NJ Supreme Court Says Arbitrator Can Fashion Discipline in Ambiguous Collective Bargaining Agreement
Under a New Jersey Supreme court case decided June 7 if an agreement doesn’t define “just cause” for discipline the arbitrator can fill in the meaning.
The New Jersey Supreme Court in Linden Board of Education v. Linden Education Association (A-17-09) reinstated an arbitrator’s finding that suspension not termination was suitable punishment for high school custodian John Mizichko’s misbehavior. Faced with ambiguous language in the collective bargaining agreement the arbitrator did not exceed his authority by finding “progressive/corrective discipline to be an integral part of the just cause concept” the Court held June 7.
The ruling overturns the Appellate Division which supported the Linden Board of Education’s power to fire Mizichko. He was brought up for discipline after being found cleaning windows where female students were changing clothes at a Linden High School dance concert in 2005.
John Mizichko was working a night shift as a custodian for the Linden Board of Education (Board) in May 2005 when he entered a room where female students were changing and proceeded to clean the glass panes on the door ignoring 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.
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.
The Supreme Court held June 7 that a 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.
The Court explained that the contractual language drove 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 thatprogressive or 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 thatconclusion 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.