Linden Bd. Of Educ. v. Linden Educ. Ass'n On Behalf Of John Mizichko

• Decision Date: 08 June 2010
• Citation: 997 A.2d 185,202 N.J. 268
• Parties: LINDEN BOARD OF EDUCATION, Plaintiff-Respondent,v.LINDEN EDUCATION ASSOCIATION on Behalf of John MIZICHKO, Defendant-Appellant.
• Court: New Jersey Supreme Court

202 N.J. 268

997 A.2d 185

LINDEN BOARD OF EDUCATION, Plaintiff-Respondent,v.LINDEN EDUCATION ASSOCIATION on Behalf of John MIZICHKO, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 5, 2010.

Decided June 8, 2010.

Louis P. Bucceri, Clifton, argued the cause for appellant (Bucceri & Pincus, attorneys).

Mark A. Tabakin, Parsippany, argued the cause for respondent (Weiner Lesniak, attorneys; Mr. Tabakin, Sarah A. Makuch, and Margaret A. Miller, on the briefs).

Sanford R. Oxfeld, Newark, argued the cause for amicus curiae IFPTE Local 195 (Oxfeld Cohen, attorneys; Mr. Oxfeld and Randi Doner April, on the brief).

John J. Burns, Perth Amboy, argued the cause for amicus curiae New Jersey School Boards Association (Cynthia J. Jahn, General Counsel, attorney).

Justice WALLACE, JR., delivered the opinion of the Court.

The central issue in this case concerns the interpretation of an arbitration award. After the Linden Board of Education (Board) terminated an employee for an asserted infraction, the Linden Education Association (Association) filed a grievance on behalf of the employee. The parties agreed to submit to arbitration the questions whether “the [B]oard of Education h[ad] just cause to terminate” the employee, “[a]nd if not, what shall be the remedy?” The arbitrator found that while there was just cause to discipline just cause to “terminate require[d] that the penalty fit the infraction [,]” and under the totality of the circumstances, the Board failed to prove that termination was appropriate.

The arbitrator imposed the penalty of a ten-day suspension without pay and reinstated the employee with full back-pay. In response, the Board filed a complaint in the Law Division, and the trial court confirmed the award. The Appellate Division reversed with one judge dissenting.

Due to the dissent in the Appellate Division, this matter is before the Court as a matter of right. R. 2:2-1(a)(2). We now reverse. We hold that the arbitrator answered “no” to the question whether the Board had just cause to terminate, and as directed by the parties, imposed an appropriate sanction.

I.

The material facts are not in dispute. John Mizichko (Mizichko) began his employment with the Board in July 2000 as a custodian and was a member of the Association. On May 5, 2005, Mizichko was working the night shift at Linden High School. That evening, a scheduled dance recital required that students change outfits in several classrooms. At one point, Mizichko entered a room where several female students were changing. He proceeded to clean the glass panes on the door and ignored the pleas of the students to leave, as they were in the midst of changing their outfits. A teacher informed Mizichko that it was improper for him to be in the classroom when female students were changing and instructed him to leave the area. Mizichko eventually left the room.

Robert Kratzer, the head custodian at Linden High School, had previously posted signs informing Mizichko that certain classrooms would be used as changing rooms on the night of the incident. He explained that the evening supervisor had instructed Mizichko to knock and yell “custodian” before entering a female area, and that if he unknowingly entered a changing room, he should immediately walk out of the room.

Mizichko acknowledged he was aware that certain rooms would be used as changing rooms during the dance recital, and that he had been instructed not to enter those rooms. He stated that earlier in the evening he had cleaned other classrooms that were designated as changing rooms and that after he had knocked, he found them to be empty. Mizichko admitted encountering a few students in one room while he was cleaning the inside glass panes on the door, but stated he was unaware that those students were undressing. He also admitted that when a teacher told him to leave, he hesitated and asked “[W]hat's the big deal?”

After the incident was reported to the Board, the Superintendent placed Mizichko on paid suspension. The Board reported the incident to the Division of Youth and Family Services (Division). On October 6, 2005, the Division notified the Board that it would not take any action and closed the file. The Board then conducted its own internal investigation into the incident. As a result of that investigation, on November 16, 2005, the Board voted to terminate Mizichko's employment.

Thereafter, the Association filed a grievance on Mizichko's behalf contesting his termination pursuant to the Collective Negotiating Agreement (Agreement). Because Mizichko had already begun his fourth year of employment, he enjoyed contractual tenure pursuant to the Agreement. The parties were unable to come to a satisfactory resolution of the dispute, and on January 30, 2006, the Association filed a written request for arbitration with the Public Employment Relations Commission.

The Agreement provided that an employee with contractual tenure “shall not be disciplined, discharged or not reappointed without just cause. Grievances regarding the above shall be subject to binding arbitration under the terms of this Agreement.” The parties submitted the following questions to the arbitrator: “Did the Board of Education have just cause to terminate the employment of John Mizichko? And, if not, what shall be the remedy?”

The arbitration procedure outlined in the Agreement required the arbitrator to set forth in writing “the findings of fact, reasoning, and conclusions on the issues submitted[.]” Additionally, the arbitrator had no power to make any decision that would “amend or modify the terms of [the] Agreement[.]” Further, the Agreement provided that the decision of the arbitrator was “final and binding [on] the parties.”

After conducting a hearing, the arbitrator rendered his written decision. The arbitrator found that the employee was working while facing away from the students cleaning the glass and that his presence in the room was motivated by a singular desire to get his work done. Additionally, he found the Board met its burden by a preponderance of credible evidence that: the employee knew of the existence of a pertinent rule; the rule was reasonably related to the business of the employer; the employee knew or should have known the possible consequences of the violation of the rule; and there was just cause for the imposition of discipline. The arbitrator next discussed just cause when termination is imposed, explaining that:

[J]ust cause, where the employer has imposed termination for the offense the Grievant has committed, further requires that the penalty fit the infraction and not be disproportionate given the totality of the circumstances, including mitigating factors. In the Arbitrator's opinion, the Board has not proven that termination of Mizichko's employment is appropriate.

* * *

[T]he Arbitrator considers progressive/corrective discipline to be an integral part of the just cause concept. In this regard, the termination of the Grievant's employment for a first offense, absent evidence that his misconduct was egregious, is inconsistent with the standards of arbitral jurisprudence. In the Arbitrator's opinion, the degree of discipline administered by the Board is not reasonably related to the offense and disproportionate to the gravity of the Grievant's misconduct.

Considering the evidence in its entirety, the arbitrator concluded that the appropriate sanction was a ten-day suspension without pay.

The Board filed a complaint in the Law Division seeking to vacate the arbitration award. In response, the Association filed an answer and counterclaim to confirm and enforce the award. After the parties filed cross-motions for summary judgment, the trial court confirmed the award. The court interpreted the arbitrator's opinion as not having found just cause to terminate his employment, but instead as having found the requisite amount of just cause to impose some form of discipline. Consequently, the trial court found that the arbitrator was within his authority to impose a lesser penalty than termination.

The Board appealed. In an unpublished opinion, the Appellate Division reversed the trial court's judgment with one member of the panel dissenting. The majority interpreted the arbitrator's decision as having found that there was just cause to terminate the employee. Therefore, consistent with County College of Morris Staff Ass'n v. County College of Morris, 100 N.J. 383, 495 A.2d 865 (1985), the arbitrator had no authority to consider the remedy.

The dissent disagreed that County College of Morris controlled, because the Agreement in the present case did not define just cause for termination as it did in County College of Morris. See County Coll. of Morris, supra, 100 N.J. at 387, 495 A.2d 865. The dissent concluded that the arbitrator's finding that termination was a disproportionate penalty, and that suspension was the appropriate sanction, was “within the exercise of his expertise and judgment, [and] filled the gaps in the [Agreement's] disciplinary guidelines.” (internal quotation marks omitted).

The Association appealed to this Court as of right based on the dissent in the Appellate Division R. 2:2-1(a)(2). We granted amicus curiae status to the I.F.P.T.E. Local 195 and the New Jersey School Boards Association.

II.

The Association maintains the arbitrator found that the Board did not establish good cause to terminate Mizichko, and the majority of the panel failed to distinguish between that finding and the finding that there was just cause to discipline him. The Association argues that this Court's decisions in Local No. 153, Office & Professional Employees International Union v. The Trust Co. of New Jersey, 105 N.J. 442, 453, 522 A.2d 992 (1987) Scotch Plains-Fanwood Board of Education v. Scotch Plains-Fanwood Education Association, 139 N.J. 141, 158, 651 A.2d 1018 (1995), and New Jersey Turnpike Authority v. Local 196, I.F.P.T.E., 190 N.J. 283, 304, 920 A.2d 88 (2007), all support...