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

II. The Appellate Division decision has the added

effect of promoting the safety and security of
students throughout New Jersey. . . . . . . . .8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . .11
APPENDIX . . . . . . . . . . . . . . . . . . . . . .NJSBAa1

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 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. As the Appellate Division in

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.

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 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-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 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. 34:13A-
2 (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

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 "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. 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, 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.

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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 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

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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. 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 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

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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 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

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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 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

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