On appeal from final decision of Public Employment Relations Commission.
Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired; temporarily assigned).
This case involves the propriety of an order of the Public Employee Relations Commission (PERC) concerning certain actions taken by the Maywood Board of Education (board) and which the Maywood Education Association (Association) charged were unfair labor practices (hereafter ULP) within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4(a)(1) and (5) (hereafter the act).
The thrust of the Association's complaint is that the board refused to negotiate the reduction of its teaching force when it dismissed one tenured librarian, did not renew the contracts of several nontenured teachers*fn1 and expanded the work day of kindergarten teachers and the "pupil contact time" of two physical education teachers. The Association also contends that PERC erred by not awarding a monetary remedy for such violations of the act as PERC found to have been committed by the board.
In its opinion reported at 3 NJPER 377 (1977), PERC held: (1) the board's decision to dismiss Joan Conley, a tenured librarian, was lawful and was not negotiable; (2) however, the board violated the act by refusing to negotiate regarding the "impact" of dismissing Ms. Conley both as to her and as to the remaining librarian, and the impact of the reduction in force (hereafter RIF) on the terms and conditions of employment of the remaining teachers; (3) the board must, within 60 days of the decision, restore the status quo ante as to the working hours of the kindergarten and physical education teachers and negotiate the impact on those teachers for the period during which their work load was changed.
The Association appeals, contending that the PERC order was inadequate as to the remedy for the unfair labor practices of the board and that this court should order compensation to the affected teachers for labor performed in excess of preexisting terms and conditions of employment.
The board cross-appeals. It contends that PERC's order was in error (1) in requiring it to negotiate the "impact" of its RIF; (2) in requiring it to restore the status quo ante as to the kindergarten and physical education teachers, and (3) in requiring it to negotiate the impact of its action with respect to those teachers.
On its part PERC contends that the board waived its right to appeal the PERC order since it did not take exception to the recommended report of the hearing examiner, most of which was adopted in the PERC decision. PERC seeks enforcement of its order pursuant to N.J.S.A. 34:13A-5.4(f).
(1) Is the impact of Conley's dismissal negotiable (as to her)?
(2) Is the impact of the RIF on the remaining librarian and other teachers negotiable?
(3) Is the increase in the work load of the kindergarten teachers negotiable?
(4) Is the increase in "pupil contact time" of the physical education teachers negotiable?
(5) Did the board waive its right to appeal by not filing exceptions to the hearing examiner's report?
(6) Whether PERC should have made a monetary award for the unfair labor charges which are sustained?
(7) Whether an enforcement order should issue as to matters which are now moot (e.g. , by settlement of the issue concerning the kindergarten teachers)?
Negotiation of the "impact" of the RIF on Joan Conley (tenured librarian).
It is uncontroverted that the RIF by the board was for reasons of economy. Therefore, PERC held the dismissal
of Conley was lawful pursuant to N.J.S.A. 18A:28-9. Nevertheless, PERC also held that the "impact" on Conley from "her discharge to her reemployment" must be negotiated as long as such negotiations do not concern back pay during the period of her layoff. We agree that back pay for Conley would be impermissible.
We have some difficulty in understanding just what the Association contends would be negotiated as to Conley, since her dismissal was concededly lawful. Neither PERC nor the Association has specified what would be the subject of such negotiation. She had no employment relationship with the board as a result of her lawful discharge. Therefore, negotiation of the impact of the RIF on her during the time of her discharge is outside the scope of N.J.S.A. 34:13A-1 et seq.*fn2 In fact, we conceive that it is inherently illogical to hold on the one hand that dismissal of Conley was entirely lawful and on the other to say that the board must, by negotiation, face adverse consequences from that lawful dismissal.
The Association's argument does imply that since Conley was a tenured teacher she has reemployment rights, and negotiation as to terms and conditions of reemployment is mandatory. Cf. Union City Bd. of Ed. v. Union Cty. Teach. Ass'n , 145 N.J. Super. 435 (App. Div. 1976), certif. den. 74 N.J. 248 (1977).
PERC has previously held that procedural matters dealing with recall and retention are mandatorily negotiable. Cinnaminson Township , 4 NJPER 4039 (1978); Montville Bd. of Ed. , 2 NJPER 230 (1975). We disagree. The reemployment rights of tenured teachers are established by N.J.S.A. 18A:28-12, which reads as follows:
If any teaching staff member shall be dismissed as a result of such reduction, such person shall be and remain upon a preferred eligible list in the order of seniority for reemployment whenever a vacancy occurs in a position for which such person shall be qualified and he shall be reemployed by the body causing dismissal, if and when such vacancy occurs and in determining seniority, and in computing length of service for reemployment, full recognition shall be given to previous years of service, and the time of service by any such person in or with the military or naval forces of the United States or of this state, subsequent to September 1, 1940 shall be credited to him as though he had been regularly employed in such a position within the district during the time of such military or naval service. [Emphasis supplied]
Under N.J.S.A. 18A:28-13 the Commissioner of Education is empowered to establish detailed procedures and standards for reemployment. Accordingly, under N.J.A.C. 6:3-1.10 he has done so.
The issue as to the negotiability of reemployment rights was recently dealt with by the Supreme Court in State v. State Supervisory Employees Ass'n , 78 N.J. 54 (1978). There the union argued that provisions under the Civil Service statute regarding reemployment were terms and conditions of employment. The union wanted to negotiate over the criteria and procedures for reemployment. PERC agreed with the union and issued a negotiation order. The State contended that reemployment proposals were not subject to negotiation since they either concerned managerial responsibilities or were terms and conditions of employment which were controlled and preempted by Civil Service statutes and regulations. The court agreed and reversed PERC's order requiring negotiation.
The test for determining whether the adoption of a specific statute or regulation sets a term and condition of employment, thereby preempting negotiation, depends on whether the statute[s] or regulation[s] "speak in the imperative * * * [or] permit a public employer to exercise a certain measure of discretion." State v. State Supervisory Employees Ass'n, supra , 78 N.J. at ...