Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.
This appeal involves a provision for extended total disability benefits contained in a contract between the Board of Education of the Township of Piscataway (board) and the Piscataway Maintenance & Custodial Association (association). The contract concerned the terms and conditions of employment of maintenance and custodial workers employed by the board and was for the period from July 1, 1973 to June 30, 1976. The issue is whether the provision in question, to the extent that it granted such benefits to employees who were qualified under the contract, exceeded the board's statutory authority under the Education Law (Title 18A) and was thus invalid and unenforceable despite the provisions of the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-1 et seq).
On December 11, 1974 Jerry Columbis, a school custodian in the employ of the board, fell from a ladder while at work and sustained a compression fracture of one of his lumbar vertebrae. He alleged in an affidavit filed in these proceedings that the injury required hospitalization and medical treatment; that he returned to work in September 1975, but after about five weeks was unable to continue because of intense pain, and that although he later again attempted to work for several months, his physical condition forced him to stop. On March 10, 1976 Columbis applied for extended total disability leave benefits "commencing with the expiration of my accumulated sick leave and after applying accumulated personal, floating holiday and vacation time.."*fn1
The request was not acted upon, whereupon Columbis submitted a written grievance to the board, which responded by rejecting the application on the ground that total disability had not been established medically. The association demanded arbitration of the dispute under the grievance procedure set forth in the contract.
The board then filed a verified complaint to compel the association to withdraw the arbitration demand. It alleged that the demand was premature in that the preliminary steps in the grievance procedure had not been exhausted. It alleged further that the dispute was beyond the scope of arbitration. The board obtained an order directing the association to show cause why the relief sought in the complaint should not be granted. On the return day of the order to show cause, following a short and perfunctory hearing, the trial judge entered an order "denying the relief sought in the Order to Show Cause and Complaint." The board appealed.
The hearing below consisted essentially of the board's argument that arbitration was premature and, further, that the extended total disability provision in the contract was ultra vires and unenforceable. The trial judge's oral opinion follows in its entirety:
I would have to take the view, Mr. Rubin, and Mr. Birnbaum, that whether exhaustions of intermediary grievance steps, whether there has been an exhaustion is itself an arbitrable question, and that the denial of the extended sick leave related to the terms and conditions of employment is an arbitrable question.
The amendment to the PERC law vested that within the scope of arbitration as against the relief under Title 18.
Since the board does not argue on appeal the issue of exhaustion of administrative remedies, we deem it abandoned. Klotz v. Lee , 36 N.J. Super. 6, 12 (App. Div. 1955), app. dism. 21 N.J. 148 (1956).
The disputed provision for extended total disability leave is contained in Article XIV, paragraph G, of the contract. Total disability is defined in it as that which (a) results from bodily injuries or disease, and (b) wholly prevents the employee from engaging in his regular occupation or assuming duties assigned by his superior, taking into consideration the nature and degree of the disability.*fn2 The employee must be under the care of a physician. Eligible employees may apply for benefits "only after the maximum sick leave days, determined by the employee, have been used to cover absence resulting from his total disability." An elaborate method of calculating benefits is established in subparagraph 4:
a. The amount and duration of such benefits shall be determined by the employee's curent salary, length of service, and the number of sick days utilized prior to the commencement of this benefit.
b. The amount of daily benefits shall be determined in the following manner:
1. The basic daily salary shall be computed by dividing the annual salary by 260.
2. Benefit payments shall be increased by 1/2% above the basic 45% payment for each sick day used after the first 12 working days of total disability and prior to the commencement benefit payments; e.g., an employee used 30 sick days after the first 12 working day waiting period to cover his absence under this program. On the basis of 1/2% for each of these days, the percentage factor would be added to the basic 45%, or 60%. Employees in this case would be entitled to 60% of his monthly contract salary.
c. Daily benefit payments shall not exceed 65% of an employees regular daily salary.
d. The number of days that benefits shall be payable shall be determined by dividing the total number of days of service as an employee by 4. Except that benefits shall not be payable for a period of more than 1 calendar year, or 260 working days.
e. In no case shall benefits be payable concurrently with payments received by an employee for retirement or disability under the Social Security Program or any ...