On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4490-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Parrillo, Skillman and Hoffman.
This is an appeal from a post-judgment order entered on January 24, 2011, enforcing litigant's rights under a final judgment entered on September 27, 2007, which confirmed an arbitration award the Supreme Court reinstated in Linden Board of Education v. Linden Education Association, 202 N.J. 268 (2002).
We briefly summarize the facts and procedural history of this case, which are set forth in greater detail in the Court's opinion. Id. at 271-74.
On November 16, 2005, the Linden Board of Education approved a resolution terminating the employment of John Mizichko, who had contractual tenure, for refusing to leave a classroom where female students were changing clothes during a dance recital at Linden High School. The Linden Education Association filed a grievance on Mizichko's behalf challenging his termination in accordance with a provision of its collective negotiating agreement with the Board, which provided that tenured employees such as Mizichko "shall not be disciplined, discharged or not reappointed without just cause."
Following the filing of this grievance but before its submission to arbitration, on May 3, 2006, the Board approved a list of employees who would be offered contracts for the following school year that did not include Mizichko. The Association did not file a separate grievance from this action. The Supreme Court opinion did not take note of this administrative action, around which the present appeal revolves, presumably because it was not the subject of the arbitration proceeding and was not mentioned in the trial court opinion confirming the arbitration award.
The sole issues in the arbitration of Mizichko's termination, as described in the November 27, 2006 award, were:
Did the Board of Education have just cause to terminate the employment of John Mizichko?
And, if not, what shall be the remedy?
The arbitrator concluded that the Board had just cause to discipline Mizichko but that the penalty of termination was disproportionate to his misconduct. Consequently, the arbitrator imposed a ten-day suspension without pay to be followed by reinstatement with full back pay, fringe benefits, and seniority status.
The Board filed an action to vacate the arbitrator's award on the ground that the arbitrator had exceeded his authority by imposing a remedy that was not provided for in the collective negotiating agreement. The Association filed a counterclaim seeking to confirm the award. The trial court rejected the Board's argument that the arbitrator had exceeded his authority in imposing a ten-day suspension rather than termination as the discipline for Mizichko's misconduct and confirmed the arbitration award. This decision was memorialized by a judgment entered on September 27, 2007.
A panel of this court concluded that the arbitrator had no authority to reduce the penalty of termination and reversed the judgment of the trial court in an unpublished opinion. However, one member of the panel dissented, and the Association appealed as of right to the Supreme Court. The Court reversed our decision and reinstated the ...