On appeal from Public Employment Relations Commission.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Brody, J.A.D. Petrella, J.A.D., dissenting.
The Township of Old Bridge Board of Education (Board) appeals a determination of the Public Employment Relations Commission (PERC) that reduction in force (RIF) lay-off procedures are negotiable. We affirm that determination with some qualifications.
Barbara Wolfe, formerly employed by the Board as a tenured "1/5 part-time" business education teacher,*fn1 was laid off because of reduced class enrollment. The Board may lay off tenured teachers "whenever, in the judgment of the board it is advisable . . . because of reduction in the number of pupils
. . . ." N.J.S.A. 18A:28-9. Wolfe was notified by a letter dated July 1, 1981, not to return for the 1981-82 school year. Her contract employment rights appear in an agreement (the contract) between the Board and the Old Bridge Education Association (Association). The contract provides in paragraph C of Article X that "[t]eachers shall be notified of their contract and salary status for the ensuing year no later than April 30th." There is no claim that Wolfe was laid off in bad faith. We affirm PERC's determination substantially for the reasons it gave. R. 2:11-3(e)(1)(E). While the statute preempts Wolfe's tenure and contract rights to employment, it does not preempt the right to negotiate reasonable termination procedures consistent with the policy of the statute. See N.J. State College Locals v. State Bd. of Higher Educ., 91 N.J. 18, 32, 34 (1982) and In re IFPTE Local 195 v. State, 88 N.J. 393, 410 (1982).
The more difficult problem is the measure of damages, an issue not directly before us. Because the contract provides no express remedy for late notice, PERC let the issue be determined by "binding arbitration" in accordance with the last step of the contract grievance procedure. We have been provided with two written opinions of the arbitrator. One, dealing with liability, was rendered before the PERC proceedings; the other, dealing with damages, was rendered during the pendency of this appeal.
As to liability, the arbitrator determined that the Board broke the notice provision of the contract and that Wolfe should therefore be "made whole." He cautioned that his opinion "does not include questions of interpretation or application of the laws of the State." As to damages, the arbitrator found that Wolfe had made reasonable but unavailing efforts to obtain similar part-time work and determined that the Board must make her whole by paying a full year's salary together with fringe benefits. Pursuant to N.J.S.A. 2A:24-7, the Association commenced suit in the Chancery Division to confirm the award. Advised of
this appeal, the Chancery Judge stayed further proceedings anticipating guidance from us.
Negotiated lay-off procedures may not take away the right N.J.S.A. 18A:28-9 gives boards of education to reduce their work force at any time for statutory good cause. The arbitrator's award, expressly made without regard to the statute, denies the Board that right. We exercise our original jurisdiction to set aside the award as it is necessary to do so in order to determine completely the issues on this appeal. R. 2:10-5.
N.J.S.A. 18A:28-9 provides:
Reduction of force; power to reduce and reasons ...