On appeal from Public Employment Relations Commission.
Allcorn, Kole and Pressler. The opinion of the court was delivered by Kole, J.A.D.
[177 NJSuper Page 212] Sandra Gottesman (Gottesman) was a nontenured part-time librarian-associate media specialist*fn1 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.*fn2 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*fn3 that the "clause in question," Article VIII, paragraph K (para. 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 (para. 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 para. 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 para. 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 ...