On certification to the Superior Court, Appellate Division, whose opinion is reported at 164 N.J. Super.. 106 (1978).
Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.
The opinion of the court was delivered by
This controversy between plaintiff, Board of Education of the Woodstown-Pilesgrove Regional School District (Board), and defendant, Woodstown-Pilesgrove Regional Education Association (Association), the bargaining representative of the classroom teachers, arose out of a dispute over two additional hours that school teachers were required to work on the day before Thanksgiving.
The parties had entered into a collective bargaining agreement (Agreement) covering the three-year period from July 1, 1975 through June 30, 1978. The Agreement contained a general
management rights provision that reserved to the Board "Sole jurisdiction and authority over matters of policy" including, among others, the right "to direct employees of the school district" and "to maintain the efficiency of the school district operations." On the basis of this authority the Board on February 16, 1976 adopted the 1976-1977 school calendar. That schedule apparently modified a past practice of dismissing teachers and students at 1 p.m. on the day before Thanksgiving. The new calendar required instead a full school day ending at 3 p.m. The schedule was not distributed to the teachers until September 7. On October 25 the Association filed a grievance objecting to the change. The Superintendent of Schools denied the grievance asserting that the filing was untimely.
The teachers worked two additional hours on November 24, 1976 and then promptly filed a second grievance seeking additional compensation. A hearing was held before the Superintendent of Schools on December 21, 1976. He did not submit his decision, which denied the relief, until December 28, 1976.
Thereafter the Association filed a third grievance. It asserted that since the Superintendent had not notified the Association of his decision within five days of the hearing as required by the Agreement, the Association's position was automatically sustained. When this grievance was denied, the Association brought the matter to arbitration.
The stipulated issue submitted to the arbitrator was whether the Superintendent's response to the second grievance violated the five day requirement in the Agreement, and, if so, what the remedy would be. The arbitrator found that the contractual provision had been breached and ordered the Board to pay the teachers for the two hours worked on November 24, 1976.
The Board filed a complaint in the Superior Court, Law Division, in which it demanded that the award be set aside on the ground that the arbitrator exceeded his authority and had no jurisdiction over the subject matter. The Association counterclaimed
seeking enforcement of the award. Upon the return day of an order to show cause, the trial court vacated the award. It held that the decision to keep the schools open an additional two hours was a managerial prerogative and, therefore, was not a proper subject for the grievance-arbitration process under the Agreement.
The Association appealed to the Appellate Division. Tha court, reasoning that the effect of the Board's decision increased the teachers' workload by two hours and thereby affected working terms and conditions, held the subject to be a proper one for negotiation. 164 N.J. Super.. 106 (1978). Construing the terms of the Agreement, it found that the teachers were not obligated to work the additional two hours and were entitled to payment for that time. The arbitrator's order was reinstated and confirmed for that reason. We granted the Board's petition for certification. 81 N.J. 44 (1979).
Preliminarily, we call attention again to our holding in State v. State Supervisory Employees Ass'n, 78 N.J. 54 (1978), wherein we stated that:
PERC [Public Employment Relations Commission] is the forum for the initial determination of whether a matter in dispute is within the scope of collective negotiations. PERC's jurisdiction in this area is primary. See Bd. of Ed. of Plainfield v. Plainfield Ed. Ass'n, 144 N.J. Super.. 521, 524-525 (App. Div. 1976). Newark Teachers Union v. Bd. of Ed. of Newark, 149 N.J. Super.. 367, 354-375 [sic ] (Ch. Div. 1977). No court of this State is empowered to make this initial determination. For a party dissatisfied with PERC's conclusion, appellate review of PERC's scope determinations is specifically provided by N.J.S.A. 34:13A-5.4(d). [Id. at 83]
See also Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 153-154 (1978). The Appellate Division noted that since this proceeding was instituted and adjudicated by the trial court prior to State v. State Supervisory Employees Ass'n, it would resolve the matter on the merits rather than remand the cause to PERC. Since an additional period ...