Before Judges D'Annunzio, Newman and Fall.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Public Employment Relations Commission.
The issue is whether a Board of Education must arbitrate the withholding of an annual salary increment from a non-teaching employee. This is the second appeal regarding the dispute between appellant, the Randolph Township Board of Education (Board) and respondent, the Randolph Education Association. In the first appeal, we held that the Public Employment Relations Commission (PERC) had the authority to determine whether withholding of an increment was disciplinary or performance- based. If disciplinary, the withholding is mandatorily arbitrable under N.J.S.A. 34:13A-26 and 29a. Randolph Tp. Bd. of Educ. v. Randolph Educ. Ass'n, 306 N.J. Super. 207 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998) (Randolph I). There, we affirmed a Chancery Division judgment dismissing the Board's complaint to enjoin arbitration and held that jurisdiction was in PERC and not in the Superior Court. Id. at 212-14.
Thereafter, PERC determined that all non-teaching staff member withholdings are disciplinary and must be submitted to binding arbitration. *fn1 The Board appeals, and we reverse and remand.
The withholding of a teacher's salary increment is a managerial prerogative which was not subject to binding arbitration. Scotch Plains-Fanwood Bd. of Educ. v. Educ. Ass'n, 139 N.J. 141, 152-53 (1995); Board of Educ. of Township of Bernards v. Bernards Township Educ. Ass'n, 79 N.J. 311, 318-21 (1979). A teacher, however, has the right to appeal a withholding to the Commissioner of Education. N.J.S.A. 18A:29-14. "In 1982, the Legislature enacted the so-called 'discipline amendment' to N.J.S.A. 34:13A-5.3 . . . to overrule an Appellate Division decision that 'disciplinary determinations did not fall within the scope of mandatory negotiations and that collective agreements could not, therefore, provide for the submission to binding arbitration of contested disciplinary actions.'" Scotch Plains-Fanwood, supra, 139 N.J. at 153 (citation omitted).
The 1982 disciplinary amendment permitted the parties to submit disciplinary determinations to binding arbitration. However, the amendment provided that the procedure "agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure." Thus, because the withholding of a teacher's increment was appealable to the Commissioner of Education, N.J.S.A. 18A:29-14, the 1982 disciplinary amendment did not permit binding arbitration. Scotch Plains-Fanwood, supra, 139 N.J. at 154.
In 1990, the Governor signed L. 1989, c. 269, the "scope-of-negotiations amendments." Scotch Plains-Fanwood, supra, 139 N.J. at 154. They are at the core of this appeal and are codified at N.J.S.A. 34:13A-22 to 29. N.J.S.A. 34:13A-22 (section 22) is the definitions section. It defines the term "discipline" to exclude "tenure charges . . . or the withholding of increments pursuant to N.J.S.A. 18A:29-14." In Scotch Plains-Fanwood, the Court addressed the definition of "discipline," stating:
We construe that definition of "discipline" to reflect a legislative determination to distinguish the withholding of an increment for disciplinary reasons from an increment-withholding for reasons of teaching performance. Hence, we conclude that the statutory standard governing the withholding of increments based on teaching performance does not apply to the withholding of an increment as a means of discipline. However, N.J.S.A. 18A:29-14, and the case law interpreting that provision, remain applicable when "the reason for the increment withholding relates predomina[ntly] to the evaluation of a [teacher's] teaching performance." N.J.S.A. 34:13A-27d.
Section 22 defines the term "employees" to include all employees. "Teaching staff member" is defined to be less inclusive than the term "employee."
N.J.S.A. 34:13A-26 (section 26) provides:
Disputes involving the withholding of an employee's increment by an employer for predominately disciplinary reasons shall be subject to the grievance procedures established pursuant to law and shall ...