Linden Board of Education v. Linden Education Association

Annotate this Case

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

Linden Board of Education v. Linden Education Association on behalf of John Mizichko (A-17-09)

Argued January 5, 2010 -- Decided June 8, 2010

WALLACE, JR., J., writing for a majority of the Court.

In this employment case, the Court determines whether an arbitrator exceeded his authority by imposing a lesser
penalty than termination for an employee's misconduct.

John Mizichko began working as a custodian for the Linden Board of Education (Board) in July 2000. On May
5, 2005, Mizichko was working the night shift at Linden High School, and a scheduled dance recital required that
students change outfits in several classrooms. The head custodian posted signs informing Mizichko that certain
classrooms would be used as changing rooms. The evening supervisor instructed Mizichko to knock and yell
"custodian" before entering a female area, and to immediately leave if he unknowingly entered a changing room. At
one point, Mizichko entered a room where female students were changing. He cleaned the glass panes on the door
and ignored the pleas of the students to leave. 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. Mizichko eventually left the room.

Mizichko acknowledged that he knew certain rooms would be used as changing rooms and was instructed not to
enter those rooms. He stated, however, that he had cleaned other classrooms that were designated as changing
rooms and found them empty after knocking. He admitted encountering students in one room, but stated he was
unaware that they were undressing. He also admitted that he hesitated when a teacher told him to leave. Mizichko
was placed on paid suspension. After conducting an investigation, the Board voted to terminate Mizichko's
employment.

The Linden Education Association (Association) filed a grievance on Mizichko's behalf pursuant to the
Collective Negotiating Agreement (Agreement). The parties were unable to come to a resolution, and the
Association filed a request for arbitration. The Agreement required that grievances be resolved through binding
arbitration and stated that an employee with contractual tenure, such as Mizichko, "shall not be disciplined,
discharged or not reappointed without just cause." The Agreement did not define just cause. The parties framed the
question for the arbitrator as follows: "Did the Board of Education have just cause to terminate the employment of
John Mizichko? And, if not, what shall be the remedy?" After the hearing, the arbitrator determined that Mizichko
was motivated by a desire to get his work done, but knew about the rule and the possible consequences of violating
it, therefore there was just cause to impose discipline. Concluding that progressive/corrective discipline was an
integral part of the just cause concept, the arbitrator imposed a ten-day suspension without pay after noting that this
was Mizichko's first offense, and after finding that termination was disproportionate to the gravity of the
misconduct.
The Board filed a complaint in the Superior Court, Law Division, seeking to vacate the arbitration award. In
confirming the award, the judge interpreted the arbitrator's opinion as not having found just cause to terminate
Mizichko's employment, and instead having found the requisite amount of just cause to impose some form of
discipline. The judge concluded that the arbitrator did not exceed his authority by imposing a lesser penalty.

In an unpublished decision, 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 the arbitrator had no authority to consider other remedies. The dissenting judge
concluded that the arbitrator's finding that termination was a disproportionate penalty and that a suspension was
appropriate was a proper exercise of his authority and filled the gaps in the Agreement's disciplinary guidelines.
The Association appealed to the Supreme Court as of right based on the dissent in the Appellate Division.

HELD: The fair and reasonable interpretation of the decision of the arbitrator is that he found no just cause to

terminate the employee. As directed by the parties, he then imposed an appropriate sanction. The arbitrator's
determination satisfied the reasonably debatable standard of review and did not exceed the limits of his authority.

1. New Jersey jurisprudence favors the use of arbitration to resolve labor-management disputes, and there is a
strong preference for judicial confirmation of arbitration awards. Judicial review of an arbitration award is limited,
and in the public sector, an award will be confirmed so long as the award is reasonably debatable. Arbitration is a
vehicle by which meaning and content are given to a collective bargaining agreement, and it is the arbitrator's
construction of the agreement that is bargained for. Furthermore, the weight of arbitral opinion is that a standard of
just cause may be imposed upon disciplinary actions even if such a standard is not spelled out in the agreement.
Under the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, a reviewing court may vacate an award if it was
procured by fraud or undue means, there was partiality or corruption in the arbitrators, the arbitrators were guilty of
misconduct prejudicial to the rights of any party, or the arbitrators exceeded or so imperfectly executed their powers
that a mutual, final and definite award was not made. (Pp. 9--12).

2. Here, the parties asked 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 questions implied that a remedy other than
termination would be appropriate, because if the arbitrator did not find just cause to terminate, the parties asked him
to both fashion and impose an appropriate remedy. The Agreement did not define just cause, and there was nothing
in the questions submitted that limited the power of the arbitrator to fill in the gap and give meaning to that term.
The arbitrator did that. The arbitrator first explained that, in general, just cause requires that before an employee is
disciplined, he should know of the existence of a pertinent rule, that the rule is reasonably related to the business of
the employer, and the possible consequence of a violation. Although the arbitrator found just cause for discipline,
he also concluded that the facts were insufficient to justify a finding of just cause that would result in termination.
The arbitrator declared that when termination is imposed, just cause "requires that the penalty not be
disproportionate given the totality of the circumstances, including mitigating factors[,]" and "the Board has not
proven that termination of Mizichko's employment is appropriate." The fair and reasonable interpretation of the
arbitrator's decision is that he found there was no just cause for termination. That decision is reasonably debatable,
therefore the trial court properly confirmed the award. (Pp. 12--13).

3. After reviewing New Jersey and federal cases, the Court explains that the contractual language drives its decision
in this case. The Agreement did not define just cause, and the arbitrator properly filled in the gap and gave meaning
to the term. He concluded that progressive/corrective discipline was an integral part of the just cause concept, and
that the employee's misconduct was not so egregious to support just cause to terminate. After reaching that
conclusion, consistent with the issues presented by the parties, he imposed discipline. The arbitrator's determination
satisfied the reasonably debatable standard and did not exceed the limits of his authority. (Pp. 13--18).

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for
reinstatement of the arbitration award.

JUSTICE RIVERA-SOTO, concurring in the result, is of the opinion that by asking the arbitrator to consider
both whether discipline was to be imposed and, if so, the degree of discipline to be imposed, the parties stipulated to
the issues to be determined by the arbitrator and waived any objection to the exercise of that jurisdiction. Justice
Rivera-Soto maintains that outright enforcement of the parties' own agreement to arbitrate, on its explicit terms,
justifies reinstatement of the award.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and HOENS join in JUSTICE
WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in the Court's result.
JUSTICE LONG did not participate.

SUPREME COURT OF NEW JERSEY
A-
17 September Term 2009

LINDEN BOARD OF EDUCATION,

Plaintiff-Respondent,

LINDEN EDUCATION ASSOCIATION
on behalf of JOHN MIZICHKO,

Defendant-Appellant.

Argued January 5, 2010 Decided June 8, 2010

On appeal from the Superior Court, Appellate
Division.

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

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

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

John J. Burns 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

R. 2:2-1(a)(2). We
is before the Court as a matter of right.

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.

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 (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.

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

R. 2:2-1(a)(2). We
the dissent in the Appellate Division.

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 (1987),

Scotch Plains-Fanwood Board of Education v. Scotch Plains-

Fanwood Education Ass'n ,
139 N.J. 141, 158 (1995), and New

Jersey Turnpike Authority v. Local 196, I.F.P.T.E.,
190 N.J.
283, 304 (2007), all support its position, because in each of

those cases the Court upheld an arbitrator's decision to

reinstate an employee who had been terminated. Further, the

Association agrees with the approach of the dissent in the

Appellate Division, distinguishing County College of Morris from

this case.

In contrast, the Board argues that County College of Morris

is controlling, because the facts in that case "are virtually

identical" to the facts here. Consequently, the Board contends

that once the arbitrator decided that there existed just cause

for termination, it was beyond the arbitrator's authority to

order reinstatement. The Board argues that if the parties had

desired a system of progressive discipline, they would have

negotiated such a provision in the Agreement. The Board asserts

that "[t]here were no `gaps' in the Agreement" for the

arbitrator to fill. Further, the Board distinguishes Local 153.

In that case, the arbitrator found that just cause for

termination did not exist, whereas here, the arbitrator found

that there was just cause for termination.

Amicus Local 195 essentially supports the Association's

Further, it argues that County College of Morris has
position.

effectively been overruled by subsequent court decisions and the

Legislature's amendment to L. 1996 c. 115 § 4 (N.J.S.A. 34:13A-

5.3 (1996)), which emphasizes that courts "shall be bound by a

presumption in favor of arbitration" in interpreting collective

bargaining agreements.

Amicus New Jersey School Boards Association essentially

agrees with the Board's position and emphasizes the need to

protect the safety and welfare of students in New Jersey.

III.

Preliminarily, we state several general principles

regarding the field of arbitration. New Jersey jurisprudence

favors "the use of arbitration to resolve labor-management

disputes." N.J. Tpk. Auth., supra,
190 N.J. at 291 (citations

omitted); Bd. of Educ. of Alpha v. Alpha Educ. Ass'n,
190 N.J.
34, 41 (2006) (citations omitted). Arbitration is intended to

provide "a speedy and inexpensive" means to settle disputes.

Bd. of Educ. of Alpha, supra,
190 N.J. at 42. We have

emphasized that "[r]esolution through arbitration should be the

end of the labor dispute, not a way-station on route to the

courthouse." State, Office of Employee Relations v. Commc'ns

Workers of Am.,
154 N.J. 98, 111 (1998); N.J. Tpk. Auth., supra,

190 N.J. at 292 (noting "arbitration is meant to be a substitute

for and not a springboard for litigation") (citation and

internal quotation marks omitted).

Moreover, "[a]rbitration is a vehicle by which meaning and

content are given to the collective bargaining agreement."

Local 153, supra,
105 N.J. at 452 (citation and internal

quotation marks omitted). Although the arbitrator may not

contradict the express language of the contract, "it is the

arbitrator's construction that is bargained for[,]" and "[i]t is

the arbitrator's role to fill the gaps[.]" Ibid. Indeed, when

addressing issues of just cause, "[t]he weight of arbitral

opinion is that a standard of just cause may be imposed upon

disciplinary actions even though such a standard is not spelled

out in the agreement." Scotch Plains-Fanwood Bd. of Educ.,

supra,
139 N.J. at 157 (citation and internal quotation marks

omitted).

In promoting a sense of finality, there is "a strong

preference for judicial confirmation of arbitration awards."

Middletown Twp. PBA Local 124 v. Twp. of Middletown,
193 N.J. 1,

10 (2007) (citation and internal quotation marks omitted).

Judicial review of an arbitration award is very limited, and

"the arbitrator's decision is not to be cast aside lightly."

Bd. of Ed. of Alpha, supra,
190 N.J. at 42 (citations omitted).

In the public sector, an arbitrator's award will be confirmed

"so long as the award is reasonably debatable." Middletown Twp.

PBA Local 124, supra,
193 N.J. at 11 (citations and internal

quotation marks omitted). Consistent with the reasonably

debatable standard, "a reviewing court may not substitute its

own judgment for that of the arbitrator, regardless of the

court's view of the correctness of the arbitrator's

interpretation." N.J. Transit Bus Operations, Inc. v.

Amalgamated Transit Union,
187 N.J. 546, 554 (2006) (citation

omitted).

The New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11,

dictates that a reviewing 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(a)-(d).]

III.

We turn now to apply those principles to the arbitrator's

decision in the present matter. The dispute between the parties

centers around the interpretation of the arbitrator's award.

The parties asked 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 Association

contends that the arbitrator found there was no just cause to

terminate, and that once he made that decision, the arbitrator

appropriately imposed a fair sanction. We agree.

The Agreement did not define just cause, nor was there

anything in the questions submitted that limited the power of

the arbitrator to fill in the gap and give meaning to that term.

The questions submitted imply that a remedy other than

termination would be appropriate, because if the arbitrator did

not find just cause to terminate, the parties asked the

arbitrator to both fashion and impose an appropriate remedy.

In answering whether the termination of Mizichko was for

just cause, the arbitrator first explained that, in general,

"just cause . . . 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."

(emphasis added). Although the arbitrator found that the facts

supported a finding that there was just cause for discipline, he

also concluded that those facts alone were insufficient to

justify a finding of just cause that would result in

termination. The arbitrator then declared that when termination

is imposed, just cause "requires that the penalty fit the

infraction and not be disproportionate given the totality of the

circumstances, including mitigating factors[,]" and that "the

Board has not proven that termination of Mizichko's employment

is appropriate."

Just cause was not defined in the Agreement, and therefore

it was necessary for the arbitrator to give meaning to the term.

The arbitrator did that. In our view, the fair and reasonable

interpretation of the arbitrator's decision is that the

arbitrator found there was no just cause to terminate the

employee. That decision is reasonably debatable, and therefore,

the trial court properly confirmed the award.

In light of our interpretation of the arbitrator's

decision, we find that County College of Morris is readily

distinguishable. In that case, the contractual language defined

the circumstances constituting just cause for termination, and

the arbitrator expressly found just cause to terminate the

employee. County Coll. of Morris, supra,
100 N.J. at 392-93.

The arbitrator then concluded that the contract should be

construed to require a less severe form of discipline, because

the employee had received no warning that his employment was in

jeopardy. Id. at 394-95. We held that the arbitrator exceeded

his authority in ordering suspension, because he neglected to

discharge the employee pursuant to the agreement of the parties.

Id. at 393. Rather, once he identified a sufficient violation

of the rules to warrant termination, he reduced the penalty of

discharge to one of suspension. Ibid. Nevertheless, although

not necessary to decide the appeal, we added the following:

It is of no moment that the parties'
contract did not provide specifically for
discipline short of discharge[.] Had the
facts supported such a conclusion, the
arbitrator could . . . have found that [the
employee] was not guilty of the offenses[.]
Even after finding the employee guilty of
the specified charges of misconduct, the
arbitrator was free to apply his special
expertise and determine that these offenses
do not rise to a level of misconduct that
constitutes just cause for discharge. . . .
. Had the arbitrator so concluded, we
assume that the proper remedy would have
been a disciplinary penalty less severe than
that of discharge.

[Id. at 393-94 (emphasis added).]

Unlike in County College of Morris, the Agreement here did

not define just cause for discharge. Moreover, as the above

quote suggests, the expertise of the arbitrator was sought, and

the arbitrator was free to determine that the misconduct did not

rise to a "level . . . that constitutes just cause for

Id. at 394. In short, we are satisfied that the
discharge."

arbitrator acted in full compliance with the submission of the

parties.

Beyond that, the questions submitted to the arbitrator in

the present case are identical to the questions posed in Local

153, supra,
105 N.J. at 446. In that case, the bank fired one

of its employees "for cashing a forged check." Id. at 444. The

union challenged the termination, asserting there was no just

cause to terminate. Id. at 446. The parties submitted the

issue for arbitration and asked the following questions: "[w]as

there just and sufficient cause to terminate [the employee]

under the terms of the labor agreement. . .? If not, what shall

The collective bargaining agreement
be the remedy?" Ibid.

provided "that there shall be no discharge except for just and

sufficient cause[,]" but did not define just cause. Id. at 451.

The arbitrator, citing both the employee's long-term service

with the bank and her good record, found that termination was

too harsh a penalty, ultimately imposing a period of suspension

without pay and reimbursement. Id. at 446-47. The trial court

upheld the portion of the award ordering reinstatement, but

vacated the reimbursement remedy. Id. at 447. The Appellate

Division affirmed. Ibid. We granted certification and

reinstated the arbitrator's award. Id. at 447, 453. We held

that there was "nothing in the collective bargaining agreement

that limits the arbitrator to a choice between termination and

reinstatement" or to fashion a remedy. Id. at 451. We also

noted that County College of Morris did not control, because the

arbitrator did not find there was just cause to terminate.

Similarly, in the present case we find that the facts are
Ibid.

more like those found in Local 153 and not controlled by County

College of Morris.

Lastly, we note that our conclusion in this matter is in

accord with federal jurisprudence. Our courts look to federal

arbitral decisions, and we "repeatedly consult[] [those

decisions] for guidance." N.J. Tpk. Auth., supra,
190 N.J. at
292 (citation omitted). For example, in United Transportation

Union Local 1589 v. Suburban Transit Corp.,
51 F.3d 376, 378 (3d

Cir. 1995), the collective bargaining agreement (CBA) required

"proper cause" to discharge an employee. The employee bus

driver was terminated after "his third preventable rear-end

collision" and twenty-fourth accident in his twelve years of

employment. Id. at 379. The union filed a grievance on the

employee's behalf, and the matter proceeded to arbitration in

accordance with the CBA, which provided that the arbitrator

"shall not have any authority whatsoever to alter, amend or

modify any of the provisions of this agreement." Ibid. The

arbitrator determined that termination was too harsh a penalty

and imposed a lesser sanction. Ibid. The district court

vacated the arbitrator's award, because the arbitrator had

improperly read a requirement for progressive discipline into

the CBA. Id. at 380. The Third Circuit reversed, reasoning

that

the arbitrator did not impermissibly "read
into" the parties' agreement terms that were
not there. Rather, the arbitrator simply
interpreted the ambiguous term "proper
cause" in a manner unsatisfactory to
management. The CBA allows [the employer]
to discipline or discharge for "proper
cause" . . . but does not define the phrase.
When the grievance was submitted to
arbitration, the arbitrator was forced to
decide what "proper cause" meant[.]

***

[T]he parties bargained for contractual
ambiguity instead of defining `proper cause'
in the CBA. Having decided not to define
the phrase, [the employer] cannot escape the
results of that bargain simply because the
arbitrator has chosen to interpret that
phrase differently than [the employer] may
have wanted - even if [the employer]'s
interpretation of the CBA is more reasonable
than the result announced by the arbitrator
. . . [T]he arbitrator's interpretation of
the phrase "proper cause" did, in effect,
impose a progressive discipline system upon
the parties . . . such a result can be a

justified interpretation of a "just cause"
provision.

[Id. at 380-81 (citations omitted).]

The contractual language drives our decision. The parties

did not define "just cause" in the Agreement, and the arbitrator

needed to fill in the gap and give meaning to the words "just

cause." The arbitrator did so. He concluded that

"progressive/corrective discipline [was] an integral part of the

just cause concept[,]" and that the employee's misconduct was

not so egregious to support just cause to terminate. Once the

arbitrator reached that conclusion, consistent with the issues

presented by the parties, he imposed discipline upon the

employee. The arbitrator's determination in that regard

satisfied the reasonably debatable standard and did not exceed

the limits of his authority.

IV.

We reverse the judgment of the Appellate Division and

remand for reinstatement of the arbitration award.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
HOENS join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO
filed a separate concurring opinion. JUSTICE LONG did not
participate.

SUPREME COURT OF NEW JERSEY
A-
17 September Term 2009

LINDEN BOARD OF EDUCATION,

Plaintiff-Respondent,

LINDEN EDUCATION ASSOCIAITON
on behalf of JOHN MIZICHKO,

Defendant-Appellant.

JUSTICE RIVERA-SOTO, concurring in the result.

Although I agree with my colleagues that the correct

resolution of this appeal is to reverse the judgment of the

Appellate Division and reinstate the arbitrator's award, I

arrive at that conclusion via a different, but straighter path.

The parties in this case stipulated that the issues to be

determined by the arbitrator -- and, hence, what the arbitrator

would have jurisdiction to consider -- included not only whether

"the Board of Education ha[d] just cause to terminate the

employment of John Mizichko" but also "if not, what shall be the

remedy?" By that latter inquiry, the parties vested in the

arbitrator the authority to determine both whether discipline

was to be imposed and, if so, the degree of discipline to be

imposed. Stated differently, by explicitly stipulating to the

issues to be determined by the arbitrator, the parties waived

any objection to the exercise of that jurisdiction.

We have made clear that "parties may waive their right to

have a court determine the issue by their conduct or by their

agreement to proceed in arbitration." Wein v. Morris,
194 N.J.
364, 381 (2008) (citing N.J. Mfrs. Ins. Co. v. Franklin,
160 N.J. Super. 292, 300 (App. Div. 1978)). In determining whether,

in the arbitral context, a waiver is presented,

the court should consider the totality of
circumstances to evaluate whether a party
has waived the right to object to
arbitration after the matter has been
ordered to arbitration and arbitration is
held. Some of the factors to be considered
in determining the waiver issue are whether
the party sought to enjoin arbitration or
sought interlocutory review, whether the
party challenged the jurisdiction of the
arbitrator in the arbitration proceeding,
and whether the party included a claim or
cross-claim in the arbitration proceeding
that was fully adjudicated.

[Id. at 383-84.]

A straightforward application of those principles to the

facts in this case yields a simple result: because the parties

agreed to submit to arbitration not only whether discipline

should be imposed, but also the quantum of discipline to be

imposed, and because, until the award was issued, the parties

continued participating in that arbitration without protest or

objection, plaintiff Linden Board of Education cannot now be

-2-

heard to complain that, in respect of the remedy imposed, the

arbitrator exceeded his powers in violation of the Arbitration

Act, N.J.S.A. 2A:24-1 to -11. In short, plaintiff affirmatively

waived any challenge to the arbitrator's power when it

specifically authorized the arbitrator to determine, if

discipline short of termination was appropriate, what the extent

of that discipline would be. If plaintiff truly was of the view

it now advances on appeal -- that, once the arbitrator

determined that there was sufficient cause to discipline John

Mizichko, the amount of the discipline (termination) imposed by

plaintiff was not subject to review -- it simply should not have

authorized the arbitrator to determine also (1) that termination

of Mizichko's employment was inappropriate and (2) short of

termination of employment, "what shall be the remedy?"

In colloquial terms, plaintiff made its own bed, and it now

should lie in it. Because, in my view, plaintiff has waived the

objection it now pursues on appeal, this Court need not parse

out what the arbitrator did or did not do; outright enforcement

of the parties' own agreement to arbitrate, on its explicit

terms, more than suffices to justify reinstatement of the

arbitrator's award.

-3-

SUPREME COURT OF NEW JERSEY

NO. A-17 SEPTEMBER TERM 2009
ON APPEAL FROM Appellate Division, Superior Court

LINDEN BOARD OF EDUCATION,

Plaintiff-Respondent,

LINDEN EDUCATION ASSOCIATION
on behalf of JOHN MIZICHKO,

Defendant-Appellant.

DECIDED June 8, 2010
Chief Justice Rabner PRESIDING
OPINION BY Justice Wallace
CONCURRING OPINION BY Justice Rivera-Soto
DISSENTING OPINION BY

REVERSE AND CONCUR IN
CHECKLIST
REMAND RESULT
CHIEF JUSTICE
X
RABNER
---------------------- ------------------------
JUSTICE LONG
X
JUSTICE LaVECCHIA
X
JUSTICE ALBIN
X
JUSTICE WALLACE
(X) X
JUSTICE RIVERA-SOTO
X
JUSTICE HOENS
TOTALS 6

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