On appeal from Superior Court of New Jersey, Chancery Division, Hudson County.
J. H. Coleman, R. S. Cohen and Gruccio. The opinion of the court was delivered by Coleman, J.h., J.A.D.
The significant question raised by this appeal is whether an affirmative action plan for promotion is violative of a Collective Negotiation Agreement.
On May 7, 1982 plaintiff Jersey City Education Association (Association) filed a request to arbitrate whether defendant Jersey City Board of Education (Board) violated the parties' Collective Negotiation Agreement's (Agreement) promotion and hiring policy. The Administrators and Supervisors Association (ASA) joined plaintiff in these proceedings but elected to withdraw before final decision. Stanley L. Aiges was selected as the arbitrator and a hearing was held on August 16, 1982. On August 27, 1982 Aiges decided in plaintiff's favor, retaining jurisdiction to insure compliance. Apparently, unbeknownst to the arbitrator the Public Employment Relations Commissions
(PERC) in 1981 and May 1982 had declared void several clauses in the Agreement which were involved in the arbitrator's decision. The arbitrator's decision was confirmed by the Chancery Division and later vacated on January 25, 1985 when PERC's decisions were brought to the court's attention. The matter was then remanded to the arbitrator to conduct additional hearings in light of PERC's decisions.
The arbitrator conducted a new hearing on April 23, 1985. He rendered his decision on July 22, 1985. Additional hearings were held on October 21, 1985, and January 4, 1986 to determine whether additional promotions and procedures were violative of the Agreement. The arbitrator found that certain post-1982 promotions violated the Agreement. He directed that the persons filling those positions be removed.*fn1 Upon plaintiff's complaint and over the Board's opposition, the arbitrator's final decision was confirmed by order of the Chancery Division dated July 15, 1986. Defendant has appealed. We now reverse in part and affirm in part.
PROCEDURAL AND FACTUAL BACKGROUND
The relevant facts are not disputed. The controlling Agreement provides in Article 16:
16-1. The administrative and supervisory positions listed below shall be filled by Board appointment, in order of numerical ranking from appropriate eligibility lists.
16-1.1 Numerical ranking shall be determined through competitive examinations conducted by the Board of Personnel Practices. The examinations shall consist of a written section which shall have a weight of 40%. No person shall be allowed to take the oral section of the examination unless he has passed the written part. The oral interview shall have a weight of 60%. The Board of Personnel Practices conducting the oral interview shall include professional educators not regularly employed by the Board of Education.
16-2. The positions of Superintendent of Schools, First Assistant Superintendent of Schools and Assistant Superintendent of Schools are not within the scope of this promotional policy.
16-3. Positions covered by the policy are as follows:
Director, High School Principal, Assistant Director, Grammar School Principal, High School Vice Principal, Supervisor, Primary Principal, Grammar School Assistant Principal, and Assistant Supervisor.
16-4. It is agreed that, in administering this policy:
Vacancies to be filled shall be publicized in all schools within ten (10) school days after an opening occurs.
16-5. All publicity and notices of such vacancies and positions shall set forth qualifications for and duties of the positions.
16-6. Promotional examinations shall be held within sixty (60) days following said announcement. Any necessary extension of this period shall be made by mutual agreement between the Office of the Superintendent of Schools and the Association.
16-7. Vacancies arising may be filled on a temporary basis until they can be filled in accordance with the provisions of Section 4, 5 and 6 of this Article.
16-8. All vacancies and positions shall be filled without regard to race, age, creed, color, religion, nationality, sex or marital status.
When the arbitrator rendered his first decision on August 27, 1982, PERC had already declared the subjects covered in sections 16-1.1, 16.2, 16.3 and 16.7 involved to be nonarbitrable. PERC held that the other subsections of Article 16 were procedural in nature and therefore subject to arbitration. The arbitrator concluded that the Board violated the Agreement by failing to fill certain promotional positions between March 1982 and mid-August 1982 from a numerical ranking list which was to have been created pursuant to Article 16-1.1.
Pursuant to the arbitrator's directive, on March 19, 1983, the Board posted notices of vacancies for positions which occurred subsequent to mid-August 1982. The Board arranged to have written examinations conducted by the Educational Testing Service (ETS). Oral examinations were also conducted. ETS would not compile a rank order list without verification of the validity of the tests. Because the Board declined to comply with that request, it retained the services of Dr. Douglas A. Penfield, a statistician from Rutgers University, to compile a rank order list. At the direction of the Board, he weighed the oral and written examinations 60%-40% respectively. The resulting
list, which became known as the "Penfield List," was submitted to the court on July 30, 1984 by the Board in connection with contempt proceedings. The list contained 262 names for the seven posted positions.
Documents submitted to the court by the Board on September 5, 1984 for a September 12, 1984 contempt hearing informed the court for the first time that PERC had determined that certain sections of the Agreement were not subject to mandatory negotiations, and hence nonarbitrable, because those invalidated clauses were unduly restrictive of management prerogative. See In re IFPTE Local 195 v. State, 88 N.J. 393, 403-404 (1982). Based on the PERC decisions, the judge vacated his prior order confirming the arbitrator's decision.
The arbitrator conducted a new hearing on April 24, 1985 and rendered his decision on July 22, 1985. He found that the two PERC decisions did not affect the result he reached on August 27, 1982. He concluded that those aspects of the Agreement struck down by the PERC decisions left unaffected the essential aspects of his decision. Since he had retained jurisdiction, Aiges conferred with the parties on August 6, 1985 to deal with the change in legal status of those people allegedly promoted improperly between March and mid-August 1982. It was agreed that it would be impossible to set aside the promotions originally in dispute because during the intervening time the promoted individuals had acquired tenure or otherwise removed for other reasons.
However, the Association and the ASA contended that certain promotions made during 1984 and 1985 also violated the (1) Agreement, (2) 1982 arbitrator's decision which had been confirmed, and (3) July 22, 1985 arbitrator's decision. The parties agreed to present the post-1982 promotions to Aiges for decision. Two formal statements of grievance were filed. Grievance # 1 alleged that certain promotions violated the "Penfield List." Grievance # 2 contended that promotions made from interviews only where no list was made violated the procedural
requirements that promotions be made from a rank order list. The Association and the ASA alleged that 19 positions were filled by promotional appointments in August and December 1984. On September 9, 1985, the grievances were amended to include a second list of 19 other promotions alleged to have been improperly filled and on September 12, 1985, 6 other positions were added to the grievance list.
On October 21, 1985 the first hearing was held after the August 6, 1985 conference. During that hearing Arbitrator Aiges directed that persons whose positions were in dispute were entitled to appear as interested parties. An additional hearing was conducted on December 11, 1985. During these rehearings the ASA elected to withdraw from the case. A final hearing took place on January 4, 1986 and on March 24, 1986 Arbitrator Aiges rendered a decision in favor of plaintiff finding that the post-1982 appointments were made contrary to the Agreement and ordered that the positions be vacated promptly. He retained jurisdiction to insure compliance.
The arbitrator found that the promotions were not made from a valid list. As we previously mentioned, the "Penfield List" was compiled pursuant to the 1982 arbitrator's decision which was submitted to the court on July 30, 1984. At the time that list was compiled Dr. Ross was the Superintendent of Schools. He was replaced by Dr. Przystup in June 1984 as the Interim Superintendent. The post-1982 promotions were made based on recommendations of Dr. Przystup from a source other than the "Penfield List." Dr. Przystup recommended to the Board in August 1984 that the Board not follow the Penfield List and that the Board abolish the written and oral examinations and select a committee of three administrators and three supervisors to interview all of the candidates for the promotional vacancies. Under his plan the committee would select three applicants and the names would be submitted to Przystup for further interviews. Przystup would then select one person for each position and submit his nominees to the Board. The Board rejected Przystup's plan. However, he submitted another plan
to the Board on August 9, 1984 which it adopted the same month.
Under this new plan, Przystup apparently wanted to implement an action plan. He took the Penfield List and established a "mid-point cut-off for each category. (That is, if 20 names were on a list, he ignored those with the 10 lowest aggregate scores.) Second, he placed the remaining candidates on each list into three groups: (1) Hispanics; (2) Blacks; and (3) all others. Third, he created a new ranking list by selecting Hispanics as his first choice and Blacks as his second choice regardless of either group's original ranking on the Penfield List, and by selecting any others as his third choice in order of their appearance on the Penfield List. He also had his staff review each individual's file folder. This list became known as the "Przystup List." Persons promoted from this list have been identified by the Association as those involved in Grievance # 1.
The Przystup List, which was rank ordered, contained eight candidates for the position of elementary principal, eight for elementary assistant principal, five for high school principal, six for high school vice principal, eight for language arts supervisor, ...