Wayne Tp. v. AFSCME, Council 52, Local 2192

• Court: New Jersey Superior Court – Appellate Division
• Citation: 220 N.J.Super. 340,532 A.2d 255
• Parties: TOWNSHIP OF WAYNE, Petitioner-Appellant, v. AFSCME, COUNCIL 52, LOCAL 2192, Respondent.
• Decision Date: 08 October 1987

Page 340

220 N.J.Super. 340 532 A.2d 255 TOWNSHIP OF WAYNE, Petitioner-Appellant,
v.
AFSCME, COUNCIL 52, LOCAL 2192, Respondent. Superior Court of New Jersey,
Appellate Division. Submitted Sept. 29, 1987.
Decided Oct. 8, 1987.

Page 341

Gerald L. Dorf, attorney petitioner-appellant (Lawrence Henderson and Gerald L. Dorf, on the brief).

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Oxfeld, Cohen, Blunda, Friedman, Levine and Brooks, for respondent (Sanford R. Oxfeld and Elaine K. Hyman, on the brief).

Robert E. Anderson, General Counsel, submitted a brief on behalf of Public Employment Relations Commission (David F. [532 A.2d 256] Corrigan, Deputy General Counsel, on the brief).

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Before Judges 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

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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, 462 A.2d 137 (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, 462 A.2d 137. Relying on the holding of Ridgefield Park Ed. Assn. v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 160, 393 A.2d 278 (1978), that the "scope of arbitrability is generally coextensive with the scope of negotiability," id. at 14, 393 A.2d 278, it concluded that the decision of whether or not to hire "is not subject to binding arbitration." Id. at 18, 393 A.2d 278. The Court added that the claim of racial discrimination there put in issue could properly be...