On appeal from decision and order of the Public Employment Relations Commission.
Antell and Deighan. The opinion of the court was delivered by Antell, P.J.A.D.
Respondent is the collective bargaining agent with respect to wages, hours and other conditions of employment of the administrative employees of petitioner Township of Wayne. On January 10, 1985 it filed a grievance under its collective bargaining agreement with petitioner addressed to petitioner's failure to reappoint Phyllis Aaronson to her position as Deputy Township Clerk following the expiration of her four-year term on December 31, 1984. Petitioner rejected the grievance and, in accordance with Article XII, § 2, Step 4 of the Collective Bargaining Agreement, respondent submitted the grievance to binding arbitration.
On April 30, 1985 petitioner filed its petitions for a scope of negotiations determination and a unit clarification determining that the position of Deputy Township Clerk was that of a confidential employee within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-3(g), and therefore outside the protection of the Act, N.J.S.A. 34:13A-5.3. The scope of negotiations petition asserts that petitioner's decision not to reappoint Aaronson as Deputy Township Clerk was an exercise of its nonnegotiable managerial prerogative and therefore nonarbitrable. Petitioner now appeals from PERC's adverse determination as to both petitions.
Phyllis Aaronson was appointed Acting Deputy Clerk of the Township of Wayne in December 1972 and Deputy Clerk in January 1973. Thereafter, she served in the latter capacity until December 1984 when her four-year term expired and she
was not reappointed. The grievance alleges that nonreappointment was because of political reasons in violation of Article XV of the Collective Bargaining Agreement. That provision recites the following:
The TOWNSHIP agrees that there shall be no discrimination or favoritism for reasons of sex, nationality, race, religion, age or marital status, political affiliation, UNION membership or UNION activities.
In Teaneck Bd. of Educ. v. Teaneck Teachers Ass'n., 94 N.J. 9 (1983) the Supreme Court categorically stated that the "decision to hire, retain, promote, transfer, or dismiss employees" is a managerial prerogative which a public employer cannot bargain away. Id. at 16. Relying on the holding of Ridgefield Park Ed. Assn. v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 160 (1978), that the "scope of arbitrability is generally coextensive with the scope of negotiability," id. at 14 it concluded that the decision of whether or not to hire "is not subject to binding arbitration." Id. at 18. The Court added that the claim of racial discrimination there put in issue could properly be referred to the Division on Civil Rights for consideration and findings.
In determining that Aaronson's nonreappointment was properly arbitrable, PERC distinguished Teaneck on two grounds: (1) whereas Teaneck only involved a school board's failure to appoint a teacher to the position of Assistant Basketball Coach, "an extra, subsidiary position," this case "involves a complete loss of employment;" (2) whereas the teacher in Teaneck could pursue his claim of racial discrimination before the Division on Civil Rights, the claim of political discrimination here asserted is not cognizable by that agency.
We disagree that these considerations were in any sense material to the Teaneck decision. Whether the nonreappointment in that case involved a partial or total failure of employment was given no consideration. The Supreme Court wrote broadly of the "decision to hire, retain, promote, transfer, or dismiss employees," id. at 16 as a managerial prerogative which could not be made the subject of binding arbitration.
Moreover, it specifically focused on the fact that a claim of racial discrimination had there been made but concluded that its presence did not "change the reality that the arbitrator would be reviewing the managerial decision and the agency's exercise of its functional right -- not to discriminate -- but to choose among qualified candidates." Id. at 17. By holding that the discrimination issue could properly be referred to the Division on Civil Rights, the Court simply recognized the existence of an announced public policy against racial discrimination and held that the mode of relief therefrom made available by the Legislature was applicable to the case before it. The finding of non-arbitrability, however, rested on the completely ...