On appeal from the Superior Court, Chancery Division, Essex County.
Furman, Cohen and Skillman.
Defendant board of education appeals from judgment ordering that Frances Galloway as a beginning regular teacher be paid at the sixth step of the salary guide for the 1983-84 school year, with credit for her five years of contractual public school teaching experience in another school district. That decision accords both with the collective negotiations agreement between the parties and with the arbitrator's award in Galloway's favor in nonbinding arbitration, an award with which defendant did not comply. We affirm.
Before us defendant raises two issues: primary jurisdiction in the Commissioner of Education; and waiver by Galloway as a consequence of her former employment with defendant as a basic skills instructor subject to the terms of the separate agreement between defendant and the basic skills instructors'
association, which barred credit for prior teaching experience elsewhere. Both issues are palpably without merit.
We agree substantially with the reasons stated by Judge Landau in his oral opinion of May 13, 1985. Because our result in affirming judgment below conflicts with reported school law decisions by the Commissioner of Education, we set out our reasoning for rejecting defendant's argument of primary jurisdiction in the Commissioner and not in the courts.
The governing statute is N.J.S.A. 18A:29-9, which provides:
Whenever a person shall hereafter accept office, position or employment as a member in any school district of this state, his initial place on the salary schedule shall be at such point as may be agreed upon by the member and the employing board of education.
N.J.S.A. 18A:29-9 was enacted in 1954 prior to the enactment in 1968 of N.J.S.A. 34:13A-5.3 et seq., which implements the right of public employees under the State Constitution of 1947, Article I, paragraph 19, to negotiate collectively. In Reilly v. Bd. of Ed. of Kearny, 1985 S.L.D. (slip opinion at 4-5) and in Shulman v. Bd. of Ed. of Morris School Dist., 1985 S.L.D. (slip opinion at 13), the Commissioner concluded that, because a dispute arising under N.J.S.A. 18A:29-9 implicates an individual, not a collective, agreement, it is a school law dispute. In Shulman, he stated:
There is a statutory provision in N.J.S.A. 18A:29-9 which specifically deals with initial placement on a salary schedule; hence, issues arising out of that statute do in fact fall under the jurisdiction of the Commissioner.
Further, the Commissioner is constrained to emphasize that the language of the statute is clear and unambiguous that decision-making with respect to initial salary placement is solely based upon agreement reached between the prospective employee and the board of education, not as a result of a collective bargaining agreement.
The Commissioner's conclusion is untenable. In employment units, such as Galloway's, with a collective negotiations representative, such as plaintiff, agreements as to terms and conditions of employment should be and are collective, not individual. Strong legislative policy favors collective ...