On certification to the Superior Court, Appellate Division, whose opinion is reported at 177 N.J. Super. 479 (1981).
For affirmance -- Chief Justice Wilentz and Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurring in the result.
In these cases, as in the companion case of Council of New Jersey State College Locals v. State Board of Higher Education, 91 N.J. 18 (1982), also decided today, we must determine whether regulations passed by State agencies preempt collective negotiations on the subjects that they specifically cover. The State Board of Education promulgated regulations which require local school boards to adopt policies and procedures for evaluating tenured teachers. See N.J.A.C. 6:3-1.21. The Public Employment Relations Commission and the Appellate Division, 177 N.J. Super. 479, both held that the regulations preempted negotiation on the topics specifically addressed therein. We now affirm.
In July 1978 the State Board of Education adopted regulations requiring local school boards to develop criteria and procedures for evaluating tenured teachers, to be operative by September 1, 1979. N.J.A.C. 6:3-1.21(g). The regulations provided that these "policies and procedures shall be developed under the direction of the district's chief school administrator in consultation with the tenured teaching staff members." N.J.A.C. 6:3-1.21(c) (emphasis added). In mandating the establishment of such evaluation programs, the Board intended to "[p]romote professional excellence and improve the skills of teaching staff members . . . [i]mprove student learning and growth . . . [and p]rovide a basis for the review of performance of tenured teaching staff members." N.J.A.C. 6:3-1.21(b).
Later that year, the Bethlehem Township Board of Education and the Bethlehem Township Education Association (the teachers' union representative) engaged in collective negotiations.
The union submitted for negotiation a number of proposals on teacher evaluation. The Bethlehem Board refused to discuss the proposals, maintaining that the State Board's regulations totally preempted negotiation on the subject of teacher evaluation. It then petitioned the Public Employment Relations Commission (PERC) for a scope of negotiations determination on this question.
During the same school year, the Linden Board of Education met with teachers to develop an evaluation program. The Linden Education Association (the teachers' union representative) requested negotiation on that topic. The Board responded by filing a scope of negotiations petition with PERC. The Linden Board took the same position as the Bethlehem Board, contending that the State Board's regulations relieved local school boards of any obligation to negotiate questions of tenured staff evaluation criteria or procedures.
In joint decisions, the Commission held that while these regulations did not totally preempt negotiation in this area, they served to preempt negotiation on those terms and conditions of employment that they specifically set. See In re Board of Education of the Township of Bethlehem, 5 NJPER (para. 1979); In re Board of Education of City of Linden, 5 NJPER 298 (para. 10160 1979). The Commission then engaged in a proposal-by-proposal analysis to determine which of the proposals submitted by the union in the Bethlehem case were nonnegotiable, either because they involved matters of educational policy or because they addressed topics specifically covered by preempting regulations. PERC found all but two of the proposals to be nonnegotiable.*fn1
The Appellate Division affirmed. The Bethlehem and Linden Boards of Education petitioned for certification, and the Bethlehem and Linden Education Associations then cross-petitioned for certification. We granted all petitions. 87 N.J. 396 (1981).
The primary issue in this case is whether administrative regulations that set terms and conditions of employment serve to preempt collective negotiations on those same subjects.
As a general rule, an otherwise negotiable topic cannot be the subject of a negotiated agreement if it is preempted by legislation. However, the mere existence of legislation relating to a given term or condition of employment does not automatically preclude negotiations. Negotiation is preempted only if the regulation fixes a term and condition of employment "expressly, specifically and comprehensively." Council, 91 N.J. at 30. The legislative provision must "speak in the imperative and leave nothing to the discretion of the public employer." In re IFPTE Local 195 v. State, 88 N.J. 393, 403-04 (1982), quoting State v. State Supervisory Employees Ass'n, 78 N.J. 54, 80 (1978). If the legislation, which encompasses agency regulations, contemplates discretionary limits or sets a minimum or maximum term or condition, then negotiation will be confined within these limits. Id. at 80-82. See N.J.S.A. ...