County College of Morris Staff Ass'n v. County College of Morris

protective if under seek and obtain a order Plaintiff also specific interview with a proposed parte ex the circumstances prejudice plain- to cause such substantial physician threatens supervision of the trial court. Such tiff as to warrant requiring the form of an order could take supervision or, in during the interview ex- plaintiffs counsel presence depo- cases, proceed by counsel to requiring defendant’s treme flexibility afforded our satisfied that sition. We are appropri- to fashion permit trial courts and counsel decision will interfering unnecessar- in unusual cases without procedures ate in routine cases. personal use of interviews ily with the resolution, deem the issue raised to Notwithstanding this we prompt attention of complexity as to merit the sufficient be of Committee, we will whose recommendation Practice Civil necessity amending the Court regard to the solicit with formally. this issue more Rules to deal with modified, Division, as Accordingly, the order of the Law court for further matter is remanded to that affirmed and the opinion. proceedings not inconsistent with this WILENTZ, Justice For affirmance —Chief modification POLLOCK, O’HERN, HANDLER, CLIFFORD, and Justices and STEIN—7. GARIBALDI

Opposed—None. AND OF MORRIS STAFF ASSOCIATION COUNTY COLLEGE PLAINTIFFS-RESPONDENTS, MULLER, v. COUNTY VICTOR MORRIS, DEFENDANT-APPELLANT. OF COLLEGE August 1985. Argued March 1985 Decided appellant (Vogel and argued the cause for Aron M. Schwartz counsel). Chait, Chait, attorneys; Arnold M.

Ma,rk {Sterns, respondents for argued the cause D. Schorr Weinroth, and Loraine attorneys; Mark D. Schorr Herbert & Schewior, briefs). on was delivered opinion

The Court CLIFFORD, J. determi- propriety an questions the arbitrator’s appeal

This public dispute. The public sector labor nation disciplinary infractions. discharged employee because of guilty of employee had been agreed that the The arbitrator suspen- by imposing a misconduct, penalty he modified but Chancery The employment. place of termination sion reimposed penalty suspension and Division vacated the Division, discharge. Appellate unreported opinion, in an suspension. granted award of a reinstated arbitrator’s We certification, (1984), petition for employer’s N.J. 146 judgment Appellate now reverse Division rein- judgment Chancery state the Division.

I College County (College) employed Defendant of Morris an plaintiff Victor Muller as automotive maintenance mechanic. employees appointed basis, College yearly are on a and contin- depends reappointment by on employment ued annual the Col- However, lege’s employment Board of under Trustees. County College contract between the and the of Morris (Association), employee complet- Staff Association once has probationary period, ed a six-months cannot be except dismissed expiration cause” before the of his employment current term. College discharged

That is what occurred here: Muller employment expired. addition, before his current term had In action, and consistent with that the Board of Trustees refused reappoint finally Muller employment expired. when his term action, challenged, Plaintiffs have not in this the Trustees’ rather, reappointment; they determination on limit their conten- College improperly tion to the claim that the dismissed Muller having paren- without met the cause” standard. noteWe that, thetically argument, as we were told at oral the Associa- grievance, alleging tion filed a has now the dismissal X, below, clauses of the in Article to contact referred amount to provision is, and were intended to be tenure that in the —that discharge, College required absence of cause” to the is to employee’s expressing any renew contract. We refrain from issue, currently on that before an .view which arbitrator. 8, 1982, firing College After Muller October the on set forth in a Memorandum of Record the reasons for dismissal. Those infractions, following reasons included the which occurred September August and 1982: (five 9/29/82); and

1. of time records occasions between 8/26/82 falsification (verbal exchange when with 2. with confronted inac- insubordination superior entries); sheet curate time (left College neglect 3. of and in his care tools and equipment duty property 9/24/82); leaving the on after campus unattended early College (drove College use 4. unauthorized of for use vehicle property personal car); College garage and used to fellow off repair employee’s premises (began to 5. and threat of harm to his lower supervisor attempt personal standing with on on the who was lift, it, vehicle vehicle supervisor directly it). underneath grievance Muller’s filed a on behalf. Accord- The Association College III and ing Article of the Contract between grievance govern limit definition “shall and Association contractual, scope statutory-regulatory non-contractual and of griev- grievances.” grievance was a “contractual Muller’s ance,” alleged misinterpretation, III as defined Article “an Agree- express of this misapplication, or violation terms of College is Specifically, the terms that the said ment.” contract X, provisions Article of have violated were as pertinent parts of which read follows: completing dismiss an B. After six months employment, term, of such current employment employee prior expiration employee’s grievable. cause and such dismissal shall be only ^[********] discharged include, shall but not be

D. The cause for which be employees may College. regulations violation and rules, limited policies to[,] proce- steps grievance Article III the first three After reinstatement, produce Muller’s dures failed III, C, binding Article submitted the matter to arbitration. § ¶ 5(c) limitations on the arbitration specifies the contractual proceedings:

(c) findings writing be in and shall forth decision shall set The arbitrator’s The arbitrator reasoning on conclusions the issues submitted. fact, alter, to, modify authority power amend or to add shall be without Agreement which without to make decision terms this authority shall law. also of an act the commission requires prohibited by and of United States and the laws the State New Jersey be bound Higher Higher

decisions of the of Education and the State of Chancellor Board Education. added.] [Emphasis contained, addition, Significantly, “fully the contract in a bar- clause,” gained which states: Agreement A. This and the and final under- represents complete incorporates standing and settlement of all issues the term of this by parties Agreement. During Agreement, the term of this neither will be required party negotiate with such or not matter, whether covered respect this by Agreement, knowledge within and whether or not or of either contemplation negotiated signed Agreement. or both of the at the time or this parties they negotiations during B. mutual consent enter may into By only, Agreement Agreement amending term of this for the of same. This purpose agreement in shall not be modified whole or in mutual part except by of writing shall amendments be reduced to and

parties. Mutually acceptable submitted for ratification of Board Trustees the Association. arbitrator, days opinion following hearings, in an two The transgressor.” genuine Muller as “a across the board described guilty all of acts listed found Muller The arbitrator Record, supra exceptions: with two the Memorandum first, charge repairing College garage car in another’s unsubstantiated; second, the was found to have been arbi- actually begin found Muller not the lift trator did lower only supervisor,, threatening gesture on his but rather made releasing pressure on the air the vehicle lift.

Although the arbitrator found guilty remaining Muller infractions, charged he penalty nonetheless concluded that discharge inappropriate. was deciding In that dismissal was not warranted College’s the arbitrator on the relied failure to criticized, warned, disciplined have firing Muller before him. Moreover, suggested the arbitrator that the fatally had dismissing erred not approximately Muller until three weeks after the final and most serious act of misconduct. critical portion opinion of the arbitrator’s reads as follows: Grievant’s total conduct the normal context of his responsibilities merits for cause.

Employer, warnings must “Normal[,] however, include^] minimally, and a by employer progressive including College, measure of An discipline. employer, stand while idly by accumulates sufficient number of demerits to walking progressive in or CNA’s, earn his While some CBA’s discipline papers. as a to industrial same is also out, prerequisite capital punishment spelled fact/Arbitrators, which is read in triers of absent facts and standard by discharge. A which can ill afford a to case in circumstances warmup prior 16 or 17 contact under the which reflects lift, is the September totally point rating discharge immediate but nullified Grievant, conduct by unacceptable College when was 4, 1982, herein inaction until October Grievant suspended. by labor-management In the the not warehouse process, employer quietly warning. and then without The inaction of the act, violations employer projects to a sense of standards, while the worker rules by contrary operates regard job tacit a license to do as one without to approval, pleases responsibili- ongoing In that the contributed to breach the sense, worker, ty. projecting the latter. false to security proceeding transgression instant the Grievant moved from one to Thus in the n another, Management an without fear or concern. The silence became invita- obligation disregard tion to the next act of for the worker employer. meriting discharge the succession of facts Grievant must herein, While .not on job and also that his is on the line. be warned thereby, penalized penalty discharge the Accordingly, the arbitrator reduced pay. eight-months suspension without Thereafter, sought to have the arbitration the Association Chancery pursuant in Division to N.J.S.A. award confirmed the 2A:24-7, on College applied the to have the award vacated powers by his ground that had exceeded employment parties. of the See adding terms to the contract 2A:24-8(d). that the arbitrator The court determined N.J.S.A. reading into the collective bar- authority by had exceeded discipline progressive gaining agreement provisions for that the arbitrator had discharge. The court noted immediate meriting discharge for guilty Muller of rule infractions found could not Having finding, the arbitrator cause. made such College require- agreement by imposing on the parties’ alter parties and were agreed upon by the ments that had never been Accordingly, the court part employment contract. not a reducing penalty from in that the arbitrator had erred ruled discharge suspension. conclu- disagreed the trial court’s Appellate Division with provisions into additional the arbitrator had written

sion that Division, According Appellate parties’ contract. “just cause” arbitrator, whether attempting in to determine existed, discharge simply employment reviewed the entire rela- tionship degree and balanced the fault against degree Therefore, employer. of fault of the while discharge conduct Muller’s would warrant under circum- other stances, discharge required not was here because the by having previous had invited acts of misconduct failed on impose discipline. Thus, Appellate occasions Division’s case, view the permissibly the arbitrator had concluded that penalty justified was the context of this relationship. employment carefully

Having collectively-negotiated reviewed the con- findings tract of and the these factual made arbitrator, Appellate Spe- we conclude that the Division erred. cifically, rely could on the progressive arbitrator lack of discipline delay discharging on the Muller as bases for disciplinary penalty. reducing

II principles repeating point. Some first bear at this We desirability settling are reminded of labor-management disputes arbitration, through a that favorably device is viewed by our courts. Tri-County Asphalt Corp., Barcon Assocs. v. 179, (1981). 86 designed provide speedy 186 It is N.J. disputes, Carpenter Bloomer, economic resolution of v. 54 157, N.J.Super. (App.Div.1959); possible, 168 extent spell the to litigation arbitration should conclusion rather than beginning it. In re Arbitration Between Grover and Co., 221, (1979)(Pash Universal Underwriters Ins. 80 N.J. 235 man, J., Mills, dissenting); Collingswood Hosiery Inc. v. Workers, Hosiery 466, 31 N.J.Super. American Fed’n 473 (App.Div.1954). end, judicial

Towards interference with the role of the strictly arbitrator is to be limited. An arbitrator’s award is not lightly. aside Kearny Kearny, be cast PBA Local # 21 81 v. 208, (1979). sector, 221 public scope N.J. In the of review in

391 determining interpretation is confined to whether matters of language reasonably interpretation of the contractual Ass’n, Troopers Fraternal 91 debatable. State v. State N.J. 464, (1982). 469 however, are, given

There limitations to the deference subject An award is an arbitrator’s decision. arbitrator’s being statutory it has that a vacated when been shown basis justifies-.such PBA, an Kearny supra, action. 81 at 221. N.J. statute, applicable 2A:24-8, provides N.J.S.A. that: following an

The court shall vacate the award [of arbitrator] cases: executed their Where the arbitrators exceeded or so powers d. imperfectly subject final and definite award matter submitted was mutual, that a upon not made. contract, through a defined set agreed, have on When process, an govern rules that are to the arbitration authority powers ignores he the limited exceeds his when scope authority the contract confers. The arbitrator’s parties. depends the terms of the contract between on County Bd. v. Monmouth So Communications Workers 442, (1984); Servs., v. Tri- 96 448 Barcon Assocs. cial N.J. (dissenting supra, 209-10 County Asphalt Corp., 86 N.J. Co., Holding opinion); Kirch Co. v. Goerke Kirch Goerke (E. 1935); A. Burns Int’l Detective N.J.Eq. & William J. Inc., Union, N.J.Super. 64 Agency, Jersey Inc. v. New Guards denied, (1961). 301, 34 464 Both (App.Div.1960), 307 certif. N.J. authority of the arbitrator are circum jurisdiction and the by him contract of the powers delegated to scribed 448; Workers, supra, 96 at see parties. N.J. Communications Kearny, supra, PBA # v. 81 Kearny Local 21 Town N.J. Thus, may disregard the terms at 217. an arbitrator Troopers parties’ agreement, State v. State Frater Ass'n, 469, he rewrite the supra, nal 91 N.J. nor parties. contract for the In re Arbitration Between Grover 392 Co., supra, Universal Underwriters Ins. 80 N.J. at 230- concept

31. The succinctly by has been stated Appellate Division: “where an arbitration award does not draw its es bargaining sence agreement, from it will not be enforced the courts.” Inc., Belardinelli v. Werner Continental N.J.Super. (App.Div.1974) (applying federal substantive law, Management Labor Relations Act of 29 U.S.C. 185). §

Ill foregoing With the rules guide as our turn we parties. contentions of the Plaintiffs assert that the got exactly bargained what it had for—an arbitrator’s review of They cause.” would have opinion us read the arbitrator’s stating reviewing as that after the entire context of this em ployer-employee relationship, the arbitrator found as fact that there discharge. was no cause” for But the record fails support argument. Rather, it is clear that the arbitrator found that Muller’s conduct sufficiently improper was as to merit is, cause—that specifically arbitrator determined and unmis- takably "“just that there was cause” for dismissal. To arrive at finding, such a undoubtedly resorted to his knowledge types as to the job of misconduct that occur on the and as to the level of infraction that is sufficient to warrant brought dismissal. The arbitrator proceed- to this arbitration ing experience his in making just these kinds of determinations. very It purpose was for this that these enlisted the assistance of an arbitrator. applied

Once the arbitrator had special expertise his plaintiff found the guilty of misconduct sufficient to warrant discharge, power then the limits on required employee be dismissed. Express See Mistletoe Serv. v. Motor Union, Expressmen’s (10th Cir.1977); 566 F.2d 692 Amanda Union, (6th Bent Bolt Co. v. International 451 F. 2d 1277 Cir.1971); Packing Litvak Amalgamated Co. v. Butcher

393 (D.Colo.1978); v. Workmen, F.Supp. 1180 Belardinelli 455 Continental, Inc., supra, N.J.Super. 1. Werner But result, admittedly avoid that the arbitrator read into the agree- a required necessity ment condition not the contract: the for progressive discipline. plain incremental or That is so is this from arbitrator’s insistence that the “normal of context * * * * * * [grievant’s] responsibilities must include measure discipline.” Supra progressive imposing at Without 388. that requirement discharging the arbitrator could not have avoided Muller—at least could not have avoided that result without sacrificing opinion. consistency all in his written

However, “reading ignored the arbitrator’s in” the contractu- provision al prohibited to, that him adding from altering, or modifying parties’ agreement. It overlooked fact that bargaining agreement collective was considered to be the complete understanding parties, disregarded and it directive that responsibilities modification in agreed be upon in writing. Moreover, by definition, plaintiffs’ contractual grievance was confined to a misinterpretation the express terms of the only contract. provisions The contractual at issue the “just were X, cause for dismissal” terms of supra Article at having 387. found sufficient violations of Col- lege rules discharge, to warrant there existed no other contract permit terms that would penalty reduction of the of suspension. repeat one We authority the arbitrator’s is provisions circumscribed whatever and conditions the mutually agreed upon. Grover, have supra, 80 atN.J. Any 229. action taken beyond authority impeachable. Id. parties’ provide

It is no moment that the contract not did specifically discipline discharge. for short of The arbitrator dismissing was forced to make the difficult choice between all, no imposing discipline series options was still Had supported available. the facts such a conclusion, could, course, the arbitrator have found that

Muller guilty was not of the offenses with which he was Record, charged supra in the at 387. Even Memorandum of charges finding employee guilty specified after of the misconduct, apply special arbitrator was free to expertise and determine that these offenses do not rise to a level of misconduct that discharge. constitutes cause for concluded, Had the arbitrator so we assume that the proper remedy disciplinary penalty would have been a less severe than discharge. that of pause

We appears way to note that it from the arbitrator framed the issues that he option impos- was aware that the ing penalty some lesser was appropriate available under circum- opinion stances. The arbitrator’s listed the issues as follows: guilty charged Is Victor Muller as in the Memorandum of dated Record, discharge October 1982? If is the 15, so, penalty on October imposed 8, If 1982, what if appropriate? not, penalty, any, appropriate? note questions We as aside that the listed should not be regarded as a parties submission of the that memorialized the precise issues and finalized dispute. terms of the See Grover, supra, 80 Rather, N.J. 230. this formulation of the attempt issues was the arbitrator’s rough explanation own at a of what was at stake in hearing. the arbitration The suggested have not argument in their briefs or at oral that this framing of the issues precisely constitutes a submission that parties’ defines the controversy. light In of the any absence of apparent concern of the parties respect of the arbitrator’s framing issues, we do not make that formulation a focal point analysis. of our point here, however, to be made is that the arbitrator employee guilty

found the substantially charged all of the infractions and determined that the misconduct merited dis- charge conclusions, for cause. Given these the Court and the compelled by arbitrator are constraints the contract to discharge employee. reject plaintiffs’

We contention that under the circumstances of this case there can no bé cause” for without

395 prior warning employee. some Obviously, there is no provision explicit in the contract between and the requiring Association progres use such incremental discipline, other, point sive nor did the arbitrator related furnishing implicit support contract as progressive- terms for a discipline requirement. impressed We are with the fact that it practice has been the in other labor contracts set forth specifically any requirements warning progressive discipline. See, e.g., Rapids Corp. Grand Casting Die v. Local Cir.1982); (6th Union No. F. 2d Mistletoe Union, supra, Express Expressmen’s Serv. v. Motor 566 F. 695; 2d Super at Tire Co. v. Eng’g Teamsters Local Union (D.N.J.1982),rev’d, n. 2 F.Supp. 546 549 No. 721 F.2d (3d Cir.1983); Inc., 121 Belardinelli v. Werner Continental supra, N.J.Super. 128 at explicit 6-7. The inclusion of these provisions agreements suggests in other to us that the decision to such disciplinary likely whether use a scheme is to be a subject negotiations, collective and that the would legitimately expect give pro the Association some quid quo to protection. to that obtain

Moreover, examples progres of such contracts illustrate that discipline variety ways. sive can be exercised in a For instance, parties may agree that while certain acts insubor imposition graduated disciplinary dination warrant mea sures, other acts misconduct will lead to immediate dismissal. Express, 695; Super Tire, 2d supra, See Mistletoe 566 F. at 2; Belardinelli, supra, supra, n. F.Supp. at 549 128 Thus, N.J.Super. at 6. the mere declaration an arbitrator progressive discipline approved ought an is device that to Instead, dispose controversy. opens be used does it up entirely inquiry: an new line of to what extent and under and, particularly, respect what circumstances of what kinds progressive discipline imposed? Typi of misconduct should be cally, it is specify left the contract the questions, progressive discipline if is answers these to be resorted at all. rely terms case, however, did not on the the arbitrator

In this discipline requiring incremental support as for of the contract Instead, acknowledged, he “read as he discharge. discipline. necessity progressive for agreement into” any authority plaintiffs nor furnish neither the arbitrator Yet typically do triers of fact or arbitrators proposition for “reading in.” Nor is there demonstration that similar such scheme, discipline as adopted progressive employers have workplace. In lieu usage in the of custom or standard evidence may require argue that the arbitrator proofs, plaintiffs of such he entitled to balance discipline because progressive fair and result. in order to arrive equities plaintiffs rely on general proposition, support In of this Jersey Agency, Inc. v. New Burns Int’l Detective J. William Burns, Union, Inc., N.J.Super. 301. In as supra, 64 Guards discharge matter, employer sought to an in the instant company rules. separate infractions of employee five occurred on one guard. All five offenses employee was a charged employee was which the night. The infractions with locations, a routine check on various failure to make were on the complete log, parking his automobile failure to influ job, being under the falling asleep on the premises, working The arbitra intoxicating liquor during hours. ence of guilty all the offenses. Neverthe found the tor ruling employee, less, chose not to the arbitrator record, satisfactory prior light employee’s in the instead that of night” and right for “one bad had earned the to be excused he Appellate The Division wages. Id. at 306. was entitled to back result, although his rea not with agreed with the arbitrator’s soning. that the statement in Burns point

Plaintiffs to the court’s in attempting equities to the involved “was balance arbitrator result, parties at a fair and this is what order to arrive arbitrate,” N.J.Super. 64 bargained for in to their agreement Initially note 312; misplaced. is we their reliance on Bums but limits on the Burns apparently there were no contractual that arbitrator, he so that had more freedom to fashion his own remedy. importantly, Burns, More in “just of issue cause” court, was before the as employer inasmuch did not challenge reinstating the order employee. Instead the employer seeking only portion was to cancel the of the award granted pay fact, that back In noting after employee. solely that case focused question on the arbitrator’s authority stated, to award back wages, the Burns court “we certainly imply approval expression no arbitrator’s that [employee] Zwald was night’, light entitled to ‘one in bad of the employer’s nature essentiality business and the employee’s vigilance in performance of the duties which to assigned.” he was N.J.Super. at 306. emphasize

We that our conclusion improper that it was for requirement the arbitrator this case to have added a progressive discipline to the parties’ contract carries itwith no implication powerless equities. that an arbitrator to balance suggest Nor do we employer the actions of an irrele are vant to an arbitrator’s “just determination of cause.” We acknowledge, example, the rule that the has a duty by principles procedural to impos abide fairness when ing discipline, disciplinary management and in matters is re quired judge employees by to all the same standards. Here we simply recognize power decide arbitrator’s to what is parties fair and is at all times by limited the intent of the as manifested the terms of their contract. took pains explicit put authority. restrictions on the arbitrator’s employee’s The arbitrator measured the against conduct standard of cause” for dismissal and found cause” Despite more, to exist. the fact that the contract called for no significant went a step requiring further engage progressive discipline as a its prerequisite discharge. In so doing, the arbitrator exceeded by adding authority term the new contract. In re See Riverbay Corp., (1982). 91 A.D.2d 456 N.Y.S.2d 378 But see County Commissioner Middlesex v. American Federa- State, Employees, 372 Mass. County and Mun.

tion (1977). 362 N.E.2d reject suggestion, point, final we the arbitrator’s

As a by waiting approximately three weeks urged by plaintiffs, that power College lost its imposing discipline the somehow before “perhaps”-es posed by discharge hypothetical Muller. The to reality the dissent, sight of the post at lose employer delays discharge of the position: if the dissenters’ facts, employer investigate the loses employee in order to employer if wrongdoer, whereas right to spot, runs the risk discharges employee on thereby exposes information and having acted on insufficient later date potentially back-pay award at a himself to a sizeable discharge. wrongful suggest employ- that the Although concepts of fairness basic right discipline within some reasonable must exercise its er requirement in College that the met that period, we conclude showing prejudice There has been no this situation. delay discipline. plaintiff unfairness to traceable alleged investigate the College simply needed some time to harm, bodily see Memorandum attempted infliction of Record, 386-87, allow supra and to judicious a fair and respond charges. We view this as penalized. not be of action for which the should course process to merit the confidence In order for the of arbitration all times adhere disputes, arbitrators must at parties to labor set agreed upon by the as to the rules that have been in this case the in their contract. We conclude that forth parties’ grant of au- award exceeded instant arbitrator’s much of Although empowered to use thority. experience dispute, resolve a knowledge and his own parties. To that agreement times the of the guide is at all the award before us contract he must be faithful. Because collectively negotiat- parties’ fails to its essence from the draw approv- judgment Appellate Division agreement, ed ing that award must judgment be reversed and the of the Chancery Division reinstated. C.J.,

WILENTZ, dissenting. majority obviously is The convinced this employee that should have majority forgotten been fired. What the has is that when the employer employees’ and the agreed upon association arbi- wrongful issue, of the discharge tration it was the arbitrator’s important, conclusion that became and the Court’s conviction irrelevant. majority finds that the arbitrator decided that there was

“just discharge issue, therefore, cause” for and that the is arbitrator, cause,” having “just whether the has the found power, despite finding, deprive that employer of its consequent right discharge clear employee. One would think presumably the Court would hesitate to attribute experienced, intelligent, impartial arbitrator, such a ludi- decision, namely, though crous that even the employer he found “just discharge plaintiff, had cause” to though and even explicitly circumstances, discharge contract allowed under such the employer discharge nevertheless not employee. could this not, however, fair,

That is what the arbitrator found. A sense, reading opinion common his is that he that found ordinarily (“normally”) employee’s this conduct would consti- tute for discharge, given particular cause” but circum- conduct, surrounding stances that including employer’s acts, accompanying “just cause” did exist. Those circum- projection by stances included the of “a sense conduct, approval” employee’s tacit employer’s fail- clear, (with by explicit warning ure to make either or prior discipline discharge) without some repetition short that discharge, that similar conduct would result in his and the employer’s thought failure to within act what the arbitrator combination, period. was a It aggre- reasonable was the gate, circumstances, all these that led the arbitrator’s warranted, i.e., discharge was not

decision did not cause” exist. “grievant’s has

Noting that said that total cause,” disregards merits for conduct ... the Court intervening (“grievant’s clause total conduct in the normal responsibilities Employer merits context dis- cause”) beyond clear charge meaning and its obvious —made paragraphs opinion. succeeding the arbitrator’s doubt saying happened that if what here was The arbitrator work, plaintiff’s just “normal context” of there would be cause (no warnings, discharge; prior but it was not normal for since prior discipline, conveying no lesser instead inaction approval) a to the sense of tacit there was no cause, i.e., the of facts” “not “succession did dis- merit[] (Paraphrase portion opinion charge.” of end of arbitrator’s 388.) interpretation at quoted by ante This the Court drains opinion and, having meaning, of its true the arbitrator’s thus it, go the Court can on to conclude that the arbitrator’s drained agreement.” from parties’ award does “draw its essence dealing progressive discipline, opinion The premise arbitrator’s is the based on that the presence or prior warnings may absence of determine whether employee’s an wrongful just otherwise conduct constitutes discharge. cause for As the opinion: arbitrator said in his including College, An the not stand while an employer, may idly by employee walking accumulates sufficient number of demerits to earn his papers____ labor-management In the the process, not warehouse employer may quietly warning. violations and then act, without The inaction the prior employer projects while the worker rules to standards, a sense of operates by contrary regard job tacit a license to one do as to approval, without pleases responsibili- ongoing In that ty. the sense, contributes to breach employer worker, projecting false to the latter. security proceeding transgression Thus in instant the Grievant from one to moved Management without or another, fear concern. The silence became an invita- disregard obligation tion to the next act of for the worker to the employer. any only question in this in which can be context case right “progressive to consider raised about the arbitrator’s “just cause” discipline” is in connection with the arbitrator’s determining may cause” “just in the arbitrator determination: employee employer it clear consider whether the made to conduct) (or he repeated, if were that certain conduct similar context, deciding in in namely, be It was that would fired? cause, or that the arbitrator con- whether not there was these matters. sidered that point

The first that should noted in this connection is be rule this fires the arbitrator did not that before prior discipline anyone, impose (“progressive he lesser must or All arbitra- discipline”) for the same similar misconduct. unjust allow- tor noted was the obvious cause—of unfairness — continually engage wrongful in conduct ing employee then, upon warning consequences, him of without ever firing committing capi- particular repetition, “industrial him— no punishment” tal had reason to believe —when analytic power perceive happen. great It takes this would no “just necessarily includes—unless concept cause” question employee’s parties expressly exclude it—the him, which, turn, will prior knowledge expected of what (“warned”) questions often he told most involve whether was strongly (“disciplined”) a cer- “told” and sometimes more behavior, repeated, if lead to engaged tain kind of would discharge. itself, that, “just

An act not constitute cause” rack, leaving discharge (failing return a hammer to tool workbench) will, repeated on if after clear warn- it instead cause,” repetition discharge, “just ing that will lead to become or, prior discipline enough, may require if lesser innocuous repetition (“progressive discipline”) before its constitutes stealing employer’s prop- other cause.” There are actions— employ- obviously threatening, only erty are so —that workforce, as to constitute cause” er but to the entire acts, warning. prior similar The extent without warning discipline by employer; approv- without the the tacit employer; general al of such conduct employer’s dealings employee, employees; with the and all with kind of employment, years the number of and service—these innu- factors, least, merable in including, impact other not discharge discipline or lesser on labor relations—all these play legitimate important part a and in “just the arbitrator’s cause” determination. It be seriously cannot contended that a bargaining agreement collective must explicitly allow for their weigh consideration in order for the arbitrator to them in determining just cause.

What nothing— the arbitrator noted here was that there was prior warning prior neither nor discipline lesser would let —that this in job jeopardy. know his was The arbitra- say discipline tor did (“progressive lesser disci- (either instance) pline”) any or in required was here other but “just here, requires rather that cause” in all places, as work good that the employee have reason to believe that certain employment. kind jeopardize of behavior will excluded, question that, explicitly There is no but unless an having power arbitrator a discharge to determine whether by “just power, is warranted the further cause” has where he just cause, impose discipline. finds there is no to lesser majority agrees. express apparently Ante 394. With power given limitation, to “just any here decide cause” without power implied impose any discipline and the to lesser where he cause,”- finds the misconduct does not constitute implied power arbitrator have must consider all questions that he circumstances deems relevant discipline, may wisely cause” appropriate order that he power permissible many exercise this broad to select one of dispositions. By implicitly empowering impose him discipline, lesser have effect allowed impose discipline” requirement “progressive on ad hoc permissible. precisely basis before will be That just the arbitrator does when he finds there is no cause what discharge, discipline. for for but that there is cause lesser incident, employer and the stress the Both Court lift and challenge “just strongly the arbitrator’s conclusion that cause” moment, by might have existed at that but that the time the longer discharge acted it would no be this there, however, employee. acceptance Even Court’s of that argument power given fails to accord to the arbitrator the him to decide cause.” The facts and misconduct, surrounding circumstances relevant to whether time, particular only cause” existed at a include not prior acts thereto but acts thereafter. The man fails who repeated the hammer to the rack after warnings return discipline may rightfully even after lesser found to be be discharged immediately upon transgression, the most recent wrongfully if attempted year but one later. events, chronology employer’s each followed silence, puts proper perspective: the matter in the kind of brought apparently misconduct before the had arbitrator been going years, leaving on “for a number of at will with never a disapproval” management, specific word from miscon- being August duct here that on 26 he falsified time records—no 14, warning, discipline; September no falsified time records and concerning warning, was insubordinate such records—no no 14, discipline; day, September College property the same used personal purposes warning, without authorization—no no 16, discipline; September supervi- threatened to lower lift on 17, warning, discipline; September sor—no no falsified time warning, discipline; September records—no no falsified time warning, discipline; day (September records—no no the same 24) College equipment (welding equipment tools) left unat- leaving early warning, discipline; Septem- tended after no —no warning, discipline; ber falsified time records—no no Octo- 8, discharged. ber accuracy delay

While the explanation for the in dis- (it charging plaintiff questionable after the lift incident is is not and, in the opinion mentioned arbitrator’s' since there is no arbitrator, transcript proceedings accuracy before its requires counsel), more documentation than the assertion of important point delay, is that significance including determine, explanation, its is a matter for the circumstances, counsel or this Court. Given the combination of doubt, including, employer’s approval, without tacit which encouraged plaintiff from one transgression to move next, color, the incident under the lift took on a different and serious, the arbitrator decided that while it was the most it was just many wrongdoing one of instances of as to there had which warning prior up been no and all which did not to of add cause.” above,

As given noted whether cause” exists at a depend may only moment not on what went but also on before Delaying employer’s what went after that moment. re- sponse employee may only to be misconduct deemed unfair not They the affected but the entire workforce. may employer, might find it unfair for the who otherwise have around, employee, making cause fire the wait perhaps to mind, up perhaps wanting leverage its have some over the employee, case, perhaps waiting for other causes to its bolster periods acting; inordinate time before the idea “waiv- judges; er” lawyers may is not limited to and the workforce regard on job it as cruel to allow a worker to continue believing for some that reason the has decided not to then, right may and exercise the have existed blue, delay out of the “lower the The factor of can be boom.” especially has significant when there never been a warn- ing discharge may result. majority delay

So while the think the here was reason- (even though in able there is no the record us to basis before so), power think well to conclude it was within the arbitrator’s otherwise in the context of all the facts and circumstances him. responsibility

before The arbitrator’s to consider all such facts and circumstances is consistent with his critical in role fostering stability labor-management in relations. The arbitra- integral component tor’s role is an bargaining the collective process. according The wisdom of deference to the arbitrator’s grievance exercise of discretion in a proceeding widely recog- is nized: The labor arbitrator’s source of law is not confined to the express provisions of the as the industrial common contract, law —the practices industry bargaining agreement although of the collective shop equally part —is in it. The labor arbitrator is chosen expressed because of the usually parties' knowledge confidence in his of the common law of the and their trust shop judgment bring to bear considerations which are not [his] personal expressed judgment. judgment in the contract as criteria for that his parties expect grievance of a will reflect not what particular contract only but, says bargaining agreement insofar as the collective such as the factors permits, effect of a its result, to the morale of upon productivity particular consequence judgment heightened whether tensions will be or diminished. For shop, objective using the arbitration parties’ to further process primarily goal agreement, their common under the to make uninterrupted production agreement judge serve their needs. The ablest cannot be specialized bring the same to bear expected experience competence upon grievance, determination of a because he cannot be informed. [Unit similarly Navigation ed Steelworkers America v. Warrior & 363 U.S. Co., Gulf S.Ct. 4 L.Ed.2d (I960).] 581-82, 1352-53, 1409, 1417 Cox, Arbitration,” Upon

See “Reflections Labor 72 Harv.L.Rev. (1959); Shulman, “Reason, Contract, 1493-95 in and Law Relations,” (1955). Labor 68 Harv.L.Rev. 1004-05 dispute universally almost committed to arbitration bargaining agreements collective is whether the had employee. cause to impor- No issue is more parties. tant to the What the want is swift and fair disposition dispute by of that knowledge those with sound workplace goal labor relations. Their ultimate is to assure disputes damage that such will do as little to their possible; hope relations as indeed their is that the arbitrator’s improve resolution even workplace. labor relations at the forgotten The Court has objectives today; these fundamental it forgotten requires great has also the rule that give us to arbitration, necessarily deference to a deference that includes a sympathetic rather reading than a hostile of the arbitrator’s opinion. Today’s exception decision is an unfortunate to this recognition desirability Court’s arbitration labor superior experience relations and wisdom and of arbitra- determining disputes tors in in that field. CLIFFORD,

For HANDLER, POLLOCK, reversal—Justices O’HERN and GARIBALDI—5.

For Justice WILENTZ and Justice Affirmance —Chief STEIN—2. with notes In the Court that Agreement explicitly provide any requirement does not discipline that, Agreement progressive and concludes since to, alter, etc., Agree- allow the to add does not ment, power “progres- impose the arbitrator was without discipline” among the requirement. sive Included Court’s major premise, indeed is premises, its that an arbitrator explic- progressive discipline agreement not consider unless the it, industry for itly provides absent some custom in the particular by employer. found no practice We have case arbitrator, in anywhere holding prohibits with a that deter- exists, considering mining whether cause” from whether or, prior warning thing, there was what amounts to the same discipline (“progressive discipline”). lesser prior or legal The Court reaches this conclusion on the basis cases hold, being by do not so the cases the Court not for that used holdings example their rather they provide but for the bargaining agreements explicitly collective that did with deal “progressive discipline.” In other' words the Court uses its (limited experience apparently to the four cases cited ante 395) legal as the basis its conclusion that the omission of any progressive mention of discipline in bargaining a collective agreement prevents it, considering arbitrator from since the practice, according Court, in connection with collective bargaining agreements is progressive to include discipline in agreement whenever the intend it be considered That, submit, I arbitrator. experi- is a somewhat lean ence to conclusion, warrant Court’s with confidence, some law, as a if progressive discipline explicit- matter that is not mentioned, ly the arbitrator cannot consider it. Actually there is no evidence in justify whatsoever this that record would coming Court significance conclusion about the fact it is not in a bargaining agree- mentioned collective ment, except the opinion evidence found in the arbitrator’s requirement including warning, “progressive disci- pline,” regularly regarded implicit arbitrators as disputes. cause” only That evidence is not nowhere contradict- but, given presumed arbitrator, ed experience it is persuasive.

Case Details

Case Name: County College of Morris Staff Ass'n v. County College of Morris

Court Name: Supreme Court of New Jersey

Date Published: Aug 5, 1985

Citation: 495 A.2d 865

Court Abbreviation: N.J.