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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4212–09T4

    Decided: July 20, 2011

Before Judges Axelrad, Lihotz and J.N. Harris. Hill Wallack, LLP, attorneys for appellant (Rocky L. Peterson, of counsel;  Kenneth A. Skroumbelos, on the briefs). Wills, O'Neill & Mellk, attorneys for respondent (Arnold M. Mellk, of counsel;  Edward A. Cridge, on the brief).

Defendant Trenton Board of Education (Board) appeals from an order confirming an arbitration award in favor of plaintiff Trenton Business–Technical Employees Association (the Association) requiring the Board to compensate Rashaun Davis, a non-tenured discharged employee, for the 2008–09 school year.   On appeal, the Board argues the court erred as a matter of law, contending the arbitrator failed to consider evidence showing Davis had engaged in inappropriate sexual advances toward female co-workers and created a climate of sexual hostility warranting dismissal.   Further, the Board asserts the award cannot stand as a matter of public policy because Davis' “conduct toward female students was improper, unbecoming, and exposed students to foreseeable dangers.”   Alternatively, the Board argues the award must be reversed because Davis' position was abolished as a result of budgetary constraints.

We have considered the arguments presented in light of the record and applicable law.   We affirm.

These facts are taken from the arbitration record.   In October 2004, the Board hired Davis to work as a non-teaching, non-tenured youth development liaison in the School Based Youth Services Program (the program) at Trenton Central High School.   In this position, Davis led group student meetings designed to develop leadership skills, self-esteem, positive relationships with peers and adults, reduce teen pregnancy, help at-risk teens to cope with family difficulties and peer pressure and to remain substance free.

The Board and the Association were parties to a collectively negotiated agreement (CNA),1 which addressed the discharge of employees.   Article XIII of the CNA sets forth the rights of employees and the Association, stating:

Section 1. No employee shall be disciplined, reduced in rank, or compensation or deprived of any professional advantage without just cause.   Any such actions asserted by the Board or any agent or representative thereof, shall not be made in public and shall be subject to the grievance procedure herein set forth.   Any dismissal or suspension shall be considered a disciplinary action and shall at the option of the employee be subject to the grievance procedure.

Section 10.  No employee shall be subject to a reduction in salary except for inefficiency, incapacity, conduct unbecoming an employee or other just cause.   Following written notice of such reasons and a hearing before and determination by the Board ․ find [sic] that such cause does in fact exist and is sufficient for such reduction in salary or dismissal.

Section 11.  Employment or adjustment increments may be withheld in whole or part of [sic] inefficiency or other just cause related to the performance of duties.

Article XI detailed what it calls the “fair dismissal procedure,” and Article IX defines the “grievance procedures[.]”  Both sides agree Davis' termination was subject to these provisions.

The Board placed Davis on paid administrative leave pending its investigation of complaints of “inappropriate sexual advances toward female co-workers” which was believed to create “a climate of sexual hostility.”   Davis was also suspected of having inappropriate contact with T.M., a minor student assigned to the program.   The Board was informed of Davis' conduct in a memorandum authored by Melda Grant, his supervisor.   Grant explained she learned that Davis took a master key from Grant's desk without authorization and used the private clinical office without permission to hold at least five one-on-one, closed-door counseling sessions with T.M., between March 3 and 11, 2008, a practice prohibited under the program's guidelines.   Grant also verified T.M. was not a student assigned to Davis;  he was not trained or authorized to act as her counselor;  he failed to record progress notes from these closed-door counseling sessions;  and he did not discuss his work on the case during staff meetings.   Davis' interaction with T.M. prompted an investigation of suspected child abuse by the police and New Jersey Department of Children and Families (DCF).  In response, Grant suspended Davis.   Upon receiving Grant's memorandum, the Board commenced its own investigation, after which it terminated Davis' employment.

The Association commenced the grievance procedure provided in the CNA and an arbitrator was appointed.   The parties agreed the questions for determination by the arbitrator were:

Did the Board violate the [CNA], specifically Articles X, XI and XIII, when it terminated the employment of Rashaun Davis as a Youth Development Services Liaison?

If so, what shall be the remedy?

The Board maintained Davis' termination complied with all designated procedures and properly resulted from Davis' pattern of offending conduct toward female students and co-workers, asserted to be frequent, severe and to have interfered with the workplace.   The Board sought affirmation of Davis' termination.

The Association countered, arguing Davis was terminated without just cause in contravention of the requirements of progressive discipline delineated in the CNA. Recognizing Davis was subject to an annual contract, the remedy sought was full compensation for the 2008–2009 school year.

The arbitrator conducted a two-day evidentiary hearing.   The Board presented testimony from Grant, who reaffirmed the facts previously set forth in her memorandum, including the 2008 incident with T.M. She also testified that in 2006 Davis had asked one coworker to “be his mistress,” and had an affair with another.   Also testifying on behalf of the Board were:  (1) its attorney, who conducted the pre-action investigation;  (2) the program's supervisor, who confirmed Davis held one-on-one meetings with T.M., he once made a comment laced with sexual innuendo when she bent over in front of him, and she was told of student discomfort because of Davis' comments;  (3) a teacher, who described a comment Davis directed to her regarding her breasts;  and (4) the Assistant Superintendent, who met with Davis to discuss a student complaint following a comment Davis made to the student.

When Davis testified, he noted he accepted a contract for the 2008–2009 school year and reviewed the performance notices he received with Grant, who, he asserted, took no steps to aid his improvement.   He admitted he conducted sessions with T.M. but insisted only intake information was obtained behind closed doors.

On December 30, 2009, the arbitrator issued a twenty-one page written decision and award.   The arbitrator found Grant's acknowledgement of insufficient performance-based justification for non-renewal of Davis' employment left available only termination for just cause.   Finding the Board was faced with a serious situation when it learned of the DCF and police investigations, he concluded Davis was properly placed on administrative leave.   However, once the DCF rendered its findings that the allegation of abuse was unfounded and “no concerns were generated by [ ] Davis' actions[,]” the Board had no information that Davis acted improperly toward T.M.

The arbitrator rejected the Board's urging to apply an “extremely lax” approach in the admission of hearsay evidence.   Consequently, he found the Board could not support most of its allegations.   The arbitrator found no probative evidence of sexual advances aside from the two comments related by the teacher and co-employee who testified.   He also noted one witness related she overheard Davis say he believed a female student was “cute,” which he found potentially problematic, but the action warranted only minor discipline to curb its repetition.   Overall, the arbitrator found Davis' behavior offensive but not frequent or severe and concluded it “fell far sort of proving misconduct.”   Determining “[t]he record at hand [wa]s absolutely rife with rumor, innuendo, unsubstantiated allegations and unproven accusations[,]” the arbitrator concluded the Board failed to prove just cause and awarded Davis full-pay for the school year, reduced by Davis' other earnings received during that period.

The Association filed an Order to Show Cause in the Law Division to obtain the Board's compliance with the arbitration award.   The court, invoking Rule 4:67–5,2 converted the matter to a summary action to confirm the arbitration award under N.J.S.A. 2A:24–7.   Following oral argument, Judge Innes rejected the Board's contentions urging reversal because the arbitrator exceeded or imperfectly executed his powers in determining the award.   See N.J.S.A. 2A:24–8 (identifying the limited bases for a court to set aside an arbitration award).   The court confirmed the arbitration award and ordered the Board to comply with its terms within twenty days.   An order memorializing this decisions was entered on May 10, 2010.   This appeal ensued.

Arbitration is a vehicle by which meaning and context are given to a collectively negotiated agreement.  Linden Bd. of Educ. v. Linden Educ. Ass' n, 202 N.J. 268, 276 (2010).   To promote a sense of finality, “there is ‘a strong preference for judicial confirmation of arbitration awards.’ ”   Ibid. (quoting Middletown Twp. PBA Local 124 v. Twp. Of Middletown, 193 N.J. 1, 10 (2007)).   Accordingly, an “arbitrator's award is not to be cast aside lightly[,]” and “judicial interference” is strictly limited.  Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 390 (1985).   We note “the party opposing confirmation ha[s] the burden of establishing that the award should be vacated pursuant to N.J.S.A. 2A:24–8.”  Township of Wyckoff v. PBA Local 261, 409 N.J. Super 344, 354 (2009) (citation omitted).

“In the public sector, an arbitrator's award will be confirmed ‘so long as the award is reasonably debatable.’ ”  Linden, supra, 202 N.J. at 276 (quoting Middletown, supra, 193 N.J. at 11).   See also Policeman's Benevolent Assoc. v. City of Trenton, _ N.J. _ (2011) (slip op. 6).   Under this standard, we “may not substitute [our] judgment for that of the arbitrator, regardless of the court's view of the correctness of the arbitrator's interpretation.”  Linden, supra, 202 N.J. at 277 (quoting N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 554 (2006)).

The New Jersey Arbitration Act, N.J.S.A. 2A:24–1 to –11, dictates that a reviewing court may vacate an arbitration award only in the following instances:

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 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.]

Another exception has been carved out by the Court, which has acknowledged if an arbitration award violates “a clear mandate of public policy,” it may be set aside.  Weiss v. Carpenter, 143 N.J. 420, 443 (1996).   If a court finds that an “arbitrator's resolution of the public-policy question is not reasonably debatable ․ [it] must intervene to prevent enforcement of the award.”   Ibid.

In light of these limitations, we reject the Board's claims of error in the confirmation of this arbitration award.   We are not persuaded by the claims that the award was procured by “corruption, fraud or undue means” because the arbitrator refused to consider hearsay evidence offered within the testimonial assertions of the Board's witnesses, suggesting Davis' remarks and conduct created “a climate of sexual hostility.”   Nor do we accept the Board's newly raised argument that because the program's grant was not renewed and the position Davis held was effectively eliminated, it was error to award him a back salary when there was no job.

During the arbitration hearing, the Board presented evidence establishing four instances of inappropriate conduct over a two-year period.   Davis commented when his co-worker bent over;  he made a sexual reference regarding a teacher's breasts;  he asked a co-worker to be his mistress and had an affair with another.   None of the comments attributed to students who related purported discomfort around Davis were confirmed because neither Grant nor the Board's attorney spoke to the putative complainants.

Although the Board properly asserts it must “take reasonable measures to assure that teachers and administrators who stand as surrogate parents” protect and do not endanger or exploit vulnerable children, Frugis v. Bracigliano, 177 N.J. 250, 268 (2003), we find insufficient support of Davis' improper conduct.   The record is sparse on specifics other than what is related above.   Regarding T.M., both the DCF and the police investigations were inconclusive and uncovered no definitive evidence of improper interaction.   Certainly, Davis violated the program's procedures designed to assure all staff actions are beyond reproach by stealing a master key to gain unauthorized access to a closed office, in not recording session notes and by conducting consecutive day meetings within a short time period.   Moreover, we agree his secrecy may suggest untoward behavior, but as the arbitrator determined, it alone is not proof of same.

We also reject the invitation to conclude that public policy mandates students be protected from future harm.   As noted, the comments regarding Davis' sexually explicit statements to students were double and triple hearsay.   None were confirmed with the speakers.   We disagree with the broad suggestion that confirmation of this award encourages other employees similarly situated to Davis to engage in sexually abusive behavior.

Following our review of this record, we determine the arbitrator's finding that Davis' conduct was not frequent or severe is reasonably debatable.   Judge Innes properly confirmed the award.

The Board makes much of the arbitrator's omission in his discussion of the liaison with a co-worker, suggesting this action sufficiently reflects sexual harassment on Davis' part to warrant dismissal.   We are not told whether the co-worker was supervised by Davis, nor are we provided with a Board policy prohibiting consensual sexual conduct among staff members.   Thus, we reject the Board's invocation of the need to preserve public policy.   The relationship was neither flagrant nor blatant, as it did not come to light until after its conclusion.   Moreover, Grant took no disciplinary action against Davis once he advised her of the facts of his affair.   Our remarks should not be misconstrued as condoning Davis' caddish conduct.   We determine only that the arbitrator's decision that facts failed to display sexually harassing conduct, as decried by the Board, was supported by the record.

The Board also argues the arbitration award must be reversed because Davis' position was abolished due to budgetary constraints after the program's funding source was not renewed.   The issue was not raised before Judge Innes.  “[We] decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.”  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973).3

Finally, the Board's argument suggesting the trial court erred in confirming the arbitration award because a genuine issue of material fact exists is without merit.   The Board was given a full opportunity to present its position before the arbitrator.   The facts it presented were all reviewed by Judge Innes and found wanting to reverse the award.



1.  FN1. Generally, “[i]n public sector labor relations in New Jersey, courts use the terms ‘collective negotiation’ and ‘collective negotiations agreements' rather than ‘collective bargaining’ and ‘collective bargaining agreements[,]’ ” Troy v. Rutgers, 168 N.J. 354, 359 n.1 (2001) (citing N.J. Tpk. Employees Union v. N.J. Tpk. Auth., 64 N.J. 579, 581 (1974)), a term found in the federal Labor Management Relations Act, 29 U.S.C.A. § 141 et seq.   In our opinion, we follow this nomenclature notwithstanding the parties' reference to their agreement as a “collective bargaining agreement.”

2.  FN2. As permitted by Rule 4:67–5, use of a summary procedure requires all parties to agree to implementation of the process, or that the court find the affidavits submitted “palpably [show] that there is no genuine issue as to any material fact[.]”  Otherwise, the court cannot “render final judgment thereon.”

3.  FN3. We do note that the Board does not explain how it might avoid its contractual obligation to Davis as it is not disputed that it had extended a new contract to Davis for the 2008–2009 school year, which he accepted.


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