In the case of Bound Brook Board of Education v. Ciripompa, the Supreme Court reviewed the extreme deference which courts are required to give arbitrator’s decisions. However, the Supreme Court explained that this deference to the arbitrator is not unlimited.
In the Bound Brook case, two tenure charges were filed against a teacher. The teacher, who had tenure, had allegedly been engaging in pervasive misuse of his employer-issued computer and inappropriate conduct toward female coworkers, allegedly often in the presence of or involving students. After an investigation, the Board determined that the teacher should be fired and tenure charges were filed against the teacher.
The first count of the tenure charges was “conduct unbecoming.” The second count was not labeled, but contained allegations of inappropriate conduct and harassing behavior toward coworkers, some of a sexual nature, and occasionally involving students. Like the local board of education, the New Jersey Commissioner of Education likewise found dismissal warranted and submitted the charges for review by an arbitrator pursuant to the TEACHNJ Act.
The arbitrator upheld the first count and imposed a 120 suspension rather than dismissal. However, the arbitrator subsequently unilaterally recategorized the second count as sexual harassment, and applied the standard used by the New Jersey Supreme Court in Lehmann v. Toys ‘R’ Us. The arbitrator then dismissed the charges in the second count, finding that the teacher’s conduct was not severe or pervasive enough to meet the Lehman standard for sexual harassment. The trial court, the Chancery Division of the Superior Court of New Jersey, upheld the arbitrator’s decision, as did the Appellate Division in a reported decision. The New Jersey Supreme Court reversed.
The Supreme Court rejected the arbitrator’s application of the Lehman sexual harassment standard. It explained that under New Jersey education employment law, “unbecoming conduct” does not require “violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.” Thus, the threshold for unbecoming conduct, even if there is an element of sexual harassment, is lower than the burden of actually proving sexual harassment under the Lehman standard.
While acknowledging that review of arbitration awards is extremely limited – and it is very limited – the Court found that based on the facts before it section (d) of section 8 of the New Jersey Arbitration Act controlled. This allows for judicial review and vacating the arbitration award when “ the arbitrator exceeded or so imperfectly executed the arbitrator’s powers that a mutual, final, and definite award on the subject matter submitted was not made.” The Court explained that a “claim that an arbitrator decided a legal question not placed before him or her by the parties is tantamount to a claim that the arbitrator imperfectly executed his or her powers as well as a claim that the arbitrator exceeded his authority within the meaning of” Section 8(d) of the New Jersey Arbitration Act. The Court held that the arbitrator had exceeded or so imperfectly executed his powers by impermissibly applying the higher Lehman standard which was not before it, rather than lesser standard for conduct unbecoming, with the effect that no award on the actual subject matter submitted in Count 2 was made. The Court therefore vacated the arbitration award and remanded the case for assignment to a new arbitrator for a new hearing.
There are several takeaways from this decision. First, the standard for “unbecoming conduct” is lower than that for sexual harassment. Teachers are entrusted with the care and education of our most precious assets, our students. Therefore, they are held to a high standard of personal behavior.
The second takeaway is that while it is extremely difficult to overturn an arbitrator’s decision, it can be done if the arbitrator decides something that was not actually before him.
The final takeaway is that tenure charges have drastic consequences for teachers and other educational employees, and arbitrators’ decisions are generally unappeasable. They can have drastic consequences – they can mean the end of the affected teacher’s career Having professional representation is therefore crucial.
McLaughlin & Nardi’s Employment Law Department
The opinion was written by Justice Walter Timpone. It is Justice Timpone’s first employment law opinion, and our employment law department will be watching his future opinions with great interest.
McLaughlin & Nardi’s employment law attorneys help New Jersey teachers with their employment issues. Email us or call (973) 890-0004 to schedule a consultation.