(temporarily assigned). This is an appeal by the Woodbridge Board of Education .(board) from a determination by the Public Emрloyment Relations Commission (PERC) in a seope-of-negotiation.s probeeding, Holding tenure of maintenance men tо be a mandatory subject of negotiations.
Beginning with the 1970-71 school year the collective bargaining agreement bеtween the board and respondent Plumbers and Steamfitters Local No. 270, Carpenters Local No. 65 and Painters Local No. 144 (hereinafter union) (governing plumbers, painters and carpenters, hereafter “tradesmen”) has included a рrovision granting tenure after three years. During the negotiations for the 1976-77 school year contract the board refusеd to include a tenure clause in the terms or to negotiate such a clause. The board contended that tenure could only be granted in accordance with the education laws and since those laws made no provision for this class of employee, such a provision would be ultra vires and illegal.
The parties compromised their differеnces by agreements which essentially left the question open. They provided in the contract for tenure “according to law to those employees entitled to it statutorily after three years of continuous satisfactory employment” and executed a separate [“sidebar”] agreement expressly reserving rights with regard to claims of entitlеment to tenure.
This appeal arises from a petition for scope-of-negotiations determination filed by the union with PERC. Following consideration on briefs .(with uncontradicted facts), PERC found tenure to be a mandatory subject of negotiаtions and ordered the board to negotiate in good faith regarding tenure for this group of employees.
Defendant board contends that PERC exceeded the boundaries of the submission by considering the right to negotiate a tenure not provided for in the Education Act; that the issue submitted to PERC was the negotiability of “tenure”
Upon review the court is bound to uphold the action of the Commission unless it is arbitrary or capricious. State v. Prof. Assoc. of N. J., Dept. of Bd., 64 N. J. 231, 258-259 (1974). Due deference should be accorded to the agency expertise. Ibid.
This controversy finds its basis in a semantic argument as to the meaning of “tenure.” The definitional dispute underlies not only the substantive issue of negotiability but also the procedural question as to whether PERO dealt with the issue presented by the petition. The board takes the рosition that “tenure” means tenure under the provisions of our Education Act (N. J. S. A. 18A-1 et seq.); that the issue presented is whether the рarties can negotiate to extend the tenure provisions of Title 18 to include maintenance men. Respondent union contends that “tenure” means tenure without legislative mandate and as generally understood—i.e., a right to continued employment during gоod behavior; that the issue presented is whether the legislative grants of tenure in Title 18A to particular categories оf employees makes it illegal for board of education employees not covered by those provisiоns to negotiate continued employment protection for themselves.
We agree with respondent as to the scope of the submission. The question as set forth by the board presents a non issue. All the parties agree that the members of respondent union are not covered by any of the tenure
And we agree with respondents that board of education employees who are nоt within the categories covered by statutory tenure provisions may negotiate job security.
The application of the constructional principles of expressio unius est exclusio alterius to the tenure sections of the Education Act would be a non sequitur. To attribute legislative intent to the absence of statutory job security for this category of employee would be to blind oneself to the rеalities of the legislative process—to the history of the growth of the existing tenure provisions. The existing protections are the result of successful appeals by the covered groups for the passage of protective laws. Their ad hoe nature is implicit in the diversity of sections in which they are found.
The right of pitblic employees to negotiate the terms and conditions of their employment is now an accepted public
We agree with PERO’s conclusion that job security and protection frоm unfair or unwarranted dismissal must rank high among an employee’s rights. And we agree with its conclusion that board of education employees whose tenure is not provided for by the Legislature may negotiate job security. •
Affirmed.
Notes
In the “Statement of Disputеs” section of the petition for scope of negotiations determination, the petitioner set forth, among оther things, that “union seeks a 1) determination that tenure is a permissible subject for collective bargaining; * *
The Education Aсt makes specific provision for tenure of teachers and other employees holding certificates issued by the State Board of Examiners (N. J. S. A. 18A:28-5 and 6) ; secretaries, assistant secretaries, business administrators, business managers, secretarial and clerical employees (N. J. S. A. 18A:17-2) ; janitorial employees (N. J. S. A. 18A:17-3) ; and attendance officers (N. J. S. A. 18A: 38-33).
See note 2, supra.