On appeal from the Public Employment Relations Commission.
McElroy and J. H. Coleman. The opinion of the court was delivered by J. H. Coleman, J.A.D.
This case raises the novel question of whether the subject matter of racial discrimination falls within the scope of collective negotiations with a public employer. The Teaneck Board of Education (Board) contends that the grievance pertains to a subject matter outside the legal scope of negotiations, and hence was not arbitrable. The Public Employment Relations Commission (PERC) held that racial discrimination is negotiable and that a grievance alleging racial discrimination can be resolved through binding arbitration as part of the contractual grievance procedure permitted under the New Jersey Employer-Employee Relations Act (act), N.J.S.A. 34:13A-1 et seq. We disagree and reverse.
The facts germane to this decision are not in dispute. On November 1, 1979 the principal of Teaneck High School recommended
that Kevin Salters be appointed assistant basketball coach instead of Peter Zubiaurre. The Board, which is the public employer herein, appointed Salters to the position. The Teaneck Teachers Association (Association) filed a grievance on December 13, 1979 on behalf of Zubiaurre alleging reverse discrimination. Salters is black and Zubiaurre is white. The grievance was found to be unsubstantiated at the first three levels in the grievance procedure outlined in Article IV of the collective negotiations agreement between the Board and the Association.*fn1 The Association then filed with PERC a request for arbitration to resolve the grievance pursuant to the binding arbitration clause in the collective negotiations agreement. The parties selected John M. Malkin as the arbitrator.
The Board contended before the arbitrator that the question of racial discrimination in appointment decisions was neither contractually arbitrable nor within the scope of negotiations. The arbitrator disagreed and found that the matter of racial discrimination was contractually arbitrable because the collective bargaining agreement incorporated federal and state statutes prohibiting racial discrimination in employment.
The Board then filed a Petition for Scope Negotiation Determinations with PERC pursuant to N.J.S.A. 34:13A-5.4(d) seeking a determination that the subject of racial discrimination is nonnegotiable and nonarbitrable. On October 5, 1981 PERC issued its decision holding that the grievance in this case is within the scope of collective negotiations and is arbitrable.
In its decision PERC stated:
Accordingly, the Commission concludes that the issue upon which we must pass judgment concerns the arbitrability of a grievance alleging racial discrimination in the appointment of an assistant basketball coach.
After thoroughly reviewing the briefs of both parties, the Commission finds that a grievance alleging racial discrimination as the cause for which an individual has not been appointed to a particular position is a matter within the
scope of negotiations. In re Fairview Board of Education, P.E.R.C. No. 79-34, 5 NJPER 28 (para. 10019 1978). In that decision, it was stated that, "It cannot be denied that, although people do not have a right to employment, they do have a right to be considered for employment and retention on a basis devoid of considerations of race, sex, color, religion, etc." Fairview at page 9. . . . A decision to improperly deny an employee an appointment because of race is not one based on a major educational policy and therefore the submission of that single question to an arbitrator could not interfere with the determination of governmental policy. The right to be considered for a position free ...