On appeal from the Public Employment Relations Commission.
Before Judges J.h. Coleman, Villanueva and Wefing.
The opinion of the court was delivered by
This case involves a gender-hostile work environment claim of sexual harassment against a supervisor. The significant issue raised is whether arbitration, as part of a contractual disciplinary grievance procedure, is preempted by state law. The Public Employment Relations Commission (PERC) held that arbitration contemplated by the collective negotiations agreement (CNA) is not preempted. We agree and affirm.
Plaintiff is the public employer of toll collectors and supervisors for the New Jersey Turnpike Authority (Turnpike Authority). See N.J.S.A. 34:13A-3(c). Defendant New Jersey Turnpike Supervisors Association (Supervisors Association) is the collective negotiations representative for the toll supervisors within the meaning of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-3(d). The incident involved in this appeal occurred January 13, 1992, when a female toll collector complained that she had been sexually harassed by her supervisor. When asked for details:
she asserted that while looking for a lost pass with her supervisor, she got down on her hands and knees to search the floor; her supervisor then made a humping motion with his groin and said "Hey, look, she's on her hands and knees to me" and "you have to have a sense of humor on the Turnpike in order to survive"; and she became traumatized, causing her to vomit and suffer severe muscle spasms.
On April 14, 1992, the Turnpike Authority conducted a hearing on the female employee's charge of sexual harassment. At that hearing both parties were allowed to present witnesses, but the
supervisor was not allowed to cross-examine witnesses. At the Conclusion of the hearing, the Turnpike Authority found the supervisor had committed an act of sexual harassment and imposed a three-day suspension.
On July 21, 1992, the Supervisors Association filed a grievance on behalf of the supervisor, alleging a violation of the disciplinary procedures contained in the CNA. The Turnpike Authority responded by asserting it had not violated the CNA and that claim was "preempted by federal and state statutes and is not grievable." That response prompted the Supervisors Association to file with PERC a demand for binding arbitration. On September 21, 1992, the Turnpike Authority filed with PERC a scope of negotiations petition. PERC issued its decision in favor of the Supervisors Association on June 24, 1992.
The Turnpike Authority has appealed, contending essentially the manner in which a public employer seeks to prevent sexual harassment in the workplace and the manner in which it seeks to enforce its sexual harassment policy in the workplace are preempted by New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (LAD), and Executive Order No. 88. Executive Order No. 88 requires state employers to adopt policies to eradicate sexual harassment from the workplace.
The controlling CNA and the Act, N.J.S.A. 34:13A-3, inform our decision. Article XV of the CNA details the procedures for imposing discipline on employees who have violated the Turnpike Authority's rules and procedures. In cases of minor discipline, defined as a suspension for not more than five days, the aggrieved employee is entitled to a hearing, an appeal to the executive director, and, finally, binding arbitration. The agreement also stipulates a grievance procedure (Article XIV), which also permits an appeal to the executive director followed by binding arbitration. Another provision of interest in this ...