Bethlehem Tp. Bd. of Educ. v. Bethlehem Tp. Educ. Ass'n

• Decision Date: 02 August 1982
• Citation: 91 N.J. 38,449 A.2d 1254
• Parties: , 6 Ed. Law Rep. 748 BETHLEHEM TOWNSHIP BOARD OF EDUCATION, Appellant and Cross-Respondent, v. BETHLEHEM TOWNSHIP EDUCATION ASSOCIATION, Respondent and Cross-Appellant. LINDEN BOARD OF EDUCATION, Appellant and Cross-Respondent, v. LINDEN EDUCATION ASSOCIATION, Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

Page 38

91 N.J. 38

449 A.2d 1254, 6 Ed. Law Rep. 748

BETHLEHEM TOWNSHIP BOARD OF EDUCATION, Appellant and Cross-Respondent, v. BETHLEHEM TOWNSHIP EDUCATION ASSOCIATION, Respondent and Cross-Appellant.

LINDEN BOARD OF EDUCATION, Appellant and Cross-Respondent, v. LINDEN EDUCATION ASSOCIATION, Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued Jan. 12, 1982.

Decided Aug. 2, 1982.

John T. Barbour, Maple Shade, for appellants and cross-respondents (Barbour & Costa, Maple Shade, attorneys).

Sanford R. Oxfeld, Newark, for respondents and cross-appellants (Rothbard, Harris & Oxfeld, Newark, attorneys).

Sidney H. Lehmann, Gen. Counsel, Trenton, for respondent Public Employment Relations Com'n (Sidney H. Lehmann, attorney; Don Horowitz, Deputy Gen. Counsel, Trenton, on the brief).

Christine D. Weger, Gen. Counsel, Maple Shade, for amicus curiae New Jersey School Boards Assn.

The opinion of the Court was delivered by

HANDLER, J.

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, 449 A.2d 1244 (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, 427 A.2d 80, both held that the regulations preempted negotiation on the topics specifically addressed therein. We now affirm.

I

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 ____ (p ____ 1979); In re Board of Education of City of Linden, 5 NJPER 298 (p 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. ¹

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, 434 A.2d 1076 (1981).

II

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, 449 A.2d 1244. 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, 443 A.2d 187 (1982), quoting State v. State Supervisory Employees Ass'n, 78 N.J. 54, 80, 393 A.2d 233 (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, 393 A.2d 233. See N.J.S.A. 34:13A-8.1. Thus, the rule established is that legislation "which expressly set[s] terms and conditions of employment ... for public employees may not be contravened by negotiated agreement." State Supervisory, 78 N.J. at 80, 393 A.2d 233.

In giving preemptive effect to certain sections of the regulations here at issue, PERC and the Appellate Division correctly relied on our holding in State Supervisory that "the adoption of any specific statute or regulation setting or controlling a particular term or condition of employment will preempt" negotiation on that subject. 78 N.J. at 81, 393 A.2d 233 (emphasis in original). This rule ordinarily applies to any administrative regulation, regardless of the agency that promulgated it. As we have clarified in today's Council decision, however, preemption does not automatically apply to regulations passed by agencies that act as both regulator and employer and intended to determine employment matters affecting its employees. The rule now established is that:

[i]f the agency acts solely as a regulator and has no direct employer interest over the employees affected, its regulations fixing terms and conditions of employment must be given the same preemptive effect as a statute .... However, if the agency acts in dual capacities and promulgates a regulation affecting employees under its control, its regulations establishing terms and conditions of employment will not necessarily preempt negotiation on the subject matter specifically covered therein. [Council, 91 N.J. at 28, 449 A.2d 1244]

The State Board of Education performs no employer functions. ² Consequently, the rule set forth in Council has no applicability to this case. Therefore, to the extent that the Board's regulations specifically address and establish terms and conditions of employment, they must be given preemptive effect.

The Bethlehem and Linden Boards claim that these regulations are so comprehensive that they preempt all negotiation on the subject of teacher evaluation criteria and procedures. We reiterate that for a regulation to preempt negotiation, it "must fix a term and condition of employment, and it must so provide expressly, specifically and comprehensively." Council, 91 N.J. at 30, 449 A.2d 1244. Moreover, if the regulation sets a minimum or maximum term or condition of employment, then negotiation will be confined within those limits. State Supervisory, 78 N.J. at 80-82, 393 A.2d 233.

Applying this analysis to these regulations, we find that the regulations preempt negotiation on those terms and conditions of employment specifically covered in them. However, they do not totally foreclose negotiations on all aspects of the subject of procedures for evaluating tenured teachers.

N.J.A.C. 6:3-1.21 does not cover every possible detail on this subject matter. Rather, it simply provides a general set of guidelines and procedures for developing teacher evaluation programs. This is evidenced by the fact that the rules specifically leave to each local board the responsibility of fleshing out the details of its program. N.J.A.C. 6:3-1.21(a) and (c). Moreover, local boards are to develop policies "based upon but not limited to the above provisions ... [which] are minimum requirements for the evaluation of tenured teaching staff members." Id. (emphasis added).

We need not discuss the preemptive effect of those provisions that address the substantive aspects of teacher evaluation. Such matters, which involve sensitive educational policy decisions, could not be the subject of mandatory negotiations, even in the absence of preempting legislation. As a general rule, negotiation is required only regarding those terms and conditions of employment "which intimately and directly affect the work and welfare of public employees and on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy." Board of Ed. of Woodstown-Pilesgrove v. Woodstown-Pilesgrove Ed. Ass'n, 81 N.J. 582 at 591, 410 A.2d 1131, quoting State Supervisory, 78 N.J. at 67, 393 A.2d 233. See Council, 91 N.J. at 30, 449 A.2d 1244. While the policy established for evaluating tenured teachers intimately and directly affects the work...