On appeal from the the Public Employment Relations Commission.
Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.
For several years prior to the 1978-79 school year Keith Elvin was employed by petitioner board of education (board) as a teacher of instrumental music. Pursuant to terms of a collective bargaining agreement between the board and respondent education association (association), Elvin had a 7-hour and 45-minute in-school work day for which he was paid a salary commensurate with his educational qualifications and experience. In addition to his regular duties, Elvin voluntarily assumed extracurricular responsibilities as special school advisor in the position of band director, for which he received additional compensation in the sum of $1,400 annually.
For the 1978-79 school year Elvin decided not to assume the extracurricular duties. Thereupon, the board reviewed the structure and function of the positions of instrumental music teacher and band director and concluded that the educational needs of the school required a reorganization of the music program. Consequently, both positions which he had filled were abolished and, in their place, a full-time position of band director/music teacher was created. Compensation was set according to the teacher's salary scale plus a differential of $1,860 for the additional hours required to perform the necessary duties. The new position was offered to and accepted by Elvin, but the association filed a grievance on his behalf seeking binding arbitration. The board countered with a petition for a "scope of negotiations" determination by the Public Employment Relations Commission (PERC).
PERC enjoined arbitration with regard to hours of work but refused to restrain submission of the issue of compensation to arbitration. Both sides appeal, the association urging that hours of work and workload are mandatorily arbitrable and the board seeking a determination that PERC erred in permitting arbitration of the grievance concerning compensation.
When the grievance was originally submitted, the following relief was sought:
(1) removal of extracurricular responsibilities from Elvin's contract;
(2) reestablishment of the former instrumental music teacher position and extracurricular special school advisor position of band director;
(3) posting of the vacancy in the extracurricular program, and
(4) providing Elvin with compensation for band director activities pro rata based on his annual salary.
Subsequently, Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed. , 78 N.J. 144 (1978), delineated the distinction between mandatorily negotiable terms and conditions of employment and those which are within managerial prerogative and not arbitrable. The association recognized Ridgefield Park as prohibiting arbitration of the board's decision to consolidate the positions and withdrew its demands relating thereto. However, it persisted in its demand that the issues of hours, workload and compensation be submitted to arbitration.
PERC's "Decision and Order" states that all issues other than compensation were "disposed of by the concession that the consolidation of positions and assignment of Elvin are managerial prerogatives." While we are substantially in accord with its final conclusion, in our view PERC misconstrued the association's position. In its brief submitted to PERC the association insisted, as it does on this appeal, that "workload and hours" remain mandatorily negotiable along with the compensation issue despite its "concession."
Although it does not dispute the arbitration clause in the contractual grievance procedure, the board questions the legal propriety of arbitrating the effects of a managerial decision on teacher's hours, workload and compensation. The threshold issue of whether the subject matter of the grievance is within the scope of collective negotiations must be resolved by PERC. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., supra , 78 N.J. at 153-155. Because PERC has special expertise in this area, Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass'n , 79 N.J. 311, 316 (1979), no court should make ...