(temporarily assigned), concurring and dissenting. I concur in the Court’s judgment in this case that arbitration be permanently enjoined. But I do not reach that conclusion by the Court’s rationale — i.e,, that there is no legal category of permissively negotiable items *167in public employment relations but only the mandatorily negotiable category of “terms and conditions” of employment. I agree with the Public Employment Relations Commission (PERC) that the Legislature has by L. 1974, c. 123 and L. 1977, c. 83 manifested its recognition of a class of permissive as well as of mandatory items for labor negotiation and with PERC’s implementation by regulations of that understanding in the exercise of its seope-of-negotiations jurisdiction under L. 1974, c. 123 (N. J. S. A. 34:13A-5.4d.).
Practical recognition of negotiations in the permissive area has become a fact of life in the course of actual negotiations of collective agreements throughout the State in recent years and the validity thereof has been adjudicated in several leading jurisdictions beyond our borders. Today’s holding by the Court is therefore a backward step in the heretofore progressive development of public sector labor law in this State which will not conduce toward the legislative policy of promoting peace and stability in public employment relations.
However, I enter one qualification to my agreement with PERC’s view as to this matter, and this will explain my concurrence in the Court’s injunction against arbitration of the dispute in this case. Although, for reasons I shall presently set forth, a public employer may at its option choose to negotiate a permissive item, i.e., one which involves inherent managerial policy but also impacts appreciably upon the welfare of employees, it may not agree to .binding arbitration of a dispute with respect to a negotiated item if so doing would transfer the making of an inherent managerial decision from a governmental official to an arbitrator.1 Such a transfer would occur here if the contractual stipulation *168for binding arbitration of the employees’ complaints with respect to transfers of teaching assignments were enforced. ■ There can be no donbt that the determination as to where in a school system a particular teacher can best serve is a matter of inherent managerial policy; and this whether N. J. 8. A. 18A:25-1 is regarded as procedural or substantive.2 Therefore, although the contract provisions provided for notice to affected employees of involuntary transfers and for acceding to wishes of employees for transfers if not in “conflict with the instructional requirements and best interests of the school system,” and although I believe it was proper for the school board to negotiate these provisions with the union, there was no clear statutory authority for surrender by the school board to an arbitrator of the decision as to whether a transfer or refusal to transfer a teacher conflicted with instructional requirements or the best interests of the school system. In my judgment nothing less than explicit legislative authorization could warrant a court in holding an agreement for binding arbitration with such effect upon governmental decision-making to be valid.
It may possibly be that my position in this matter is not fundamentally different from that of PERC. The amicus brief of PERC in a related appeal before this 'Court (Englewood Teachers Association v. Englewood Board of Education, A-137 Sept. Term 1977) concedes that its position is subject to the condition that the agreement of an employer to arbitrate with respect to a permissive area of negotiations does not “violate the prohibitions of other statutes or public policy.” It appears clear to me that the bargaining away by a public employer of its duty of ultimate determination of a matter of inherent managerial policy, as in the present case, is contrary to public policy. However it may be that PERC does not share my view of public policy in this re*169gard in the light of its having upheld agreements to arbitrate the merits of matters of managerial discretion in relation to a number of contracts covering permissive areas of negotiation. See, e. g., In re Bridgewater-Raritan Regl. Board of Education, P. E. R. C. No. 77-21, October 26, 1976.
In any event, any difference of opinion I may have with PERC in the latter regard does not extend to its endorsement, not only in the Bridgewater-Raritan case, supra, but in a number of others decided by it within the last two years, of the principle of permissive negotiation of matters beyond the technical confines of “terms and conditions of employment” laid down in Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, 64 N. J. 17 (1973). That case held, in relation to school employers, that matters predominantly of educational policy with only remote or incidental effect on terms and conditions of employment were neither negotiable nor arbitrable. Id. at 29, 31. Even as to those matters which “intimately and directly affect the work and welfare of [the] employees,” negotiation would be required only if possible “without any significant interference with management’s educational responsibilities.” Id. at 25. No recognition was accorded a possible category of permissive subjects of negotiation except for a hortatory expression of encouragement for employers voluntarily to discuss with teachers “fields with which the teachers are significantly concerned though outside the fields of mandatory negotiation.” Id. at 32.
Dunellen was influenced by two factors which were neutralized in the subsequent 1974 amendment of the act. These were (1) the previous statutory provision that the act should not “ ‘annul or modify any statute * * * of this State’ ” and (2) provisions in Title 18 of the Revised Statutes, dealing with education, for the Commissioner of Education to hear all controversies and disputes “arising under the school laws.” See 64 N. J. 28-29 and 30. PERO has, and I think soundly, ascribed considerable significance to the changes effected in both of these respects by the 1974 amendments. As to the first factor, the statute was altered merely to prohibit any *170annulment or modification by the act of “any pension statute” of this State. N. J. 8. A. 34:13A-8.1. In respect of the second factor, an amendment of N. J. 8. A. 34:13A-5.3 declared that grievance procedures established by agreement of the parties should be utilized notwithstanding any procedures for the resolution of disputes, controversies or grievances established by any other statute (an obvious allusion to the jurisdiction of the Commissioner of Education over school controversies).
It seems universally conceded that these amendments were aimed at the restrictive holding in the Dunellen case as to the scope of valid employment negotiations although there is wide disagreement as to the precise effect which should be accorded the amendments. Insofar as concerns the specific question now before us, i. e., an intent to broaden the area of valid negotiations to a permissive category not contemplated by Dunellen, the PERC thesis is strongly supported by the text of a provision incorporated into the 1974 amendment for the creation of a Study Commission to study the implementation and effectiveness of the act and propose any additional changes necessary. One of the specific questions the Commission was asked to address was:
Whether or not it is necessary and desirable either to define the phrase “terms and conditions of employment” as used in section 7 of the 1968 act (C. 34:13A-5.3) and, in so doing, specify what subjects are mandatory, voluntary or illegal within the scope of bargaining or of grievance arbitration, or to require that procedural guidelines be established for determining the same. Section 3(e), Chapter 124, P. L. 1974. (emphasis added)
The phrasing of the question indicates that the Legislature took it for granted that in actual practice scope of negotiations was already divided into three categories, including a “voluntary” (i. e., permissive) one.
Additional significant indication of current legislative cognizance of a permissive category of negotiations is afforded by the 1977 statute for binding arbitration of collective nego*171tiation disputes concerning police and firemen. L. 1977, c. 85. See note 1, supra. This specifically classifies negotiations as between “required” and “permissive” without otherwise defining those terms. In view of the fact that well prior to the adoption of the 1977 police and firemen’s statute PERC had begun to implement by decision and regulation the concept of permissive as distinguished from mandatory or required categories of negotiation, see N. J. A. C. 19:13-3.7, the use of those categories in the 1977 act is additional cogent indication of legislative approval of the concept. Moreover, we ought to attribute substantial weight to the interpretation and practical administration of the employment relations act by PERC as the responsible and expert administrative agency empowered by the act to determine scope of negotiations questions. In re Application of Saddle River, 71 N. J. 14, 21 (1976); The Passaic Daily News v. Blair, 63 N. J. 474, 484 (1973).
The approach of PERC to the question under discussion has been mirrored by that of a number of courts in other states. See Bd. of Ed. etc. v. Yonkers Fed. of Teachers, 40 N. J. 2d 268, 386 N. Y. S. 2d 657, 353 N. E. 2d 569 (1976); Sch. Comm. of Boston v. Boston Tchrs. U., etc., 363 N. E. 2d 485 (Sup. Jud. Ct. Mass. 1977); Springfield Ed. Ass’n v. Springfield Sch. Dist. No. 19, 25 Or. App. 407, 549 P. 2d 1141 (Ct. App. 1976); Scranton Sch. Bd. v. Scranton Fed. of Teachers, 27 Pa. Cmwlth. 152, 365 A. 2d 1339 (Cmwlth. Ct. 1976). While some of these cases go beyond my view in that they approve binding arbitration of matters of inherent managerial discretion, nevertheless to the extent that they recognize the concept of a permissive as distinguished from a mandatory or required category of negotiations in the public employment field, they represent the recent preponderant and enlightened judicial trend toward a more flexible range of negotiating discretion by public employers ■ — ■ one which seems necessary to achieve the goal of peace and stability in public employment relations set forth in the employment relations act as first adopted. *172N. J. S. A. 34:13A — 2. See also Edwards, “The Emerging Duty to Bargain in the Public Sector,” 71 Mich. L. Rev. 885,-909 (1973) (“State courts and public employment relations boards have likewise frequently relied upon the mandatory-permissive-illegal distinction”); Clark, “The Scope of the Duty to Bargain Public Employment,” in Knapp “Labor Relations Law in the Public Sector,” at p.' 83-84 (1977).
I regard it as unfortunate that by its decision in this case rejecting permissive negotiability the Court dismisses the now widely accepted approach and in effect undoes the salutary course of gwosi-judicial and administrative progress being achieved by PERC and deprives it, as well as public employers generally, of a most useful tool in this vital area of the public weal.
The fears expressed by the Court concerning delegation of public policy decisions to the process of collective negotiation “where voter participation is excluded” ,(p- 163) do not seem to me realistic. Voters also do not participate where the public employer negotiates wages and hours of employment. In a sense, even decisions as to such matters by public employers are exercises of public policy decision-making. Thus it is obvious that legislation for promoting public sector labor relations contemplates very substantial inroads into what was once untrammeled unilateral determination of the circumstances of employment by public employers. It would be artificial and counterproductive of legislative goals in this area to continue absolutely to prohibit the process of negotiation on subjects which appreciably impact upon the welfare of employees merely because the subject matter of agreement also involves managerial or educational judgment and discretion. The public interest is fully protected by the condition recognized by PERC that the agreement not contravene any contrary specific statutory mandate and by my qualification that binding arbitration not be permitted if the arbitrator’s decision would supplant an exercise of inherent managerial judgment and discretion by the employee.
*173In summary, the negotiation of the subject of transfer of teacher assignments in the instant contract was valid; the provision for binding arbitration of disputes over whether a particular teacher should or should not be transferred was invalid.
For reversal — -Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schkeiber and Handles — 6.
Concurring and dissenting — Judge Confoed — 1.
I would hold this view at least in the absence of an express legislative provision to the contrary such as that enacted by L. 1977, c. 85 which permits public employers of police and firemen to agree to binding arbitration of disputed subjects of permissive negotiation. N. J. S. A. 34:13A-16f. (4).
This statute provides that “[n]o teaching staff member shall be transferred except by a recorded roll call majority vote of the full membership of the board of education by which he is employed.”