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

NOT FOR PUBLICATION WITHOUT THE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

4 A-3789-16T1
(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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