• NJ Supreme Court Confirms Arbitrator's Latitude to Award for "Just Cause" Discipline under Contract
  • July 2, 2010 | Authors: Jeffrey J. Corradino; Jason C. Gavejian
  • Law Firm: Jackson Lewis LLP - Morristown Office
  • Where a collective bargaining agreement does not define “just cause” for discipline, an arbitrator has broad authority to reject an employer’s sanction of discharge and impose a lesser penalty once such cause is determined, New Jersey’s high court has ruled.  Linden Board of Education v. Linden Education Association, No. A-17 (June 8, 2010). Thus endorsing a view long held by arbitrators, and even parties to their proceedings, the Court rejected an intermediate court’s decision that once just cause is found, the arbitrator must accept the employer’s resulting discipline.

    The Facts

    On May 5, 2005, John Mizichko, a custodian for the Linden Board of Education, was working the night shift at Linden High School during a dance recital.  The students were required to change outfits in several classrooms. Mizichko was informed that certain classrooms would be used as changing rooms and was instructed to knock loudly and announce who he was before entering.

    Without knocking, Mizichko entered a room where female students were changing. He proceeded to clean the glass panes on the door, despite the students’ pleas for him to leave. A teacher informed Mizichko that his presence in the classroom was improper and instructed him to leave. He eventually left the room.

    Following the incident, the Board of Education placed Mizichko on paid suspension and, after an investigation, voted to terminate his employment.

    The Linden Education Association filed a grievance on Mizichko’s behalf pursuant to a collective agreement with the Board of Education. The agreement required that grievances be resolved through binding arbitration and stated that employees with contractual tenure, such as Mizichko, would not be disciplined, discharged or not re-appointed without just cause. The agreement neither defined “just cause” nor required the use of progressive discipline.

    Arbitration

    The issue before the arbitrator was: “Did the Board of Education have just cause to terminate the employment of John Mizichko? And, if not, what shall be the remedy?”

    In his award, the arbitrator determined that, despite finding that Mizichko was motivated by a desire to do his job, he knew about the rule against entering the classroom and the possible consequences of its violation.  Thus, there was just cause to impose discipline, the arbitrator determined.

    The arbitrator, however, noted that the incident was Mizichko’s first offense and posited that under the circumstances termination would be disproportionate to the gravity of the conduct. In analyzing the issue of just cause, the arbitrator concluded that progressive and corrective discipline is an integral part of the just cause concept and here a 10-day unpaid suspension as opposed to termination was required. The Board of Education filed a complaint in the Superior Court, Law Division, seeking to vacate the arbitration award.

    Lower Court Decisions

    The trial court interpreted the arbitrator’s opinion as having found just cause to discipline Mizichko, but that there was not just cause to terminate him and imposed the lesser discipline of suspension. The judge concluded that the arbitrator did not exceed his authority.

    The Appellate Division reversed and ruled that once there was a finding of just cause the arbitrator had no authority to consider other remedies.

    New Jersey Supreme Court Decision

    The New Jersey Supreme Court reversed the appellate court’s decision, holding the arbitrator had authority to impose a lesser penalty than termination.

    The finality of arbitral proceedings played a vital role in the Supreme Court’s decision.  In reaffirming its stance on the limited judicial review of arbitration awards, the Court noted that an arbitration award should be confirmed as long as it is “reasonably debatable.”

    According to the Court, the arbitrator had sufficient latitude to decide the case as he did, since the collective agreement did not define just cause. Further, the questions presented by the parties (i.e., did the employer “have just cause to terminate? If not, what shall be the remedy?”) implied that an award could encompass the imposition of a different penalty.

    The Court explained that while the arbitrator found there was just cause for discipline, he also determined the facts did not support a finding of just cause for termination. The Court concluded the decision was “reasonably debatable” and the trial court properly confirmed the award.

    Implications for Employers

    While labor arbitrators have long applied the principle that unless an agreement specifically provided otherwise, progressive discipline is part and parcel of the just cause standard, the New Jersey Supreme Court has placed its imprimatur on the practice.  The decision also is consistent with the New Jersey state judiciary’s strong preference for confirming arbitration awards in labor disputes.

    The Court’s opinion demonstrates the precautions that must be taken when drafting discipline and arbitration provisions in collective bargaining and employment agreements. Just as important, attention must be paid to framing issues for arbitration.  As practitioners have come to realize, when given leeway, arbitrators’ rulings can become unpredictable.