On certification to the Superior Court, Appellate Division, whose opinion is reported at 270 N.J. Super. 444 (1994).
The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Garibaldi join in this opinion. Justice Coleman did not participate.
The opinion of the court was delivered by
The issue in this case is whether an arbitrator exceeded his authority when he determined that a board of education had improperly withheld a teacher's salary increment. The board withheld the teacher's increment due to excessive absenteeism. An arbitrator ordered the increment restored, concluding that the board's decision had been arbitrary. The Chancery Division confirmed the award. The Appellate Division reversed, reasoning that the arbitrator had exceeded his authority in ordering the restoration of the increment. 270 N.J. Super. 444, 449 (1994). We granted certification, 137 N.J. 165 (1994), and now reverse.
The facts, which are essentially undisputed, are taken from the arbitrator's opinion. MaeDelle Horton, a tenured teacher, has been employed by the Scotch Plains-Fanwood Board of Education (Board) since 1977. She taught at the "Resource Room" in the high school throughout her employment. A Resource Room teacher works with a relatively small number of students who require special attention. The position requires consistent communication with other teachers, parents, and staff. Because the instructional program is based on the individual needs of students, the arbitrator determined that "frequent absence of the teacher is a particular difficulty."
From the time she began her employment until completion of the 1988-89 school year, Horton was absent 244.5 days due to illness. In 1985, and again in 1988, the high-school principal wrote to Horton and expressed concern over her extensive absences. The principal's letter of 1988 warned "that based upon your accumulated record and failure to provide good instructional leadership for your students as a result of these absences, you have placed my recommendation for your increment in serious doubt."
The agreement between the Board and the Scotch Plains-Fanwood Education Association (Association), which was in effect from July 1, 1988, to June 30, 1991 (Agreement), provided for salary increments. Article 4, section D of that Agreement states: "Employment increments, i.e., a step up on the Salary Guide based on service or additional salary raises which may be authorized by the Board, are not automatic. Such increments and/or raises shall be awarded based upon the recommendation of the Superintendent and approval by the Board of Education."
In September 1989, Horton was injured in a train accident. Although she promptly notified the Board that she would need several days to recover, she did not indicate that she would be absent for an extended period. As a result, the Board did not obtain a permanent substitute to instruct Horton's students. However, Horton did not return to work until November 15, 1989.
Horton received an Interim Evaluation Report from the high-school principal during November 1989, which concluded that Horton's attendance record had "helped create a failure in providing good instructional leadership for [her] students." Horton responded by noting that her recent periods of absence had been justified: her absence for fifty to fifty-five days from February to June 1989, had been due to major surgery and her absence for twenty-seven days during the 1989-90 school year had been due to injuries sustained in the train accident.
The principal wrote Horton's Summary Evaluation Report in March 1990, and noted that she had been absent nearly forty days during the 1989-90 school year. The principal concluded that Horton's absences had "made it hard to maintain an effective educational program for her special education students." In rebuttal, Horton contended that holding her responsible for the maintenance of an effective educational program during justified periods of absence was unfair. In April 1990, the Board informed Horton that her salary for the 1990-91 school year would remain at the 1989-90 level because her "absentee record has impaired [her] performance in the sense that [she] has failed to provide good instructional leadership for [her] students."
Horton filed a grievance in opposition to the withholding of her increment, which the Board denied on the ground that the withholding "was for predominantly educational reasons." Thereafter, the Association filed for binding arbitration. In response, the Board filed a petition with the New Jersey public Employment Relations Commission (PERC) questioning whether the dispute was subject to arbitration. The applicable statutes specify that if a board of education withholds a teacher's increment for "predominantly disciplinary reasons," the dispute must be settled by a grievance procedure that requires "binding arbitration as the terminal step." N.J.S.A. 34:13A-26 and -29. Pursuant to N.J.S.A. 34:13A-27a, PERC determined that the basis for withholding Horton's increment had been predominantly disciplinary and, accordingly, found that the dispute was arbitrable. The Board did not appeal that Conclusion, and the parties proceeded to arbitration.
Article 6, subsection C(10)(c), of the Agreement delineates the scope of the arbitrator's authority to resolve grievance disputes between the parties:
The arbitrator shall be empowered to hold a hearing or hearings and to obtain all relevant data concerning the grievance. He shall render a written decision within thirty (30) days after the completion of the hearing or hearings or submissions of any additional data. A copy shall be simultaneously furnished to the Association and the Board. The arbitrator shall limit himself to the issue submitted and shall consider nothing else. He can add nothing to nor subtract anything form [sic] this Agreement between the parties or any policy of the Board of Education. The award of the arbitrator shall be final and binding on the parties.
Article 17, section A, of the Agreement further provides: "This Agreement and its appendices shall constitute the entire Agreement between the parties and shall not be modified in whole or in part by the parties except by ...