On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4490-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
Plaintiff, Linden Board of Education (Board), appeals from the September 27, 2007 order of the trial court affirming an arbitration award that set aside the Board's decision to terminate the employment of John Mizichko; imposed a ten-day suspension as the appropriate penalty; and ordered Mizichko reinstated with full back pay, fringe benefits and seniority rights following his period of suspension. We reverse.
Mizichko was employed as a custodian at Linden High School. On May 5, 2005, the school held its annual dance concert, during which female students used several classrooms near the stage as changing rooms. While the students were changing, Mizichko entered at least one of the classrooms and began cleaning the glass on the door. The students, in various states of undress, asked him to leave, but he refused.
Students notified Kristen Fuller, the vocal director, who came to the classroom and explained to Mizichko that he should not be there cleaning while the girls were changing, and asked him to leave. Mizichko hesitated before leaving the room, saying, "what's the big deal?" Students in another classroom raised similar complaints about Mizichko's behavior on that evening; several students said they saw Mizichko lingering in the hallway and peering into the rooms.
The Board conducted its own internal investigation and found that "Mizichko was properly trained and instructed not to enter the classrooms being used as changing rooms while female students were changing. Training aside, and with the knowledge that female students were present, Mizichko entered the female student changing room . . . ." At its November 16, 2005 meeting, the Board resolved to terminate Mizichko's employment immediately in light of his conduct, and informed him of that decision the following day.
The Linden Education Association (LEA) filed a grievance on Mizichko's behalf in accordance with the procedures in the parties' Collective Bargaining Agreement (agreement). The matter was referred to arbitration pursuant to Article VI.C.6, which provides, in pertinent part, that the "arbitrator shall be without power or authority to make any decision which . . . will amend or modify the terms of this Agreement . . . ."
The parties agreed to present the following question to the arbitrator: "Did the Board of Education have just cause to terminate the employment of John Mizichko? And, if not, what shall be the remedy?"
On October 24, 2006, the arbitrator held a hearing and heard testimony from Robert Kratzer, the head custodian for Linden High School; Kristen Fuller, the vocal music director; and Barbara Brady, a dance teacher, all of whom testified on behalf of the Board. Mizichko testified on his own behalf.
The arbitrator issued his opinion on November 27, 2006, and initially made the following factual findings:
It was . . . undisputed that Mizichko 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, [Mizichko] admittedly entered . . . one of the changing rooms . . . and proceeded to clean the door window panes. . . . [Mizichko] compounded his misconduct by not only refusing to leave when directed to do so by Ms. Fuller, . . . but also by ignoring the students' complaints that they were partially undressed. Mizichko 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 ...