For reversal -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
[64 NJ Page 19] The plaintiff Dunellen Board of Education filed a complaint in the Chancery Division seeking to restrain the defendant Dunellen Education Association from proceeding to arbitration of an alleged grievance under the agreement between them for the school year 1971-72. The Public Employment Relations Commission was also named as a defendant but it would appear to be merely a nominal party. The Commissioner of Education was granted leave to intervene as a party plaintiff and the New Jersey School Boards Association was granted leave to participate as amicus curiae. The Dunellen Education Association filed an answer and counterclaim in which it sought dismissal of the complaint and, on motion, the Chancery Division entered a summary judgment dismissing the complaint with costs to be taxed
against the Dunellen Board of Education. The Board of Education and the Commissioner of Education filed separate notices of appeal to the Appellate Division and, before argument there, we certified on the Commissioner's application. 62 N.J. 188 (1973).
The Dunellen Board of Education supervises the K-12 schools within its district and the Dunellen Education Association is the exclusive negotiating representative of the teachers employed by the Board. Pursuant to N.J.S.A. 34:13A-1 et seq. the Board and the Association entered into a written agreement for the 1971-72 school year which set forth, inter alia, salary schedules, extra-duty assignments, various stated rights of the Board, the teachers and the Association, and statements of the negotiation procedure and the grievance procedure. A grievance was defined to be a claim by a teacher or group of teachers "based upon an alleged violation, interpretation, or application, or an administrative decision contrary to the specific provisions of this agreement." A grievance and the procedure relative thereto were expressly declared not to be deemed applicable to: "(a) Any rule of the state board of education; (b) Any rules pertaining to the internal management of the board; (c) A complaint of a non-tenure teacher which arises by reason of his not being reemployed; (d) A complaint by any certificated personnel occasioned by appointment to or lack of appointment to, retention in or lack of retention in any position for which tenure is either not possible or not required; however said personnel shall have the right of appeal to the Board and all parties agree to abide by the decision made at this level."
The grievance procedure set forth in the agreement contemplated four levels; the first involved oral discussion with the employee's immediate superior; the second involved a further step before the Superintendent of Schools; the third involved a still further step before the Board; and the fourth was provided for in the following terms: "In the event an
employee is dissatisfied with the determination of the Board he shall have the right of arbitration pertaining to the interpretation of this contract pursuant to rules and regulations established by the Public Employment Relations Commission under the provisions of Chapter 303, Laws of 1968." (N.J.S.A. 34:13A-1 et seq.).
Shortly after the agreement between the Board and the Association took effect the then Social Studies Chairman resigned. At that point the Board concluded that it would be educationally desirable to consolidate the Chairmanships of the Social Studies Department and the English Department into a newly created Humanities Chairmanship. It did so and appointed the Chairman of the English Department as Humanities Chairman. There was nothing in the agreement between the Board and the Association which purported to deal with matters such as consolidation of chairmanships and the only specific reference to the Social Studies Chairman and the English Chairman was in a schedule captioned "Extra-Duty Assignments -- 1971-72"; that schedule provided that the Social Studies Chairman and the English Chairman would each be paid the sum of $530 for his extra duties as Chairman. The only other reference in the agreement to department chairmen as such was the provision that "Department Chairmen shall be assigned two preparation periods during which they shall perform their departmental duties." This was complied with and is not in issue here.
After the positions were consolidated, the Association filed a grievance which was rejected by the Superintendent and the Board. Thereafter the Association sought arbitration and the Public Employment Relations Commission was requested to appoint an arbitrator. The Commission mailed a proposed list of arbitrators to the Association and the Board and at that point the Board filed its Chancery Division complaint seeking a restraint. The Board's position was that submitting the matter to arbitration would be improper since (1) the agreement did not in anywise restrict its authority to consolidate
the Chairmanships of the Social Studies Department and the English Department and to appoint the Chairman of the English Department as Humanities Chairman, (2) if the agreement were construed to restrict such consolidation and appointment it would amount to an illegal and unenforceable delegation of the Board's statutory responsibilities, and (3) the controversy was one arising under the School Laws of New Jersey and was therefore within the exclusive jurisdiction of the Commissioner of Education.
The Commissioner's position was that he has primary jurisdiction to determine whether the controversy is one arising under the school laws within his exclusive jurisdiction and that arbitration should be stayed pending such administrative determination; on the other hand the amicus curiae urged that whether the matter is arbitrable should be determined judicially and suggested that only in rare instances presenting novel issues of school law or educational policy would it be appropriate to refer to the Commissioner. The Education Association's position was that the Commissioner has no function at all in connection with the controversy and that the matter should be permitted to proceed to arbitration. The Chancery Division agreed with the Education Association expressing the view that the dispute was one arising from the contract and that "the expertise of the Commissioner" was not required for its determination. At oral argument before us it was pointed out that after the expiration of the 1971-72 school year the Board reverted to separate Social Studies and English Department Chairmanships and that consequently the matter at hand may technically be deemed moot. But no one now suggests dismissal for ...