CHRISTOPHER LUSKEY VS. CARTERET BOARD OF EDUCATION (C-000009-18, MIDDLESEX COUNTY AND STATEWIDE) , 459 N.J. Super. 150 ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3035-17T2
CHRISTOPHER LUSKEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
May 8, 2019
v.
APPELLATE DIVISION
CARTERET BOARD
OF EDUCATION,
Defendant-Respondent.
____________________________
Argued April 10, 2019 – Decided May 8, 2019
Before Judges Alvarez, Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No. C-
000009-18.
David J. De Fillippo argued the cause for appellant
(Detzky Hunter & DeFillippo, LLC, attorneys; David J.
De Fillippo, of counsel and on the briefs).
Thomas A. Abbate argued the cause for respondent (De
Cotiis FitzPatrick Cole & Giblin LLP, attorneys;
Thomas A. Abbate, of counsel; Alice M. Bergen and
Jennifer L. Personette, on the briefs).
The opinion of the court was delivered by
REISNER, J.A.D.
Plaintiff Christopher Luskey appeals from a February 1, 2018 order
denying his application to vacate an arbitration award and granting the cross-
motion of defendant Carteret Board of Education to confirm the award. We
affirm. Addressing a novel issue, we hold that a dispute over the termination of
a tenured public school janitor is subject to arbitration under the jurisdiction of
the Commissioner of Education and not the Public Employment Relations
Commission, even if a collective negotiations agreement dictated the length of
service required to attain tenure.
I
The pertinent facts are set forth in the arbitration award and need not be
repeated in detail here. Plaintiff was a tenured janitor working at a public school
in Carteret. The Board of Education (Board) sought to terminate his
employment for unbecoming conduct and insubordination. The dispute over
plaintiff's termination was heard by an arbitrator appointed by the Commissioner
of Education (Commissioner), as required by the school laws. 1 See N.J.S.A.
18A:6-9, -10, -16. After a testimonial hearing, the arbitrator upheld the
1
As discussed later in this opinion, plaintiff sought contractual arbitration of
his termination through the Public Employment Relations Commission, (PERC).
However, PERC declined to enjoin the Board from proceeding with arbitration
under the auspices of the Commissioner.
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termination based on a finding that petitioner was guilty of unbecoming conduct.
See Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 13-14 (2017) (defining
and explaining unbecoming conduct).
Plaintiff moved to vacate the arbitration award, and the Board cross-
moved to confirm it. The Law Division judge rejected plaintiff's arguments that
the arbitrator lacked jurisdiction to hear the dispute, there was insufficient
credible evidence to support the arbitrator's factual findings, and the findings
were insufficient to support termination of plaintiff's employment.
On this appeal, plaintiff presents the following points of argument for our
consideration:
I. THE TRIAL COURT SHOULD HAVE
VACATED ARBITRATOR ZIRKEL'S AWARD
BECAUSE HE SO IMPERFECTLY EXECUTED HIS
POWERS THAT A MUTUAL, FINAL AND
DEFINITE AWARD UPON THE SUBJECT MATTER
WAS NOT MADE.
II. THE TRIAL COURT ERRONEOUSLY
CONFIRMED ARBITRATOR ZIRKEL'S DECISION
TO SUSTAIN TWO ALLEGATIONS OF CONDUCT
UNBECOMING UNDER CHARGE ONE.
III. THE TRIAL COURT'S CONFIRMATION OF
ARBITRATOR ZIRKEL'S DETERMINATION TO
UPHOLD PLAINTIFF'S TERMINATION WAS
WHOLLY UNWARRANTED.
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IV. THE TRIAL COURT SHOULD HAVE
VACATED THE AWARD BECAUSE ARBITRATOR
ZIRKEL IMPROPERLY ADMITTED – AND RELIED
UPON – EVIDENCE OF MISCONDUCT NOT
INCLUDED IN THE [TENURE] CHARGES.
V. THE TRIAL COURT ERRED IN
CONFIRMING THE AWARD BECAUSE THE
DEPARTMENT OF EDUCATION AND BY
EXTENSION, ARBITRATOR ZIRKEL DID NOT
HAVE SUBJECT MATTER JURISDICTION.
VI. THE TENURE CHARGES WERE
PROCEDURALLY DEFECTIVE AND THEREFORE
SHOULD HAVE BEEN DISMISSED BY THE TRIAL
COURT.
Our review of the trial court's decision is de novo. Yarborough v. State
Operated Sch. Dist. of Newark, 455 N.J. Super. 136, 139 (App. Div. 2018).
Because plaintiff did not arrange for the arbitration to be recorded, there is no
transcript of the testimony presented to the arbitrator. Consequently, there is an
inadequate record on which to consider plaintiff's argument that the arbitrator's
factual findings were not supported by substantial credible evidence. Based on
the facts the arbitrator found, we agree with the trial court that there was no basis
to disturb the award on any of the grounds set forth in N.J.S.A. 2A:24-8. With
the exception of plaintiff's jurisdictional argument, which raises a novel issue,
his remaining arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
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II
The jurisdictional issue revolves around the education statute addressing
tenure of janitorial employees. That statute grants tenure to public school
janitors, unless they are appointed under fixed-term contracts. N.J.S.A. 18A:17-
3. The statute provides:
Every public school janitor of a school district
shall, unless he is appointed for a fixed term, hold his
office, position or employment under tenure during
good behavior and efficiency and shall not be dismissed
or suspended or reduced in compensation, except as the
result of the reduction of the number of janitors in the
district made in accordance with the provisions of this
title or except for neglect, misbehavior or other offense
and only in the manner prescribed by subarticle B of
article 2 of chapter 6 of this title [N.J.S.A. 18A:6-9 to
-17.1].
[N.J.S.A. 18A:17-3.]
As indicated in the statute, a school district cannot terminate a tenured school
janitor except "in the manner prescribed" by chapter six of the school laws. Ibid.Chapter six requires that "a controversy and dispute" concerning the dismissal
of a tenured school employee must be heard by an arbitrator appointed by the
Commissioner. N.J.S.A. 18A:6-9 (requiring arbitration of controversies and
disputes arising under "C. 18A:6-10 et seq."). See also N.J.S.A. 18A:6-10
(stating tenured employees may only be dismissed after a hearing "pursuant to
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this subarticle"); N.J.S.A. 18A:6-16 (If the Commissioner finds the charge
sufficient to warrant dismissing a tenured employee, "he shall refer the case to
an arbitrator pursuant to [N.J.S.A. 18A:6-17.1.]"); N.J.S.A. 18A:6-17.1
(providing that the Commissioner appoints the arbitrators).
In an effort to avoid the arbitration process under the auspices of the
Commissioner, plaintiff sought arbitration before PERC. He argued that the
collective negotiations agreement (CNA) between his union and the Board
guaranteed him tenure separate from the provisions of N.J.S.A. 18A:17-3.2
Therefore, he contended, the arbitration provision of the CNA, which falls under
PERC's jurisdiction, would apply rather than the arbitration provision of the
school laws.
Plaintiff asked PERC to enjoin the Board from proceeding with arbitration
through the Commissioner. PERC denied the injunction, reasoning that
plaintiff's arguments were novel but unlikely to succeed on the merits. Plaintiff
2
The pertinent language from the CNA reads as follows:
Tenure rights shall be acquired [] for all employees
after three (3) consecutive years of service and the
commencement of the fourth year, or, the equivalent of
more than three (3) years of service within a period of
four (4) consecutive years.
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presented the same arguments to the arbitrator designated to hear the school-law
arbitration. The arbitrator likewise rejected the arguments as without merit and
proceeded with the arbitration.
On this appeal, plaintiff presents the same contentions. We find them
without merit, for two reasons. First, we reject plaintiff's argument that his
tenure stems solely from the contract and not from the school laws. Second,
even if his tenure was solely conferred by the contract, once he became a tenured
school employee, a disciplinary action aimed at terminating his employment
would be governed by the school laws, and not by the New Jersey Employer-
Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -43.
In Wright v. Board of Education of City of East Orange, 99 N.J. 112(1985), the Supreme Court held that N.J.S.A. 18A:17-3 did not preclude a school
board from negotiating, with the janitorial employees' union, a middle ground
between giving janitors immediate tenure upon hiring and permanently denying
them tenure by repeatedly giving them fixed-term contracts. Id. at 120-22.
Thus, a board could agree that after serving for a certain number of years, a
janitor would attain tenured status. Id. at 123. In practical effect, once a janitor
had served for the contractually required number of years under a fixed-term
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contract, the board would hire the individual without a fixed term contract, thus
conferring tenure.
Wright, however, did not treat the contractually-agreed tenure as different
from statutory tenure for disciplinary purposes. Rather, the Court recognized
that even a janitor who receives tenure pursuant to a CNA may be subject to the
filing of tenure charges pursuant to N.J.S.A. 18A:17-3. The Court stated that
"as we have taken pains to explain, N.J.S.A. 18A:17-3 grants an employing
board discretion in determining whether to grant tenure to custodians." 99 N.J.
at 122 (citation omitted). In a footnote, the Court added:
Even the acquisition of tenure under a negotiated
labor agreement is not a promise of continued
employment. N.J.S.A. 18A:17-3 still safeguards the
boards' right to dismiss custodians because of a
reduction in force or due to misconduct, inefficiency,
and other good cause.
[Id. at 122 n.3]
Based on that language, we reject plaintiff's argument that a janitor's
tenure obtained through a CNA is substantively different from tenure obtained
through N.J.S.A. 18A:17-3. To the contrary, it is one way of obtaining statutory
tenure, in that the board has contractually agreed to refrain from continuing to
appoint the janitor to fixed terms and agreed instead to give him or her a
permanent appointment. Because a janitor who obtains tenure is subject to the
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school laws with respect to that appointment, a dispute over his or her
termination is subject to arbitration under the school laws. See N.J.S.A. 18A:17-
3; N.J.S.A. 18A:6-9, -10.
In addition, the Act excepts from its provisions a dispute over termination
of an employee with statutory tenure, and prohibits contractual agreements to
replace statutorily-provided appeal procedures. Under the Act, "discipline" does
not include tenure charges filed under Title 18A:
"Discipline" includes all forms of discipline, except
tenure charges filed pursuant to the provisions of
subsubarticle 2 of subarticle B of Article 2 of chapter 6
of Subtitle 3 of Title 18A of the New Jersey Statutes,
N.J.S. 18A:6-10 et seq., or the withholding of
increments pursuant to N.J.S. 18A:29-14.
[N.J.S.A. 34:13A-22.]
In addition, the Act prohibits the parties from negotiating a right to
contractual binding arbitration to challenge tenure charges.
Except as otherwise provided herein, the procedures
agreed to by the parties may not replace or be
inconsistent with any alternate statutory appeal
procedure nor may they provide for binding arbitration
of disputes involving the discipline of employees with
statutory protection under tenure or civil service laws[.]
[N.J.S.A. 34:13A-5.3.]
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Here, the school laws supply an "alternate statutory appeal procedure" in
the form of arbitration under the auspices of the Commissioner. In fact ,
arbitration conducted under the Commissioner's jurisdiction is the statutorily
required procedure to resolve contested tenure charges against a school
employee. See N.J.S.A. 18A:17-3; N.J.S.A. 18A:6-9 to -17.1. Therefore, PERC
lacks jurisdiction to enforce arbitration challenging the termination of a tenured
school janitor. N.J.S.A. 34:13A-5.3.
Accordingly, we affirm the trial court's order confirming the arbitration
award.
Affirmed.
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