YOLANDA CRUZ VS. STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS (L-0239-17, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3789-16T1
YOLANDA CRUZ,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
DEPARTMENT OF CORRECTIONS,
Defendant-Respondent.
________________________________
Argued May 14, 2018 – Decided June 13, 2018
Before Judges Rose and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-0239-17.
Donald C. Barbati argued the cause for
appellant (Crivelli & Barbati, LLC, attorneys;
Frank M. Crivelli, on the brief).
Elizabeth A. Davies, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Jason W.
Rockwell, Assistant Attorney General, of
counsel; Elizabeth A. Davies, on the brief).
PER CURIAM
Plaintiff, Yolanda Cruz, appeals from a March 15, 2017 order
of the Law Division confirming an arbitrator's award denying her
grievance and upholding her termination from the Department of
Corrections (DOC). In light of our highly deferential standard
of review, we concur with the trial court that the arbitrator's
award was rational and based upon the evidence, and we affirm.
Plaintiff had been employed as a Secretarial Assistant 1 with
the DOC. She worked at the New Jersey State Prison (NJSP) in
Trenton and was a member of the Communications Workers of America
AFL-CIO labor union. On December 9, 2014, plaintiff was served
with a Preliminary Notice of Disciplinary Action seeking her
suspension and discharge from employment for conduct unbecoming
an employee, improper or unauthorized contact with an inmate,
undue familiarity with inmates, parolees, their family or friends,
and other sufficient cause. Specifically, the Notice provided as
follows:
On August 29, 2014 you brought food from
outside of NJSP and provided this food to
inmate M.W., apparently to celebrate his
birthday. M.W. is the assigned inmate porter
for your work area. Additionally, on
September 28, 2014, you asked a subordinate
co-worker to provide peanut butter to the same
inmate. Both of these acts constitute
prohibited conduct in violation of the
Department's policy on Staff/Inmate
Overfamiliarity. Thereafter, you attempted to
influence a subordinate's account of what
happened on 8/29/2014 by telling her "it's
going to be my word against her" and "I'm not
telling you what to do, but if I was you, I
would say I was just sitting there and did not
hear anything."
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On February 4, 2015, a departmental hearing was conducted
upholding the disciplinary charges and recommending removal. On
April 19, 2015, plaintiff was served with a Final Notice of
Disciplinary Action terminating her from employment effective
December 24, 2014. The removal was appealed by plaintiff and an
arbitration hearing was conducted on intermittent dates over a
six-month period. The arbitrator issued a twenty-nine page written
decision on October 31, 2016 denying the appeal.
The arbitrator found that plaintiff "was untruthful on a
material issue in this case" with respect to her testimony that
she did not intend to get lunch for inmate M.W. In reaching his
decision, the arbitrator also found that M.W. credibly testified
that "[plaintiff] came back, she went and got me a sandwich, got
me a cheese steak." The arbitrator rejected plaintiff's claim
that M.W. was disingenuous because he found plaintiff had a
"propensity for untruthfulness," based upon the "overwhelming
evidence." In considering the gravity of the removal, the
arbitrator focused on "whether [plaintiff] knowingly violated the
undue familiarity policy and was untruthful about what happened.
I found she did in both instances." He further concluded that
"the DOC strictly applies the undue familiarity policy" warranting
termination.
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Plaintiff filed a complaint in the Law Division seeking to
set aside the arbitrator's decision. After conducting oral
argument on March 15, 2017, Judge William Anklowitz issued an oral
decision confirming the award predicated upon his finding that
there was no evidence that the arbitrator procured the award by
undue means, or that he exceeded his authority, or issued an award
that was, in essence, not reasonably debatable.
We engage "in an extremely deferential review when a party
to a collective bargaining agreement has sought to vacate an
arbitrator's award." Policeman's Benevolent Ass'n, Local No. 11
v. City of Trenton, 205 N.J. 422, 428 (2011). "Generally, when a
court reviews an arbitration award, it does so mindful of the fact
that the arbitrator's interpretation of the contract controls."
Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J.
190, 201 (2013). "That high level of deference springs from the
strong public policy favoring 'the use of arbitration to resolve
labor-management disputes.'" Policemen's Benevolent Ass'n, 205
N.J. at 429 (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex
rel. Mizichko, 202 N.J. 268, 275-76 (2010)). Our role "in
reviewing arbitration awards is extremely limited and an
arbitrator's award is not to be set aside lightly." State v.
Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513
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(2001) (citing Kearny PBA Local #21 v. Town of Kearny, 81 N.J.
208, 221 (1979)).
Thus, judicial "review of an arbitrator's interpretation is
confined to determining whether the interpretation of the
contractual language is 'reasonably debatable.'" N.J. Transit Bus
Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 553-
54 (2006) (citations omitted). "Under the 'reasonably debatable'
standard, a court reviewing [a public-sector] arbitration award
'may not substitute its own judgment for that of the arbitrator,
regardless of the court's view of the correctness of the
arbitrator's position.'" Borough of E. Rutherford, 213 N.J. at
201-02 (alteration in original) (citations omitted). Reasonably
debatable means fairly arguable in "the minds of ordinary laymen."
Standard Oil Dev. Co. Emps. Union v. Esso Research & Eng'g Co.,
38 N.J. Super. 106, 119 (App. Div. 1955).
Consistent with these several principles of deference, the
New Jersey Arbitration Act provides only four statutory grounds
for vacating an arbitration award:
a. Where the award was procured by
corruption, fraud or undue means;
b. Where there was either evident partiality
or corruption in the arbitrators, or any
thereof;
c. Where the arbitrators were guilty of
misconduct in refusing to postpone the
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hearing, upon sufficient cause being shown
therefor, or in refusing to hear evidence,
pertinent and material to the controversy, or
of any other misbehaviors prejudicial to the
rights of any party;
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.]
The United States Supreme Court has similarly articulated a
public policy exception in holding that courts may not enforce
collective bargaining agreements that are contrary to "well
defined and dominant" public policy. W.R. Grace & Co. v. Local
Union 759, Int'l Union of United Rubber, 461 U.S. 757, 766 (1983).
New Jersey's public policy exception requires heightened judicial
scrutiny for "certain arbitration awards that sufficiently
implicate public policy concerns." Weiss v. Carpenter, 143 N.J.
420, 429 (1996). "A court may vacate such an award provided that
the 'resolution of the public-policy question' plainly violates a
clear mandate of public policy." N.J. Tpk. Auth. v. Local 196,
I.F.P.T.E., 190 N.J. 283, 294 (2007) (citation omitted). Usage
of this public-policy exception should be limited to "rare
circumstances." Tretina v. Fitzpatrick & Assocs., 135 N.J. 349,
364 (1994).
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Judge Anklowitz properly recognized his narrow analytical
focus and determined that "the arbitrator is [a] in a far superior
position" in terms of credibility determinations. The judge also
found no evidence of any of the improprieties specified in N.J.S.A.
2A:24-8(a) through (d). As Judge Anklowitz soundly concluded, the
determination of the arbitrator was unassailable, in terms of
findings that were "rational, intelligent reasons why [plaintiff]
was not found to be credible". The court reasoned that the
arbitrator appropriately dealt with evidentiary issues resulting
in a fair adjudication.
We have considered plaintiff's other arguments and found them
to be without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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