lboe v. lea - njsba amicus brief

8/9/2019 Lboe v. Lea - Njsba Amicus Brief

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October 5, 2009

Mark Neary, Esq., ClerkSupreme Court of New JerseyR.J. Hughes Justice Complex25 West Market StreetP.O. Box 970Trenton, New Jersey 08625-0970

Re: Linden Board of Education v. Linden Education Association

Docket No. 64,295

Dear Mr. Neary:

The New Jersey School Boards Association (hereinafter"NJSBA") respectfully submits this Letter Brief in lieu offiling a formal brief in the above-captioned matter.

TABLE OF CONTENTS

PROCEDURAL HISTORY and STATEMENT OF FACTS. . . . . . . . 2

LEGAL ARGUMENT

I. The Appellate Division properly rejected thearbitration award, upholding the terminationof an insubordinate custodian by the LindenBoard of Education. . . . . . . . . . . . . . 2

II. The Appellate Division decision has the added effect of promoting the safety and security ofstudents throughout New Jersey. . . . . . . . .8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . .11


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APPENDIX . . . . . . . . . . . . . . . . . . . . . .NJSBAa1

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STATEMENT OF FACTS AND PROCEDURAL HISTORY

Amicus-NJSBA adopts the Statement of ProceduralHistory and Statement of Facts as they are set forth by the

Linden Board of Education on pages 1 through 10 of its

Brief before this Court.

LEGAL ARGUMENT

I. The Appellate Division properly rejected thearbitration award, upholding the terminationof an insubordinate custodian by the LindenBoard of Education.

The Linden Board of Education terminated a custodian

who disregarded clear instructions of teaching and

supervisory staff, threatening the safety of students at

the school where he worked. As the Appellate Division in

this case noted:

It was . . . undisputed that [the custodian] hadreceived training from his supervisors regarding theappropriate procedure for cleaningclassrooms/bathrooms which could be occupied by femalestudents. . . .

However, notwithstanding information that he hadreceived regarding certain rooms [that] would be used

by female students for changing clothes and priortraining with respect to such situations, [thecustodian] admittedly entered . . . one of thechanging rooms . . . and proceeded to clean the doorwindow panes. . . .

[The custodian] compounded his misconduct by not onlyrefusing to leave when directed to do so by Ms.

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Fuller,[the vocal music teacher] . . . but also byignoring the students' complaints that they werepartially undressed. [The custodian] corroboratedFuller's testimony that upon being told to leave, hefirst hesitated and then said, "what's the big deal?"

He further disregarded the pleas of several femalestudents that he leave [the changing room] as theywere in the process of changing clothes[,] but rathercontinued cleaning the door panes oblivious to theirconcerns. The written statements of several students-- albeit hearsay -- convinced the [a]rbitrator that[the custodian] had no intention of leaving Room 209until Ms. Fuller demanded his departure and even thenleft in a reluctant, "lackadaisical" manner.Linden Bd. of Educ. v. Linden Educ. Ass'n, No. A-1236-07T3 (App. Div. Apr. 17, 2009)(slip op. at 4, NJSBAa4.)

The union filed a grievance in accordance with the

collective bargaining agreement, seeking arbitration of

this dispute. The arbitrator found that the Board had just

cause to discipline the custodian as he had been informed

by the district that certain rooms would be used as

changing rooms and he knew or should have known that there

would be disciplinary consequences for entering those

classrooms while they were in use.

Having found just cause, the arbitrator then

considered the penalty, despite having only the following

questions to answer: Did the Board of Education have just

cause to terminate the employment of John Mizichko? And,

if not, what shall be the remedy? Linden at NJSBAa3

(emphasis added). The arbitrator opined that termination

was not the appropriate penalty as such a penalty was

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incongruous with the custodians work history in the

district. The arbitrator instead imposed a ten-day

suspension without pay, which was confirmed by the trial

court. Id. at NJSBAa7. The Appellate Division, however,

properly reinstated the penalty of termination imposed by

the Board, holding that the arbitrator exceeded his

authority by modifying the penalty. Id. at NJSBAa8.

New Jersey has a long history of using arbitration

when a dispute between employer and employee arises.

We iterate the fundamental principle that New Jerseylaw encourages the use of arbitration to resolvelabor-management disputes. See, e.g., N.J.S.A. 34:13A-2 (declaring State's "best interests . . . are servedby the prevention or prompt settlement of labordisputes" in public sector); Scotch Plains-Fanwood Bd.of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J.141, 149, 651 A.2d 1018 (1995) ("Our courts viewfavorably the settlement of labor-management disputesthrough arbitration."). Arbitration is "an integralpart of our economic life and welcomed as a practicaland expeditious means of disposition of industrialdisputes." Jersey Cent. Power & Light Co. v. LocalUnion No. 1289 of the Int'l Bhd. of Elec. Workers, 38N.J. 95, 103-04, 183 A.2d 41 (1962) (quotationomitted). Moreover, arbitration is "meant to be asubstitute for and not a springboard for litigation."Local No. 153, Office & Prof'l Employees Int'l Unionv. The Trust Co. of N.J., 105 N.J. 442, 449, 522 A.2d992 (1987) (quotation omitted). Arbitration shouldspell litigation's conclusion, rather than its

beginning. County Coll. of Morris Staff Ass'n v.County Coll. of Morris, 100 N.J. 383, 390, 495 A.2d865 (1985).

To ensure that finality, as well as to securearbitration's "speedy and inexpensive" nature, ScotchPlains-Fanwood Bd. of Educ., supra, 139 N.J. at 149,651 A.2d 1018 (quotation omitted), there exists a

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"strong preference for judicial confirmation ofarbitration awards," Weiss v. Carpenter, Bennett &Morrissey, 143 N.J. 420, 442, 672 A.2d 1132 (1996).Indeed, "the role of the courts in reviewingarbitration awards is extremely limited and an

arbitrator's award is not to be set aside lightly."State v. Int'l Fed'n of Prof'l & Technical Eng'rs,Local 195, 169 N.J. 505, 513, 780 A.2d 525 (2001)(citation omitted). [**93] Thus, in public sectorarbitration, courts will accept an arbitrator's awardso long as the award is "reasonably debatable." See,e.g., Bd. of Educ. of Alpha v. Alpha Educ. Ass'n, 188N.J. 595, 603, 911 A.2d 903 (2006) (quotationomitted). In brief, statutory and decisional law makeclear that policy considerations favor finality andcircumscribed judicial involvement in respect ofarbitration proceedings. New Jersey Turnpike Authorityv. Local 196, I.F.P.T.E., 190 N.J. 283, 291-292 (N.J.2007)

However, arbitration is not without limitation. First,

arbitration is circumscribed by statute. N.J.S.A. 2A:24-8

states:

The court shall vacate the award in any of the

following cases:

a. Where the award was procured by corruption, fraudor undue means;

b. Where there was either evident partiality orcorruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconductin refusing to postpone the hearing, upon sufficientcause being shown therefor, or in refusing to hear

evidence, pertinent and material to the controversy,or of any other misbehaviors prejudicial to the rightsof any party;

d. Where the arbitrators exceeded or so imperfectlyexecuted their powers that a mutual, final anddefinite award upon the subject matter submitted wasnot made.

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Second, an arbitrator's power to decide what is fair and

just is at all times limited by the intent of the parties

as manifested by the terms of their contract. County Coll.of Morris, at 397.

The precedential case County College of Morris, supra,

is illustrative of the limits of an arbitrators power and

the result in that case is strikingly similar to the case

at bar. In County Coll. of Morris, an auto mechanic was

terminated for various infractions, including

insubordination and threatening the safety of his

supervisor. Pursuant to the contract, the auto mechanic

brought the matter to arbitration. The arbitrator found

that there was just cause to discipline the auto mechanic.

However, the arbitrator determined that termination was too

harsh a penalty because the college had failed to use

progressive discipline, warning the employee when the

infractions occurred that his conduct could result in

discipline, including termination. Because of those

perceived failures of the college, the arbitrator imposed

the penalty of an eight-month suspension without pay.

However, before the trial court, the suspension was

overturned and the termination reinstated. The court

determined that the arbitrator had exceeded his powers by

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reading into the contract a requirement for progressive

discipline that did not exist in the language of the

colleges agreement. Because the arbitrator had read a

requirement for progressive discipline into the contract, a

term that the parties had not contractually agreed to, the

court reinstated the termination.

On appeal to the Appellate Division, the court

reversed the trial court, saying that the college had

invited acts of misconduct by having failed on previous

occasions to impose discipline. Thus, in the Appellate

Division's view of the case, the arbitrator had permissibly

concluded that the penalty of discharge was not justified

in the context of this employment relationship. County

Coll. of Morris at 390 (N.J. 1985). On appeal to the N.J.

Supreme Court, this court held that the Appellate Division

erred in reinstating the suspension because the arbitrator

could not rely on the lack of progressive discipline or on

the delay in discharging Muller as bases for reducing the

disciplinary penalty. County Coll. of Morris at 390.

When looking at the instant case of Linden, we find

strikingly similar facts that mandate a similar result.

Like the auto mechanic in County Coll. of Morris, the Linden

custodian was insubordinate, although the custodians

conduct threatened the safety of students, not staff. The

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local board of education terminated the custodian for his

conduct, just like the Morris auto mechanic. The

arbitrators in both cases read into the contract a

requirement that progressive discipline be utilized, even

though there was no written requirement in the respective

agreements. In both cases, the court the N.J. Supreme

Court in Morris and the Appellate Division in Linden --

looked to the language of the contract and, finding no

requirement for progressive discipline within the four

corners of the collectively bargained agreement, reinstated

the terminations imposed by the employers. Thus, given

these similar facts and court dispositions of the Morris

and Linden cases, NJSBA urges this court to affirm the

instant Appellate Division decision, reinstating the

termination by the Linden Board of Education.

II. The Appellate Division decision has the added effect of promoting the safety and security ofstudents throughout New Jersey.

The questions raised in this appeal involve the

authority of local school boards to provide for the

protection of the safety and welfare of the student

population. The Linden Board of Education terminated a

custodian who entered a changing room with female students

in various states of undress, and disregarded the clear

instructions of the teachers on duty to leave, threatening

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the safety of students at the school where he worked. The

custodian not only entered the room where the students were

changing, but he was in the room for a period of time,

cleaning the classroom windows, despite the protests of the

students. As the Appellate Division noted: the arbitrator

stressed that Mizichko disregarded the pleas of the

female students changing their clothes that he leave the

room. The arbitrator wrote that he was convinced that

Mizichko had no intention of leaving until one of the

teachers who had been summoned demanded that he depart.

Such conduct on his part can, in our judgment, only be

characterized as egregious, fully warranting termination.

Linden at NJSBAa13.

Such conduct by the custodian surely affected the

safety and welfare of the students when the custodian was

in the changing room with them. His presence in the

changing room surely caused distress to the students there.

Courts have consistently placed on school personnel a

heightened duty to protect the students in their care. As

was noted in New Jersey v. T.L.O., 469 U.S. 325 (1985)

inasmuch as students are compelled to attend school,

school officials have a heightened obligation to safeguard

students. Id. at 353.

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The relationship between students and school staff is

a special one, imposing considerable responsibility upon

the school official to protect the students. Recently this

Court took note of that obligation:

First, with respect to the relationship of theparties, parents entrust their children to thecare of schools, and [e]ducators have [n]ogreater obligationthan to protect the childrenin their charge from foreseeable dangers, whetherthose dangers arise from the careless acts orintentional transgressions of others (citesomitted). School officials have a general dutyto exercise reasonable supervisory care for thesafety of students entrusted to them, and [areaccountable] for injuries resulting from failureto discharge that duty. (cite omitted)The relationship between the school, children,and parents encompasses the schoolsresponsibility to ensure the safety of thechildren in its charge. It logically flows fromthat relationship, particularly the caretakerrole the school assumes, that school officialsmust reasonably supervise children [b]ecauseparents relinquish their supervisory role overtheir children to teachers and administratorsduring school hours, and thus transfer toschool officials the power to act as guardians ofthose young wards, (cite omitted).

Jerkins v. Anderson and Bd. of Ed. of Pleasantville Public

Schools, 191 N.J. 285, 296 (2007).

Given this heightened duty of care for student

welfare, it is very appropriate that the board of education

sought termination of the custodian, given his egregious

conduct. A termination in this case is the best way to

ensure that when a school designates some of its classrooms

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as changing rooms, students can have reasonable assurance

that they can change their clothes without distress; no

school custodian will place himself inside the room during

various states of student undress.

The Appellate Division decision below was well-

reasoned, consistent with existing case law and promotes

the protection of student safety and welfare. To overturn

the decision below allows the arbitrator to inject his own

language into the parties agreement and undermine the

schools duty to the students in their care.

CONCLUSION

For all of the reasons set forth above, this Court

should affirm the judgment of the Appellate Division,

upholding the Linden Board of Educations termination of

the insubordinate custodian.

Respectfully submitted,

Cynthia J. Jahn, Esq.General CounselNew Jersey School Boards Association

By:______________________________________John J. Burns, Esq.Counsel, On the BriefNew Jersey School Boards Association

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lboe v. lea - njsba amicus brief

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