Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
This is an appeal by the Board of Education of Englewood (board) attacking the propriety of the finding by the Public Employment Relations Commission (PERC) in a scope of negotiations proceeding undertaken pursuant to N.J.S.A. 34:13A-5.4(d). The submission to PERC of the controversy between the Board and the Englewood Teachers' Association (association) resulted from a remand of this court after abortive efforts by the board to resolve the matter by PERC, by the Chancery Division of the Superior Court and by the State Department of Education. See Englewood Bd. of Ed. v. Englewood Teachers , 135 N.J. Super. 120 (App. Div. 1975).
In the latter opinion we held that the availability of the remedy of an interim restraint of an arbitration proceeding initiated by the association was exclusively within the jurisdiction of PERC, which was vested with this power incidental to its statutory power to make a determination of the scope of negotiability. Although PERC has the exclusive power to decide scope disputes and interim relief in connection therewith, subsection (d) of N.J.S.A. 34:13A-5.4 expressly directs that its determination is appealable to the Appellate Division of the Superior Court.
The litigation herein stems from the decision of the board to close the Engle Street School for reasons of economy and efficiency, as a result of which it sought to redistribute its teaching staff system-wide and to terminate the employment of approximately 40 nontenured teachers. Among these were ten association members. Upon receipt of notice of termination
these teachers requested a statement of reasons for nonrenewal of their contracts. In response thereto, letters were sent by the board explaining its reasons for curtailing the teaching staff and hearings were afforded to those who requested it. Thereafter, a resolution was adopted on June 10, 1974 to the effect that the ten nontenured teachers would not be offered contracts for the school year 1974-1975.
The association then filed a grievance with the superintendent of schools seeking relief by way of employment contracts for five nontenured teachers for the 1974-1975 school year. Upon an adverse determination an appeal was taken to the board, and after a hearing it reaffirmed its refusal to offer renewal contracts. This determination was followed by a demand for arbitration filed on December 16, 1974 on behalf of the five teachers wherein the association alleged the following:
Non-renewal of certain non-tenure teachers' contracts
REMEDY SOUGHT: As relief in this matter the ETA seeks the issuance of employment contracts for the 1974-75 school year to all non-tenure teachers so deprived and the subsequent reemployment of said individuals pursuant to and in compliance with the terms of said contract. As further relief, the ETA seeks any and all other remedies available to make the herein referred to non-tenure teachers whole.
As a sequel to this demand for arbitration the board filed a petition for a scope of negotiations determination, contending that the subject matter involved is not subject to negotiation or arbitration and seeking to restrain the arbitration initiated by the association.
PERC thereupon proceeded to consider the negotiability in abstract terms of "matters in dispute involving the fair dismissal and evaluation procedures contained in Articles XXVI and XXX of the agreement between the Association and the Board," concluded that they "are required subjects for collective negotiations" and denied ...