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October 5, 2009 Mark Neary, Esq., Clerk Supreme Court of New Jersey R.J.

Hughes Justice Complex 25 West Market Street P.O. Box 970 Trenton, 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 of filing 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 the arbitration award, upholding the termination of an insubordinate custodian by the Linden Board of Education. . . . . . . . . . . . . . 2 The Appellate Division decision has the added effect of promoting the safety and security of students throughout New Jersey. . . . . . . . .8


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

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


STATEMENT OF FACTS AND PROCEDURAL HISTORY Amicus-NJSBA adopts the Statement of Procedural History 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 the arbitration award, upholding the termination of an insubordinate custodian by the Linden Board 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. this case noted: ‘It was . . . undisputed that [the custodian] had received training from his supervisors regarding the appropriate procedure for cleaning classrooms/bathrooms which could be occupied by female students. . . . However, notwithstanding information that he had received regarding certain rooms [that] would be used by female students for changing clothes and prior training with respect to such situations, [the custodian] admittedly entered . . . one of the changing rooms . . . and proceeded to clean the door window panes. . . . [The custodian] compounded his misconduct by not only refusing to leave when directed to do so by Ms. 3 As the Appellate Division in

Fuller,[the vocal music teacher] . . . but also by ignoring the students' complaints that they were partially undressed. [The custodian] corroborated Fuller's testimony that upon being told to leave, he first hesitated and then said, "what's the big deal?" He further disregarded the pleas of several female students that he leave [the changing room] as they were in the process of changing clothes[,] but rather continued cleaning the door panes oblivious to their concerns. The written statements of several students -- albeit hearsay -- convinced the [a]rbitrator that [the custodian] had no intention of leaving Room 209 until Ms. Fuller demanded his departure and even then left in a reluctant, "lackadaisical" manner.’ Linden Bd. of Educ. v. Linden Educ. Ass'n, No. A-123607T3 (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? if not, what shall be the remedy?” (emphasis added). And,

Linden at NJSBAa3

The arbitrator opined that termination

was not the appropriate penalty as such a penalty was


incongruous with the custodian’s 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 Jersey law encourages the use of arbitration to resolve labor-management disputes. See, e.g., N.J.S.A. 34:13A2 (declaring State's "best interests . . . are served by the prevention or prompt settlement of labor disputes" 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 view favorably the settlement of labor-management disputes through arbitration."). Arbitration is "an integral part of our economic life and welcomed as a practical and expeditious means of disposition of industrial disputes." Jersey Cent. Power & Light Co. v. Local Union No. 1289 of the Int'l Bhd. of Elec. Workers, 38 N.J. 95, 103-04, 183 A.2d 41 (1962) (quotation omitted). Moreover, arbitration is "meant to be a substitute for and not a springboard for litigation." Local No. 153, Office & Prof'l Employees Int'l Union v. The Trust Co. of N.J., 105 N.J. 442, 449, 522 A.2d 992 (1987) (quotation omitted). Arbitration should spell 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.2d 865 (1985). To ensure that finality, as well as to secure arbitration's "speedy and inexpensive" nature, Scotch Plains-Fanwood Bd. of Educ., supra, 139 N.J. at 149, 651 A.2d 1018 (quotation omitted), there exists a 5

"strong preference for judicial confirmation of arbitration awards," Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 442, 672 A.2d 1132 (1996). Indeed, "the role of the courts in reviewing arbitration 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 sector arbitration, courts will accept an arbitrator's award so long as the award is "reasonably debatable." See, e.g., Bd. of Educ. of Alpha v. Alpha Educ. Ass'n, 188 N.J. 595, 603, 911 A.2d 903 (2006) (quotation omitted). In brief, statutory and decisional law make clear that policy considerations favor finality and circumscribed judicial involvement in respect of arbitration proceedings. New Jersey Turnpike Authority v. 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. states: The court shall vacate the award in any of the following cases: 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 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. 6 N.J.S.A. 2A:24-8

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 arbitrator’s 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


reading into the contract a requirement for progressive discipline that did not exist in the language of the college’s 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 custodian’s conduct threatened the safety of students, not staff. 8 The

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 of students 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 9

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.


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 the parties, parents entrust their children to the care of schools, and “[e]ducators have ‘[n]o greater obligation…than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others’” (cites omitted). School officials have a general duty ”to exercise reasonable supervisory care for the safety of students entrusted to them, and [are accountable] for injuries resulting from failure to discharge that duty.” (cite omitted) The relationship between the school, children, and parents encompasses the school’s responsibility to ensure the safety of the children in its charge. It logically flows from that relationship, particularly the caretaker role the school assumes, that school officials must reasonably supervise children… [b]ecause ”parents… relinquish their supervisory role over their children to teachers and administrators during school hours,” and thus “transfer to school officials the power to act as guardians of those 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


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 wellreasoned, 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 Education’s termination of the insubordinate custodian. Respectfully submitted, Cynthia J. Jahn, Esq. General Counsel New Jersey School Boards Association

By:______________________________________ John J. Burns, Esq. Counsel, On the Brief New Jersey School Boards Association