On appeal from Public Employment Relations Commission.
Botter, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
This is an appeal by Mainland Regional Teachers Association (Association) from an order of the Public Employment Relations Commission (PERC) entered in a scope of negotiation proceedings pursuant to N.J.S.A. 34:13A-5.4(d).
In October 1978 respondent, Mainland Regional Board of Education (Board) assigned two teachers, Daniel Slattery and Melville Trempe, to perform, respectively, the co-curricular positions of Junior Class Advisor and Yearbook Co-advisor.
Co-curricular assignments of this nature had previously been made on a voluntary basis. In the 1978-79 school year there were no volunteers for these positions and the Board was obliged to designate Slattery and Trempe.*fn1 They refused their assignments. There being no replacements for the positions, the Board insisted that these gentlemen assume the assigned duties.
In November 1978 the Association, as collective bargaining unit for teachers at the Mainland Regional High School, filed grievances concerning the assignments. These were heard and denied by the Board.
In January 1979 the Association filed a demand for arbitration with the Board. The demand for arbitration characterized the action of the Board as one "unilaterally extending the required workday of Daniel Slattery and Melvin Trempe." The Board refused to agree to arbitrate, contending that the matter was not arbitrable.
On or about April 10, 1979 the Association filed an unfair practice charge with PERC, charging that "[to] the extent that the additional extracurricular activities entail an additional amount of work hours, the Board is required to negotiate. . . ." The Association again asserted that the Board, in assigning the two teachers to extracurricular positions, had unilaterally imposed on each of them a term and condition of employment, in violation of N.J.S.A. 34:13A-5.4(a)(5). Proceedings with respect to this unfair practice charge have been stayed by agreement of the parties pending the outcome of this appeal.
On April 30, 1979 the Board filed a petition for scope of negotiations determination with PERC. The petition sought both permanent and interim restraints of the demand for arbitration. The Board requested that PERC issue "an order determining that the matter is nonarbitrable because the assignment to cocurricular positions is solely a managerial prerogative." On May 19, 1979 PERC issued an order restraining the Association from seeking arbitration during the pendency of the proceedings.
Briefs were filed by June 25, 1979. A hearing was had on July 3, 1979 at which no verbatim record was made because the matter was viewed as one of law.
On July 5, 1979 PERC issued its order permanently restraining the Association from arbitrating or seeking to arbitrate. PERC held that the issue presented was not negotiable.
It may be seen from the foregoing that the only issue presented below was the legal issue of whether the Board could unilaterally assign Slattery and Trempe to co-curricular positions. An effect, naturally attendant to that assignment, is extension of their workday, but no proofs were submitted as to what this involved. No such proofs were necessary for the following reasons. The parties do not dispute that the compensation to be paid for these and all other extracurricular positions had ...