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Board of Education v. Asbury Park Education Association

Decided: November 18, 1976.


Yaccarino, J.s.c.


This case presents the court with two interrelated issues of first impression in this State. First, may teachers properly withhold the performance of "extracurricular" activities while continuing to perform what they contend to be their sole educational responsibility, i.e. , the completion of classroom assignments; or does the withholding of such "extracurricular" activities constitute an illegal strike? Second, if the withholding of "extracurricular" activities constitutes an illegal strike, is a court of chancery divested of its inherent jurisdiction to enjoin such activity by virtue of the Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , and the regulations promulgated pursuant thereto?

This suit was commenced by way of an order to show cause containing temporary restraints, signed on September 11, 1976. A motion to dissolve the restraints and an application for an order to show cause why certain defendants should not be held in contempt were denied on September 14. The following day plaintiff Board of Education of the City of Asbury Park filed an unfair practice charge with the Public Employment Relations Commission (PERC) against defendant Asbury Park Education Association and its president, defendant Russell Leidy. An amended verified complaint adding additional defendants was filed in this action on September 20.

Part of the September 11 order was stayed pending appeal by a single judge of the Appellate Division on the day it was issued, and a notice of motion for leave to appeal was filed on September 15. The original return date of the order to show cause was postponed by this court pending determination by the Appellate Division. On September 29

the Appellate Division vacated part of the September 11 order, denied the balance of the relief sought, and the matter was remanded for plenary hearing. A plenary hearing was scheduled for October 20; however, on that date counsel stipulated the facts, lengthy oral argument was held, and preliminary restraints were continued pending this decision.

The facts stipulated by counsel may be stated as follows: All of the named defendants have been assigned by plaintiff Asbury Park Board of Education to perform what are commonly known as extracurricular or co-curricular activities for the current school year, or have held similar positions in the past. Tenure does not attach to these positions. The general manner of hiring personnel for such positions is through contracts, or what counsel prefer to refer to as assignment/contracts. Customarily, the board would forward assignment/contracts to the teachers, who would merely execute them and return them to the board. Ordinarily, this would be done prior to the commencement of the school year; however, this year it was not undertaken until September 1. Such assignments are not governed by the teachers' master contract.

All of the named defendants made subject to the September 11 order to show cause containing temporary restraints were appointed to extra-classroom assignments by the board on September 1. None has executed the assignment/contracts or employment contracts forwarded to them, but all performed their assigned duties from September 1 until September 8. These defendants were: Edward Hudson, Head Football Coach; Carlo Manna, Lewis Givler, Albert Brown, John Knight and Lanvel Ferguson, Assistant Football Coaches; Anthony Giordano, Boys Cross-Country Track Team; Judith Young, Girls Cross-Country Track Team; Robert Taylor, Head Soccer Coach; Thomas Walsh, Assistant Soccer Coach; Peola Smith, Girls Tennis Coach; Daniel Murphy, Athletic Custodian; Max Liddick, Athletic Trainer; and Dorian Parreott, Band Master. All of these defendants

submitted resignations from their extracurricular assignments on September 13 or 14, 1976.

The order to show cause containing temporary restraints of September 20 added the following named defendants: Jack D. Atwood, Advisor to the Megaphone and Chess Clubs; Stephen D. Kessler, Middle School Soccer Coach; Russell Leidy, Education Association president, Junior and Senior Class Advisor; Donald M. Martin, Boys Middle School Fall, Winter and Spring Intramural Programs; Donald E. Merce, Middle School Student Council and Newspaper Advisor; Leanna Taylor, Girls Middle School Fall, Winter and Spring Intramural Sports Program; Francis Viviano, Middle School Chess Advisor; and Peter Zazzali, Honor Society Advisor and Book Room Manager. Also subject to this order to show cause are certain named defendants who have not to date been assigned to extra-classroom duty by the board for the current school year. The following defendants have held such extra-classroom duties in the past, although such positions do not begin until later in the school year: Joseph Manno, Boys Swimming Coach; Nicholas J. Merli, Head Coach of Indoor and Outdoor Track; Milton Parker, Girls Basketball Coach; Dorian Parreott, one of the original 14 defendants, Tennis Coach; Stuart Tave, Middle School Track Coach; Catherine Unganst, Girls Swimming Coach; and Peter Zazzali, Freshman Track Coach. Two of the above-named defendants have resigned from both present and anticipated extra-classroom assignments. All of these defendants submitted resignations from their extracurricular assignments on September 13 or 14, 1976.

An examination of case law in other jurisdictions leads to the conclusion that school boards may assign teachers to perform extracurricular activities, within certain limitations.

[T]he extra assignment must be reasonable: it (1) must not require excessive hours beyond the normal teaching period; (2) must have some relation to the teacher's interests, abilities and certification; (3) must be made with a purpose beneficial to pupils; (4) must not be discriminatory; and (5) must be professional in nature. [ Bolmeier,

Teachers' Legal Rights, Restraints and Liabilities , ยง 9.7 at 125 (1971); (emphasis in original)].

In so holding, courts have based their analyses upon the proposition that extracurricular activities are a fundamental part of a child's education, making the supervision of such activities an integral part of a teacher's duty toward his or her students.

In the leading case, McGrath v. Burkhard , 131 Cal. App. 2d 367, 280 P. 2d 864 (1955), appellant, shortly after securing tenure, attacked the practice within his school district whereby male teachers could be required to perform certain nonclassroom activities such as the supervision of school football and basketball games. Appellant argued that such assignments did not fall within the scope of his duties as a teacher under the terms of his contract of employment; that such duties were unprofessional in nature; and that the hours required to perform said duties were unreasonable. Appellant claimed that the nonclassroom assignments would take more than eight hours a day to perform competently, causing him to work days, such as Saturdays, holidays and nonteaching days, for which he was not being paid.

After examination of the pertinent statutes, regulations and public policy controlling the teaching profession in that state, the California court rejected appellant's arguments. Importantly, in rejecting the contention that the assigned duties involved unreasonable hours, the court noted:

Teachers are engaged in a professional employment. Their salaries and hours of employment are fixed with regard to their professional status and are not fixed upon the same basis as those of day laborers. The worth of a teacher is not measured in terms of a specific sum of money per hour. A teacher expects to and does perform a service. If that service from time to time requires additional hours of work, a teacher expects to and does put in the extra hours, without thought of measuring his or her compensation in terms of a given sum of money per hour. A teacher's duties and obligations to students and the community are not satisfied by closing the classroom door at the conclusion of a class. The direction and supervision of extra-curricular activities are an important part of his duties. * * * All of

this is, of course, subject to the test of reasonableness. [131 Cal. App. at 376, 280 P. 2d at 870].

In Parrish v. Moss , 200 Misc. 375, 106 N.Y.S. 2d 577 (Sup. Ct., Spec. T.), aff'd without opinion, 279 App. Div. 608, 107 N.Y.S. 2d 580 (1951), the court was called upon to determine the validity of regulations submitted by the superintendent of schools and adopted by the board of education which gave a principal the power to assign teachers to extracurricular activities.*fn1 In upholding the resolution, finding the principal's power to be within the applicable educational laws and the by-laws enacted thereunder, the court discussed the obligations which properly may be imposed upon a teacher, and the parameters of a teacher's duty, as follows:

The hours established in any case must be reasonable. The broad grant of authority to fix 'duties' of teachers is not restricted to classroom instruction. Any teaching duty within the scope of the license held by a teacher may properly be imposed. The day in which the concept was held that teaching duty was limited to classroom instruction has long since passed. Children are being trained for citizenship and leadership in such training is the teacher. * * * Any teacher may be expected to take over a study hall; a teacher engaged in instruction in a given area may be expected to devote part of his day to student meetings where supervision of ...

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