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police & fire

Arbitrator orders Port Authority to return lifetime E-Z Pass privileges to current, retired police officers

Photo Credit: Cliffview Pilot File Photo

CVP EXCLUSIVE: An arbitrator this week ordered the Port Authority to restore free E-Z Pass access and parking at authority-operated airports to all of its current and retired-in-good-standing police officers.

The authority “had no right to unilaterally wipe out this benefit” following a request by Gov. Christie in late 2010, Public Employment Relations Board Arbitrator Jack Tillem wrote in Wednesday’s decision, a copy of which was obtained by CLIFFVIEW PILOT .

The Port Authority said it would appeal the ruling.

A veteran PAPD sergeant told CLIFFVIEW PILOT that Christie, an attorney by trade, “knew full well that a contractual benefit can only be removed via negotiations.

“He chose to direct the Port Authority to arbitrarily remove an agreed-upon benefit that was negotiated in good faith,” the sergeant said. “That order cost the unions and the Port Authority thousands of dollars to litigate something that he knew full well he would lose.

“My only question is: Why did he do something so irresponsible?”

The arbitrator’s ruling, retroactive to Jan. 1, 2011, requires that the authority make retirees “whole for any loss they may have sustained” by paying for what had been a contractual benefit out of pocket.

The PA violated a 2003 Memorandum of Agreement with the Port Authority Police Benevolent Association when it stripped free toll passes at its bridges and tunnels and parking free of charge at the New York/Newark Airports from employees and retirees in late 2010, Tillem found.

“To conclude that an employer can simply decide to eliminate a benefit because it has become pricey turns eighty years of collective bargaining history on its head,” he wrote.

The benefit began on Dec. 20, 1973 and lasted some 40 years — including when the authority converted to E-Z Pass in 2007, Tillem said.

In September 2010, Deborah Graiccioni — then part of Gov. Christie’s administration — wrote on behalf of the governor to then-Port Authority Chairman Anthony Cascia “requesting that the Port Authority cease its practice of offering employees and retirees free E-Z Pass privileges at Port Authority tunnel and bridge crossings and for free parking at Port Authority airports,” the arbitrator wrote.

The PA Board of Commissioners at a Nov. 18 meeting approved the move as of Jan. 1, 2011 for all retirees and employees hired after 9/11, records show. It estimated that it would save the authority $1.5 million a year.

During an arbitration hearing last fall, the authority argued that the benefit was altered in the 2003 MOA to be “solely limited to police officers” in anticipation of E-Z Pass.

Or as Tillem noted: “The inclusion of the one is the exclusion of the other.”

“Had the parties meant to include them…they would have written police officers and retirees,” he said the authority argued.

Authority attorneys noted that the U.S. Supreme Court, setting forth vesting standards for collectively-bargained lifetime benefits earlier this year, concluded that “when a contract is silent as the duration of retiree benefits, a court may not infer that parties intended those benefits to vest for life.”

They also cited a U.S. District Court decision that found that those claiming a lifetime benefit must “point to written language capable of being reasonably interpreted as creating a promise on the part of [the employer] to vest [the benefit for life].”

“The MOA is stark silent as to the duration of the benefit,” the authority contended. “No lifetime commitment. No promise through retirement.”

Nine different arbitration decisions supported keeping the privileges under the MOA, Tillem noted.

He issued one of them — in favor of retired authority electricians in 2012.

The authority “must be recognized for its perseverance in the face of adversity,” Tillem wrote. “Emulating King Sisyphus, it has pushed this rock of an issue up the hill nine times — that’s not a typo, nine times! — only to have it roll down with the same result: greivance sustained.”

“Undaunted the Port Authority now treks upward for an even ten,” he added, before sustaining the grievance.

The authority’s “relying on the omission of the word retirees from the reference to police officers [in the changeover to E-Z Pass] doesn’t withstand scrutiny,” Tillem found.

For one thing, he said, there’s no record of it being bargained — “no minutes, no memos, not even a jogged memory.”

For another, retirees were included in the program when the authority launched E-Z Pass in 2007 — and continued to be until the commissioners discontinued the program for all of its employees, working and retired, in late 2010 “at the behest of the Governor of New Jersey,” Tillem added.

“That retirees are included in the MOA’s E-Z Pass program is, to my mind, about as ambiguous as a poke in the eye with a sharp stick,” he wrote. “Equally clear is that the Port Authority had no right to unilaterally wipe out this benefit.

“I rely on the wisdom of Chief Justice John Roberts: ‘When it’s not necessary to make a decision, it’s necessary not to make one’.”

As a result, Tillem ruled:

“1) The grievance is sustained.

“2) The E-Z Pass benefit shall continue to be afforded to all currently employed police officers upon their retirement in the same manner as they have been afforded to all other retirees prior to their elimination in January 2011.

“3) Should any of the police officers employed during the current MOA have already retired and been denied the E-Z Pass benefit, they shall be made whole for their losses.

“4) The arbitrator shall retain jurisdiction for a period of ninety days from the date hereof solely for the purpose of resolving any dispute over the amounts due.

“Dated: June 24, 2015″

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