collective bargaining disputes, permits courts to vacate an arbitration award in certain 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 therefor, 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.
[N.J.S.A. 2A:24-8.]
Plaintiff first argues that the arbitrator's decision not to admit into evidence Dr. Kaminsky's affidavit and expert report violated N.J.S.A. 2A:24-8(c). We disagree.
During the arbitration, plaintiff attempted to introduce Dr. Kaminsky's written evidence opining on Ortiz's injuries through Lukosius' personal counsel in the civil action, Daniel Ruckert. Defendant objected, primarily because the affidavit and report were hearsay and it would thus be precluded from cross-examining Dr. Kaminsky. After hearing argument, the arbitrator ruled that under the AAA Labor Arbitration Rules, an arbitrator has discretion whether to admit the affidavit. The arbitrator noted that this evidence went to a "core issue" in the case and that the expert was available to testify.
As the arbitrator and the trial court properly found, pursuant to AAA Labor Arbitration Rule 29, an arbitrator has the discretion to decide whether to admit affidavits. That Rule provides
29. Evidence by Affidavit
The arbitrator may receive and consider the evidence of witnesses by affidavit, giving it only such weight as seems proper after consideration of any objection made to the admission.
[(Emphasis added).]
AAA Rule 29 thus clearly does not mandate the admission of affidavits into evidence in arbitration proceedings. Rather that decision is left to the sound discretion of the arbitrator.
In his colloquy with counsel, the trial judge compared AAA Rule 29 to N.J.R.E. 808, which excludes expert opinion contained in a hearsay statement unless: (1) the expert opinion "is included in an admissible hearsay statement"; and, (2) "the circumstances involved in rendering the opinion ... tend to establish its trustworthiness." Had the parties opted to litigate, rather than arbitrate, this dispute so that AAA Rule 29 did not apply, the affidavit and expert report would likely have been inadmissible under N.J.R.E. 808 in any event. Here, Dr. Kaminsky's report was prepared in anticipation of litigation, not in the ordinary course of business. Nothing about the circumstances involved in rendering his opinion otherwise establishes its trustworthiness. The expert opinion is not included in an otherwise admissible hearsay statement. See Millbrook Tax Fund, Inc. v. P.L. Henry & Assoc's Inc., 344 N.J. Super. 49, 55 (App. Div. 2001) (finding that affidavits and certifications not prepared during the ordinary course of business were inadmissible).
N.J.R.E. 808 states in full: "Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness."
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Plaintiff also argues that DRPA had the opportunity to depose Dr. Kaminsky in the civil suit but did not do so. However, DRPA's motivation in having Dr. Kaminsky questioned would likely have been different in that civil litigation than in this arbitration. Faced with a claim of negligent supervision of Lukosius in Ortiz's civil case, DRPA likely viewed Dr. Kaminsky's report as favorable rather then harmful, as the defense there was trying to minimize Ortiz's damages and her claim that her injuries were the result of Lukosius' wrongdoing. Hence, unlike the arbitration, DRPA lacked motivation or incentive in the civil action to subject Dr. Kaminsky's opinion to likely impeachment at a deposition by Ortiz's counsel. As plaintiff's counsel candidly acknowledged at oral argument on appeal, DRPA's tactical interests in the two proceedings were not identical.
Here the trial judge properly saw fit not to disturb the exercise of the arbitrator's discretion. As the parties recognize, and the arbitrator aptly noted, the proffered expert evidence clearly went to a "core issue" in the case. How Ortiz sustained her injuries, and the severity of those injuries, were hotly disputed by the parties and played a pivotal role in the arbitrator's ultimate determination on whether Lukosius should be disciplined.
Plaintiff cites the allegedly prohibitive cost associated with Dr. Kaminsky's personal appearance at the arbitration. We are mindful that the arbitration process is favored as a means of achieving a simpler, quicker and less costly way to resolve disputes. Indeed, our "jurisprudence has recognized arbitration as a favored method for solving disputes." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131 (2001). Nonetheless, under these facts, plaintiff fails to demonstrate that its financial concern outweighs the potential prejudice to defendant by admission of the hearsay affidavit in lieu of Dr. Kaminsky's in-person testimony.
It is also important to note that in declining to admit Dr. Kaminsky's affidavit and report, the arbitrator did not exclude his testimony. Rather, the arbitrator ruled that plaintiff could subpoena Dr. Kaminsky and introduce the substance of his report while allowing him to be subject to cross-examination by DRPA. Although plaintiff then reserved the right to call Dr. Kaminsky, it ultimately chose not to do so. We perceive no abuse of discretion.
IV
Plaintiff next argues that the arbitrator made a mistake of fact which materially undermined his reasoning, causing the award to be rendered by undue means. Specifically, plaintiff contends the arbitrator improperly found that Lukosius engaged in inappropriate behavior toward the Ortiz party, including "taunting" and "smack-talking," outside the bar following the altercation. This, plaintiff contends, was a critical "mistake of fact" because the arbitrator relied on it to bolster his conclusion that such conduct was inconsistent with Lukosius' claim that he acted calmly in attempting to defuse the situation inside the bar. The arbitrator noted "[t]he behavior of Lukosius outside of the bar makes little sense if, as he claimed, he was in control of his actions and exercised his training as a police officer to defuse the situation. If he was so keen on defusing the situation, he would not have been 'sma[c]k talking' outside of the bar."
An arbitration award that is procured by "undue means" must be vacated. N.J.S.A. 2A:24-8(a). "'Undue means,' as used in N.J.S.A. 2A:24-8(a), 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 admitted to by the arbitrator." N.J. Highway Auth. v. Int'l Fed'n of Prof'l and Tech'l Eng'rs, Local 193, 274 N.J. Super. 599, 609 (App. Div.) (internal citations omitted), certif. denied, 139 N.J. 288 (1994). See also Borough of East Rutherford, supra, _____ N.J. at _____, (slip op. at 18). "'Undue means' has been construed to mean basing an award on a clearly mistaken view of fact or law." Local Union 560, I.B.T. v. Eazor Express, Inc., 95 N.J. Super. 219, 227-29 (App. Div. 1967). However, undue means does not apply to the use of facts based on credibility determinations by the arbitrator. Local No. 153, Office & Prof'l Emps. Int'l Union v. Trust Co. of N.J., 105 N.J. 442, 450 n.1 (1987).
Here, the arbitrator evaluated "the behavior of Lukosius outside of the bar, as witnessed by Philadelphia police officers whom I credit." He concluded that Lukosius taunted Ortiz and her companions. Contrary to plaintiff's argument, support for this conclusion is found in the testimony of Philadelphia Police Officer William Gress, who responded to the bar that evening. Gress testified
Q: At a later point did you see any conversation back and forth?
A: Like I said, they just smack talked back and forth, the firemen and the two officers.
Q: Was Lukosius involved in that smack talk?
A: Like I said, I just heard back and forth. I was closer to the firemen. I don't really know who said what, but I heard a lot of smack talk between the two.
[(Emphasis added).]
We discern no mistake of fact, much less one so gross as to justify overturning the arbitration award. In referring to "firemen," Gress apparently meant Crespo and Sierra, the Philadelphia firemen, while the reference to the "two officers" logically referred to D'Amico and Lukosius. Although the testimony may contain some ambiguity, it can reasonably be read consistently with the arbitrator's finding. Accordingly, it cannot be said that the arbitrator made a mistake of fact that is apparent on the record. Nor does undue means apply to the arbitrator's credibility determinations. Local No. 153, supra, 105 N.J. at 450 n.1.
V
Finally, plaintiff argues that the arbitrator's award should be vacated because it violates public policy. See Middletown v. Twp. of Middletown, 193 N.J. 1, 11 (2007) (noting that "a court may vacate an award if it is contrary to existing law or public policy"). The Court in Middletown explained:
For purposes of judicial review of labor arbitration awards, public policy sufficient to vacate an award must be embodied in legislative enactments, administrative regulations, or legal precedents," and may not be "based on amorphous considerations of the common weal." Moreover, the public policy exception is triggered when "a labor arbitration award - not the grievant's conduct - violates a clear mandate of public policy [.]
[Middletown, supra, 193 N.J. at 11 (internal citations omitted) (emphasis added).]
In advancing this public policy argument, plaintiff merely repeats that the arbitrator erred in refusing to accept pertinent and material evidence and that the award was procured by "undue means" as evidenced by a crucial "mistake of fact" that is apparent on the face of the record. We have already rejected these arguments. Plaintiff has not identified any other public policy that the award violates. As the Supreme Court recently observed:
Arbitration simply is not a mere gateway to the courthouse. The resolution of arbitrated disputes should ordinarily end with the conclusion of the arbitration. Such an approach gives credence to the notion that arbitration provides a straightforward and effective way to resolve legal matters. That is particularly so in the case of public-sector labor disputes. Parties that agree to arbitrate contractual disputes must recognize that courts give arbitrators significant discretion to make reasoned conclusions based on interpretations of the contractual language and the relevant law. The mere fact that this Court or any other court may disagree with an arbitrator's decision is not sufficient to overturn an arbitration award.
[Borough of East Rutherford, supra,___ N.J. at ____ , (slip op. at 26-27).]
We have reviewed the arbitrator's written analysis of the facts, as well as the analysis by the Law Division. Given the high level of deference that must be accorded the arbitration award, Police Benev. Ass'n, Local 11, supra, 205 N.J. at 428, we find no basis in this record to disturb it.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION