CITY OF NEWARK PUBLIC SCHOOLS VS. OPEIU LOCAL 32 (C-000015-17, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 10, 2018
• Docket: A-4539-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4539-16T1

CITY OF NEWARK PUBLIC SCHOOLS,

Plaintiff-Appellant,

v.

OPEIU LOCAL 32,

Defendant-Respondent. ____________________________

Argued September 18, 2018 – Decided October 10, 2018

Before Judges Suter and Geiger.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C- 000015-17.

Andrew L. Smith argued the cause for appellant (Lite DePalma Greenberg, LLC, attorneys; Andrew L. Smith, on the briefs; Victor A. Afanador, of counsel and on the briefs).

Kevin P. McGovern argued the cause for respondent (Mets Schiro & McGovern, LLP, attorneys; Kevin P. McGovern, of counsel and on the brief). PER CURIAM

Plaintiff City of Newark Public Schools (NPS) appeals from a May 11,

2017 order denying its motion to vacate a labor arbitration award, confirming

the award as modified to reinstate grievant Alicia Brown to the title of Employee

Benefits Specialist, and dismissing NPS's complaint with prejudice. For the

reasons that follow, we reverse.

NPS and defendant OPIEU Local 32 (the Union) are parties to a collective

bargaining agreement (CBA) covering terms and conditions of employment for

all NPS employees. Brown was employed by NPS as a Technical Assistant 3

until August 14, 2015, when she was separated from that position pursuant to an

amended layoff plan approved by the Civil Service Commission (Commission)

on June 18, 2015. The layoff plan abolished the position of Technical Assistant

3 at NPS.

Brown was offered a provisional position as an Employee Benefits

Specialist effective August 17, 2015. She accepted the position, which had a

higher salary but similar job duties to the Technical Assistant 3 position. Brown

was terminated from the provisional position effective August 21, 2015. The

Union grieved the termination on Brown's behalf. The grievance proceeded to

binding and final arbitration pursuant to Article IX of the CBA.

A-4539-16T1 2 We recount the following relevant facts. Brown left her post and the

worksite on July 31, 2015, when her computer did not allow her access to the

People Soft program she used in her work. Brown was scheduled to work from

8:30 a.m. to 4:30 p.m. She left work without permission at 9:55 a.m. Brown

was counseled at an August 5, 2015 meeting with her supervisor and the Director

of Employee Services. She was advised she could not leave her post, provided

with instructions on controlling her anxiety, and warned this was not to happen

again. She was told if she could not gain computer access to the People Soft

program, she was to take a break and walk around the block if necessary to calm

down so that she could continue doing whatever other work was available.

Brown was laid off from her permanent title of Technical Assistant 3

pursuant to an approved layoff plan in accordance with N.J.A.C. 4A:8-1.4.

N.J.A.C. 4A:8-1.6(a) requires the appointing authority to provide general and

individual notice of layoff to affected employees. N.J.A.C. 4A:8-1.6(f) requires

the Commission to determine layoff rights, which include seniority,

displacement rights, and special reemployment rights, and to then provid e each

permanent and probationary employee affected by the layoff action with a final

written notice of their individual status, including a statement of appeal rights.

There is no indication in the record, or allegation by Brown, that she appealed

A-4539-16T1 3 her layoff rights to the Commission, or that she challenged NPS's layoff plan.

Rather, as found by the arbitrator, Brown accepted an offer for provisional

appointment as an Employment Benefits Specialist as a "New Hire."

On August 17, 2015, the first day of her new provisional position, Brown

was expected to assist another employee with "onboarding" new employees. At

8:40 a.m. that morning, Brown again left her post and the worksite when her

computer did not allow access to the People Soft program. Brown allegedly

ranted and used inappropriate, but not foul, language in the process of leaving

the worksite.1 Brown was advised her conduct was egregious and would not be

tolerated. Brown's subsequent request to use a sick day to cover the missed time

on August 17, 2015 was denied, and she was docked for the portion of the shift

she did not work.

By letter dated August 26, 2015, Brown was advised NPS "is exercising

its right to terminate your services as a Provisional Employee Benefits Specialist

effective Friday, August 21, 2015." Notably, NPS did not serve Brown with a

preliminary or final notice of disciplinary action. A subsequent letter from the

Director of Labor Relations to the Union confirmed that Brown "was not

1 Finding the testimony regarding Brown's statements to be hearsay, the arbitrator did not rely on this testimony. A-4539-16T1 4 terminated from her provisional position as an Employee Benefits Specialist for

disciplinary reasons . . . ." The Union filed a grievance on Brown's behalf

contesting her removal. The dispute proceeded to final and binding arbitration.

The parties submitted the following issues to the arbitrator: "Does the

arbitrator have jurisdiction in this matter? If so did the [e]mployer, [NPS], have

just cause for the termination of the grievant, Alicia Brown? If not, what is the

appropriate remedy?"

The arbitrator issued an award on November 1, 2016. Noting the dispute

fit within the contractual definition of a grievance and the parties had agreed to

submit the grievance to arbitration, the arbitrator found the grievance arbitrable. 2

In his discussion of the merits, the arbitrator found it undisputed Brown

left her position without permission on July 31, 2015 and August 17, 2015. He

noted Brown was given a verbal warning after the first incident that her action

was unacceptable and could not happen again, but received no discipline beyond

the warning. She was not informed that a further offense could result in further

discipline or termination.

2 NPS did not address the finding that the grievance was arbitrable in its merits brief. Thus, the issue is deemed waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived on appeal."); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). A-4539-16T1 5 As to the second incident, the arbitrator stated:

The grievant left her position on August 17, 2015 without permission. It would seem axiomatic that an employee should know that he/she cannot simply leave their job at any time. In this situation Ms. Brown was aware that her work hours were 8:30 a.m. to 4:30 p.m. and that she was acting outside the norm as she left word with three individuals that she was leaving. On the Employer's side there is no record of discipline in this matter.

With regard to Brown's termination, the arbitrator stated:

Ms. Brown was properly separated from her position as Employee Benefits Specialist as this was a provisional title and the Employer has the ability to remove an employee from a provisional position for any reason. However, Ms. Brown had rights to her permanent position of Technical Assistant 3. The Employer did not return her to this position. The question before me is whether the Employer had just cause to terminate her from the Technical Assistant 3 position.

The arbitrator noted Brown had received a verbal warning for the first

incident and received counseling on how to deal with her emotions, but found

"no reason for the grievant to expect that a repeat of this offense would result in

termination" since she had not been "warned that this could happen." The

arbitrator determined NPS did not have just cause to terminate Brown.

However, he concluded that "leaving her job without permission on August 17,

2015 was a serious offense which she had previously been warned to avoid."

A-4539-16T1 6 The arbitrator imposed a thirty-day suspension and ordered NPS to reinstate

Brown to the position of Technical Assistant 3 thirty days after the effective date

of her termination, and to make Brown "whole for all lost income or benefits

back to the date of her reinstatement less any monies earned through

unemployment insurance or other means."

NPS filed this action to vacate the award. The Union counterclaimed to

confirm the award. Following dispositive cross-motions, the trial court issued

an oral decision confirming the award as modified to reinstate Brown to the

Employee Benefits Specialist position instead of the Technical Assistant 3

position, which no longer existed. The trial court dismissed the complaint with

prejudice and directed NPS to implement the award as modified.

The trial court granted the Union's subsequent motion to enforce litigant's

rights, ordering NPS to immediately comply with the award of back pay to

Brown for the period of September 21, 2015 to December 19, 2016, subject to

appropriate mitigating offsets. This appeal followed.

NPS argues: (1) the approved layoff plan reserved the right to terminate

the permanent position of Technical Assistant 3; (2) Brown's actions provided

just cause for termination; (3) as a provisional employee, Brown could be

terminated from the title of Employee Benefits Specialist pursuant to Civil

A-4539-16T1 7 Service regulations; and (4) the arbitrator and the trial court erred by reinstating

Brown, a provisional at-will employee, who could be terminated by NPS at any

time.

Our role "in reviewing arbitration awards is extremely limited." State v.

Int’l Fed’n of Prof’l & Tech. Eng’rs, Local 195, 169 N.J. 505, 513 (2001) (citing

Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). We

undertake “an extremely deferential review when a party to a collective

bargaining agreement has sought to vacate an arbitrator’s award.” Policemen’s

Benevolent Ass’n, Local No. 11 v. City of Trenton, 205 N.J. 422, 428 (2011).

The New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, provides limited

grounds for vacating an arbitration award, including:

a. Where the award was procured by corruption, fraud or undue means;

. . . . [or]

d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.

[N.J.S.A. 2A:24-8.]

A court may also vacate an award if it is contrary to public policy. Borough of E.

Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (quoting

Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)).

A-4539-16T1 8 "'[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," whereas an arbitrator exceeds his or her "authority by

disregarding the terms of the parties' agreement." Borough of E. Rutherford, 213

N.J. at 203 (alteration in original) (quoting Off. of Emp. Rels. v. Commc'ns Workers

of Am., 154 N.J. 98, 111-12 (1998)). Whether the arbitrator exceeded his authority

"entails a two-part inquiry: (1) whether the agreement authorized the award, and (2)

whether the arbitrator's action is consistent with applicable law." Id. at 212 (citing

Commc'ns Workers of Am., Local 1087 v. Monmouth Cty. Bd. of Soc. Servs., 96

N.J. 442, 451-53 (1984)).

The party seeking to vacate an arbitration award bears the burden of

demonstrating wrongdoing on the part of the arbitrator. Tretina Printing, Inc. v.

Fitzpatrick & Assocs., 135 N.J. 349, 357 (1994); Minkowitz v. Israeli, 433 N.J.

Super. 111, 136 (App. Div. 2013). Because a decision to vacate or confirm an

arbitration award is a decision of law, we review the denial of a motion to vacate an

arbitration award de novo. Minkowitz, 433 N.J. Super. at 136 (quoting Manger v.

Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)); see also Bound Brook Bd. of

Educ. v. Ciripompa, 442 N.J. Super. 515, 520 (App. Div. 2015).

A-4539-16T1 9 "Within the civil service system's competitive division of career service

positions, 'regular appointments' are not permanent until completion of an

examination, certification, and working test period." Melani v. Cty. of Passaic,

345 N.J. Super. 579, 586 (App. Div. 2001) (citing N.J.S.A. 11A:3-2; N.J.S.A.

11A:4-13(a)). "'Permanent employee' means an employee in the career service

who has acquired the tenure and rights resulting from regular appointment and

successful completion of the working test period." N.J.A.C. 4A:1-1.3. "A

provisional appointee's position is held 'pending the appointment of a person

from an eligible list.'" Melani, 345 N.J. Super. at 586 (quoting In re Chief Clerk,

282 N.J. Super. 530, 533 (App. Div. 1995) (quoting N.J.A.C. 4A:1-1.3)).

"A provisional appointee does not enjoy the job protection accorded to a

permanent employee." Ibid. (quoting In re Chief Clerk, 282 N.J. Super. at 533).

"Ordinarily, permanent employees can be discharged or demoted only for cause,

and they have pre-termination appeal and hearing rights; however, provisional

employees can be terminated at any time at the discretion of the employer." Ibid.

(citing O'Malley v. Dep't of Energy, 109 N.J. 309, 314 (1987); N.J.A.C. 4A:2-

2.1, -2.2, -2.5, and -2.8). Accordingly, a provisional employee has no right to

appeal their termination to the Commission. O'Malley, 109 N.J. at 314.

A-4539-16T1 10 When Brown was terminated, she had served in the provisional position

for only five days. She had not taken the competitive examination for Employee

Benefit Specialist, was not certified in that position, and was not named on an

eligible list. She was not a long-term provisional employee who had performed

satisfactorily yet failed to achieve permanent status because of NPS's neglect.

Cf. Kyer v. City of East Orange, 315 N.J. Super. 524, 534 (App. Div. 1998)

(excusing seven-year provisional employee's failure to achieve permanent status

due to appointing authority's negligence). Accordingly, she could be terminated

at the discretion of NPS.

The arbitrator ruled that although Brown could be terminated from her

provisional position, she had rights to her permanent position of Technical

Assistant 3. To reach this conclusion, the arbitrator relied on In re Erick Agins,

Trenton, 2007 N.J. AGEN LEXIS 1053 (Merit System Bd. July 25, 2007), which

stated: "It is axiomatic that, in accepting a provisional appointment to a higher

title, the appellant did not relinquish the rights he had as a permanent employee."

Ordinarily, an employee retains permanent title rights when the underlying

permanent title survives a layoff action. Agins featured a laid off permanent

employee whose title continued to exist beyond the layoff action. Accordingly,

A-4539-16T1 11 the employee's permanent title rights were not extinguished when he accepted a

provisional position.

The arbitrator's reliance on Agins is misplaced. NPS abolished all

Technical Assistant 3 positions pursuant to the approved layoff plan. As a result,

Brown no longer retained her permanent status rights in her former position

when the layoff took effect on August 14, 2015. See Commc'n Workers of Am.

v. Whitman, 335 N.J. Super. 283, 291 (App. Div. 2000) (stating "except for the

'bumping rights' which may exist under law or contract, no public employee has

a right to job protection when a position is abolished").3 Instead, Brown was a

provisional appointee who could be terminated at the discretion of the

appointing authority. O'Malley, 109 N.J. at 314; Melani, 345 N.J. Super. at 586.

The arbitrator concluded NPS had not demonstrated just cause for

termination, reduced the discipline to a thirty-day suspension, reinstated Brown

as a Technical Assistant 3, and awarded back pay. This was error. NPS was

under no obligation to establish just cause or apply progressive discipline for

3 The Commission has sole authority to determine hierarchal title rankings, demotional rights, and title rights. N.J.S.A. 11A:8-1. Brown did not appeal her layoff to the Commission or otherwise contest NPS's right to abolish the Technical Assistant 3 title. She does not contend that any lateral title rights pursuant to N.J.A.C. 4A:8-2.1(a), or demotional title rights pursuant to N.J.A.C. 4A:8-2.1(b), were violated. Therefore, performance of similar job duties does not bolster her claim for permanent status rights. A-4539-16T1 12 the removal of a provisional appointee whose permanent title rights were

extinguished when the position was abolished. Whitman, 335 N.J. Super. at 291

(citations omitted).

Recognizing the arbitrator's award called for Brown's reinstatement to an

abolished position, the trial court modified the award to reinstate Brown to the

provisional Employee Benefits Specialist position. This too was error. Given

Brown's loss of permanent status and apparent lack of displacement rights, she

had no right to reinstatement as either a Technical Assistant 3 or a provisional

Employee Benefits Specialist.

As a provisional appointee, NPS had the discretion to terminate Brown at

any time without being required to apply progressive discipline or demonstrate

just cause for her removal. Accordingly, the grievance should have been denied.

Brown was not entitled to reinstatement to either position or an award of back

pay. Consequently, the award was procured by undue means based on a mistake

of law. The modification of the award was also error. The award is vacated and

the order confirming the modified award is reversed.4

Reversed.

4 In light of this ruling we do not reach the remaining issues raised by NPS. A-4539-16T1 13