LINDEN BOARD OF EDUCATION v. LINDEN EDUCATION ASSOCIATION

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1236-07T31236-07T3

LINDEN BOARD OF EDUCATION,

Plaintiff-Appellant,

v.

LINDEN EDUCATION ASSOCIATION

on behalf of JOHN MIZICHKO,

Defendant-Respondent.

____________________________

 

Argued October 28, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4490-06.

Mark A. Tabakin argued the cause for appellant (Weiner Lesniak, LLP, attorneys; Mr. Tabakin, of counsel; Margaret A. Miller and Rachel M. Caruso, on the brief).

Louis P. Bucceri argued the cause for respondent (Bucceri & Pincus, attorneys; Mr. Bucceri, of counsel and on the brief).

PER CURIAM

Plaintiff, Linden Board of Education (Board), appeals from the September 27, 2007 order of the trial court affirming an arbitration award that set aside the Board's decision to terminate the employment of John Mizichko; imposed a ten-day suspension as the appropriate penalty; and ordered Mizichko reinstated with full back pay, fringe benefits and seniority rights following his period of suspension. We reverse.

Mizichko was employed as a custodian at Linden High School. On May 5, 2005, the school held its annual dance concert, during which female students used several classrooms near the stage as changing rooms. While the students were changing, Mizichko entered at least one of the classrooms and began cleaning the glass on the door. The students, in various states of undress, asked him to leave, but he refused.

Students notified Kristen Fuller, the vocal director, who came to the classroom and explained to Mizichko that he should not be there cleaning while the girls were changing, and asked him to leave. Mizichko hesitated before leaving the room, saying, "what's the big deal?" Students in another classroom raised similar complaints about Mizichko's behavior on that evening; several students said they saw Mizichko lingering in the hallway and peering into the rooms.

The Board conducted its own internal investigation and found that "Mizichko was properly trained and instructed not to enter the classrooms being used as changing rooms while female students were changing. Training aside, and with the knowledge that female students were present, Mizichko entered the female student changing room . . . ." At its November 16, 2005 meeting, the Board resolved to terminate Mizichko's employment immediately in light of his conduct, and informed him of that decision the following day.

The Linden Education Association (LEA) filed a grievance on Mizichko's behalf in accordance with the procedures in the parties' Collective Bargaining Agreement (agreement). The matter was referred to arbitration pursuant to Article VI.C.6, which provides, in pertinent part, that the "arbitrator shall be without power or authority to make any decision which . . . will amend or modify the terms of this Agreement . . . ."

The parties agreed to present the following question 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?"

On October 24, 2006, the arbitrator held a hearing and heard testimony from Robert Kratzer, the head custodian for Linden High School; Kristen Fuller, the vocal music director; and Barbara Brady, a dance teacher, all of whom testified on behalf of the Board. Mizichko testified on his own behalf.

The arbitrator issued his opinion on November 27, 2006, and initially made the following factual findings:

It was . . . undisputed that Mizichko had received training from his supervisors regarding the appropriate procedure for cleaning classrooms/bathrooms which could be occupied by female students. . . .

However, notwithstanding information that he had received regarding certain rooms [that] would be used by female students for changing clothes and prior training with respect to such situations, [Mizichko] admittedly entered . . . one of the changing rooms . . . and proceeded to clean the door window panes. . . .

[Mizichko] compounded his misconduct by not only refusing to leave when directed to do so by Ms. Fuller, . . . but also by ignoring the students' complaints that they were partially undressed. Mizichko corroborated Fuller's testimony that upon being told to leave, he first hesitated and then said, "what's the big deal?" He further disregarded the pleas of several female students that he leave [the changing room] as they were in the process of changing clothes[,] but rather continued cleaning the door panes oblivious to their concerns. The written statements of several students -- albeit hearsay -- convinced the [a]rbitrator that Mizichko had no intention of leaving Room 209 until Ms. Fuller demanded his departure and even then left in a reluctant, "lackadaisical" manner.

The [a]rbitrator is not persuaded by [Mizichko's] defenses to his untoward behavior. Although the Board did not establish that the door windows were covered by construction paper at the time [Mizichko] entered Room 209, . . . once [Misichko] entered the room and saw the girls changing clothes[,] the presence or absence of paper on the door windows was irrelevant. In this connection, it is noteworthy that [Mizichko] testified that he walked back and forth past these changing rooms several times knowing that the windows were uncovered and that girls were changing.

In addition, [Mizichko's] misconduct is not mitigated by the fact that the public attending the dance concert could have accessed the changing room area. Unlike the general public, Mizichko was an employee of the school district who had been given specific instructions to knock and announce himself before entering a changing room. That Mizichko continued to walk past the changing rooms admittedly knowing that the door windows were uncovered rather than take an alternate route that would have merely entailed borrowing another custodian's mop permits the [a]rbitrator to draw the inference that some aspects of his conduct were intentional rather than inadvertent.

The arbitrator then stated that the "remaining issue" was "whether the termination of [Mizichko] was for just cause[,]" which he defined as follows:

[J]ust cause in its essence requires that before an employee is disciplined that employee should know of the existence of a pertinent rule, that the rule is reasonably related to the business of the employer, and the employee knew or should have known the possible consequences of the violation of the rule.

The arbitrator applied this definition of "just cause" to Mizichko as follows: Mizichko "was instructed that certain rooms would be used for changing clothes on May 5, 2005, the rule was reasonably related to the Board's protection of the privacy of adolescent students, and [Mizichko] should have known that a violation of this directive would have disciplinary consequences." Therefore, the arbitrator concluded that, "[i]nsofar as these elements of just cause are concerned, the Board has met its burden of proof by a preponderance of the credible evidence."

Although the arbitrator found that the Board had demonstrated just cause and thus answered the specific question submitted by the parties, the arbitrator nonetheless proceeded to consider the penalty imposed by the Board and opined that, "the Board has not proven that termination of Mizichko's employment is appropriate." In so doing, the arbitrator exceeded his authority under the agreement and the question submitted by the parties.

The arbitrator noted Mizichko's five-year employment with no prior discipline except an unrelated issue; he further observed that Mizichko "has had no prior complaints of entering a changing room despite the fact that he has work[ed] on the evening shift for several years over which time numerous concerts have been performed wherein changing rooms have been utilized[,]" and he alluded to "some evidence that the door to Room 209 may not have been covered with construction paper when [Mizichko] entered." In discussing the penalty issue, the arbitrator characterized Mizichko's behavior as "a singular desire to get his work done[,]" and stated that there was no "evidence that his conduct was egregious . . . ," notwithstanding his finding "that some aspects of [Mizichko's] conduct were intentional rather than inadvertent."

The agreement contained no provision for "progressive discipline." Nevertheless, the arbitrator opined that "progressive/corrective discipline [is] an integral part of the just cause concept." He then concluded that a ten-day suspension without pay was the appropriate penalty because termination was "not reasonably related to the offense and [was] disproportionate to the gravity of [Mizichko's] misconduct."

The Board filed a complaint in the Law Division to vacate the arbitration award, relying upon County Coll. of Morris Staff v. County Coll. of Morris, 100 N.J. 383 (1985). In affirming the arbitration award, the trial court dismissed the Board's reliance on that case on the following basis:

In this case, the arbitrator found "just cause" for the imposition of discipline but did not make any finding that the employee's misconduct constituted just cause for dismissal. Accordingly, as the Supreme Court observed, "the arbitrator was free to apply his special expertise and determination that these offenses do not rise to a level of misconduct that constitutes just cause for discharge."

On appeal, the Board argues that the trial court's confirmation of the arbitration award must be reversed because the arbitrator exceeded the authority conferred by the parties' agreement in violation of N.J.S.A. 2A:24-8(d), which provides, in pertinent part, that "[t]he court shall vacate the award . . . [w]here the arbitrator[] exceeded or so imperfectly executed [his] powers that a mutual, final and definite award upon the subject matter submitted was not made." The Board asks that we reinstate its decision to terminate Mizichko.

At the outset, we note that "judicial interference with the role of the arbitrator is to be strictly limited. An arbitrator's award is not to be cast aside lightly." County Coll. of Morris Staff, supra, 100 N.J. at 390. Nonetheless,

[t]here are . . . limitations to the deference given an arbitrator's decision. . . . When parties have agreed, through a contract, on a defined set of rules that are to govern the arbitration process, an arbitrator exceeds his powers when he ignores the limited authority that the contract confers. The scope of an arbitrator's authority depends on the terms of the contract between the parties.

[Id. at 391.]

We conclude that County Coll. of Morris Staff compels us to vacate the arbitrator's award and reinstate the Board's decision to terminate Mizichko. As in that case, the arbitration provision in the parties' agreement here states that "[t]he arbitrator shall be without power or authority to make any decision which . . . will amend or modify the terms of this agreement . . . ." Substantially similar language in the agreement between the Morris County litigants, id. at 387, led the Supreme Court to conclude that the arbitrator had violated this provision by finding the employee guilty of infractions leading to dismissal under the specific terms of the agreement, but then proceeding to reduce the penalty of discharge to an eight-month suspension without pay. Id. at 389, 392.

Here, the agreement between these parties makes no provision for progressive discipline. Thus, in directing that the Board utilize the concept of such progressive discipline with respect to Mizichko, the arbitrator "ignored the contractual provision that prohibited him from adding to, altering, or modifying the parties' agreement." Id. at 393. Article XV of the parties' agreement governs discharge and discipline, and provides in pertinent part that an employee "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." Here, as in Morris County, "the arbitrator found the employee guilty of . . . all of the charged infractions and determined that the misconduct merited discharge for cause." Id. at 394. Therefore, "the arbitrator [was] compelled by the constraints of the contract to discharge the employee." Ibid.

The Supreme Court acknowledged that "a proper remedy" might be "a disciplinary penalty less severe than . . . discharge[,]" if the arbitrator, after finding the employee guilty of the specified charges of misconduct, concluded that "these offenses do not rise to a level of misconduct that constitutes just cause for discharge." Ibid. Here, however, the arbitrator specifically concluded that, "[i]nsofar as these elements of just cause are concerned, the Board has met its burden of proof by the preponderance of the credible evidence." The distinction is critical. The arbitrator found that Mizichko's offenses constituted "just cause" for termination, but then invoked the concept of progressive discipline based upon Mizichko's lack of a significant disciplinary record and the arbitrator's anomalous conclusion, in light of his factual findings, that Mizichko's conduct was not "egregious." This latter step constituted an impermissible "'reading in[to]'" the parties' agreement a non-existent provision for progressive discipline. Id. at 393. In so doing, the arbitrator clearly exceeded his powers. The trial court should thus have vacated the award pursuant to N.J.S.A. 2A:24-8(d). "Once the arbitrator had applied his special expertise and found [Mizichko] guilty of misconduct sufficient to warrant discharge, then the limits on his power required that the employee be dismissed." Morris County, supra, 100 N.J. at 392 (citations omitted).

"[A]n arbitrator's power to decide what is fair and just is at all times limited by the intent of the parties as manifested by the terms of their contract." Id. at 397. Here, "[t]he parties took pains to put explicit restrictions on the arbitrator's authority." Ibid. Once the arbitrator measured Mizichko's conduct against the "just cause" standard for dismissal and found such cause to exist, "the contract called for no more, [and] the arbitrator went a significant step further" by requiring the Board "to engage in progressive discipline of its employee as a prerequisite to discharge." Ibid. We conclude that, "[i]n so doing, the arbitrator exceeded his authority by adding a new term to the contract." Ibid.

We make two final observations. The arbitrator answered the first question posed to him, whether the Board had just cause to terminate Mizichko, in the affirmative. It strikes us as anomalous for the arbitrator to conclude, nonetheless that Mizichko should remain in the employ of the Board.

We note, moreover, that the arbitrator did not credit Mizichko's defense that his conduct was inadvertent. The arbitrator stressed that Mizichko "disregarded the pleas" of the female students changing their clothes that he leave the room. The arbitrator wrote that he was "convinced" that Mizichko "had no intention of leaving" until one of the teachers who had been summoned demanded that he depart. Such conduct on his part can, in our judgment, only be characterized as egregious, fully warranting termination.

Based on the foregoing, we conclude that the order of the trial court approving the arbitrator's award must be reversed and the decision of the Board reinstated.

 

____________________________

LEWINN, J.A.D., dissenting.

I conclude that County Coll. of Morris Staff v. County Coll. of Morris, 100 N.J. 383 (1985), does not support the Board's position in this case, because of significant differences in the pertinent language in the two agreements.

Here, Article XV of the parties' agreement, captioned "Discharge and Discipline[,]" provides that an employee "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 [a]greement."

By contrast, the agreement between the litigants in County Coll. of Morris Staff provided:

After completing six months of employment, the College may dismiss an employee prior to the expiration of such employee's current employment term, for just cause only and such dismissal shall be grievable. . . . The cause for which employees may be discharged shall include, but not be limited to[,] violation of rules, regulations and policies of the College.

[Id. at 387.]

Thus, the agreement in County Coll. of Morris Staff expressly authorized the college to discharge an employee who violated its rules, regulations or policies. Therefore, once the arbitrator in that case found that the employee had committed such a violation, he impermissibly "add[ed] to, alter[ed], amend[ed] or modif[ied] the terms of the [a]greement," ibid., by ordering discipline in the form of a suspension instead of discharge.

In the Morris County case, the arbitrator recommended a suspension because he found that the college had been derelict in disciplining the employee for ongoing infractions, thereby implicitly condoning his conduct, until the last in a series of infractions resulted in termination as the employee's first and only disciplinary action. Id. at 388. Therefore, the arbitrator found that "progressive discipline" was appropriate. The Court held that this was not authorized by the express terms of the agreement quoted above, and reversed. Id. at 393,399.

In this case, the arbitrator reached a similar conclusion that, in light of Mizichko's lack of a prior disciplinary history, termination was a "disproportionate" penalty and suspension was the appropriate sanction. When I weigh that discretionary decision against the language of the parties' agreement, which lists discipline, discharge or non-reappointment, in the disjunctive, as potential consequences flowing from a finding of just cause, I am hard-pressed to conclude that the arbitrator exceeded the terms of the agreement. This is particularly so in light of the question that the parties submitted to the arbitrator, which asked him to determine "what shall be the remedy[]" if he did not find just cause to terminate Mizichko.

"The major limitation on the arbitrator's authority is the collective bargaining agreement itself. The arbitrator has no authority beyond that delegated to him by the parties." Local 153 v. Trust Co. of N.J., 105 N.J. 442, 450 (1987). In that case, the defendant had terminated an employee for her violation of bank rules and regulations. Id. at 444-46. When the matter was submitted to arbitration, the parties posed virtually the identical question as here: "Was there just and sufficient cause to terminate [the employee] under the terms of the labor agreement . . . ? If not, what shall be the remedy?" Id. at 446. The arbitrator found termination to be "too harsh a penalty[,]" and imposed the lesser penalty of suspension in consideration of "her long service with the bank, and the fact that she had never been disciplined before this incident." Ibid.

In affirming that aspect of the arbitrator's decision, the Court noted, in language that is particularly instructive here:

Although the boundaries of the arbitrator's authority are defined by the collective bargaining contract, the agreement cannot be expected to provide specific remedies for every possible dispute. . . . It is the arbitrator's role to fill in the gaps and it is the arbitrator's construction that is bargained for in the collective bargaining process.

[Id. at 452.]

Given the disjunctive language in Article XV of the parties' agreement, I conclude that the arbitrator appropriately, and within the exercise of his expertise and judgment, "fill[ed] the gaps" in that Article's disciplinary guidelines. Ibid. Thus, his decision did not "amend or modify the terms of th[e] Agreement[,]" as prohibited in Article VI.C.6.

Accordingly, I respectfully dissent.

 

This matter is governed by N.J.S.A. 2A:24-1 to -11. N.J.S.A. 2A:23B-1 to -32, New Jersey's enactment of the Uniform Arbitration Act, does not apply to arbitration under collective bargaining agreements.

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A-1236-07T3

April 17, 2009