On appeal from Superior Court, Chancery Division, Monmouth County.
Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.
The issue presented by this appeal is the arbitrability of a teachers' grievance relating to the administrative assignment of truant students to remedial classes conducted by the teachers. In an action instituted by plaintiff board of education to enjoin arbitration, to which defendant teachers' association interposed a counterclaim to compel the board to arbitrate the grievance, the trial judge granted the association's motion for summary judgment and directed the board to submit the dispute to arbitration "in accordance with the collective bargaining agreement between the parties." This appeal followed.
At the core of the controversy is paragraph D, Article XV, of the agreement, which provides that
All such teachers shall be required to inform the students under their direction of the time that these classes shall be scheduled.
In the fall of 1977 the principal of the junior high school began to assign truant students to their teachers' remedial classes. The association, as the sole and exclusive representative of the teachers for purposes of collective negotiations, filed a grievance with the school principal, complaining that ever since 1971, when the provision for remedial classes was first included in an agreement, the assignment of students to such classes had been the prerogative of the teachers, who also had the right to exclude recalcitrant or hostile students, and that the administrative assignments violated the "master contract," past practices, prior negotiations and N.J.S.A. 34:13A-5.3.
After adverse determinations at each step of the grievance procedure up to and including that of the board, subject only to the board's assurance that the remedial sessions would not be used for punitive purposes, the association filed a demand for arbitration, which led to this lawsuit and ultimately this appeal. The board argues, as it did below, that (1) the question of arbitrability is for the court; (2) the
grievance in question is not arbitrable under the pertinent clause of the contract; (3) the grievance is not arbitrable under N.J.S.A. 34:13-5.3, and (4) the assignment of students to the remedial classes is a matter of educational policy within the sole discretion of the board and is, therefore, not arbitrable. In response, the association contends that (1) the trial judge correctly made the "fundamental threshold decision" that the matter should be arbitrated; (2) the matter is arbitrable under the contract, and (3) the basis of the dispute was a properly negotiable term and condition of employment.
The trial judge acknowledged that the parties could be compelled to arbitrate only those matters which were within the scope of the agreement. He also indicated his awareness that it was the court's function to determine whether a particular dispute was arbitrable. He conceived his role in a dispute such as the one before him to be two-fold. As he stated in his oral opinion, it was, initially, to determine whether the subject involved a negotiable term or condition of employment or was a matter of major educational policy within the board's managerial prerogative.*fn1 If the dispute was found to be over a term and condition of employment, then the remaining issue to be resolved would be whether
the matter was within the scope of the arbitration clause in the agreement.
The rationale of the trial judge's determination that the grievance was arbitrable flowed from his preliminary statement, with which we are in complete agreement, that the contractual creation of an after-hours period of remedial instruction involved the teachers' work load and the length of their work day, and was therefore a proper matter for negotiation. He also found that the controversy, which concerned the assignment of truant students to the remedial classes, an action opposed by the association as violating the intention of the parties and being contrary to past practice, fell squarely within the contractual definition of grievance. But the trial judge then stated that he could find no "rational nexus" between the "beneficial purpose to be received from remedial education and just forcing truants to attend make-up classes"; that truants were being sent to remedial classes "while those who have not violated school law and who are clearly probably in need of remedial ...