On appeal from the Public Employment Relations Commission.
Matthews, Morton I. Greenberg and Ashbey. The opinion of the court was delivered by Matthews, P.J.A.D.
After oral argument, we consolidate these appeals since they involve common questions of law.
N.J.A.C. 6:3-1.21, adopted by the New Jersey State Board of Education on July 8, 1978, requires local boards of education to adopt policies and procedures for the evaluation of tenured teaching staff members. During the 1978-79 school year disputes arose between the Linden Board of Education and the Linden Education Association, and between the Bethlehem Township Board of Education and the Bethlehem Township Education Association, concerning the scope of negotiations in the area of tenured teacher evaluation. Accordingly, both local boards filed scope-of-negotiation petitions with the Public Employment Relations Commission (PERC). The New Jersey School Boards Association (NJSBA) was permitted to participate in the proceedings as an amicus curiae.
Both cases were argued before PERC, which issued decisions in In the Matter of Linden Board of Education and Linden Education Association , PERC No. 80-6, NJPER (1979), and In the Matter of Bethlehem Township Board of Education , PERC No. 80-5, NJPER (1979), on July 5, 1979. PERC held in both cases that negotiations regarding procedures for the evaluation of tenured teachers are mandatorily negotiable except to the extent that those procedures are established by specific provisions of N.J.A.C. 6:3-1.21. In its Bethlehem decision PERC examined the negotiability of 13 specific proposals of the Bethlehem Township Education Association and ordered the Bethlehem Township Board of Education to negotiate two of the proposals.
The associations contend that regulations of the State Board of Education concerning terms and conditions of employment are not binding upon local boards and therefore do not preempt collective negotiation. Specifically, the associations argue that the holding in State v. State Supervisory Employees Ass'n , 78 N.J. 54, 80 (1978), that "specific regulations which set particular terms and conditions of employment . . . for public employees may not be contravened by negotiated agreement," applies only to Civil Service Commission regulations and that the State Board's regulations do not preempt collective negotiation concerning terms and conditions of employment.
PERC was not persuaded by the associations' argument that rules of the State Board are not binding on local boards in the same way that regulations of the Civil Service Commission are binding on the State, and found that the State Supervisory Employees case was not distinguishable on that ground:
Our reading of the Supreme Court's discussion of the effect of specific statutes and administrative regulations of State agencies seems just as applicable, if not more so, to the actions of local boards of education as it does to the actions of the State. See 78 N.J. at 79-83 . . . The State Board of Education has been given broad authority to promulgate regulations interpreting and implementing the school laws which are binding on local boards of education. See e.g. N.J.S.A. 18A:4-15; N.J.S.A. 18A:7A-6. Therefore, the adoption by it of specific regulations establishing terms and conditions of employment prevents a local board from negotiating on a proposal which would violate such a specific regulation in the same manner that a regulation of the Civil Service Commission preempts negotiation between the State and the employee organizations representing State employees.
The Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , authorizes collective negotiation only with respect to the terms and conditions of public employment. N.J.S.A. 34:13A-5.3; State , above, 78 N.J. at 66.
See, also, Englewood Bd. of Ed. v. Englewood Teachers , 64 N.J. 1, 7 (1973); Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n , 64 N.J. 17, 25 [177 NJSuper Page 484] (1973). The court in State considered "the question of the permissible scope of collective negotiations concerning the terms and conditions of public employment in this State." State , above, 78 N.J. at 60. At issue in State was the correctness of two scope-of-negotiations determinations rendered by PERC. The State had contended in both disputes that matters sought to be negotiated by the public employees' unions involved managerial policies controlled by the Civil Service statutes. The disputes before PERC had centered around the interpretation to be accorded to the amendment to N.J.S.A. 34:13A-8.1 which in the original act, L. 1968, c. 303, "effectively limited the scope of collective negotiations by clearly stating that no provision of the Act could 'annul or modify any statute or statutes of this State.'" 78 N.J. at 61. The 1974 amendment to the section, L. 1974, c. 123, § 6, changed the wording of N.J.S.A. 34:13A-8.1 to its present form, "nor shall any provision hereof annul or modify any pension statute or statutes of this State." PERC had found that the change in N.J.S.A. 34:13A-8.1 meant that general statutes were "not to be read as shields to the employer's obligation to negotiate regarding terms and conditions of employment but specific statutes governing terms and conditions of employment cannot be abrogated by collective negotiations." 78 N.J. at 62, citing In re Local 195, IFPTE and Local 518, SEIU and State of New Jersey , PERC No. 77-57, 3 NJPER 118, 121 (1977). On appeal, the court was called upon to determine whether the 1974 amendment to N.J.S.A. 34:13A-8.1, L. 1974, c. 123, § 6, signaled an intent by the Legislature to permit negotiation and agreement to supplant Civil Service statutes and regulations. 78 N.J. at 60. The court found that the Legislature intended the 1974 amendment of N.J.S.A. 34:13A-8.1 to require collective negotiation concerning nonregulated terms and conditions of public employment, but that "specific statutes or regulations which expressly set particular terms and conditions of employment . . . for public employees may not be contravened by negotiated agreement." 78 N.J. at 80-81.
The associations take the position that the holding in State is limited to Civil Service Commission regulations because "the Supreme Court specifically referred to the Civil Service Commission" in its decision. The associations also attempt to distinguish State on the basis that "the Supreme Court found the Civil Service Commission to be an independent agency regulating terms of public employment and not subject to the dictates of the Executive Branch of the State," whereas the state board, a department of the Executive Branch, N.J.S.A. 18A:4-1, does not have such independence. We find neither argument to be persuasive. We believe that State should be construed to extend to all statutes and regulations dealing with public employment. The court itself framed the issue in State as "the permissible scope of collective negotiations concerning the terms and conditions of public employment in this State." 78 N.J. at 60. Because the issue was dealt with in the context of Civil Service statutes and regulations does not so limit the applicability of the holding. The court's interpretation of the 1974 amendment ...