Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.
During the Fall of 1974 the Board of Education of Byram Township (Board) and the Byram Township Education Association undertook to negotiate a teachers' contract for the 1975-1976 school year. More than 60 substantive changes in the existing contract were sought by the Association. When the parties reached an impasse after several negotiating sessions, mediation with the assistance of the Division of Public Employment Relations (N.J.S.A. 34:13A-6) resolved a number of the issues. Fact-finding procedures produced an agreement for a contract term of two years. To resolve the remaining disputed issues, the Board filed with the Public Employment Relations Commission (PERC) a "Petition for Scope of Negotiations Determination" pursuant to N.J.S.A. 34:13A-5.4(d). The parties stipulated and agreed therein to request PERC to determine whether the following matters were mandatory subjects of collective negotiations under the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-1 et seq.):
(a) Duty-free lunch period and assignment of non-teaching duties;
(b) Teacher load and pupil contact time;
(c) Teacher assignments, and
(d) Teacher and classroom facilities.
After a hearing PERC issued a decision and order, the contents of which will be discussed later in more detail. It declared a number of the subjects to be mandatorily negotiable and ordered the Board to negotiate thereon in good faith. The others were determined to relate predominately to the means and methods of providing education to the students of the district and thus not to be subject to mandatory
negotiation. However, PERC stated that they were "permissive" subjects of negotiation and the Board was ordered "to refrain from insisting, to the point of impasse, upon the inclusion of such matters in a collective negotiations agreement * * *."
The Board of Education appealed the decision and order, maintaining that the issues contained in the stipulation were managerial prerogatives and therefore not proper subjects of collective negotiations. Since the Association did not file a cross-appeal, and the Board was clearly not aggrieved by PERC's rulings favorable to it, this appeal is necessarily limited to those subjects determined by PERC to be mandatorily negotiable.
The New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , as amended by L. 1974, c. 123, gave PERC jurisdiction to hear and decide unfair labor charges and issue appropriate remedial orders respecting them -- see Patrolman's Benev. Ass'n v. Montclair , 70 N.J. 130, 136 (1976) -- and also to make determinations respecting the scope of collective negotiations. The latter authority is embodied in N.J.S.A. 34:13A-5.4(d), which provides as follows:
The commission shall at all times have the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations. The commission shall serve the parties with its findings of fact and conclusions of law. Any determination made by the commission pursuant to this subjection may be appealed to the Appellate Division of the Superior Court.
PERC conceived its mission in a scope of negotiations proceeding to be a determination of "whether the disputed matter is a required, permissive, or illegal subject for collective negotiations * * *." N.J.A.C. 19:13.3-7. The conclusion here that several of the disputed matters, though not mandatory, were permissive subjects for collective negotiations has provoked a vigorous dissent from amicus curiae New
Jersey School Boards Association. It maintains that matters are either negotiable or nonnegotiable, and there is no justification, statutory or by judicial interpretation, for PERC's establishment of a "tripartite breakdown for the scope of negotiations." The Board of Education takes no position on the matter, but the teachers' association suggests that the challenge need not be dealt with on the merits, since the matter is not properly before us on this appeal. We agree.
The subject-matter of permissive negotiation is not germane to the Board's appeal, which requires only a resolution of whether certain matters were correctly determined by PERC to be mandatorily negotiable. We therefore decline to consider at this time whether nonmandatory subjects may be negotiated on a permissive basis, or whether the issue is within the jurisdiction of PERC in a scope of negotiation proceedings. An amicus curiae must accept the case before the court with the issues made by the parties. 4 Am. Jur. 2d, Amicus Curiae , § 3 at 111 (1962). We doubt that it may raise an issue not raised by them. See Endress v. Brookdale Community College , 144 N.J. Super. 109, 123 (App. Div. 1976). In any event, we prefer that the difficult and possibly controversial implications of permissive negotiations should await a case in which the issue is squarely presented.
We turn now to a consideration of the applicable standard for measuring the scope of mandatory collective negotiations under the New Jersey Employer-Employee Relations Act. Speaking broadly, such negotiations encompass terms and conditions of employment. In Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n , 64 N.J. 17, 24 (1973), the court noted that the Legislature did not define the phrase "terms and conditions" as used in the act, "nor did it specify what subjects were negotiable and what subjects were outside the sphere of negotiation." The court expressed the view (at 24-25) that since there was an explicit provision in the act (N.J.S.A. 34:13A-8.1) that nothing in it shall "annul or modify any statute or statutes of this State," it was "our
clear judicial responsibility to give continuing effect to the provisions in our Education Law (Title 18A) without, however, frustrating the goals or terms of the [act]." The court said further:
Surely the Legislature, in adopting the very general terms of L. 1968, c. 303, did not contemplate that the local boards of education would or could abdicate their management responsibilities for the local educational policies or that the State educational authorities would or could abdicate their management responsibilities for the State educational policies * * * On the other hand it did contemplate that to the extent that it could fairly be accomplished without any significant interference with management's educational responsibilities, the local boards of education would have the statutory responsibility of negotiating in good faith with representatives of their employees with respect to those matters which intimately and directly affect the work and welfare of their employees.
The lines between the negotiable and the non-negotiable will often be shadowy and the legislative reference to "terms and conditions of employment" without further definition ...