ruling that teacher’s claim of reverse discrimination was grievable, though not subject to binding arbitration
How later courts described this case
- ruling that teacher’s claim of reverse discrimination was grievable, though not subject to binding arbitration
- explaining "[t]he scope of arbitrability is generally co[-]extensive with the scope of negotiability"
- public employer and its union cannot agree to arbitrate promotion discrimination claims; Legislature has committed resolution of these claims to DCR
Written by the judges who cited it.
The opinion
HANDLER, J.,
concurring.
I concur in Justice O’Hern’s opinion for the majority, but write separately to caution against an overly expansive interpretation of the decision. This case involves a complaint by a teacher regarding promotion and thus implicates the School Board’s managerial prerogatives. Because a “public employer cannot bargain away the review of a decision whether to hire, promote, or retain teaching staff,” ante at 16, the Board is prohibited from establishing binding arbitration on matters of hiring and promotion. As a result, the complaint of racial discrimination forwarded in this case must be brought before the Division of Civil Rights, which is statutorily authorized to review such disputes.
I wish to emphasize, however, that this analysis would not apply in instances where the discrimination complaint relates to the terms or conditions of employment, rather than an inherent managerial prerogative. Because a school board could validly establish an arbitration mechanism through a collective negotiation agreement to hear these types of job complaints, we would be required to determine the interrelationship between this type of arbitration proceeding and the statutory vehicle established to address violations of the Law Against Discrimination, N.J. S.A. 10:5-1 to -38. In making such a determination, we would have to balance several factors that are not involved in today’s *22 decision. First, we would have to recognize that the Legislature has established specific procedures within the Law Against Discrimination for the resolution of employment discrimination grievances. N.J.S.A. 10:5-6 (establishment of a Division on Civil Rights within the Department of Law and Public Safety); N.J.S.A. 10:5-13 to -16, (procedures regulating receipt, investigation and hearing of complaints of discrimination); N.J.S.A. 10:5-17 (empowering agency to order any employer to cease and desist from engaging in illegal employment practices and to take such affirmative actions including hiring, reinstatement or upgrading of employees, with or without back pay, as will effectuate the purposes of the act).
We would also need to compare the nature of the rights against discrimination contained in the statute and the employment contract and the remedies available to vindicate these rights. In addition, we would need to determine the manner in which the statutory “policy favoring arbitration of labor disputes and the ... policy against discriminatory employment practices can best be accommodated ...” Thornton v. Potamkin Chevrolet, 94 N.J. 1, 6 (slip op. at 6-7) (1983) (quoting Alexander v. Gardner-Denver, 415 U.S. 36, 59 , 94 S.Ct. 1011, 1025 , 39 L.Ed.2d 147, 164-65 (1974)). Finally we would need to determine the proper scope of N.J.S.A. 34:13A-5.3, as recently amended by the Legislature. L.1982, c. 103, § 1. It reads
grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes. The procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws. Grievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement.
I do not seek to suggest a particular resolution of this question, but only wish to stress that the matter is left unresolved by the Court’s opinion. Due to the scope of today’s decision, the interrelationship between arbitration procedures for the resolution of complaints of discrimination in the terms and conditions *23 of employment and the procedures established by the Law Against Discrimination remains an open question.