The question presented is whether a certain dispute between the parties is arbitrable.
Three nontenured teachers employed by defendant Board of Education of the City of Newark (Board) were notified on or about April 25, 1976 that their contracts would not be renewed for the following school year. A grievance was filed on their behalf by plaintiff Newark Teachers Union (NTU), which grievance was scheduled for a hearing before a panel of arbitrators on October 19, 1976. The grievance alleged that the Board improperly notified the teachers of their nonretention and failed to file sufficient and/or accurate evaluation reports of the teachers' performance. Prior to the date of the hearing, on October 18, 1976, the Board filed a petition of appeal with the Commissioner of Education, seeking a determination of whether the claims advanced by the nonrenewed teachers were arbitrable. Arbitration was stayed at the request of the Board. Thereafter, on December 8, 1976, NTU applied to this court for a mandatory injunction requiring the Board to proceed to arbitration. This court must thus determine if the claims are, in fact, to be disposed of by arbitration or by a hearing before the Commissioner of Education.
It is contended by NTU that the instant matters involved the breach of terms and conditions of employment included
in a collective bargaining contract entered into between the NTU and the Board, which contract specifies arbitration as the means of resolving disputes arising from alleged breaches of contractual rights.
To the contrary, the Board contends that its decision not to renew the contracts of nontenured teachers constitutes major educational decisions from which all objections must be referred to the Commissioner of Education, even where a collective bargaining agreement calls for arbitration.
The court is, therefore, asked to pass upon two questions in deciding the arbitrability of the grievance: (a) does the grievance fit within the arbitration clause, and (b) does the grievance concern matters of major educational policy which, despite their inclusion in the arbitration clause, must be referred to the Commissioner of Education.
As a threshold question it must be determined whether this court should exercise its jurisdiction to decide the arbitrability of the claims since that very question is now pending before the Commissioner of Education.
It is abundantly clear that the question of the arbitrability of a given issue within a collective bargaining agreement is a proper matter to be adjudicated by a court. Battle v. General Cellulose Co. , 23 N.J. 538, 543-544 (1957); Dist. 65, R.W.D.S.U. v. Paramount Surg. Sup. Co. , 117 N.J. Super. 125 (App. Div. 1971). It is contended by the Board, however, that the Commissioner of Education has concurrent jurisdiction to decide such a question, noting that the Commissioner has authority to decide all disputes arising under the school laws (N.J.S.A. 18A:6-9) and that, accordingly, questions of arbitrability are, and have been, decided by the Commissioner. Lakewood Tp. Bd. of Ed. v. Lakewood Education Ass'n , 73 S.L.D. 684 (1973); Madison Tp. Bd. of Ed. v. Madison Tp. Education Ass'n , 74 S.L.D. 488 (1974).
Whatever the practice has been in the past, present law permits matters to be adjudicated by the Commissioner of Education only in a limited class of cases. The Commissioner
has jurisdiction over certain disputes in the absence of an agreement or if the subject matter is not susceptible to a binding agreement because it concerns a major educational policy or because the issues are controlled by the school laws. South Orange-Maplewood Education Ass'n v. So. Orange and Maplewood Bd. of Ed. , 146 N.J. Super. 457 (App. Div. 1977). In South Orange , confronted with the problem of whether a trial court or the Commissioner of Education had jurisdiction to interpret and enforce contractual provisions relating to sabbatical leave, the Appellate Division found that the trial court had jurisdiction since, ultimately, the only question posed concerned the interpretation of the agreement itself. The question of contractual interpretation, not being a matter which would be significantly aided by the Commissioner's administrative expertise, Englewood Bd. of Ed. v. Englewood Teachers , 64 N.J. 1, 8 (1973), the court concluded that the Commissioner has jurisdiction only where there is no agreement or where the matters are not negotiable or are subject to school laws. The ...