On appeal from the Public Employment Relations Commission
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
The issue raised on this appeal is whether an education association and a board of education which are parties to a collective negotiations agreement entered into pursuant to the New Jersey Employer-Employee Relations Act (hereinafter "act"), L. 1968, c. 303, N.J.S.A. 34:13A-5.1 et seq. , may include in the agreement a provision for sick leave to be used for other purposes in cases in which the employee is not sick as defined by N.J.S.A. 18A:30-1.
The background of this case is not complicated. The Hackensack Board of Education ("Board") and the Hackensack Education Association ("Association") were parties to an agreement executed pursuant to the act, governing the period from July 1, 1980 through June 30, 1982. A teacher employed by the Board wrote the superintendent of schools on September 9, 1980 requesting "a maternity leave." She indicated that she planned to work through November 26, 1980. She stated that she desired first to use her accumulated sick leave and that after those days were exhausted she would like to be allowed the maximum maternity leave which could be granted. She requested advice regarding the number of sick days' credit she had accumulated and how long a maternity leave would be awarded.
The record does not reflect that the teacher received a prompt answer. It does show that on November 24, 1980 the Board adopted a policy regarding leaves of absence. One paragraph of the policy dealt with pregnancy. It provided that:
Pregnancy related disabilities shall be treated like any other disability. For the month preceding and the month following childbirth, the employee is presumed to be disabled and shall be entitled to disability leave benefits. Should disability occur earlier in the pregnancy or continue for more than one month following birth, the employee may receive additional disability leave benefits if she presents a physician's certificate attesting to her extended disability.
The policy also covered child care leaves. It indicated that such leaves without pay may be granted for periods in which the employee is not disabled.
On December 4, 1980 the superintendent of schools wrote the teacher. In harmony with the policy adopted November 24, 1980 she was advised that her accumulated sick leave could be used for 30 days before and for 30 days following the birth of the child. She was further told that if her disability started earlier or continued longer than 30 days before or after the birth of the child she could use her accumulated sick leave for those periods, provided that she presented a physician's statement attesting to the disability and the length of time that it was expected to continue.
On December 15, 1980 the Association, in accordance with the agreement between it and the Board, submitted a written grievance to the principal on behalf of the teacher. The grievance recited that the policy adopted November 24, 1980 had not been negotiated with the Association and significantly altered the contract between the parties. The Association further asserted that under the contract the teacher could use her accumulated sick leave for two years after the birth of a child; that the new policy unilaterally and thus improperly changed a term and condition of employment and that the teacher was being reduced in compensation. Ultimately, after certain intermediate determinations, the Board rejected the grievance. The Board grounded its decision on its reading of the contract that sick leave can be used only if the teacher is actually disabled or sick.
The Association was not satisfied with this decision and consequently requested arbitration, a remedy provided in the contract.
The Board viewed the matter as beyond the scope of negotiations and thus not subject to arbitration. Accordingly, it filed a petition for a scope of negotiations determination with the Public Employment Relations Commission (hereinafter "PERC"). The petition requested that PERC determine whether the matter was within the scope of collective negotiations. The Association ...