February 28, 2012
LINDEN BOARD OF EDUCATION, PLAINTIFF-APPELLANT,
LINDEN EDUCATION ASSOCIATION, ON BEHALF OF THE ESTATE OF JOHN MIZICHKO, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 arbitration award and judgment of the trial court confirming the award. 202 N.J. at 281.
Following issuance of the Court's opinion, the Board took the position that even though the November 27, 2006 arbitration award reducing the penalty imposed upon Mizichko to a ten-day suspension and ordering him reinstated with full back pay and seniority status had been reinstated, Mizichko was only entitled to back pay up to the effective date of the purported non-renewal of his contract for the 2006-07 school year and that, based on that purported non-renewal, he was not entitled to reinstatement. Consequently, the Association filed a motion for relief in aid of litigant's rights in the action in which the arbitration award had been confirmed. This motion sought, among other things, the payment to Mizichko of back pay for the period from his initial termination on November 16, 2005 until his reinstatement on August 24, 2008*fn1 less his pay for the period of the ten-day suspension ordered by the arbitrator. The court granted the motion and ordered the Board to pay Mizichko $122,022.21 in back pay. The court also ordered the Board to pay the Association counsel fees in an amount to be determined.*fn2
The Board appeals from this order.
On appeal, the Board argues that the Association was obligated to file a separate grievance challenging the omission of Mizichko's name from the list of employees whose contracts were not renewed for the 2006-07 school year, and that in the absence of such a grievance, Mizichko's right to continued employment expired as of the end of the 2005-06 school year, irrespective of the outcome of the pending arbitration proceeding challenging his termination. However, as of the date of Mizichko's omission from the list of renewed employees, he was no longer an employee of the Board because he had been terminated. Consequently, there would have been no reason for the Board to have included his name on the list of employees whose contracts were being renewed for the following school year. Thus, the omission of Mizichko's name from this list could be reasonably viewed as simply a reflection of the fact that he was not a current employee of the Board as a result of his termination.
A school board can of course vote not to renew the contract of an employee for reasons unrelated to a prior suspension or termination for disciplinary reason.*fn3 See Cresskill Bd. of Educ. v. Cresskill Educ. Ass'n, 362 N.J. Super. 7, 13-15 (App. Div. 2003). However, there is no indication the Board adopted a resolution not to renew Mizichko's employment for the 2006-07 school year for reasons unrelated to the incident that had resulted in his termination. Insofar as the record before us indicates, the Board's only action regarding Mizichko's employment for the 2006-07 school year was his omission from the list of employees whose contracts were not renewed, which, as previously discussed, could be reasonably viewed as simply a reflection of his status as a former employee of the Board who had been terminated for disciplinary reasons.
We recognize that the Board attorney sent Mizichko a letter, dated June 16, 2006, advising him that, as a result of the omission of his name from the list of renewed employees, "regardless of the outcome of your appeal of your termination, effective June 30, 2006, your employment with the Linden Board of Education shall terminate." In view of the position taken by the Board's attorney concerning the effect of the omission of Mizichko's name from the list of renewed employees, it would have been prudent for Mizichko or the Association*fn4 to separately challenge that Board action. However, in the absence of a Board resolution indicating that the Board made a decision not to renew Mizichko's contract for reasons unrelated to his termination for disciplinary reasons, there was no obligation to file such a challenge.
Furthermore, the Board, which was represented in the arbitration by the same attorney who had written the June 16, 2006 letter, failed to raise the omission of Mizichko's name from the list of renewed employees as a defense to his grievance seeking reinstatement and back pay. Since the arbitration hearing was not conducted until October 24, 2006, which was well after the June 30, 2006 date on which the payment of salary to Mizichko would have ceased if the position taken in the Board attorney's June 16, 2006 letter were correct, this would have been an obvious point to raise in the arbitration hearing if the Board felt it had merit.
Moreover, even after the arbitrator made the award ordering Mizichko's reinstatement and "full back pay" except for the tenday period of his suspension, the Board in its action to vacate the award still failed to argue that the omission of Mizichko's name from the list of employees whose contracts were not renewed required the vacation of at least the part of the arbitration award that required Mizichko's reinstatement and the payment of back pay for the period after June 30, 2006. Therefore, even if we had concluded that the Association and/or Mizichko had a obligation to file a separate grievance challenging the omission of his name from the list of employees whose contracts were renewed for the 2006-07 school year (and we have concluded for the reasons previously set forth that there was no such obligation), we would conclude that the Board waived its right to raise the failure to file that grievance as a defense to the arbitration award by not raising it either in the arbitration hearing or in the action to vacate the arbitration award. See Aikens v. Schmidt, 329 N.J. Super. 335, 339-40 (App. Div. 2000).
This conclusion is consistent with our rejection of the Board's attempt to raise this defense for the first time on its initial appeal to this court. In Point III of its brief in support of that appeal, the Board argued:
SHOULD THE COURT CHOOSE TO AFFIRM THE SEPTEMBER 27, 2007 ORDER AND THUS CONFIRM THE ARBITRATION AWARD[;] GRIEVANT IS ONLY ENTITLED TO BACK PAY THROUGH JUNE 30, 2006 DUE TO HIS NON-RENEWAL BY THE BOARD. (ARGUMENT NOT PRESENTED BELOW)
The Association filed a motion to strike the parts of the Board's appendix upon which this argument was based, including the Board attorney's June 16, 2006 letter. In support of this motion, the Association submitted a brief which argued that the Board's Point III "raised an issue that was never raised before the arbitrator or the Law Division[,]" and consequently the Board had "waived" this potential defense. We granted this motion by an order dated May 8, 2008. M-4271-07. Although this order did not also specifically strike Point III of the Board's brief, that was the practical effect of striking the parts of the appendix upon which that argument was based.
We do not believe such a motion order should be treated as a dispositive ruling concerning the timeliness of the Board's attempt to interject the issue of Mizichko's "non-renewal" into the case that we generally would follow under the "law of case" doctrine. However, the May 8, 2008 order does show that another panel of this court also concluded that the Board should have preserved this issue in the arbitration proceeding and Law Division action to vacate the arbitration award.