On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.
Approved for Publication December 22, 1997.
Before Judges Shebell, D'Annunzio and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
On January 15, 1997, the Randolph Township Board of Education (Board) filed a verified complaint and Order to Show Cause in the Chancery Division against the Randolph Education Association (Association), seeking to enjoin arbitration filed for by the Association with the New Jersey Public Employment Relations Commission (PERC). The Association sought to contest the Board's decision to withhold a salary increment from Kathryn Hintz, an administrative secretary in the Township High School, who was an Association member. On February 19, 1997, the Association answered and asserted three defenses, including that the Chancery Division does not have jurisdiction to hear the dispute, since PERC has primary jurisdiction. A hearing on the Order to Show Cause was held and the Judge ruled that the court lacked jurisdiction. On March 18, 1997, an order was entered dismissing the complaint. The Board appeals.
Pursuant to the 1995-98 collectively negotiated agreement (Contract) between the Board and the Association, the salaries of covered employees are determined according to an agreed upon salary guide. Annually, an employee who is performing satisfactorily may, after evaluation by a supervisor and upon recommendation of the Superintendent, be awarded increments by the Board. The right to receive increments and adjustment on the guide is not automatic, and pursuant to Article XV.B. of the Contract, the Board retains the right to deny an increment for inefficiency or other good cause. Article III.B.4.c. provides that binding arbitration does not apply to the withholding of salary increments.
Over the course of her employment, Hintz has had difficulty with her attendance due to an ongoing medical problem that required several hospitalizations. Nonetheless, she received favorable ratings in all of the professional characteristics and competency categories. Despite excessive absences, in the 1991-92, 1992-93, 1993-94, and 1994-95 school years, she was recommended for the normal salary increment.
Hintz's evaluation for the 1994-95 school year, during which she missed a total of 42 days, states:
Mrs. Kathryn Hintz has demonstrated competence in her performance as Attendance Secretary. She needs little if any supervision in completing her assignments. Her work is highly professional and consistently reflects her pride in her work. She has often made suggestions which have improved the Attendance Office operations. Mrs. Hintz has continued to demonstrate the ability to manage the multi-faceted demands of the Attendance Office most conscientiously. Her warmth and understanding have helped establish a positive rapport with our students and their parents.
Mrs. Hintz's attendance continues to be a concern. Through her employment over the past years, she has exceeded the sick day allowances each year. While it is understood that Mrs. Hintz does not intentionally use all her sick days, there has been no improvement. Because of the high rate of absenteeism, Mrs. Hintz's coworkers are required to cover for her which causes some of the responsibilities to go uncovered. While personal emergencies and medical problems can be understood, this seems to be an ongoing situation which has no remediation. While Mrs. Hintz has voluntarily worked extra time in order to complete tasks left unaccomplished during her absences, her absences create a hardship on coworkers.
Because of Mrs. Hintz's positive performance, I am recommending her increment be granted. It must be understood that if Mrs. Hintz's attendance record does not show significant improvement, there will not be a recommendation for granting an increment in the future.
In Hintz's evaluation for the 1995-96 school year, it was recommended by her supervisor that the normal salary increment be withheld. Even though she received positive professional characteristic and competency ratings, her attendance did not improve. She used 12 sick days and three personal days and missed a total of 32 days as of January 19, 1996. After describing how her job performance was satisfactory, the evaluation noted:
Despite Mrs. Hintz's performance as described above, one aspect of her performance (attendance) has remained unsatisfactory. During the past five years Mrs. Hintz has exceeded the sick day allowance each year. Being present on the job is an essential requirement of the job. The ongoing absences of the attendance secretary impacts on the school since it is imperative to maintain the attendance office function throughout the school day. Coverage requires that a secretary from another area of the building be assigned to accomplish the attendance office functions with the result that the covering secretaries functions go unattended. While conferences have been held and Mrs. Hintz was cautioned in her last annual evaluation that her attendance continued to be [a] problem area in her performance, there has not been significant improvement in the attendance problem. It was ...