INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 97 v. BOROUGH OF CARTERET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, LOCAL 97,

Plaintiff-Respondent,

v.

BOROUGH OF CARTERET, a

municipal corporation of the

State of New Jersey,

Defendant-Appellant.

December 9, 2015

Submitted November 16, 2015 - Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5638-14.

McManimon, Scotland & Baumann, LLC, attorneys for appellant (Leslie G. London, of counsel and on the briefs; Ted Del Guercio, III, on the briefs).

Mets Schiro & McGovern, LLP, attorneys for respondent (Leonard C. Schiro, of counsel and on the brief; David M. Bander, on the brief).

PER CURIAM

Susan Ivanitski was employed as a crossing guard by defendant Borough of Carteret for approximately twenty years when, on October 11, 2011, Carteret filed disciplinary charges seeking her removal. The disciplinary notice charged Ivanitski with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). Essentially, Carteret alleged that Ivanitski improperly possessed and disseminated a confidential grading transcript of a graduating high school student. Ivanitski, who had no prior history of misconduct, asserted that a school guidance counselor simply gave her a sealed envelope and asked her to deliver it to a teacher.

Plaintiff International Brotherhood of Teamsters, Local 97 (the "Union") is the collective bargaining representative for school crossing guards in Carteret. After the charges against Ivanitski were upheld by a hearing officer, Carteret terminated her employment effective April 16, 2012. Pursuant to the parties' collective negotiation agreement (CNA), the Union grieved Ivanitski's termination through binding arbitration.

At the arbitration, which spanned four non-consecutive days from November 15, 2012, to July 25, 2013, the parties presented testimony, evidence, and arguments. In his nine-page January 31, 2014 award and opinion, the arbitrator concluded

the record herein reveals that during her entire [twenty-one] year period of service [Ivanitski] had never been disciplined.

I have nothing in the record to indicate that receiving an envelope by a Crossing Guard in her own home from a Guidance Counselor and passing it on to a teacher as requested, constitutes a disciplinary transgression punishable by discharge. Even if it can be shown to be a transgression she would be initially entitled merely to a Verbal Warning, in accordance with the negotiated progressive discipline as provided in Article XVI [] of her CNA.[] Additionally, [on] July 15, 2011[,] she was no longer on duty since it was after the end of the "...ten (10) consecutive months of employment during a school year (e.g. September 2008 through June 2009)" (Article XX)[]. Also, in her certification dated 9/12/2012, [] Ivanitski testified in part that "I have never been trained or advised regarding the identification, confidentiality, or security of pupil records under state or federal law"[]. Consequently, even if she knew the [contents] of the envelope, passing it on to a Carteret Board of Education teacher cannot be regarded [as] a transgression. On July 15, 2012 when she passed the envelope, she was already off duty and in her own home. There was no showing that [the] passing of the envelope between two tenured High School educators of Carteret was knowingly a punishable transgression. However even if it was, it would have been her first in [twenty-one] years of service and punishable by a Verbal Warning as provided in Article XVI[] [of the CNA].

Therefore, having thoroughly considered all the evidence including the arguments and allegations of both parties, I have concluded, for the above stated reasons, that . . . Ivanitski was discharged not for just cause.

Consequently, the arbitrator directed Carteret "to reinstate Ivanitski to her former position and make her whole with respect to seniority, benefits, and back pay, minus outside earnings if any."

Relying on N.J.S.A. 40A:9-154.1, Carteret mailed checks to Ivanitski to compensate her for the two-month period between her April 2012 termination and June 2012, representing the remainder of the 2011-12 academic year. Ivanitski rejected this payment on the basis that she was entitled to back pay for the entire period that she was terminated. She also sought reinstatement. After the parties failed to agree, the Union filed a complaint in the Law Division seeking to confirm the arbitration award.1 Carteret, by Counterclaim, sought to modify and clarify the award "to make clear that the [a]ward is limited as a matter of law by N.J.S.A. 40A:9-154.1."

Carteret contended that crossing guards are not entitled to continuing, at-will employment. It relied on N.J.S.A. 40A:9-154.1, which provides in pertinent part

[t]he governing body, or the chief executive, or the chief administrative officer, as appropriate to the form of government of any municipality, may appoint adult school crossing guards for terms not exceeding one year and revoke such appointments for cause and after proper hearing before the chief of police or other chief law enforcement officer of the municipality.

Carteret asserted that because the statute limits the employment term of a crossing guard to one year, and does not provide for automatic reappointment or any guarantee of continued employment, it had no obligation to compensate Ivanitski for future academic years or reinstate her to her former position.

Rejecting those contentions, Judge Travis L. Francis noted the arbitrator's observation that, in disciplinary proceedings, the employer has the burden of proving by a preponderance of the evidence that the grievant committed a punishable transgression. The judge defined the scope of judicial review of an arbitration award as "extremely narrow." Citing Carpenter v. Bloomer, 54 N.J. Super. 157 (App. Div. 1959), the judge recognized that, in agreeing to arbitrate their disputes, parties thereby seek a speedy, economic, and final resolution of the matter. For that reason, an arbitration award may not be set aside merely because "the [c]ourt would have decided the facts or construed the law differently." Id. at 168.

Applying those principles, Judge Francis found no basis to vacate or modify the arbitration award. Further, in effectuating the award, he determined that, "[i]n making [] Ivanitski whole, Carteret is required to compensate [her] for the years she could not apply for reappointment based on the pendency of her wrongful termination lawsuit." The judge explained that, "[b]y wrongfully terminating [] Ivanitski . . . .,[Carteret] foreclosed an interest she had in being able to apply for another year-long appointment." The court found no basis to conclude that Ivanitski, who had served as a crossing guard from March 3, 1992, to April 16, 2012, would not have been reappointed absent the unjust termination. Moreover, Carteret's argument that it was only required to pay Ivantski two months back pay to make her whole, if accepted by the court, "would fly in the face of all notions of equity and interest of justice." Accordingly, the court concluded that Ivanitski was entitled to back pay for the 2012-13 and 2013-14 academic years. A memorializing order was entered on December 1, 2014.

Carteret appealed and sought a stay, which the trial court denied on February 6, 2015. The court again rejected Carteret's argument that, under N.J.S.A. 40A:9-154.1, Ivanitski had no protectable interest past the current school year to which she was appointed. Judge Francis reiterated that

in making [] Ivanitski whole, Carteret is required to compensate her for the years where she was not allowed to apply for reappointment because of her wrongful termination. By wrongfully terminating [] Ivanitski, Carteret foreclosed on an interest that she had in being able to apply for another year-long appointment.

In this appeal, Carteret does not contest the arbitrator's determination that Ivanitski's termination was unjust. Rather it argues, as it did before the trial court, that N.J.S.A. 40A:9-154.1 limits a crossing guard's employment term to one year, and does not guarantee re-employment thereafter. Consequently, Carteret asserts that it has no obligation to compensate Ivanitski for the 2012-13 and 2013-14 academic years or to reinstate her to her former position. The Union, in turn, argues that Carteret's position, if accepted, would eviscerate the arbitrator's mandate that Ivanitski be reinstated and made whole. Noting Ivanitski's twenty-year unblemished record, the Union also urges that the Borough should be held to its "unequivocal past practice at least since 1992 [which] was to reappoint its crossing guards without formal process."

Based upon our review of the record in light of the applicable law, we are not persuaded by Carteret's argument that N.J.S.A. 40A:9-154.1 limits Ivanitski's award to the balance of the 2011-12 school year and bars her reinstatement thereafter. We affirm the confirmation of the arbitrator's award substantially for the reasons articulated by Judge Francis. We add only the following brief comments.

We have recently re-affirmed the standards that guide our analysis

It is well-settled that "[a]rbitration awards are favored by the courts and are generally presumed to be valid." Local No. 153, Office & Prof'l Emps. Int'l. Union, AFL-CIO v. The Trust Co. of N.J., 105 N.J. 442, 448 (1987). Accordingly, judicial review of an arbitration award is very limited. Linden Bd. of Educ. v. Linden Educ. Ass'n, 202 N.J. 268, 276 (2010). The court may vacate an arbitration award in the following instances

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.]

"Additionally, 'a court may vacate an award if it is contrary to existing law or public policy.'" Borough of East Rutherford v. East Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)). "However, '[r]eflecting the narrowness of the public policy exception, that standard for vacation will be met only in rare circumstances.'" Ibid. (quoting N.J. Tpk. Auth. [v. Local 196, 190 N.J. 283, 294 (2007)]).

In reviewing an arbitration award, the court may not substitute its own judgment for that of the arbitrator. Id. at 201; Linden Bd. of Educ., supra, 202 N.J. at 277. When the arbitration is compelled by statute, "judicial review should extend to consideration of whether the award is supported by substantial credible evidence present in the record." Amalgamated Transit Union v. Mercer City Improvement Auth., 76 N.J. 245, 254 (1978).

[Bound Brook Bd. of Educ. v. Ciripompa, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 5-6).]

In this case, the arbitrator's determination that Ivanitski was wrongfully terminated is unchallenged. It is undisputed that Ivanitski had an unblemished disciplinary record during her two decades of employment by Carteret. It is also undisputed that, during that period, Carteret had no formal application process for the reappointment of crossing guards. There is no evidence in the record to suggest that, but for her unlawful termination, Ivanitski would not have been reappointed, as Judge Francis properly determined. Even if Carteret had a reapplication process, the judge correctly concluded that, "by wrongfully terminating [] Ivanitski, Carteret foreclosed on an interest that she had in being able to apply for another year-long appointment."

The arbitrator's award required that Ivanitski be reinstated and made whole with respect to seniority, benefits, and back pay, minus any outside earnings. Carteret has established no legal basis to vacate or modify that award. In confirming and effectuating the award, Judge Francis properly construed it to include the back pay and benefits that accrued while Ivanitski pursued the CNA's grievance procedures. We find no basis to disturb the judge's well-reasoned determination.

Affirmed.

1 In an earlier action, the Chancery Division remanded the case to the arbitrator to determine whether the Union's grievance was timely filed under the CNA. On May 14, 2014, the arbitrator issued a "remanded award and opinion" in which he concluded that the grievance was timely and directed that the January 31, 2014 award "remain in full effect."