Demarest Bd. of Ed. v. Demarest Ed. Ass'n

• Decision Date: 16 December 1980
• Citation: 177 N.J.Super. 211,426 A.2d 63
• Parties: , 112 L.R.R.M. (BNA) 2057 DEMAREST BOARD OF EDUCATION, Petitioner-Appellant, v. DEMAREST EDUCATION ASSOCIATION, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 211

177 N.J.Super. 211

426 A.2d 63, 112 L.R.R.M. (BNA) 2057

DEMAREST BOARD OF EDUCATION, Petitioner-Appellant, v. DEMAREST EDUCATION ASSOCIATION, Respondent-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 1, 1980.

Decided Dec. 16, 1980.

David A. Wallace, Jersey City, for petitioner-appellant (Aron, Till & Salsberg, Jersey City, attorneys; Richard M. Salsberg, Jersey City, on the brief).

Theodore M. Simon, Clifton, for respondent-respondent Demarest Ed. Ass'n (Goldberg & Simon, Clifton, attorneys; Sheldon H. Pincus, Clifton, on the brief).

Don Horowitz, Deputy Gen. Counsel, Trenton, for Public Employment Relations Commission (Sidney H. Lehman, Gen. Counsel, Trenton, of counsel).

Before Judges ALLCORN, KOLE and PRESSLER.

The opinion of the court was delivered by

KOLE, J. A. D.

Sandra Gottesman (Gottesman) was a nontenured part-time librarian-associate media specialist ¹ in the Demarest school system. On October 2, 1978 she submitted a request to her principal for a four-day leave of absence to accompany her husband to a business convention. Her request was denied by the principal the superintendent of schools and the board of education (the board). On November 10, 1978 she notified the board that she would be absent November 13 through 16 for that purpose. On November 16, 1978 she was informed by the superintendent that she had been suspended and on November 21, the board terminated her employment without pay. The Demarest Education Association (Association) filed a grievance and ultimately a demand for arbitration, alleging that the board's action violated "Articles I, II, V, VIII, X, XIV, Appendix A and other relevant provisions of the contract" between the Association and the board. ² In particular, the grievance stated that Gottesman had exercised her rights in accordance with "Article VIII, Leaves of Absence " of the contract and sought $5,175, her salary for the balance of her contract term. The demand for arbitration identified the grievances to be arbitrated as (1) improper denial of leave and (2) improper discipline and termination.

Faced with the demand for arbitration, the board filed with the Public Employment Relations Commission (PERC) a petition for a scope of negotiations determination. The petition alleged that the issue submitted to arbitration was whether Gottesman's decision to absent herself from her duties for a four-day period, in direct violation of a board decision not to grant such time off without pay, was sufficient reason to terminate her employment. According to the petition, the sole issue to be determined by PERC was whether the "criteria" for dismissal of this nontenured teacher, "namely the blatant insubordination of this employee in the face of a Board order, which resulted in the disruption of the educational program of the students of the Demarest School System, is a term or condition of employment within the scope of negotiations which must be either negotiated or subject to arbitration." The board stated that its policy on absenteeism was a matter of educational policy which did not involve terms and conditions of employment and which could not be the subject "for the grievance procedure and/or arbitration."

By agreement of the parties, the arbitration was stayed pending determination of the scope issue by PERC.

PERC held ³ that the "clause in question," Article VIII, paragraph K (P K) of the contract, providing that "Unexcused absences for a period of 10 or more consecutive school days shall constitute grounds for suspension and/or dismissal," related to a term and condition of employment, that is, unexcused absences, or alternatively, discipline for cause. It thus ordered that the board's request for a permanent restraint of arbitration be denied. This appeal by the board followed.

In arriving at its conclusion PERC focused its examination on the negotiability of the foregoing contractual provision alleged to have been violated and referred to the fact that the Association contended that paragraph J of Article VIII (P J) governed unexcused leaves of absence of less than ten days. Paragraph J provides that refusal by an employee to explain an absence or to provide reasonable documentation to substantiate an explanation thereof "shall be considered a violation" of the contract "and may be considered as a reasonable basis for loss of compensation for the absence in question." PERC found that P K was not intended to provide evaluative criteria for teachers, which concededly would be nonnegotiable and nonarbitrable, but rather that this clause "reasonably may be interpreted as conferring a benefit upon unit members by allowing teachers to take up to ten (10) consecutive days unexcused absence without fear of serious reprisal. Such a construction is supported by both the title of the article and the content of the other paragraphs contained therein."

We accept the statement in PERC's brief as to the issue that it decided. It asserts that the negotiability of P K is "what PERC decided below and what the instant appeal is all about. PERC's jurisdiction regarding the scope of negotiations does not extend beyond its determination below: The contract clause in question related to unexcused absences and discipline for cause, which are mandatorily negotiable terms and conditions of employment" and thus arbitrable. ⁴

In predicating its determination of negotiability on this provision of the contract, PERC erred so markedly that the usual judicial appellate deference to scope of negotiations matters decided by it is inapplicable. See State v. State Supervisory Employees Ass'n, 78 N.J. 54, 83-84, 363 A.2d 233 (1978). PERC's conclusion that P K constitutes a properly negotiable contract provision, in our view, violates fundamental notions of what constitutes managerial prerogatives or major educational policy, as opposed to terms and conditions of employment that do not significantly interfere with the exercise of inherent or express management prerogatives pertaining to the determination of such educational policy. See State v. State Supervisory Employees Ass'n, supra, 78 N.J. at 67, 363 A.2d 233. See, also, Woodstown-Pilesgrove Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass'n, 81 N.J. 582, 589, 593, 410 A.2d 1131 (1980) (Woodstown-Pilesgrove ).

Paragraph K represents such an abdication by the board of its managerial policy-making prerogative and duty with respect to operating a thorough and efficient school system for the benefit of students as plainly to constitute a nonnegotiable matter between it and the Association. See Woodstown-Pilesgrove, supra. As interpreted, and reasonably so, by PERC, it limits the board's authority with respect to the discipline of teachers by prescribing the minimum period of time ten consecutive days of unexcused absences which "shall" authorize the institution of suspension or dismissal proceedings. Any unexcused absences involving less than ten consecutive days thereof may only be penalized by some lesser sanction, such as loss of compensation, whether or not the absence was in direct contravention of a denial by the board of a request therefor. Thus, for example, a teacher who decides to be absent without excuse every Monday for ten weeks could not be disciplined by way of suspension or dismissal, even though it might well be evident to the board that such unexcused voluntary absences would seriously interfere with the efficient operation of the school system. And this even though such absences were in the face of an express denial by the board of a request therefor.

The board's authority as to a matter of this kind cannot be so restricted in advance without substantially trenching on its responsibility to insure that all children receive a thorough and efficient education. Cf. Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass'n, 79 N.J. 311, 320-324, 399 A.2d 620 (1979) (Bernards Tp. Bd. of Ed.); Ramapo Indian Hills Ed. Ass'n, Inc. v. Ramapo-Indian Hills Reg'l. High School Dist. Bd. of Ed., 176 N.J.Super. 35, 422 A.2d 90 (App.Div.1980) (Ramapo-Indian Hills).

It is true, as PERC stated in its opinion, that the board has the statutory authority to fix, either by rule or by individual consideration, the payment of salary in cases of absence not constituting sick leave, N.J.S.A. 18A:30-7, and thus a contractual provision relating to such absences e. g. compensation ordinarily may be negotiated. See Hunterdon Cent. High Sch. v. Hunterdon Cent. High Sch. Teachers' Ass'n, 174 N.J.Super. 468, 473, 416 A.2d 980 (App.Div.1980); Piscataway Tp. Bd. of Ed. v. Piscataway Main., 152 N.J.Super. 235, 243-244, 377 A.2d 938 (App.Div.1977). But that does not mean that the board may limit in advance its discretionary managerial authority as to the minimum number of consecutive days of absence or similar criteria that may justify the sanction of suspension or discipline, particularly where, as here, there has been a defiance of a denial of a leave of absence.

It is not appropriate, as PERC suggests in its brief, to leave to the arbitrator the matter of interpreting P K in such fashion as not to undermine the managerial prerogative or the policy-making functions of the board. This is so even though under the contract the arbitrator's authority extends to binding arbitration of grievances pertaining to the interpretation, application or violation of the terms of the contract. See Bernards Tp. Bd. of Ed., supra, 79 N.J. at 324, 399 A.2d 620, and the opinion in Stone Harbor v. Wildwood Loc. 59 P.B.A., 164 N.J.Super. 375, 396 A.2d 607 (App.Div.1978) (Stone Harbor ), cited therein. ⁵ We note that in its opinion PERC itself undertook to construe that provision and did not indicate that it was leaving that task to the arbitrator or that its interpretation...