On appeal from Public Employment Relations Commission.
Matthews, Crane and Antell.
This is an appeal from a decision and order of the Public Employment Relations Commission denying the request of the Teaneck Board of Education for an order permanently restraining arbitration of grievances filed by the Teaneck Teachers Association. The grievances complained of the inclusion of negative comments, based on the lack of participation of employees in voluntary activities, in evaluations.
In December 1976 and January 1977 certain teachers employed by the board and represented by the Association were given mid-year evaluations by their respective school administrators, pursuant to Article VII, entitled "Teacher Observation and Evaluation," of the contractual agreement between the board and the Association covering the period between September 1, 1976 and August 31, 1978. On January 31, 1977 the Association filed two grievances with the board claiming that the board had violated the evaluation procedures as set forth in Article VII. The Association contended that by placing negative comments relating to their nonparticipation in allegedly voluntary after-school
activities, i.e. Back to School Night and extracurricular activities, in certain teachers' files, particular administrators had relied upon factors that were not contractually includable in evaluation reports. Article VII of the contract reads, in part, at subsection (a) (1) that "such on-the-job evaluations shall include only school related activities and responsibilities." Subsequently, the board denied the respective grievances. On March 31, 1977 the Association filed a request for a panel of arbitrators with the Commission, although the board contended that the matters at issue were not grievable.
PERC observed that this case involved evaluation content and criteria and not evaluation procedures. It concluded that
The board contends that the only matters which may be negotiated are those as to which negotiation is authorized by statute. The board challenges the validity of PERC's classification of this matter or any other matter as a permissive subject of negotiation. According to its view, only "terms and conditions" of employment may be negotiated.
PERC held that evaluation criteria are not "terms and conditions" of employment and not mandatory subjects of negotiation. We need not pass on this conclusion since the Association has not filed a cross-appeal.
The question before us is whether evaluation criteria may legally be subject to negotiation. It should be noted
that even "terms and conditions" of employment may not be negotiable when the Legislature has so provided. Piscataway Tp. Bd. of Ed. v. Piscataway Maintenance, etc., Ass'n , 152 N.J. Super. 235 (App. Div. 1977). There, we reversed PERC and permanently restrained the arbitration sought by the Piscataway Maintenance and Custodial Association. We held that the contractual provision for extended total disability leave exceeded the authority of the board of education and, therefore, was invalid and unenforceable.
The board contends that PERC's holding evaluative criteria to be permissive subjects of negotiations is violative of our Constitution which provides that "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years." N.J. Const. (1947), Art. VIII, § IV, par. 1. The Supreme Court has declared that "a system of instruction in any district of the State which is not thorough and efficient falls short of the constitutional command." Robinson v. Cahill , 62 N.J. 473, 513 (1973), cert. den. Dickey v. Robinson , 414 ...