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DOCKET NO. A-6396-04T16396-04T1









Argued: June 20, 2006 - Decided July 20, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Number MER-L-0483-05.

Annmarie Pinarksi argued the cause for appellant (Weissman & Mintz, attorneys; Ms. Pinarski, on the brief).

George N. Cohen, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Cohen, on the brief).


Defendant CWA Local 1040, on behalf of Bruce Bryant, appeals from an order entered in the Law Division on June 24, 2005, vacating an arbitration award entered against the State of New Jersey, Department of Corrections, pursuant to N.J.S.A. 2A:24-8d. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

CWA Local 1040 is the exclusive majority representative for higher level supervisory employees of the State of New Jersey pursuant to a collective bargaining contract. Bruce Bryant is an Institutional Training Instructor with the Department of Corrections at South Woods State Prison, and is a member of CWA Local 1040.

On August 15, 2002, Bryant was served with a "Notification of Minor Disciplinary Action," charging him with a violation of N.J.A.C. 4A:2-2.3(a)6, by engaging in conduct unbecoming a public employee. The specification in that Notification stated:

On May 23, 2002 you attended a meeting with Mr. Moro and subordinates in which the racial composition of inmates in the print and sign shop and other work areas were addressed and you did make and permit a subordinate Mr. Roller to make racially derogatory remarks about the abilities of black inmates. You have also used the term "nigger rigged" in the workplace. Your conduct is unbecoming an employee and supervisor.

The Notification further provided that Bryant would be disciplined by a suspension without pay for five (5) days.

The CWA filed a grievance with the State, contesting the disciplinary action. When the grievance could not be resolved, the CWA requested disciplinary arbitration pursuant to Article V(I) of the employment agreement. Article V(I)2 provides:

a. The sole determination to be made by the arbitrator shall be the guilt or innocence of the employee and he shall, therefore, sustain the penalty imposed or vacate it by his opinion, however, the arbitration decision rendered shall be complete. He shall neither add to, subtract from, nor modify any of the provisions of this Agreement by any award.

b. The arbitrator's opinion shall contain a short statement of the nature of the proceedings, the positions of the parties and specific findings and conclusions based on the facts. In addition, the arbitrator's order shall discuss any of the testimony, evidence or position of the parties which merit special analysis or explanation.

Edmund Gerber was designated as the arbitrator in this matter. On October 13, 2004, the arbitrator conducted a hearing, and then issued a written "Arbitrator's Opinion and Award" on November 19, 2004. The arbitrator stated that the parties had agreed that the issue to be resolved was whether "the suspension imposed upon Bruce Bryant [was] for just cause? If not, what shall the remedy be?"

In his opinion, the arbitrator explained that John Moro, Bryant's supervisor, heads the print shop in the prison and that Moro had called for and conducted the May 23, 2002 meeting. In addition to Bryant and Moro, subordinates Dave Durling, Brenda Gore, Gary Roller and Tony Canglin were also present. During the meeting, Roller, who is an instructor in the print shop, made several racially-charged statements, including stating that "Black inmates who are transferred into the print shop should do bindery work because it is a black job," and "Classification could send us five or so black inmates and when they don't work out, find valid reasons to have them removed."

Following the meeting, David Durling, a subordinate of Bryant, spoke with the Special Investigation Division (SID) of the Department of Corrections, and complained that comments made at the meeting violated the Department's policies concerning racial harassment. During his interview by SID personnel, Durling stated that in the past he had heard Bryant use the term "nigger-rigged" several times, but that he had not done so during the May 23, 2002 meeting.

At the arbitration hearing, Durling testified that neither Moro nor Bryant the two supervisors in attendance at the May 23, 2002 meeting took any action to chastise Roller for his comments. Durling also contended that Bryant had made a comment at the meeting that "if they change the composition of the shops they have to look at the clothing shop. There are only two whites in the shop and you know why that is." The head instructor in the clothing shop is African-American. Brenda Gore corroborated Durling's testimony and stated she had also heard Bryant use the term "nigger-rigged" in the past.

In his testimony, Bryant acknowledged that Roller had made racially-provocative statements at the May 23, 2002 meeting, and admitted discussing the racial composition of the clothing shop, but did not recall stating "and you know why that is." Bryant denied using the term "nigger-rigged," stating he had used the term "niggardly rigged" in the past to describe something poorly repaired.

In concluding that the State had failed to prove it had just cause to suspend Bryant for five days, the arbitrator stated in pertinent part:

The test for just cause is the test of reasonableness; was it reasonable for the Department to discipline Bryant? Under the facts in this matter, the Department must show that the allegations against Bryant were true, that the conduct warranted discipline and that the discipline was foreseeable.

The specifications of the charge list three separate offenses: 1) not chastising Roller for his comments and 2) making a racially derogatory comment at the May 23, 2002 meeting, as well as 3) Bryant's using the term "nigger rigged."

Taking the latter issue first, I am not impressed by Bryant's explanation that he used the term "niggardly rigged," not "nigger rigged." . . . He obviously knew that not everyone understands the difference between these two words and that he could easily be misunderstood. Significantly, both Gore and Durling thought he said "nigger rigged." Bryant had a duty to avoid the appearance of racial bias and had the obligation to avoid such provocative language anywhere in the work place. He should not have used either term.

Gore and Durling both testified that Bryant ended his comments about the racial imbalance in the clothing shop with, "And you know why that is." Bryant did not recall making this statement, but I credit the testimony of Brenda Gore, who appeared uncomfortable testifying against Bryant. I find that he did say it. . . . The head of the clothing shop is African-American. Bryant was apparently implying that the head of the clothing shop is biased. . . . Bryant should know that it was inappropriate for him to make such a claim about another Trainer Supervisor in a staff meeting. If he knew of bias by the head of the clothing shop, he should have reported it to SID.

The accusation that Bryant permitted, "a subordinate, Roller, to make derogatory remarks," is troubling. Bryant's responsibilities were not as clear as the Department contends. This is not simply a matter where, as a supervisor, he has the duty to correct another employee. The meeting was conducted by Bryant's supervisor, Industrial Manager John Moro; Roller is assigned to the print shop and is supervised by Moro. Moro may have failed to adequately reprimand Roller during the meeting, but it clearly was Moro's responsibility. Bryant was in a difficult situation; if he did intervene, he would have to assert himself in a situation that was being handled, if poorly, by his own supervisor, not a peer, and ignore the chain of command. It must be remembered that ignoring the chain of command itself can be grounds for discipline. The Department has not demonstrated that Bryant received clear instructions to ignore the chain of command under such a situation. The Department has not shown that Bryant could reasonably foresee that he would be disciplined for failing to silence Roller.

The Department made three specific allegations in its specifications against Bryant and has been sustained on two of them. However, the central issue of the specification, that Bryant failed to silence Roller, was not sustained. The discipline, by its terms, cannot be parsed as to the specific allegations and I lack the authority to fashion a lesser remedy.

Since I cannot sustain the Specification as written, I must find Bruce Bryant innocent of the charge.

On or about February 18, 2005, the State filed a verified complaint in the Law Division against the CWA and Bryant pursuant to N.J.S.A. 2A:24-7, seeking judgment vacating the arbitration award. The State contended that the arbitrator's decision "was based on a clearly mistaken view of law and fact and was procured by undue means as set forth in N.J.S.A. 2A:24-8a[,]" and that "the arbitrator exceeded or so imperfectly executed his powers that a mutual, final and definite award upon the subject matter was not made as set forth in N.J.S.A. 2A:24-8d."

The CWA, on behalf of Bryant, filed an answer and a counterclaim, seeking an order confirming the arbitration award. The matter was argued in the Law Division, in a summary manner, on June 17, 2005. On June 24, 2006, Judge Andrew J. Smithson delivered an oral decision, concluding that the arbitrator had applied the wrong standard to the arbitration proceeding. The judge explained that the arbitration clause of the applicable collective bargaining agreement required the arbitrator to only determine the guilt or innocence of Bryant, "not whether the suspension upon Bruce Bryant was for just cause[.]" The judge noted that the arbitrator had found that two of the three charges in the specification had been sustained by the record; therefore, there were facts to support Bryant's guilt of the charge. The judge thus found that the arbitrator had utilized an inappropriate standard and had exceeded his authority "in determining that he had to throw the matter out and negate any punishment because all of the aspects of the specification were not met." On that date, the judge issued an order vacating the arbitrator's award and reinstating the five-day suspension without pay that had been imposed by the Department of Corrections.

On appeal, the CWA argues that the State failed to establish the existence of any of the grounds set forth in N.J.S.A. 2A:24-8 for vacating the arbitrator's award, and that the arbitrator did not exceed the scope of his authority. We disagree.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without permit, and we affirm substantially for the reasons articulated by Judge Smithson in his oral decision delivered on June 24, 2005. We add the following.

The obligation of the arbitrator, as delineated in the employment contract, was to determine the "guilt or innocence" of Bryant of the charge. Having sustained two of the three allegations in the charge, the factual findings of the arbitrator sustained the finding of "guilt." Therefore, the disciplinary action should have been sustained. In vacating the arbitration award, the trial court properly found that the arbitrator had exceeded the scope of his authority, as clearly defined by the labor contract, see N.J.S.A. 2A:24-8d, warranting reinstatement of the penalty imposed. We reject defendant's contention that the arbitrator properly considered whether the plaintiff had "good cause" to suspend Bryant because Article V(B) of the contract states that "[d]iscipline of an employee shall be imposed only for just cause." It is axiomatic, and here contractual, that there must always be "just cause" to take adverse employment action against an employee. However, the scope of the arbitrator's authority in disciplinary arbitration is specifically, contractually, and solely limited by Article V(I)2a to "the guilt or innocence of the employee[.]"



Although, when rendering his decision on June 24, 2005, the trial judge stated that he had heard oral argument of counsel on June 17, 2005, we have not been provided with a transcript of that June 17 hearing.





July 20, 2006