TRENTON BOARD OF EDUCATION v. TRENTON EDUCATION ASSOCIATION

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0262-17T4

TRENTON BOARD OF
EDUCATION,

          Plaintiff-Respondent,

v.

TRENTON EDUCATION
ASSOCIATION,

     Defendant-Appellant.
____________________________

                    Argued October 16, 2018 – Decided January 28, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-1422-17.

                    Keith Waldman argued the cause for appellant (Selikoff
                    & Cohen, PA, attorneys; Keith Waldman, of counsel
                    and on the briefs; Hop T. Wechsler, on the brief).

                    John E. Croot, Jr. argued the cause for respondent
                    (Adams Gutierrez & Lattiboudere, LLC, attorneys;
                    John E. Croot, Jr., of counsel and on the brief; Kimberly
                    G. Williams, on the brief).
PER CURIAM

      Defendant, Trenton Education Association, appeals from the Law

Division's final judgment dismissing its counterclaim to confirm an arbitration

award and vacating the award as demanded by plaintiff, Trenton Board of

Education, in its complaint.       The arbitration award arose from plaintiff's

discipline of an educator. The arbitrator found just cause for the discipline but

also found that the punishment was too harsh and modified plaintiff's actions.

Plaintiff filed a complaint to vacate or modify the award, arguing that the

arbitrator exceeded her authority and that her decision was contrary to state law

and public policy. Defendant disagreed and maintained that the award should

be confirmed and the complaint dismissed.          The trial court vacated the

arbitration award, finding the arbitrator exceeded her authority by modifying the

discipline imposed by plaintiff.

      On appeal, defendant argues that the arbitrator correctly decided the case,

the trial court erroneously found that the arbitrator exceeded her authority, and

it failed to apply the extremely narrow grounds for vacating or modifying an

arbitration award.   It also argues that the trial court misinterpreted and

misapplied Supreme Court precedent. Moreover, it contends that the burden of

proof was shifted from the plaintiff to defendant. We reverse because after our


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de novo review, we conclude the arbitrator did not exceed her authority as found

by the trial court.

      The facts gleaned from the record are summarized as follows. During the

2015-2016 school year, Carmel Gabriel was a teacher in a middle school within

the Trenton Public School District. Adrienne Hill served as the principal of that

school and was Gabriel's supervisor. Beginning in December 2015, Hill and the

school's vice principal cited Gabriel for various deficiencies in his professional

conduct.     Those deficiencies included problems with Gabriel's teaching

practices, his failure to attend mandatory meetings or to submit required reports,

and his including in his students' progress reports vulgar, expletive filled

quotations of their alleged comments to him during classes. There was also an

allegation that he slammed a door when he left a scheduled meeting after the

vice principal was delayed and asked Gabriel to wait for him. After Gabriel

received warnings from Hill throughout the school year, he corrected his

behavior, reissued the student reports without the vulgarity, and there was no

evidence that he repeated any of the conduct for which he was cited.

      Based on Gabriel's conduct, Hill initially recommended to plaintiff that

tenure charges be brought against Gabriel, but towards the end of the 2015-2016

school year, she allegedly converted the recommendation into one for a salary


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increment withholding. Plaintiff approved the increment withholding at its May

31, 2016 meeting, stating that the withholding would be "effective September 1,

2016," without setting a termination date for that action.

      In response to plaintiff's action against Gabriel, defendant filed a

grievance that was addressed through the procedure stated in the parties'

collective bargaining agreement. After the increment withholding was upheld

at each stage of the procedure, defendant demanded arbitration through the

Public Employment Relations Commission ("PERC"). On September 7, 2016,

PERC designated an arbitrator.

      The question submitted for arbitration was: "Did the Board have just

cause to withhold . . . Gabriel's salary increment effective September 1, 2016?

If not, what shall be the remedy?" According to the arbitrator, under the parties'

collective agreement, "teachers [were] not [to] be disciplined, reprimanded,

reduced in rank or compensation or deprived of any professional advantage

without just cause." However, the agreement did not define "just cause."

      The arbitrator conducted an evidentiary hearing and considered the

parties' post-hearing briefs. The arbitrator issued her written decision and award

on March 16, 2017, finding just cause for discipline, but limiting the period of

salary increment withholding to one year. In her decision, the arbitrator noted


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"that the parties agree that . . . Gabriel's classroom performance [was] not an

issue," and stated that "the question presented [was] whether [plaintiff] had just

cause to withhold Gabriel's increment." Citing to various conduct by Gabriel,

other than the door-slamming incident, the arbitrator found that plaintiff proved

that Gabriel "engaged in unprofessional and unbecoming conduct."

      While the arbitrator found Gabriel’s conduct provided just cause for

discipline, she found the indefinite salary increment withholding to be too harsh.

She observed that Gabriel was able to mitigate his conduct by "rescinding and

redoing the report cards/progress reports, excising the offensive comments, by

refraining from including such remarks in progress reports and report cards, by

improving his attendance at weekly . . . meetings[,] and by submitting his

required reports."

      The arbitrator also noted that plaintiff failed to use progressive discipline,

a "basic ten[e]t of just cause." She stated that, "[p]rogressive discipline enabled

an employee to correct behavior that does not meet standards of performance or

conduct." The arbitrator again relied upon actions taken by Gabriel to correct

his behavior after being cited by Hill and his having not repeated any of the

objectionable behaviors.




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      Turning to the discipline imposed by plaintiff, the arbitrator stated, "it is

characteristic of an increment withholding that its effects put the disciplined

employee at a lower step than he would have been for the rest of his career until

he reaches top pay on the salary guide." She found that in light of Gabriel's

mitigating conduct, an increment withholding of one year was appropriate. She

ordered plaintiff to "prospectively, but not retroactively," restore Gabriel’s

salary in September 2017 to where it would have been had he not been

disciplined.

      Plaintiff filed a complaint to vacate or modify the arbitration award and

defendant filed an answer and counterclaim seeking to confirm the award. On

August 17, 2017, the parties appeared before the trial court for oral argument

and, after considering the parties' submissions and arguments, the trial court

placed its reasons for vacating the award on the record.

      At the outset, the trial court acknowledged the deference that is "accorded"

to arbitrator's decisions, that it was "not [the court's] job to second guess an

arbitrator's decision," and that plaintiff had "a heightened burden [as the]

applicant here to have [the court] vacate [the] arbitration award . . . ." The court

also indicated the limited statutory circumstances under  N.J.S.A. 2A:24-8 where




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vacating an award would be appropriate. It viewed the parties' dispute as a

question of whether the arbitrator exceeded her authority.

      The trial court explained its understanding of the question before the

arbitrator by stating the following:

            Did [plaintiff] have just cause to withhold . . . Gabriel's
            salary increment effective September 1, 2016? It does
            [not] say permanent in there. It just says just cause to
            withhold the increment. And obviously, the arbitrator
            said yes to that because she said yes, it should be
            withheld as of September 1, 2016. And there was just
            cause for that. She did [not] say permanent. But that
            was [not] the question in front her.

            The question is just did they have the authority to do
            that.

                   ....

            So because the arbitrator here said yes to the first
            question, that is the end of the analysis.

                   ....

      The court rejected defendant's contention that the Supreme Court's

holding in Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko,  202 N.J.
 268 (2010) applied to this case because in Linden, the arbitrator did not find just

cause to terminate an employee and in this case, the arbitrator found just cause

for the salary increment withholding. Applying the Supreme Court's holding in



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Probst v. Bd. of Educ.,  127 N.J. 518 (1992) and  N.J.S.A. 18A:29-14,1 the trial

court concluded that because the arbitrator found just cause for a salary

increment withholding, "it [was] within [plaintiff's] prerogative . . . to make a

decision at the end of that increment [withholding to decide whether] . . . to

restore it or not, or keep it permanent." For that reason, the court granted

plaintiff's application and vacated the arbitration award relating to the discipline

imposed by plaintiff. This appeal followed.

      On appeal, plaintiff initially contends that the trial court "failed to

correctly apply the extremely narrow grounds for vacating . . . an arbitrator's

award" as defined by  N.J.S.A. 2A:24-8 by wrongfully concluding the arbitrator

exceeded her authority and that it misapplied the Court's holdings in Linden and

Probst. We agree.

      We review a trial court's decision to affirm or vacate an arbitration award

de novo. Minkowitz v. Israeli,  433 N.J. Super. 111, 136 (App. Div. 2013). In

our review, we owe no special deference to "[t]he 'trial court's interpretation of

the law and the legal consequences that flow from the established facts . . . .'"



1
  The statute authorizes a "board of education [to] withhold, for inefficiency or
other good cause, the employment increment, or the adjustment increment, or
both, of any member in any year" and allows a board to not "pay any such denied
increment in any future year as an adjustment increment."  N.J.S.A. 18A:29-14.
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Town of Kearny v. Brandt,  214 N.J. 76, 92 (2013) (quoting Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      Public policy in this state favors resolution of disputes through arbitration,

especially in matters involving the public sector. For that reason, there is a

"strong judicial presumption in favor of the validity of an arbitral award [and]

the party seeking to vacate it bears a heavy burden." Del Piano v. Merrill Lynch,

Pierce, Fenner & Smith, Inc.,  372 N.J. Super. 503, 510 (App. Div. 2004). "'[T]he

party opposing confirmation ha[s] the burden of establishing that the award

should be vacated pursuant to N.J.S.A. 2A:24-8.'" Twp. of Wyckoff v. PBA

Local 261,  409 N.J. Super. 344, 354 (App. Div. 2009) (second alteration in

original) (quoting Jersey City Educ. Ass'n v. Bd. of Educ. of City of Jersey City,

 218 N.J. Super. 177, 187 (App. Div. 1987)).

       N.J.S.A. 2A:24-8 provides that an arbitrator's award shall be vacated in

any of the following limited circumstances:

            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

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            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.

      A court therefore may vacate an arbitrator's award under subsection (d) if

the "arbitrator decided a legal question not placed before him or her by the

parties [because it] is tantamount to a claim that the arbitrator 'imperfectly

executed [his or her] powers' [or] exceeded his or her authority within the

meaning of N.J.S.A. 2A:24-8(d)." Bound Brook Bd. of Educ. v. Ciripompa,  228 N.J. 4, 13 (2017) (second alteration in original) (quoting  N.J.S.A. 2A:24-8(d)).

            When confronted with an allegation that the arbitrators
            exceeded their authority by resolving an issue the
            parties did not intend to submit, we will review the
            arbitrator's interpretation of the parties' intentions
            under a "highly deferential" standard. Nonetheless, this
            deference is not a rubber stamp, and our review must
            focus upon the record as a whole in determining
            whether the arbitrators manifestly exceeded their
            authority in interpreting the scope of the parties'
            submissions.

            [Ibid. (quoting Metromedia Energy, Inc. v. Enserch
            Energy Servs.,  409 F.3d 574, 579 (3d Cir. 2005)).]

      Furthermore, in a public sector arbitration, "a court 'may [also] vacate an

award if it is contrary to existing law or public policy.'"      Borough of E.

Rutherford v. E. Rutherford PBA Local 275,  213 N.J. 190, 202 (2013) (quoting

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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.

(alteration in original) (quoting N.J. Tpk. Auth. v. Local 196, I.F.P.T.E.,  190 N.J. 283, 294 (2007)).

      With these guiding principles in mind, we turn to our review of the

arbitrator's determination in this case. Our role in reviewing arbitration awards

is "very limited" and "[a]n arbitrator's award is not to be cast aside lightly."

Yarborough v. State Operated School Dist. of City of Newark,  455 N.J. Super.
 136, 139 (App. Div. 2018) (quoting Bound Brook Bd. of Educ.,  228 N.J. at 11).

"The well-established standard, . . . [as] reaffirmed in [Linden], is that 'an

arbitrator's award will be confirmed "so long as the award is reasonably

debatable."'" Policemen's Benevolent Ass'n, Local No. 11 v. City of Trenton,

 205 N.J. 422, 428-29 (2011) (quoting Linden,  202 N.J. at 276). "That high level

of deference springs from the strong public policy favoring 'the use of arbitration

to resolve labor-management disputes.'" Id. at 429 (quoting Linden,  202 N.J. at
 275-76). "Indeed, arbitration should be a fast and inexpensive way to achieve

final resolution of such disputes and not merely 'a way-station on route to the

courthouse.'" Ibid. (quoting Linden  202 N.J. at 276).


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      In our limited review, "where a collective bargaining agreement provides

for binding arbitration, 'it is the arbitrator's construction that is bargained for,'

and not a court's construction." Ibid. (quoting Linden,  202 N.J. at 276). "[S]o

far as the arbitrator's decision concerns construction of the contract, the courts

have no business overruling him [or her] because their interpretation of the

contract is different . . . ." Ibid. (first alteration in original) (quoting United

Steelworkers v. Enter. Wheel & Car Corp.,  363 U.S. 593, 599 (1960)).

      However, "an arbitrator's award is [not] impervious to attack. . . . [A]n

arbitrator's 'award is legitimate . . . so long as it draws its essence from the

collective bargaining agreement.       When the arbitrator's words manifest an

infidelity to this obligation, courts have no choice but to refuse enforcement of

the award.'" Ibid. (quoting United Steelworkers,  363 U.S. at 597). "[I]n public

sector arbitration, [a] court[] will[, however,] accept an arbitrator's award so

long as the award is 'reasonably debatable.'" Local 196,  190 N.J. at 292. "'[A]

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."'"   Borough of E. Rutherford,  213 N.J. at 201-02 (quoting

Middletown Twp.,  193 N.J. at 11).




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      It is within the authority of an arbitrator to determine "'in the first

instance . . . the scope of the parties' submissions in order to identify the issues

that the parties intended to arbitrate.'" Bound Brook Bd. of Educ.,  228 N.J. at
 13 (quoting Metromedia Energy, Inc., 409 F.3d at 579). That authority is limited

by  N.J.S.A. 2A:24-8 as well as "by the questions framed by the parties in a

particular dispute" and an arbitrator's award "should be consonant with the

matter submitted." Id. at 12 (first quoting Local No. 153, Office & Prof'l Emps.

Int'l Union v. Tr. Co. of N.J.,  105 N.J. 442, 449 (1987); and then quoting Grover

v. Universal Underwriters Ins. Co.,  80 N.J. 221, 231 (1979)).

      In Linden, the Supreme Court considered whether an arbitrator exceeded

his authority by modifying a school district's termination of an employee under

facts similar to those in the present appeal. There, the question presented to the

arbitrator asked, "Did the Board of Education have just cause to terminate the

employment of [the employee]? And, if not, what shall be the remedy?" Linden,

 202 N.J. at 277. The arbitrator concluded that while "there was just cause for

the imposition of discipline[,] . . . the appropriate sanction was a ten-day

suspension without pay." Id. at 273. The Court concluded that the arbitrator

did not exceed his authority because "[t]he questions submitted imply that a

remedy other than termination would be appropriate, because if the arbitrator


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did not find just cause to terminate, the parties asked the arbitrator to both

fashion and impose an appropriate remedy." Id. at 277-78 (emphasis added).

The Court stated that because "the expertise of the arbitrator was sought, . . . the

arbitrator was free to determine that the misconduct did not rise to a 'level . . .

that constitutes just cause for discharge.'" Id. at 279 (emphasis added) (quoting

County Coll. of Morris Staff Ass'n v. County Coll. of Morris,  100 N.J. 383, 394

(1985)).

      Contrary to plaintiff's contentions here, we discern no difference between

Linden and the present matter. Simply stated, the arbitrator here was within her

authority to determine whether there was just cause to impose an indefinite

salary increment withholding or some other remedy once she determined

Gabriel's conduct was "unbecoming." The fact that the question put to the

arbitrator did not contain the word "permanent" did not limit the arbitrator's

authority to modify the discipline imposed once she determined it was not

warranted. Her determination was consistent with the questions posed by the

parties, which, as in Linden, included a request for the arbitrator to exercise her

expertise and fashion a remedy if just cause did not exist for an indefinite salary

withholding.




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      We reject plaintiff's contention that the trial court correctly determined

Probst rather than Linden controls here. In Probst, the Court addressed the

"interplay" between  N.J.S.A. 18A:29-4.1, which "allows local school boards to

adopt binding salary schedules outlining compensation for teachers for periods

of up to three school years" and  N.J.S.A. 18A:29-14, which "permits local

school boards to withhold salary increments from teachers who have not

performed satisfactorily during the previous year." Probst,  127 N.J at 520. The

dispute in that case, which did not involve an arbitration award, related to a

board's authority to impose salary increment withholdings indefinitely. Id. at

521-24. There, the Court concluded that there was no statutory mandate that

teachers who had been subject to a withholding would be then returned to an

adopted salary schedule. Id. at 528. Rather, the determination whether to return

the teacher to the schedule was within the local board's discretion. Ibid.

      In the instant matter, defendant never challenged plaintiff's statutory

authority to impose salary increment withholdings and the board's authority to

do so was never an issue considered by the arbitrator. Rather, according to the

question put to the arbitrator by the parties, the issue was limited to whether

Gabriel's conduct warranted the imposition of that remedy for an indefinite time




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period, and if not, what should the remedy be, if any. By imposing a one-year

salary increment withholding, the arbitrator did not exceed her authority.

      Because we conclude the trial court's vacating of the arbitrator's award

was in error, we need not reach defendant's remaining argument regarding the

shifting of the burden of proof. We only note that we did not discern anything

in the record to substantiate defendant's contention.

      Reversed and remanded for further proceedings consistent with our

opinion. We do not retain jurisdiction.




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