*1 of the Uniform and purpose intent within the rights A. 2A:16-52. N.-'J. Act. 8. Declaratory Judgments not .intended for the latter statute It is settled that that courts “advisory opinions”; seek those who benefit of * ** abstract” in the functioning from should “refrain conclusively issues contested concrete only “decide should Turnpike New Jersey interest.” adversary parties affecting Parsons, These (1949). prin- v. 3 N. Authority of the Court in undertaking disregarded are ciples declaration rights abstract render an ease to present case. on an entirely supposititious entertainment this under view, litigation my a bad Eluci- precedent. circumstances creates the attendant would better legal involved complex questions dation of over actual specific await controversies presentation grievances. Hughes For Justice and Justices Sul- affirmance —Chief
livan, Pasi-iman, Clifford, Handler —6. Schreiber For Conford —1. Judge reversal— ASSOCIATION, RIDGEFIELD PARK PLAIN EDUCATION TIFF-RESPONDENT, RIDGEFIELD PARK BOARD OF v. EDUCATION, DEFENDANT-APPELLANT. Argued August 2, March 1978 Decided 1978. *4 for (Messrs. Aron appellant Mr. Lester cause argued Barbour, Packman, attorneys; T. Aron & Till Mr. John Mr. Barbour on the brief). Theodore M. Simon
Mr. cause for argued respondent Simon, Goldberg Mr. Simon and (Messrs. attorneys; Bucceri, Mr. Louis P. brief). Burgess, Attorney General, Deputy argued Ann Mary
Ms. Jersey curiae New State Commissioner amicus cause J. Degnan, General Attorney John (Mr. of Education Skillman, Stephen Mr. Assistant attorney; Jersey, New Counsel; Burgess Ms. and Mr. Mark General, of Attorney General, Schorr, on the brief). Attorney Deputy delivered court was opinion *5 Pashman, J. At issue herein is whether the 1974 amend Act, ments to the New Relations Jersey Employer-Employee N. J. S. 1968, 123, L. o. as c. 1974, amended 34:13A-1 et of seq. Act), permissively created class (the manda negotiable matters which, while not qualifying torily are negotiable terms employment, and conditions of nevertheless on a negotiable basis. The Public voluntary Employment Relations Commission has (PERC) concluded that such a permissive In re category indeed exists. See Lawn, Bd. Ed. Fair Borough 76-7, PERC No. of 1 NJPBR 47, 48 n. 9 PERC .(1975). has also determined that disputes involving provisions of collectively negotiated agree ments permissive matters covering be resolved binding arbitration if the matter arbitrable, otherwise as is the case with those covering mandatorily negotiable In re matters. Park Ridgefield Bd. 78-9, PERC No. Ed. 3 NJPER 319, 320 (1977); In re Bd. Ed. City Trenton, 77-24, PERC No. 2 NJPER 351, 352 (1976); In re Bridgewater-Raritan Ed., Regional Bd. No. PERC NJPER The (1976). public employer 77— herein contends that with respect to issue negotiability — there are but two types subjects those as to which negotiation collective is mandatory and those toas which it is unlawful. The former category is of those comprised which subjects pertain to the terms and conditions of public employment while the latter includes all other sub jects. It claims that any aof provision negotiated agreement subjects concerns in the latter is ultra vires category and thus unenforceable.
The of this facts case are not in The dispute. collective agreement between plaintiff Association, the repre- majority sentative of the teaching employees, .Board’s defend- Board, ant which ran until 1, 1977, July defined a grievance as follows: term, “grievance,” complaint by employee, group means a employees, Association, that, him, or the as to there has been an *6 interpretation,- unjust
inequitable, improper, application, viola- or or policy, agreement, decision. of a or administrative tion the terminal as The contract for arbitration provided binding in the step process: grievance party aggrieved with the determina- is dissatisfied In the event the request to, right arbitration the tion of Board he shall have the Employ- regulations pursuant Public to established the rules and Chapter 303, provisions of under ment Relations Commission the findings bind- shall be Public The arbitrator Laws of 1968. of the ing parties. on all The a governing collective included agreement provision subject reassignments. transfers and the of teacher — Involuntary Voluntary and Re- and ARTICLE XIV Transfers — assignments subject assign- grade Employees change A. a who desire and/or building written file a to another ment or who desire to transfer superintendent. statement(s) state- Such of such desire subject grade (s) which the em- ment shall include the and/or assigned which he ployee schools to and school or desires to be transferred, preference. be in order desires to practicable, than June in no case later soon as and As post superintendent to the Associa- school deliver shall in each employees system-wide showing who names of all schedule tion reassign- reassigned nature such and the have been or transferred or transfer. ment requests voluntary reassignments InB. the determination employee transfers, shall he individual the wishes and/or ap- superintendent honored, upon of the the recommendation reassignment Board, proval transfer or that the to the extent requirements and best in- instructional does not conflict with system. of the school terests given reassignment involuntary or shall be an transfer Notice of O. practicable. employee as the case in advance tbe far situation, given teachers, emergency except shall notice an April later than 30. 1975-1976 1976-1977 school certain During years were involuntarily teachers to teach courses reassigned teach, not wish did were refused they grades desired transfer to a school, different or were involuntarily transferred to another school. The Association filed grievances on behalf of these teachers. The Board denied all of them. Association then to have sought these resolved grievances arbitration, binding to the pursuant contractual arbitra- tion clause. See ante at 150. The Board contended that the grievances pertained matters outside legal negotiations, and hence were not arbitrable.
The Association instituted this action under J. S. 2A :2A-1 and 3 from Division seeking order the Chancery compelling Board involving to submit grievances *7 transfers and arbitration. reassighments binding Board made a for cross-application an order enjoining arbitrations. In the proceedings Judge, before the Chancery the Board admitted that it a duty had contractual to arbi- trate the issue disputes herein, but that the real submitted was the legality of The Board’s these matters. arbitrating that the case be a request transferred to PERC for decision on the negotiability in the involved grievances issues was denied. On March 1977 Division 4, the Chancery rendered oral an March opinion adverse to the On Board. 22, 1977 the Chancery a Judge issued and order judgment that the parties proceed arbitration. 2,
On March 1977 the a Board had filed Petition Scope-of-Negotiations Determination with PERC pursuant to N. S. A. It an 34:13A-5.4(d). order from sought PERC arbitration on enjoining both interim basis and on a permanent basis. The interim in was denied request an interlocutory decision on 5, No. April 1977. PERC 77-45, 3 NJPER 150. This denial was based on PERC’s determination that its decisions in re Bridgewater-Raritan Ed., Regional Bd. supra, and In re Bd. Ed. City Trenton, supra, mandated conclusion that matters issue, in though permissive and not mandatorily negotiable, otherwise, would be arbitrable if within the contractual arbitration clause.
Meanwhile, stay Board obtained temporary to enable in order of the Chancery judgment enforcement On Division. for a from stay Appellate to apply Division 20, judge Appellate 1977 a single April had However, arbitration denied the motion for a stay. a full 7, panel when July 1977, commenced as of for a motion Division the Board’s the Appellate granted stay. issued its full hearing matter a
PERC gave 78-9, No. PERC 17, 1977. determination August holding its earlier reaffirmed NJPER 319 PERC (1977). Ed., NJPER supra, Bd. in In re Bridgewater-Raritan re 123, 1974, c. 25, in at L. enacting enunciated restrictiveness of the standards acted to the Ass’n, 64 Dunellen Ed. v. in Dunellen Bd. Ed. this Court and arbitrability N. J. 17 concerning negotiability .(1973), factor critical PERC observed that the sector. c. 1968, Dunellen was the holding the Court’s effect, which 34:13A-8.1, version of N. J. provided, or modify any not “annul could negotiated agreements Thus, significance statute or of this State.” great statutes amended that to L. c. was ascribed § that no effectively provide negotiated agreement statute or statutes “annul or statute modify 'any pension could PERC from pertinent language this State.” also cited *8 34:13A-5.3, N. J. S. which estab 1974 amendments the grievance procedures lishes the of primacy negotiated resolution: dispute disputes, any procedures Notwithstanding con- for the resolution of by any statute, grievance grievances other established troversies public employer by agreement between the
procedures established any dispute organization utilized for representative shall he the added) agreement, (emphasis by of such terms the covered c. 3974, of purposes one of the that concluded PERC long So issues. of arbitrable expand was to 123 and no overriding are violated statutes no specific 153 contravened, PERC policy opinion nego was both tiation and arbitration of are acceptable. matters In In Bd. Ed. support view, PERC cited re this Trenton, it had City where supra, NJPER at found that not pre transfers were involuntary employee from a permis cluded and were thus negotiation statute Ed. sible In re Bd. subject negotiation, Verona, NJPER 77-42, PERC No. Borough (1977), where it had a Board’s decision to replace found that teaching teacher’s with a classroom duty non-teaching period PERC subject. was also a period permissibly negotiable negotiable held that' the' herein disputes permissively were if otherwise arbitrable under the agree arbitrable thus ment. 3 NJPBB at 320-321. on July filed a certification motion direct Board On 1977 the Association July appealed 1977. Ap- issued stay to vacate the interlocutory
this Court re- Association Division. the alternative the pellate this case directly certification. certified direct We quested Division, Appellate was unheard pending while J.N. 584 (1977).
I merits, guidelines regard some Before we address our set. Under should be these cases procedure ing proper both necessary go scheme it existing legislative re in order to completely Superior PERC and the Court a par arbitrability concerning a disagreement solve dispute claims that given When one dispute. party ticular resists other party and the under the contract is arbitrable seek should arbitration arbitration, party desiring See arbitration. compelling Court from the Superior order trial determines judge seq. S. A. Where 2A:24-1 et ar- one of contractual is not controversy real *9 bitrability, but rather concerns the propriety parties on item in negotiating he should agreeing dispute, refrain from of the merits that issue. passing has
PERC to make a jurisdiction determination primary on the merits of the question of whether the subject matter of a particular dispute is within the scope collective nego tiations. N. J. See v. State 34:13A-5.4(d). State Ass'n, Supervisory Employees 78 N. J. 54 (1978); Bd. of Ass’n, Ed. v. Ed. N. J. Super. of Plainfield Plainfield 521, 524-526 (App. Div. Newark Teachers 1976); Union Newark, v. Bd. Ed. 149 N. J. Super. 374-375 (Ch. Div. 1977). However, the reach of this decision is limited. PERC Ed., discussed this in In point re Hillside Bd. of PERC No. 76-11, 1 NJPEB 55, 57 (1975): addressing subject Commission is the abstract issue: is the dispute scope matter negotiations. within the of collective Whether subject is agreement, within the arbitration clause of alleged by whether grievant, facts are as whether the con- provides employer’s alleged action, tract a defense for the or even agreement, whether there is a any valid arbitration clause in the question might other be raised is not to be determined scope proceeding. questions appropri- Commission in a Those are ate determination an arbitrator the courts. and/or course, Of where existence of a contractual obli contested, gation arbitrate is not need parties only go to PERC for a on whether ruling matter of subject dispute whose is grievability is contested within the scope collective negotiations. PERC can then afford re complete lief. If PERC concludes that the dispute within the legal scope negotiability agreement between the employer and employees, matter may proceed to arbitration. Where PERC concludes that a particular dispute is not within the collective negotiations, thus arbitrable, must issue an injunction permanently restraining arbitra See tion. Bd. Ed. Englewood Teachers, v. Englewood J. Super. Div. (App. 1975). Moreover, we agree the decision in Bd. Ed. v. Englewood Engle *10 Teachers, PERC is to empowered- wood order supra, that pen the during be suspended that arbitration proceedings Where necessary, a dency scope-of-negotiations proceeding. Division to an appro PERC to the seek may Appellate go in scope its orders priate order to compel compliance N. S. A. Where a party J. proceedings. 34:13A-5.4(f). the scope question, with PERC's disagrees determination (cid:127) an to is authorized. expressly the Division appeal Appellate S. N. J. A. 34:13A-5.4(d).
We with PERC contract agree interpretation that Thus, where a is a question party resolution. judicial arbitrated, it may go a dispute resists have attempt of its con a on the issue ruling to the Court for Superior However, of con the tractual to arbitrate. issue obligation is if threshold tractual be reached the arbitrability may within is grievance sue of whether the matter subject In that is contested. scope the negotiations collective from PERC. obtained event, a must on that issue ruling would case Thus, instant the preferable procedure its determina rendered been for PERC have have was arbitrability tion before the of contractual issue of collective is the scope Where an item within addressed. agreement court determines negotiations, matter must clause, proceed contains a valid arbitration arbitration. authority with the comply function is to arbitrator’s Assuming him agreement. have parties given under the agree of arbitration subject the item is proper render an the merits and ment, will reach arbitrator abide unwilling If the losing award. party have the award seek to award, prevailing party 2A.-24-7; See Court. Superior confirmed Au Cty. Impr. v. Transit Wkrs. Local Mercer Amal. thority, 76 .(1978). have
Thus, PERC, the arbitrator Court and Superior our scheme. To avoid need- under present distinct functions less we procedural delays, these to the guidelines commend bar.
II By way of preliminary observation, we note that PERC correct was in concluding that under the test set forth in Dunellen Ed. v. Ed., Assn. Dunellen Bd. 64 N. J. 17, 25 (1973) Englewood Bd. Ed. v. Englewood *11 Ass’n, Teachers J.N. and (1973), today reaffirmed 1, in State v. Ass’n, State Supervisory Employees supra, J.N. 67, at teacher transfers and reassignments are not 'mandatorily negotiable terms and conditions of employ ment. That test defined negotiable terms and conditions of employment as those matters which and intimately directly affect work and welfare of public employees and on which negotiated agreement would not significantly inter fere with the exercise of inherent management prerogatives pertaining determination governmental State policy. v. State Ass’n, Supervisory Employees supra, 78 N. J. at 67. The selection of the school m which a teacher works or the grade subjects which he un teaches have doubtedly an effect appreciable on his welfare. How ever, even assuming effect could be considered this intimate, direct and we find that this of the aspect trans fer decision is insignificant to its rela comparison tionship to the Board’s managerial duty deploy personnel in the manner which it most likely considers pro mote the with a overall all goal students providing thorough Thus, efficient education. we find that issue of teacher agree transfers is one which negotiated ment would public employer’s interfere with a significantly discharge inherent Accord responsibilities. managerial it is ingly, .not which collective is negotiation matter as to mandatory.
Ill 1974, To bolster L. c. 123 con its conclusion that into a templated expansion negotiation First, category items, makes arguments. PERO several it 124, points that in c. enacted on passing out same as a Public day 123, which created Chapter Employer- Employee Commission, Relations im Study assumed that plicity there were three already categories negotiating subjects.1 Commission, That statute directs the alia, inter to study necessary Whether or not desirable either to define the
phrase employment” “terms and conditions in section as used doing, specify and, 7 of the 1968 act [N. 34:13A-5.3] so subjects mandatory, voluntary illegal what are or within the bargaining grievance arbitration, require pro or guidelines determining cedural be established for the same. 3(c) (emphasis added)] c. [L. § We do not accord the great degree significance to this mandate legislative action that PERO does.
Study Commission was not limited necessarily to examining the law it Moreover, existed. it is clear that abundantly *12 a and proposal study to suggest changes given same close which scrutiny by as is one has legislators force Thus, of law. even vehemently to legislators opposed have voted favor permissive negotiation may of setting up Study Finally, Commission. was Legislature well aware of the fact we had in Burlington Cty. that held Trustees, Fac. Assoc. v. Bd. no view supra, that expansive would be from negotiations implied ambiguous legislation. We “clear and distinct specifically for required phraseology” a of such change magnitude. aspect responsibility 1PERC bas assumed that this was an of its pursuant 5.4(d) provided N. to J. S. A. and has rule 34:13A —
that each- shall decision a include determination as to whether disputed required, permissive illegal subject matter is a for negotiation. collective A. C. 19:13-3.9. 158 85,
PERO also A. 34: 1977, alludes to L. c. S. 31, 13A-14 to for and provides compulsory binding “interest” arbitration of in contract impasses negotiations local, between county state governments policemen and firemen. That statute a expressly contemplates permis sive category negotiation: Factfindings shall be limited to those issues that are within required scope negotiations parties factfinding unless the to the agree factfinding permissive subjects negotiation. [N. J. 34:13A-16b] A. S. subjects Arbitration shall be limited to those that are within the required scope except parties negotiations, of collective that may agree permissive subjects to submit to arbitration one or more negotiation. 34:13A-16f(4)] [N. J. S. Of course, this enactment is not now us. before Neither is 1974, our of L. c. great importance interpretation 133. a represents specific It decision on part authorize permissive negotiations respect Moreover, and firemen. police if it were clear so 1974, c. 133 had such a area, created we permissive doubt the Legislature have had to (would provide carefully for in L. c. 85. This stat category recent ute a small of all covering percentage public employees not be accorded effect dispositive more interpreting statute general passed years earlier. We intimate three no view as to the validity of the authorization arbi binding tration of “permissive subjects of in N. negotiation” J. S. A. 34:13A-16f (4).
PERO also cites federal under the Labor Man precedents Act, Relations agement U. S. C. 141 et Illustrative seq. § of these NLRB v. Wooster cases is Div. Borg-Warner 342, 349, 356 U. S. Ct. Corp., 2 L. 3d Ed. where the United States Court held Supreme (1958), that under U. S. C. collec 158(a)(5) 158(d), § § mandatory only tive as to terms and condi bargaining was *13 tions of As matters, to other was employment. each party or not or not to and to to to bargain, agree “free bargain with the Borg-Warner course, private Of dealt agree.” v. Intern. Lullo here.2 and is therefore sphere, inapposite J. 409, Fire 55 N. Assoc. of 436-441 we Fighters, (1970), J. S. A. differences between N. significant out the pointed 34:13A-5.3 which to “collective grants right negotiations” 29 U. C. S. to “collective bar which grants right § gaining.” bargaining partments, And legislative sent may [*] It certain undoubtedly some crystal be [*] or executive further subjects. power etc., cannot able clear that intended to to make they [*] changes public were obligations or discretion. abdicate in binding in conscious also that [*] using employer recognize pertinent the term “collective contractual commitments bargain [*] inherent statutes employee. away public agencies, limitations Consequently, public their negotiations” [**] continuing employers relating ab- de- [*] n
service. [*] Finally, realize private [*] signified employment process [*] effort sector of collective to make [*] cannot public [*] bargaining transplanted [55 employers N. J. at as understood into the 440] employees public of collective Thus, concerning scope federal precedents sector value in private are little de- bargaining scope negotiability termining permissible Jersey. relations in New labor employment J. contended that S. 34:13A-5.3, It is also ante 4, man- 123, c. see at amended § Tp. Galloway Tp. Galloway Bd. v. Ed. Secre Ed. Ass’n 2In practice taries, (1978), held that since the unfair 78 N. we closely parallel provisions those of the A. 34:13A-5.4 Act, Management § § 29 U. S. C. 158 and Labor Relations interpretation guide precedents our the State act. should federal respect negotiability. However, with is not true this specifically Appellate Division caution PERC and the wish to We private precedents respect sector relevance of the limited scope-of-negotiations determinations. *14 160
dates that grievance procedures negotiated by parties supersede any mechanisms for the resolution of disputes pro vided by any statute, indicates that a category permis sively negotiable matters is now contemplated by the Act. PERC placed particular emphasis on the that fact Legis lature used the words “disputes controversies” in the amended version of N. J. S. A. 34.13A-5.3, since are they the very words found in N. J. S. 18A:6-9 A. which gives the Commissioner of jurisdiction Education dis resolve agreements under arising con the education laws. PERC Dunellen, tends that supra, 64 N. 30-31, J. at relied upon these N. words in J. 8. A. those 18A:6-9 distinguish matters which could be arbitrated from those which matters could not. Thus, amendment viewed PERC is as modifying the narrow scope of arbitration permitted by the Act which we found Dunellen. First, alone, two
PERC errs in respects. standing N. J. A. 8. 34:13A-5.3 ineffective as vehicle for expand ing the To permissible arbitrable, arbitration. be matter must one on qualify parties may nego as tiate. A matter which is legally negotiable the first place cannot arbitrable. held today We have that scope of mandated N. J. 8. A. grievability 34:13A-5.3 is limited to matters which affect terms and conditions of that has been our employment concept as defined in PERC, West Windsor v. Tp. cases. N. J. 98 (1978). Thus, A. only insofar as S. 34:13A-8.1 is viewed increasing the of collective legal scope negotiation 34:13A-5.3 be viewed as expanding permissible of contractual for the resolution coverage procedures of griev-. Second, PERC the Association both err anees. in con Dunellen that the was Trilogy based stat cluding wholly considerations. While utory our decisions in D'unetlen and its -primarily cases were based on the companion statutory of L. c. intent under language' legislative enactment, we were not lying oblivious to funda- more mental, constitutionally-routed considerations of As policy. we observed in Dunellen: Legislature, very adopting general [T]he terms contemplate c. did not the local hoards education would management responsibilities or could abdicate their the local policies educational or that the State educational would authorities *15 responsibilities management or could their abdicate for the edu State policies. Fighters, supra, cational See Lullo v. Intern. Assoc. Fire of 440; Tp. Ed., Rockaway Tp. Rockaway N. Bd.
55 J. at v. Ed. of of Ass’n, Super. 564, (1972) ; Titus, N. J. 120 Porcelli v. cf. Super. 301, (1969), denied, (1970). certif. 55 N. J. 310 (emphasis added)] [64 N. J. at 25 Moreover, full of view that application PERUs everything which in affects terms any way and conditions public of employment negotiable option is at of unless parties, on a negotiation topic such given precluded by a specific statute, would be inconsistent a with successor statute in area. education The has Legislature determined that involvement in educational community decisions, insuring matters, some democratic over such control is a significant of a and efficient part thorough of system education in this state. the Public School Education passing Act of L. 1975, c. N. now J. S. 18A:7A-1 et codified seq., gave force law: assumption of (a) finds and declares that: (5) encourage In order to in citizen involvement educational mat- ters, Jersey provide New should for free schools in a manner guarantees encourages participation and local with consistent goal thorough system serving of a and efficient all of the chil- of dren the State: (6) thorough system A and efficient of education includes local pertaining hiring school districts in which decisions to the and dis- personnel, schools, missal of the curriculum the establishment budgets, essentially questions and other district local made are democratically a maximum of with citizen involvement and self-de- guidelines goals, are termination and consistent Statewide and standards; H* v IN. J. S. A. 18A :7A-2] n %. [*] of PERC’s interpretation application Literal emasculation of the intent 1974, c. 133 would result in the room for community later There be little of this act. would concerning if educational policy involvement agreements behind closed disputes matters could doors negotiated lacks who arbitrator settled concerning agreement evidence find insufficient simply We public accountability. inter justify result intent this legislative permit sug 8.1 in manner J. 8. A. 34:13A-5.3 preting by PERC. gested c. 133 did that L.
Our herein is holding intent create indicate a clearly legislative our we reaffirm Thus, holding category negotiations. subjects but categories DuneTlen that there are two — negotiable mandatorily negotiation public employment non-negotiable employment and conditions of terms subject Since the teacher policy. matters governmental mandatory negotiability, transfers is not within the scope to a authority agreeing the Board acted in excess its *16 with the Association its collective agreement provision the on limit its managerial prerogatives would contractual provision purporting subject. Accordingly, ,be enforced may against to do so is invalid and a in arbitration While such any proceeding. policy Board may the relevant contractual provision in expressed as one, something to is not policy adherence salutary itself a collective obligate to which the Board could for arbitration. binding agreement providing
IV to find are the existence of a permissive We hesitant labor negotiable matters public employment category in the amended implicit relations to be act because such problems create serious in our democratic might classification These difficulties potential should be con- system. carefully before taking action any sidered expressly to all authorize to negotiability respect is from It clear our employees. quite reading legislative of L. c. 123 that lawmakers history did not to sanction the purport delegation governmental on matter in policy decisions every any way touching upon the terms and conditions of public employment sphere of collective We for this negotiation. deem it appropriate Court comment these questions concerning difficult permissibility delegating powers governmental private or of the formulation of groups entrusting govern- mental to an arena where policy the democratic voice of the electorate cannot be heard. PERC, West Windsor Tp. v. we
(1978), indicated that public access employees’ special to government where the applies only is government acting in the capacity of employer, and not where it is acting in its A capacity public policymaker. private employer much or as bargain away as little of its managerial Windsor, control as it West Tp. However, likes. supra. foundation very of representative would be democracy if endangered decisions on matters significant of govern mental were policy left to the process collective negotia tion, where citizen participation This precluded. Court would be most reluctant to sanction collective agreement on matters which are essentially nature, managerial because true are the managers Our people. democratic system demands that governmental bodies retain their ac countability to citizenry.
Our concern is with the very function of govern
Both
ment.
and federal
state
doctrines of substantive due
process prohibit
delegations
governmental policy-making
where a
power
private groups
serious
potential
self-
action is
serving
created thereby. Washington ex rel.
*17
Title Trust
Seattle
Co. v. Roberge, 278 U.
116,
121-122,
50,
49 S. Ct.
446-447 (1963), Exam., J. Bd. N. also Elec. Ass’n v. Ind. sustain N. J. constitutionally To be 482-483 (1969). and reasonable, limited, narrowly must be able, a delegation the to protect against safeguards with surrounded stringent action detrimental self-serving or arbitrary possibility Transit Amal. good generally. to or the public parties third supra; Authority, Cty. Impr. Wkrs. Local v. Mercer 445; Howell, 40 N. J. at supra, Insurance v. Health Group 510, 513 Brzoska, N. J. Super. v. Trans. Dept. of 1976). Div. (App. which a statute
In Howell this twice invalidated Court New by prior approval had effect of requiring corporation services medical Society any Jersey Medical of Insurance. be Commissioner before it could licensed policy- delegation governmental Not was a only there with was fraught but it to- power private persons, making existing only action since the self-serving opportunity Shield, and Blue Cross Blue corporations, medical services were and Society itself had been Medical organized by under its control. substantially indeed, prohibit, power restrict, com- a to think such We or petition vitally a so welfare in field connected private organization placed constitutionally of a not the hands be promoting Society, an interest Medical which has such as the corporation only existing in this medical service welfare licensing delegation power its State. Such IV, par. 1, provides: “The Art § J. Const. violates N. Assembly.” power legislative; shall Senate General be vested omitted)] (citation [40 N. 3. at 447 relationship statutory The section 2 and section in3 scheme practical and in effect is too close to be overlooked. to- When read they attempt gether clearly delegate private persons show power particular corpora- to decide whether medical service county. any tion transact shall authorized to business- in 'delegation competency does relate to of medical services to be n rendered performance. Rather, or to standards of medical is in grant power approve disapprove effect a the services willing physicians willing agree fees which subscribers wish to to. *18 challenged part the For above reasons conclude we the Corporations (N. section 3 of the Medical Service Law J. S. A. 17:48A-3) I, par. 1, IV, par. Art. violates Art. 1 of § Jersey New Constitution of 1947 the Fourteenth Amendment of Constitution. the Federal [43 113] N. J. at Since substantial in educa- possess expertise teachers area, tion between teachers’ associations and negotiations boards of education a where an present agreement situation which determines on various effectively governmental policy is issues The especially likely. impropriety permitting such educational policy matters to be determined — forum of collective if negotiation just pertained as they — to the terms and conditions bit employment every is as as it strong other is areas of The public employment. interests teachers do not always coincide with the interests of the students on many important matters of educational associations, policy. Teachers’ like any employee organiza- tions, as their have primary responsibility advancement interests their to whom Arbitrators, members. the resolution of grievances under collective agreements entrusted, generally are concerned with contractual primarily Of rights level, remedies. relevant actors at the local only school boards have a to the primary responsibility at have they been large, delegated responsibility ensuring that all children receive a and efficient thorough education. boards These are to the local responsible elec- torate, State, as well toas and may not make difficult educational decisions in a forum from policy which public is Moreover, excluded. multi-year contract covering matters would policy freeze status quo and prevent board school from a flexible, creative making response circumstances, which changed might well its preclude acting in the interests of best the students. is of course free to exercise judgment its whether not a determining permissive category is sound We
negotiation wish out policy. merely point careful consideration of the limits our democratic is called powers of government delegation system places such, we hand, the other On taken.3 action is any for before the concept constitutionality of way are in no prejudging *19 se. per negotiation of permissive 6, 4 and 1974, 123, L. c. of that the enactment We hold §§ of the effect 8.1, and did not have A. S. 34:13A-5.3 in subjects public of negotiating a new category creating matters negotiable of comprised labor relations employment concerned though primarily even at the of the parties option scope-of-negotiations PERC’s policy. with governmental of Board Park that Ridgefield the determination requiring and transfers teacher the of Education submit propriety is disapproved. arbitration to binding reassignments that Division order Chancery view of the foregoing, is arbitration arbitration is reversed parties proceed enjoined. permanently P. J. D. concurring (temporarily assigned),
Contokd, I in dissenting. concur in this judgment Court’s case that arbitration I But do permanently enjoined. be — i.e,, reach that conclusion Court’s rationale there no is legal items category permissively negotiable Clyde aptly puts 3As Professor Summers it: W. consequence public employee bargaining partial One least at preclusion public subjects being bargained. discussion of those agreement any change
And the effect of an is to in mat- foreclose agreed upon during agreement. ters the term of Because something derogation constitutes from traditional democratic principles, bargaining collective should be limited to those areas public employees in which do indeed encounter massed resistance. disputes areas, by public employees In other should be resolved customary through political decisionmaking. channels of private employer’s prerogatives are his to share as sees he fit, right participate governmental but citizen’s decisions bargained away any cannot official. Employee Bargaining: [“Public A Political Perspective,” Yale L. J. 1192-1193 (footnotes omitted)] (1974) in public relations but employment only mandatorily negotiable category “terms and conditions” employ- ment. I with the agree Public Com- Employment Relations mission that the L. c. 123 (PERC) has by c. 83 manifested its a class of recognition of permissive as well as of items labor mandatory negotia- tion and with PERC’s implementation by regulations in the exercise understanding of its seope-of-negotiations jurisdiction under L. 1974, c. J. A. (N. 34:13A-5.4d.).
Practical recognition in the negotiations area has become fact life in the course actual nego- tiations of collective agreements throughout State recent years and the has validity thereof been adjudicated in several jurisdictions leading beyond our Today’s borders. holding by the Court is therefore a backward step heretofore progressive development of public sector labor *20 law in this State which will not conduce toward the legis- lative policy of promoting peace and stability public employment relations.
However, I enter one to qualification my with agreement PERC’s view as matter, to this will this explain my concurrence in the injunction Court’s arbitration against of the dispute in this case. for I Although, reasons shall pres- forth, ently set a public employer at its may option choose to i.e., a negotiate item, permissive one which involves inherent managerial but policy also impacts appreciably upon of employees, welfare it may not agree to arbitra- .binding tion of a with dispute to a respect item if negotiated so would transfer doing of an making inherent managerial decision from a governmental official to an arbitrator.1 Such a transfer would occur if here the contractual stipulation 1I would hold express this legis view at least in the absence of an provision contrary by lative to the such that as enacted c. permits public employers police 85 which agree of and firemen to binding subjects disputed permissive to negotia arbitration (4). tion. 34:13A-16f. with employees’ complaints
for arbitration binding enforced. were of teaching assignments to transfers respect n where determination as to There can be no donbt that the a serve in a school a teacher can best is system particular this whether matter of managerial policy; inherent substan- 8. A. 18A:25-1 is or procedural regarded Therefore, provisions provided tive.2 contract although the for notice transfers and involuntary to affected employees if for for transfers not to wishes acceding employees in- and best “conflict with the instructional requirements it was terests of I believe although system,” school with for the school board to proper negotiate provisions these sur- union, statutory authority clear there was no decision render school board an arbitrator of the to to a con- as whether a transfer or refusal transfer teacher best interests flicted instructional requirements ex- than school less system. my judgment nothing warrant a court in hold- legislative could plicit authorization arbitration effect agreement for with such ing binding to be valid. upon governmental decision-making matter is not It be that my position this possibly The amicus different from of PERC. fundamentally that brief of in a related before this (Engle PERC 'Court appeal Education, wood Board Englewood Teachers Association v. its sub A-137 Term that Sept. concedes 1977) position to the of an ject employer condition the agreement area arbitrate with respect negotiations of other statutes or prohibitions does “violate away clear me It policy.” appears bargaining determination its ultimate public employer duty *21 aof matter of inherent in the managerial policy, present that case, is However be contrary may public policy. in this re- PERC does not share view my public policy of provides teaching shall 2This staff member be “[n]o statute by except majority full roll call of the transferred recorded vote membership by employed.” which of the board of education he is arbi agreements in of gard having upheld the light its rela discretion in of managerial trate the merits of matters areas of tion to of covering a number contracts Regl. See, e. re Bridgewater-Raritan negotiation. g., Education, 1976. 77-21, October Board P. E. R. C. No. of I have with In any event, any difference of opinion to its endorse- PERC in does extend the latter regard not case, supra, but ment, Bridgewater-Raritan not in the only years, in a decided it within last two number of others of beyond matters principle permissive negotiation employ- confines “terms and technical conditions Ed. Bd. Ed. v. Dunellen ment” laid down Dunellen Ass’n, held, in relation to 64 N. That case (1973). of educational predominantly school that matters employers, con- and with incidental effect on remote or terms policy only neither nor ditions of were arbitrable. negotiable employment “intimately Id. at those matters 29, 31. Even as to and employees,” and affect the work welfare directly [the] any if “without negotiation required would only possible re- educational interference with significant management’s accorded a Id. at No was recognition 25. sponsibilities.” except permissive subjects negotiation possible category for a for employers hortatory expression encouragement “fields with which the with teachers voluntarily to discuss the fields concerned outside though teachers are significantly Id. at 32. mandatory negotiation.” neu- Dunellen was influenced two factors which were These 1974 amendment the act. tralized in the subsequent act should statutory provision were (1) previous ” “ * * * statute of this ‘annul State’ and modify any Statutes, 18 of the Revised dealing Title provisions (2) hear all education, for of Education to the Commissioner laws.” under school controversies disputes “arising has, soundly, I 64 N. J. 30. PERO See 28-29 think effected changes ascribed considerable significance amendments. As to both of these the 1974 respects by the statute was factor, merely any first altered prohibit *22 annulment or “any modification the act of pension stat- ute” of this State. J. 8. A. 34:13A-8.1. respect factor, second an of N. J. amendment 8. 34:13A-5.3 declared that grievance established procedures agreement of the parties any should be utilized notwithstanding pro- cedures for the resolution of controversies or disputes, griev- ances established by any other statute obvious allusion (an to the jurisdiction of the Commissioner of Education over school controversies).
It seems conceded these were universally amendments aimed at the restrictive Dunellen in the case as to holding of valid scope there employment negotiations although is wide disagreement as to the effect which precise should be accorded the amendments. Insofar as concerns specific e., now before i. question us, intent to broaden the area of valid negotiations permissive not contem- category Dunellen, plated by the PERC strongly thesis is supported of a by the provision incorporated text into the amend- ment for the creation aof Study Commission to study implementation effectiveness of the act and propose any additional changes necessary. One of the specific questions the Commission to address was asked was: necessary Whether or not either define desirable phrase employment” “terms used conditions in section 7 (C. 34:13A-5.3) and, specify doing, act the 1968 in so what sub- jects mandatory, voluntary illegal are or within bar- gaining grievance arbitration, require procedural or to guidelines determining 3(e), be established for Section the same. Chapter 124, (emphasis added) P. L. 1974. phrasing indicates that the question took it for that in actual granted practice scope negotia- tions was already divided into three categories, including a e., “voluntary” one. (i. permissive) Additional significant indication of current legislative aof cognizance category is afforded negotiations by the 1977 statute binding arbitration of collective nego- 1977, c. and firemen. police concerning tiation disputes *23 negotiations classifies 1, This specifically See note supra. 85. otherwise without and “permissive” as between “required” well prior fact that In view of those terms. defining PERC firemen’s statute 1977 and of the police adoption con- regulation and by had decision implement begun or re- mandatory from of as permissive distinguished cept 19:13-3.7, J. A. N. C. see negotiation, categories quired cogent additional 1977 act is use of those in the categories Moreover, concept. indication of legislative approval interpretation to the substantial weight we to attribute ought relations the employment and administration of practical and administrative expert as the act PERC by responsible of negotia- determine scope the act to by agency empowered River, 71 N. J. Saddle In re Application tions questions. Blair, 474, N. J. News v. 63 Passaic 14, Daily The 21 (1976); 484 (1973). under discussion PERC to the question approach other of courts in of a number by mirrored that
has been Teachers, 40 Fed. Ed. etc. v. Yonkers states. See Bd. N. E. 569 (1976); 353 2d 657, 386 N. S. 2d 2d Y. U., etc., N. E. Tchrs. 363 Boston v. Boston Comm. Sch. Ass’n Ed. 1977); Springfield Jud. Ct. Mass. 2d 485 (Sup. 407, 549 P. Dist. 25 Or. No. App. v. Sch. Springfield Bd. Scranton Sch. v. 1976); 1141 Scranton (Ct. App. 2d Teachers, 365 A. 2d Pa. Cmwlth. Fed. of beyond of these cases go While some 1976). Ct. (Cmwlth. mat arbitration they approve binding view my discretion, nevertheless to inherent managerial ters of as of a permissive the concept extent they recognize mandatory category from a required distinguished field, they represent in the public employment negotiations trend judicial and enlightened recent preponderant discretion by pub range negotiating a more flexible toward n — n achieve the which seems necessary one lic employers relations stability public employment of peace goal act as first adopted. relations set forth in the employment 34:13A—2. also “The Edwards, See Emerging Duty to Bargain Sector,” in the Public 71 Mich. L. Rev. 885,- (“State (1973) public relations employment courts boards have likewise relied frequently upon mandatory- permissive-illegal “The distinction”); Clark, Scope Duty to Bargain Public Employment,” in “Labor Re- Knapp lations Law in the Sector,” Public at 83-84 p.' (1977).
I it as regard unfortunate that its decision this case rejecting Court dismisses the negotiability now widely and in undoes accepted approach effect salutary course of and administrative gwosi-judicial progress being achieved well it, as deprives PERC employers generally, of a this vital area most useful tool in of the public weal.
The fears expressed Court by concerning delegation public policy decisions negotia- to the collective process of tion “where voter do not participation ,(p- 163) excluded” seem to me where the Voters also participate realistic. do not public employer negotiates employment. and hours wages In a sense, even em- decisions as to such matters by public ployers are exercises of Thus public policy decision-making. it is obvious that for legislation sector labor promoting public relations substantial into was contemplates inroads what very once untrammeled unilateral determination circum- stances of It employment by public would be employers. artificial and this counterproductive legislative goals area to continue absolutely prohibit process negotia- tion subjects appreciably impact upon welfare of employees merely because the subject matter agreement also involves educational managerial judgment or dis- The public cretion. is fully by interest the condi- protected tion PERC that the not recognized agreement contravene any contrary specific statutory by my mandate and qualifica- tion that not arbitration if binding permitted the arbitra- tor’s decision would supplant exercise man- inherent and discretion agerial judgment employee. transfer subject summary, negotiation valid; was contract teacher in the instant assignments whether over disputes arbitration of provision binding was be transferred teacher should should particular invalid. Hughes and Justices Sul-
For reversal—-Chief Justice and Handles — 6. livan, Clifford, Pashman, Schkeiber Concurring dissenting Judge— Confoed — 1.