NEW JERSEY TURNPIKE AUTHORITY v. LOCAL 196, I.F.P.T.E.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6282-04T56282-04T5

NEW JERSEY TURNPIKE AUTHORITY,

Plaintiff-Appellant,

v.

LOCAL 196, I.F.P.T.E.,

Defendant-Respondent.

_____________________________________

 

Argued May 3, 2006 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Middlesex

County, C-81-05.

Brian W. Kronick argued the cause for

appellant (Genova, Burns & Vernoia, attorneys; Mr. Kronick, of counsel;

Timothy Averell, on the brief).

Leonard C. Schiro argued the cause for respondent (Mets & Schiro, attorneys; Mr. Schiro, of counsel and on the brief).

PER CURIAM

Plaintiff New Jersey Turnpike Authority (NJTA) appeals from

a final order of the Chancery Division confirming an arbitration award on application of defendant Local 196, I.F.P.T.E. (Union). As a consequence, NJTA is required to reinstate a toll collector assigned to the Garden State Parkway, Jason Glassey. Glassey fired a paintball gun at the window and windshield of a van traveling in the left lane of the Parkway.

The Arbitrator's decision that NJTA lacked good cause to terminate Glassey failed to give due consideration to a clear mandate of public policy. For that reason, we reverse.

The relevant facts are undisputed. On November 21, 2003, Glassey completed work as a toll collector on the Parkway. Still wearing his uniform, he left for home. He drove on the Parkway toward his home. He was in the left lane moving behind a van that, in his opinion, was traveling too slowly. He moved to the right lane, took out his paintball gun and fired at the van. As a result, the passenger window and the windshield on the passenger side of the van were splattered with paint. As Glassey explained in a written statement he gave to the State Police, "In a moment of anger and extreme stupidity, I grabbed the paintball gun and fired several shots at the passenger window. I then drove away, but soon I saw the white van speeding up from behind me."

The driver of the van also gave a written statement. He described Glassey as "laughing." The incident was reported in the Atlantic City Press and Philadelphia Inquirer. Both articles referred to Glassey's employment with NJTA.

On November 26, 2003, NJTA suspended Glassey without pay. On December 1, 2003, NJTA served Glassey with notice that he was charged with violating "Item 31" of the Toll Collector's Manual, Part III, General Rules and Regulations which provides: "Employees must not commit any act, which will be prejudicial to the good order or discipline of this Authority."

A hearing on the charge was held on December 19, 2003. Glassey, who was represented at the hearing and had been charged with criminal offenses based on the incident, declined to testify. The Director of Toll Collection received the arrest report, which included Glassey's statement. He found and concluded:

As a Parkway Toll Collector, you are called upon to exercise courtesy toward the driving public and assist whenever possible with the safe passage of traffic along the roadway. By your act of aggression, you have demonstrated a flagrant disregard for the personal property and safety of Garden State Parkway customers. Your actions are unacceptable, particularly in light of today's heightened security concerns, and will not be tolerated.

Because you have been charged with violating the Toll Collector's Manual arising from your conduct on November 21, 2003 and in light of the seriousness of your actions, your employment with the New Jersey Turnpike Authority is hereby terminated as of the date of this letter.

Following his termination, on July 16, 2004, Glassey entered a plea of guilty to interference with transportation, N.J.S.A. 2C:33-14, which provides: "A person is guilty of interference with transportation if the person purposely or knowingly casts, shoots or throws anything at, against or into any vehicle . . . ." A violation of this statute is a disorderly persons offense unless the conduct causes injury, property damage in excess of $500 or creates a risk of significant bodily injury to another person, in which case it is a crime. N.J.S.A. 2C:33-14(b)-(e). An application to forfeit Glassey's public employment was denied. See N.J.S.A. 2C:51-2.

The Union filed a grievance that was submitted to arbitration by the New Jersey State Public Employment Relations Commission. The Union argued that there was no just cause for termination because of an insufficient nexus between Glassey's off-duty conduct and his employment. The Union also argued that Glassey's actions were explained, to some extent, by the fact that he has been diagnosed as "manic depressive" and had "concerns" on the day of the incident. The NJTA argued that Glassey had not given a reasonable explanation for this behavior that "impinged" NJTA's reputation.

By decision dated January 27, 2005, the Arbitrator concluded:

To state that the grievant's actions on the day in question were stupid and ill advised would be stating the obvious. While the grievant endeavors to explain his conduct, indicating that he was involved with some personal stress issues involving his wife-to-be, that clearly does not excuse his behavior. Indeed, the grievant really acknowledged the impropriety of his behavior, both to the officer who investigated the incident, as well as in the Voluntary Statement which he gave to the State Police. . . .

To be sure, this incident occurred while the grievant was off duty and while not in the employ of the Authority at the time. However, the nexus sought to be achieved here by the Authority is based upon the grievant's wearing an Authority uniform. The general rule respecting conduct of employees is that what an employee does off the job and on his own time does not subject him to discipline. However, there are various criteria which would permit an employer to terminate an employee for conduct away from the workplace.

As noted, this Arbitrator cannot condone the grievant's actions on the day in question. However, given the competing equities here and, given the nature of what occurred in the context of the grievant's mental state and the like, it is the judgment of the Arbitrator that discharge was not appropriate. Having said that, however, the Arbitrator is concerned respecting the grievant's actions. In that regard, the Arbitrator agrees with Authority counsel that, to the extent that the Arbitrator is inclined to reinstate the grievant, the Authority submits (and the Arbitrator agrees) that the grievant be required to undergo physical and psychological fitness for duty examinations prior to being reinstated. Further, these examinations are required prior to his return to work. In addition, the grievant is to be monitored on a regular basis respecting his mental fitness. In that regard, the Arbitrator will retain jurisdiction if any issue arises with respect to his ability or inability to perform the duties of his job based upon the psychological issues.

Therefore the undersigned, having duly heard all of the proofs and allegations of the parties of this proceeding, makes the following:

AWARD

Jason Glassey was not terminated for just cause. He shall be reinstated to his prior position with the Authority, subject to the comments made within. In addition, the reinstatement shall be without any back pay entitlement. The period of time from the date of his termination until the date of his reinstatement shall be in the nature of a disciplinary suspension.

NJTA filed an action to set the arbitration award aside. The trial judge acknowledged the court's authority to set aside a public-sector arbitration award that violates public policy. He concluded, however, that the Arbitrator had considered public policy and reached a decision based on a reasonably debatable view of public policy that precluded judicial intervention. We see nothing in the Arbitrator's decision that indicates consideration of public policy. A fair reading of the Arbitrator's decision compels the conclusion that the Arbitrator based the decision on the balance of the equities between the employer and employee without considering public policy.

The principles governing judicial review of arbitration awards are well-established. There is a "strong preference for judicial confirmation of arbitration awards." Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 442 (1996). The statutory grounds permit a court to vacate an arbitration award obtained by "undue means." N.J.S.A. 2A:24-8. Especially in the public-sector, undue means includes a failure to consider public policy implicated by the award. Office of Employee Relations v. Communication Workers of Am., 154 N.J. 98, 111 (1998). If an "arbitrator's award accurately has identified, defined, and attempted to vindicate the pertinent public policy . . . , [and] the correctness of the award, including its resolution of the public-policy question, is reasonably debatable, judicial intervention is unwarranted." Weiss, supra, 143 N.J. at 443.

Where public policy is implicated, "careful scrutiny of the award, in the context of the underlying public policy, [is required] to verify that the interests and objectives to be served by the public policy are not frustrated and thwarted by the arbitral award." Ibid. Thus, "if the arbitrator's resolution of the public-policy question is not reasonably debatable, and plainly would violate a clear mandate of public policy, a court must intervene to prevent enforcement of the award." Ibid. "[A] public-sector arbitrator . . . must consider the effect of a decision on the public interest and welfare . . . ." Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 364-65 (1994) (citations omitted).

The public policy against shooting or hurling objects at a moving vehicle could not be clearer. The Legislature has criminalized the conduct because of the danger it entails, even in instances that do not result in injury or property damage. See N.J.S.A. 2C:33-14. Glassey, an employee of the Parkway dressed in his toll collector uniform, shot paintballs at a vehicle traveling on the Parkway because he was annoyed at the driver's speed. His conduct not only obscured the view from a portion of the windshield and the passenger side window but alarmed the driver who saw him laughing. Glassey's conduct posed a risk of danger not only to that driver but to others on the roadway. A decision by NJTA to continue his employment would have an impact on the motoring public's perception of the importance of the prohibition against such conduct that is too obvious to require elaboration. The Arbitrator's award does not account for impact on safety of the roadway for which NJTA is responsible.

We reject the Union's argument that the Arbitrator's decision should be sustained because of the absence of a sufficient nexus between Glassey's employment and his shooting of paintballs at a moving vehicle. Had the Arbitrator based the decision on that ground, the Arbitrator would not have upheld a penalty of a "disciplinary suspension" for one year and two months, a ruling from which the Union does not appeal.

Nor are we persuaded that the award should be sustained because the judge who considered whether Glassey's criminal conduct warranted forfeiture of office pursuant to N.J.S.A. 2C:51-2a(1) concluded that it did not. The relevant statute expressly provides:

The fact that a court has declined to order forfeiture shall not preclude the public officer . . . having authority to remove the person convicted from seeking to remove or suspend the person from his . . . employment on the ground that the conduct . . . demonstrates that the person in unfit to hold the . . . employment.

[N.J.S.A. 2C:51-2g.]

 
The decision of the Arbitrator is reversed and the termination imposed by the employer is reinstated.

(continued)

(continued)

9

A-6282-04T5

June 9, 2006