Matthews, Lora and Morgan.
Defendant Federation of Teachers (Federation) petitioned the Public Employment Relations Commission (PERC) for the appointment of an arbitrator to settle a grievance claimed to arise out of the collective bargaining agreement existing between the Federation and plaintiff board of education. The Federation alleged that the board had violated paragraph 17 of the agreement by appointing one Nicholas Sacco as an acting vice-principal without following the criteria for promotion established in accordance with paragraph 17; specifically that vice-principal appointees have three consecutive years of experience (i.e. , tenure) in the North Bergen School system.
After the appointment of an arbitrator several hearings were scheduled but were then postponed at the board's request. Ultimately, the board filed a complaint in the Chancery Division requesting that the pending arbitration be restrained.
The Chancery Division judge, after holding a hearing on the board's request, held that the provision in paragraph 17 of the agreement, directing the Federation and the board to set up criteria for promotion, was not arbitrable. Thereafter, he entered a judgment permanently enjoining the Federation from arbitrating the issue of promotions. It is from that judgment that defendant appeals.
Paragraph 17 of the agreement between the board and the Federation, effective at the time this dispute arose, provides, in pertinent part, as follows:
(a) Promotion should be made from within the system if staff members are certified and qualified. Notification of all promotional vacancies will be given to all teachers and applicants will be given 10 school days to file for the vacancy. * * *
(b) A committee composed of the Superintendent, or his designee, and the president of the bargaining agent, or his designee. shall determine the criteria for qualifications. The President of the bargaining unit of the Administrators and Supervisors, or his designee, shall participate in the determination of criteria for qualifications for promotional vacancies when any of its members may be eligible for said promotions. The Superintendent will interview those candidates who are certified and qualified and will make his recommendations to the Board of Education for appointment. When qualifications are equal, seniority shall be the deciding factor.
(c) If fewer than three members of the staff are certified and qualified, the Superintendent may recommend to the Board of Education the appointment of a certified and qualified person from outside the system.
(e) In all promotions, the power of appointment rests solely with the Board of Education.
It is unclear from the record whether "criteria for qualifications" have ever been agreed upon by the parties. The Federation stated in its petition before PERC that there was a stipulation that vice-principal appointees have three consecutive years experience in North Bergen schools. However, at argument below the attorney for the board seemed to imply that agreement had never been reached. The court below did not resolve this issue, however, holding instead that the matter was not arbitrable.
By resolution of July 25, 1974 the board appointed Sacco as acting vice-principal commencing August 1, 1974. Sacco had initially been appointed to a teaching position in North Bergen on January 16, 1974, to commence on February ...