February 27, 2018
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-5629-16.
Charles I. Auffant argued the cause for appellant (Stuart
Ball, LLC, attorneys; Charles I. Auffant, on the brief).
E. Rivera argued the cause for respondent (Scarinci &
Hollenbeck, LLC, attorneys; Ramon E. Rivera, of counsel;
Shana T. Don, on the brief).
Judges Fisher, Sumners  and Moynihan.
MOYNIHAN, J.S.C. (temporarily assigned).
Yarborough, a third-grade teacher for the State Operated
School District of the City of Newark, Essex County
(District), appeals from the trial court's order denying
his motion to vacate, effectively confirming that portion of
an arbitration award and decision imposing a 12 0-day
suspension without pay after the arbitrator found Yarborough
culpable of a conduct-unbecoming tenure charge for inflicting
corporal punishment on two students in contravention of
contends the trial court erred in failing to vacate the
arbitration award because the court: misinterpreted the
entire controversy doctrine (ECD) which should have precluded
the District from prosecuting the tenure charge; failed to
consider "fundamental legal principles" such as the
doctrines of industrial double jeopardy, estoppel, laches,
waiver and unclean hands; and failed to find the arbitration
award was procured by undue means, N.J.S.A. 2A:24-8, because,
"[e]ven if the charge of conduct unbecoming was properly
before the [a]rbitrator, the [a]ward is not supported by a
preponderance of the evidence standard."
not persuaded that the ECD precludes the prosecution of the
conduct-unbecoming charge; nor are we persuaded that the
arbitrator's award was procured by undue means and
review of an arbitration award is very limited."
Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4,
11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ.
Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)).
"An arbitrator's award is not to be cast aside
lightly. It is subject to being vacated only when it has been
shown that a statutory basis justifies that action."
Ibid, (quoting Kearny PBA Local # 21 v. Town of
Kearny, 81 N.J. 208, 221 (1979)).
reviewing the award confirmation, we owe no special deference
to the trial court's interpretation of the law and the
legal consequences that flow from the established facts.
Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013)
(citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). We thus review the
trial court's decision on a motion to vacate an
arbitration award de novo. Minkowitz v. Israeli, 433
N.J.Super. 111, 136 (App. Div. 2013).
court may vacate an arbitration award "[w]here the award
was procured by . . . undue means." N.J.S.A. 2A:24-8(a).
"'[U]ndue means' ordinarily encompasses a
situation in which the arbitrator has made an acknowledged
mistake of fact or law or a mistake that is apparent on the
face of the record." Borough of E. Rutherford v. E.
Rutherford PBA Local 275, 213 N.J. 190, 203 (2013)
(alteration in original) (quoting Office of Emp.
Relations v. Commc'ns Workers, 154 N.J. 98, 111
(1998)). We perceive neither a mistake of law nor a mistake
of fact in the record.
first to the issue of whether the ECD precludes the District
from bringing the conduct-unbecoming charge. The ECD is
equitably rooted; its applicability is left to judicial
discretion based on the particular circumstances in a given
case. Mystic Isle Dev. Corp. v. Perskie & Nehmad,
PC, 142 N.J. 310, 322-23 (1995); DiTrolio v.
Antiles, 142 N.J. 253, 275 (1995). In Kavanaugh v.
Quigley, 63 N.J.Super. 153, 158 (App. Div. 1960)
(citations omitted), we held:
It is well settled that discretion means legal
discretion, in the exercise of which the trial judge must
take account of the law applicable to the particular
circumstances of the case and be governed accordingly. . . .
[I]f the trial judge misconceives the applicable law, or
misapplies it to the factual complex, in total effect the
exercise of the legal discretion lacks a foundation and
becomes an arbitrary act, however conscientious may have been
the judge in the performance of it. When this occurs it is
the duty of the ...