CHRISTOPHER LUSKEY v. CARTERET BOARD OF EDUCATION

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3035-17T2

CHRISTOPHER LUSKEY,

     Plaintiff-Appellant,             APPROVED FOR PUBLICATION

                                                 May 8, 2019
v.
                                         APPELLATE DIVISION
CARTERET BOARD
OF EDUCATION,

     Defendant-Respondent.
____________________________

           Argued April 10, 2019 – Decided May 8, 2019

           Before Judges Alvarez, Reisner and Mawla.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Middlesex County, Docket No. C-
           000009-18.

           David J. De Fillippo argued the cause for appellant
           (Detzky Hunter & DeFillippo, LLC, attorneys; David J.
           De Fillippo, of counsel and on the briefs).

           Thomas A. Abbate argued the cause for respondent (De
           Cotiis FitzPatrick Cole & Giblin LLP, attorneys;
           Thomas A. Abbate, of counsel; Alice M. Bergen and
           Jennifer L. Personette, on the briefs).

     The opinion of the court was delivered by

REISNER, J.A.D.
      Plaintiff Christopher Luskey appeals from a February 1, 2018 order

denying his application to vacate an arbitration award and granting the cross-

motion of defendant Carteret Board of Education to confirm the award. We

affirm. Addressing a novel issue, we hold that a dispute over the termination of

a tenured public school janitor is subject to arbitration under the jurisdiction of

the Commissioner of Education and not the Public Employment Relations

Commission, even if a collective negotiations agreement dictated the length of

service required to attain tenure.

                                        I

      The pertinent facts are set forth in the arbitration award and need not be

repeated in detail here. Plaintiff was a tenured janitor working at a public school

in Carteret.    The Board of Education (Board) sought to terminate his

employment for unbecoming conduct and insubordination. The dispute over

plaintiff's termination was heard by an arbitrator appointed by the Commissioner

of Education (Commissioner), as required by the school laws.  1 See N.J.S.A.
 18A:6-9, -10, -16.     After a testimonial hearing, the arbitrator upheld the



1
  As discussed later in this opinion, plaintiff sought contractual arbitration of
his termination through the Public Employment Relations Commission, (PERC).
However, PERC declined to enjoin the Board from proceeding with arbitration
under the auspices of the Commissioner.
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termination based on a finding that petitioner was guilty of unbecoming conduct.

See Bound Brook Bd. of Educ. v. Ciripompa,  228 N.J. 4, 13-14 (2017) (defining

and explaining unbecoming conduct).

      Plaintiff moved to vacate the arbitration award, and the Board cross-

moved to confirm it. The Law Division judge rejected plaintiff's arguments that

the arbitrator lacked jurisdiction to hear the dispute, there was insufficient

credible evidence to support the arbitrator's factual findings, and the findings

were insufficient to support termination of plaintiff's employment.

      On this appeal, plaintiff presents the following points of argument for our

consideration:

            I.  THE TRIAL COURT SHOULD HAVE
            VACATED ARBITRATOR ZIRKEL'S AWARD
            BECAUSE HE SO IMPERFECTLY EXECUTED HIS
            POWERS THAT A MUTUAL, FINAL AND
            DEFINITE AWARD UPON THE SUBJECT MATTER
            WAS NOT MADE.

            II. THE TRIAL COURT ERRONEOUSLY
            CONFIRMED ARBITRATOR ZIRKEL'S DECISION
            TO SUSTAIN TWO ALLEGATIONS OF CONDUCT
            UNBECOMING UNDER CHARGE ONE.

            III. THE TRIAL COURT'S CONFIRMATION OF
            ARBITRATOR ZIRKEL'S DETERMINATION TO
            UPHOLD PLAINTIFF'S TERMINATION WAS
            WHOLLY UNWARRANTED.



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             IV. THE TRIAL COURT SHOULD HAVE
             VACATED THE AWARD BECAUSE ARBITRATOR
             ZIRKEL IMPROPERLY ADMITTED – AND RELIED
             UPON – EVIDENCE OF MISCONDUCT NOT
             INCLUDED IN THE [TENURE] CHARGES.

             V.  THE    TRIAL  COURT     ERRED IN
             CONFIRMING THE AWARD BECAUSE THE
             DEPARTMENT OF EDUCATION AND BY
             EXTENSION, ARBITRATOR ZIRKEL DID NOT
             HAVE SUBJECT MATTER JURISDICTION.

             VI. THE   TENURE     CHARGES      WERE
             PROCEDURALLY DEFECTIVE AND THEREFORE
             SHOULD HAVE BEEN DISMISSED BY THE TRIAL
             COURT.

      Our review of the trial court's decision is de novo. Yarborough v. State

Operated Sch. Dist. of Newark,  455 N.J. Super. 136, 139 (App. Div. 2018).

Because plaintiff did not arrange for the arbitration to be recorded, there is no

transcript of the testimony presented to the arbitrator. Consequently, there is an

inadequate record on which to consider plaintiff's argument that the arbitrator's

factual findings were not supported by substantial credible evidence. Based on

the facts the arbitrator found, we agree with the trial court that there was no basis

to disturb the award on any of the grounds set forth in  N.J.S.A. 2A:24-8. With

the exception of plaintiff's jurisdictional argument, which raises a novel issue,

his remaining arguments are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

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                                        II

      The jurisdictional issue revolves around the education statute addressing

tenure of janitorial employees. That statute grants tenure to public school

janitors, unless they are appointed under fixed-term contracts.  N.J.S.A. 18A:17-

3. The statute provides:

                   Every public school janitor of a school district
            shall, unless he is appointed for a fixed term, hold his
            office, position or employment under tenure during
            good behavior and efficiency and shall not be dismissed
            or suspended or reduced in compensation, except as the
            result of the reduction of the number of janitors in the
            district made in accordance with the provisions of this
            title or except for neglect, misbehavior or other offense
            and only in the manner prescribed by subarticle B of
            article 2 of chapter 6 of this title [ N.J.S.A. 18A:6-9 to
            -17.1].

            [N.J.S.A. 18A:17-3.]

As indicated in the statute, a school district cannot terminate a tenured school

janitor except "in the manner prescribed" by chapter six of the school laws. Ibid.

Chapter six requires that "a controversy and dispute" concerning the dismissal

of a tenured school employee must be heard by an arbitrator appointed by the

Commissioner.  N.J.S.A. 18A:6-9 (requiring arbitration of controversies and

disputes arising under "C. 18A:6-10 et seq."). See also  N.J.S.A. 18A:6-10

(stating tenured employees may only be dismissed after a hearing "pursuant to


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this subarticle");  N.J.S.A. 18A:6-16 (If the Commissioner finds the charge

sufficient to warrant dismissing a tenured employee, "he shall refer the case to

an arbitrator pursuant to [N.J.S.A. 18A:6-17.1.]");  N.J.S.A. 18A:6-17.1

(providing that the Commissioner appoints the arbitrators).

       In an effort to avoid the arbitration process under the auspices of the

Commissioner, plaintiff sought arbitration before PERC. He argued that the

collective negotiations agreement (CNA) between his union and the Board

guaranteed him tenure separate from the provisions of  N.J.S.A. 18A:17-3.2

Therefore, he contended, the arbitration provision of the CNA, which falls under

PERC's jurisdiction, would apply rather than the arbitration provision of the

school laws.

       Plaintiff asked PERC to enjoin the Board from proceeding with arbitration

through the Commissioner.       PERC denied the injunction, reasoning that

plaintiff's arguments were novel but unlikely to succeed on the merits. Plaintiff



2
    The pertinent language from the CNA reads as follows:

             Tenure rights shall be acquired [] for all employees
             after three (3) consecutive years of service and the
             commencement of the fourth year, or, the equivalent of
             more than three (3) years of service within a period of
             four (4) consecutive years.


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presented the same arguments to the arbitrator designated to hear the school-law

arbitration. The arbitrator likewise rejected the arguments as without merit and

proceeded with the arbitration.

      On this appeal, plaintiff presents the same contentions. We find them

without merit, for two reasons. First, we reject plaintiff's argument that his

tenure stems solely from the contract and not from the school laws. Second,

even if his tenure was solely conferred by the contract, once he became a tenured

school employee, a disciplinary action aimed at terminating his employment

would be governed by the school laws, and not by the New Jersey Employer-

Employee Relations Act (the Act),  N.J.S.A. 34:13A-1 to -43.

      In Wright v. Board of Education of City of East Orange,  99 N.J. 112

(1985), the Supreme Court held that  N.J.S.A. 18A:17-3 did not preclude a school

board from negotiating, with the janitorial employees' union, a middle ground

between giving janitors immediate tenure upon hiring and permanently denying

them tenure by repeatedly giving them fixed-term contracts. Id. at 120-22.

Thus, a board could agree that after serving for a certain number of years, a

janitor would attain tenured status. Id. at 123. In practical effect, once a janitor

had served for the contractually required number of years under a fixed-term




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contract, the board would hire the individual without a fixed term contract, thus

conferring tenure.

      Wright, however, did not treat the contractually-agreed tenure as different

from statutory tenure for disciplinary purposes. Rather, the Court recognized

that even a janitor who receives tenure pursuant to a CNA may be subject to the

filing of tenure charges pursuant to  N.J.S.A. 18A:17-3. The Court stated that

"as we have taken pains to explain,  N.J.S.A. 18A:17-3 grants an employing

board discretion in determining whether to grant tenure to custodians."  99 N.J.

at 122 (citation omitted). In a footnote, the Court added:

                  Even the acquisition of tenure under a negotiated
            labor agreement is not a promise of continued
            employment.  N.J.S.A. 18A:17-3 still safeguards the
            boards' right to dismiss custodians because of a
            reduction in force or due to misconduct, inefficiency,
            and other good cause.

            [Id. at 122 n.3]

      Based on that language, we reject plaintiff's argument that a janitor's

tenure obtained through a CNA is substantively different from tenure obtained

through  N.J.S.A. 18A:17-3. To the contrary, it is one way of obtaining statutory

tenure, in that the board has contractually agreed to refrain from continuing to

appoint the janitor to fixed terms and agreed instead to give him or her a

permanent appointment. Because a janitor who obtains tenure is subject to the

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school laws with respect to that appointment, a dispute over his or her

termination is subject to arbitration under the school laws. See  N.J.S.A. 18A:17-

3;  N.J.S.A. 18A:6-9, -10.

      In addition, the Act excepts from its provisions a dispute over termination

of an employee with statutory tenure, and prohibits contractual agreements to

replace statutorily-provided appeal procedures. Under the Act, "discipline" does

not include tenure charges filed under Title 18A:

            "Discipline" includes all forms of discipline, except
            tenure charges filed pursuant to the provisions of
            subsubarticle 2 of subarticle B of Article 2 of chapter 6
            of Subtitle 3 of Title 18A of the New Jersey Statutes,
            N.J.S. 18A:6-10 et seq., or the withholding of
            increments pursuant to N.J.S. 18A:29-14.

            [N.J.S.A. 34:13A-22.]

      In addition, the Act prohibits the parties from negotiating a right to

contractual binding arbitration to challenge tenure charges.

            Except as otherwise provided herein, the procedures
            agreed to by the parties may not replace or be
            inconsistent with any alternate statutory appeal
            procedure nor may they provide for binding arbitration
            of disputes involving the discipline of employees with
            statutory protection under tenure or civil service laws[.]

            [N.J.S.A. 34:13A-5.3.]




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      Here, the school laws supply an "alternate statutory appeal procedure" in

the form of arbitration under the auspices of the Commissioner.          In fact ,

arbitration conducted under the Commissioner's jurisdiction is the statutorily

required procedure to resolve contested tenure charges against a school

employee. See  N.J.S.A. 18A:17-3;  N.J.S.A. 18A:6-9 to -17.1. Therefore, PERC

lacks jurisdiction to enforce arbitration challenging the termination of a tenured

school janitor.  N.J.S.A. 34:13A-5.3.

      Accordingly, we affirm the trial court's order confirming the arbitration

award.

      Affirmed.




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