                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4464-18T4

GLOUCESTER CITY BOARD
OF EDUCATION,

         Plaintiff-Appellant,

v.

GLOUCESTER CITY
EDUCATION ASSOCIATION,

     Defendant-Respondent.
_____________________________

                   Argued January 6, 2020 – Decided February 7, 2020

                   Before Judges Sabatino, Geiger and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Camden County, Docket No. C-
                   000005-19.

                   Emily Elizabeth Strawbridge argued the cause for
                   appellant (Parker McCay, PA, attorneys; Emily
                   Elizabeth Strawbridge, on the briefs).

                   Hop T. Wechsler argued the cause for respondent
                   (Selikoff & Cohen, PA, attorneys; Keith Waldman, of
                   counsel and on the brief; Hop T. Wechsler, on the
                   brief).
PER CURIAM

      Plaintiff Gloucester City Board of Education (the Board) appeals from a

March 25, 2019 Chancery Division order compelling binding arbitration of a

grievance filed by defendant Gloucester City Education Association (the Union)

on behalf of its members concerning an attendance policy unilaterally adopted

by the Board. For the following reasons, we dismiss the appeal, refer the matter

to the Public Employment Relations Commission (PERC) for a scope of

negotiations determination, and stay the March 25, 2019 order pending PERC's

determination.

      The Union is the exclusive bargaining agent for the teachers employed by

the Board, which operates a K-12 public school district in Gloucester City. The

parties entered into a collective negotiations agreement (CNA) covering the

period from July 1, 2016 to June 30, 2019.

      Article 10 of the CNA states that the length of the school year is 186.5

days, comprised of 181 student contact days, two in-service days, three

professional development days, and one day following the last student day. In

addition, teachers are required to attend up to five evening meetings per year for

parent conferences, back to school events, PTA events, college and science fairs,

and "moving up" ceremonies.


                                                                         A-4464-18T4
                                        2
      Article 9 of the CNA governs temporary leaves of absence. As to sick

leave, it provides: "All employees shall receive fifteen (15) sick leave days per

year. Ten[-]month employees hired after September 1, 1995 will receive ten (10)

sick leave days per year." Teachers are ten-month employees. Unused sick

leave days accumulate without limitation. Teachers also receive three personal

days per year and five compassionate leave days per year in the event of the

death of a member of the teacher's immediate family. The Board or its designee

may also grant other leaves of absence with or without pay for good reason.

      Article 4 sets forth the four-step grievance procedure for resolution of

complaints filed by employees or the Union that allege "a violation,

misinterpretation or inequitable application of any of the provisions" of the

CNA. Grievances are heard and decided at Level One by a principal, at Level

Two by the Superintendent, at Level Three by the Board, and at Level Four by

arbitration.   Matters that proceed to arbitration are heard by an arbitrator

"selected from a panel of arbitrators provided by [PERC] in accordance with the

rules required by PERC."

      At issue in this matter is whether the grievance involves a matter relating

to "the terms and conditions of employment." In that regard, subsection (b) of

paragraph 6 of Article 4 provides:


                                                                        A-4464-18T4
                                       3
            Only matters relating to employees' terms and
            conditions of employment as set forth in this
            Agreement may be submitted to arbitration. The
            arbitrator shall be limited to the issue(s) submitted and
            shall consider nothing else. The arbitrator can add
            nothing to, subtract anything from, nor modify the
            express terms of this Agreement. The arbitrator's
            recommendations shall be submitted in writing to the
            Board and the [Union], and shall be advisory except in
            those disciplinary matters covered by [N.J.S.A.
            34:13A-19] in which case arbitration shall be binding.

      On June 12, 2018, the Board adopted District Policy 3212-Attendance (the

Attendance Policy)—an attendance policy for teaching staff members. 1 The

Attendance Policy states:

            The regular and prompt attendance of teaching staff
            members is an essential element in the efficient
            operation of the school district and the effective
            conduct of the educational program. Staff member
            absenteeism exacts a high cost in the depletion of
            district resources and in the disruption of the
            educational program, the Board of Education is vitally
            interested in the attendance of each employee and
            considers conscientious attendance an important
            criterion of satisfactory job performance.

            The privilege of district employment imposes on each
            teaching staff member the responsibility to be on the
            job on time every scheduled working day. This
            responsibility requires that the employee maintain good
            health standards, take intelligent precautions against
            accidents, both on and off the job, and manage his/her

1
  The Attendance Policy was initially adopted on August 14, 2013; it was
revised on April 21, 2015 and June 12, 2018.
                                                                        A-4464-18T4
                                       4
personal affairs to avoid conflict with district
responsibilities.

A teaching staff member who fails to give prompt
notice of an absence, misuses sick leave, fails to verify
an absence in accordance with Board policy, falsifies
the reason for an absence, is absent without
authorization, is repeatedly tardy, or accumulates an
excessive number of absences may be subject to
appropriate consequences, which may include the
withholding of a salary increment, dismissal, and/or
certification of tenure charges.

In accordance with N.J.S.A. 18A:30-1, sick leave is
defined to mean the absence from work because of a
personal disability due to injury or illness or because
the staff member has been excluded from school by the
school medical authorities on account of contagious
disease or of being quarantined for such a disease in the
staff member's immediate household. No teaching staff
member will be discouraged from the prudent,
necessary use of sick leave and any other leave
provided for in the collective bargaining agreement
negotiated with the member's majority representative,
in an individual employment contract, or provided in
the policies of the Board. In accordance with N.J.S.A.
18A:30-4, the Superintendent or Board of Education
may require a physician's certificate to be filed with the
Secretary of the Board in order to obtain sick leave.

Whenever the rate of absence and or tardiness in any
school year is equal to or higher than [3.5%], the
Superintendent or designee/s shall develop and present
to the Board a plan for the review and improvement of
staff attendance. Whenever the rate of absence and or
tardiness in any school year of an individual staff
member is equal to or higher than [3.5%], the building
principal or designee/s shall develop a corrective action

                                                             A-4464-18T4
                            5
               plan for the staff member to review and improve his/her
               attendance. The corrective action plan may include but
               not be limited to a fitness for duty evaluation, scheduled
               meetings with administration to review attendance, and
               an examination performed by the district's physician or
               consultation between the district's physician and staff
               member's physician. Each staff member's annual
               evaluation will contain his/her absentee and tardiness
               rate for that school year. The review and improvement
               plan shall require the collection and analysis of
               attendance data, tardiness data, the training of teaching
               staff     member       in    their    attendance/tardiness
               responsibilities, and the counseling of teaching staff
               members        for    whom       regular    and     prompt
               attendance/tardiness is a problem.

               [(Emphasis added).]

         Notably, 3.5% of the 186.5-day school year is only 6.52 days,

considerably less than the ten sick leave days per school year allotted by the

CNA.2 Moreover, the Attendance Policy does not consider whether the sick

leave was patterned or taken for legitimate medical reasons. Nor does it consider

the teaching staff member's prior sick leave usage and accumulated unused sick

leave.

         On June 13, 2018, the Union filed a grievance asserting that

               the mechanical application of [the Attendance Policy],
               without considering the reasons for absences, is

2
  During oral argument before this court, counsel indicated that teachers receive
thirteen to eighteen sick leave days per year, depending on date of hire. We do
not find such language in the CNA.
                                                                            A-4464-18T4
                                           6
            improper. Furthermore, the [Union] finds this action to
            be arbitrary and capricious due to the fact that the
            administration is considering only the total number of
            absences (and applying them to a formula of their own
            design) and not the reasons behind such absences. Any
            policy that does this violates our members' rights to
            take sick leave, personal days, bereavement days, jury
            duty days and use days from the sick bank, as needed.
            [Union] members are guaranteed [thirteen] or
            [eighteen] days per year, depending on the date of hire,
            plus accumulated sick days and should not be penalized
            for taking the time off guaranteed to them by the
            [CNA].

The Union contended that all attendance goals should be stricken from

Professional Development Plans. The grievance did not assert that any members

had been subjected to counseling, a corrective action plan, or other form of

disciplinary action for not meeting attendance goals. 3

      The grievance advanced to, and was denied at, Level Three of the

grievance procedure. At the Union's request, the matter was then submitted to

arbitration under Level Four. The Board responded by filing this action in the




3
  The grievance was filed the day after the Attendance Policy was adopted. As
of February 13, 2019, no staff member had been subjected to a corrective action
plan, increment withholding, suspension, or tenure charges for violating the
Attendance Policy. The Union avers, however, that "particular employees have
been affected by the challenged policy, as an attendance goal that relies on the
[p]olicy was incorporated into certain staff members' [professional development
plans]."
                                                                        A-4464-18T4
                                        7
Chancery Division, seeking in part to restrain, and permanently enjoin,

arbitration of the grievance. The Board asserted:

            Because the parties never agreed to submit criteria for
            employee evaluations to arbitration, and since the CNA
            does not contain any language subjecting such to
            arbitration, it remains the Board's managerial
            prerogative to determine criteria for employee
            evaluations, such is not subject to arbitration.
            Furthermore, the use of the [McREL] teacher
            evaluation rubric, which contains an attendance
            component, has been approved by the Commissioner
            [of Education], and therefore is not subject to collective
            negotiations.

      The Union moved to dismiss the complaint with prejudice. The Union

acknowledged that the Board's adoption of the McREL teacher evaluation rubric

was not statutorily negotiable because it had been approved by the

Commissioner of Education. The Union contended nevertheless that application

and impact of the Attendance Policy was both statutorily negotiable and

contractually arbitrable, because teachers who do not meet attendance

expectations are required to be counseled and thereby disciplined without the

exercise of discretion.

      Following oral argument, the court issued an order and letter opinion

denying the Board's request to restrain arbitration. The court found "the Board's

application and use of employment attendance as one of its evaluation criteria


                                                                         A-4464-18T4
                                        8
is a mandatorily negotiable term or condition of employment," rather than a

"non-negotiable managerial prerogative," and "therefore is subject to

arbitration."      The court noted that application of the Attendance Policy

"exclude[s] from consideration the reason for a teacher's absence" and requires

"implementation of a Professional Development Plan if expectations are not

met." The court concluded that because the Attendance Policy, which requires

counseling if a teacher does not meet attendance expectations, "is a mechanical

application," it is a "term or condition" under the CNA that is subject to

arbitration. In reaching that conclusion, the court explained

                       The employment evaluation criteria does not
                include on its face how the attendance policy is applied,
                and the application of the policy is in fact a mechanical
                application, in that teachers who do not meet attendance
                expectations are required to be counseled. Therefore,
                the application of the attendance policy goes beyond
                that which is simply stated in the McREL Rubric and is
                a "term or condition" under the CNA. As such, the
                grievance relating to the attendance policy is subject to
                arbitration.

      The Board moved for reconsideration, claiming the court misapplied

PERC precedent. The court disagreed and denied the motion in a brief oral

decision. This appeal followed.

      The Board raises the following points on appeal:



                                                                            A-4464-18T4
                                           9
            POINT I

            NEW JERSEY CASE LAW CONCERNING
            ATTENDANCE POLICIES AND TERMS AND
            CONDITIONS OF EMPLOYMENT HAVE BEEN
            MISAPPLIED BY THE TRIAL COURT.

                  A. A mechanical application of a policy on its
                  face does not necessarily impact terms and
                  conditions of employment.

                  B. The policy does not provide for a mechanical
                  application of disciplinary action or any other
                  action that impacts terms and conditions of
                  employment.

            POINT II

            THERE ARE NO INDIVIDUAL TEACHING STAFF
            MEMBER GRIEVANCES TO CONSIDER.

      Our review is guided by well-established legal principals.           Public

employees have the right to engage in collective negotiations. Council of N.J.

State Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25-26 (1982) (citing

N.J. Const. art. I, ¶ 19; N.J.S.A. 34:13A-5.3)). "[T]he majority representative

and designated representatives of the public employer shall meet at reasonable

times and negotiate . . . other terms and conditions of employment." N.J.S.A.

34:13A-5.3. "However, 'the scope of negotiations in the public sector is more

limited than in the private sector' due to the government's 'special

responsibilities to the public' to 'make and implement public policy.'" In re Cty.

                                                                         A-4464-18T4
                                       10
of Atl., 445 N.J. Super. 1, 21 (App. Div. 2016), aff'd on other grounds, 230 N.J.

237 (2017) (quoting In re IFPTE Local 195 v. State, 88 N.J. 393, 401-02 (1982)

(footnotes omitted)).

      PERC is charged with administering the New Jersey Employer-Employee

Relations Act, N.J.S.A. 34:13A-1 to -39, and has "primary jurisdiction" to

determine "whether the subject matter of a particular dispute is within the scope

of collective negotiations."    Cty. of Atl., 445 N.J. Super. at 20 (quoting

Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154

(1978) (citing N.J.S.A. 34:13A-5.4(d)). "[T]here are but two categories of

subjects in public employment negotiation — mandatorily negotiable terms and

conditions of employment and non-negotiable matters of governmental policy."

Ridgefield Park, 78 N.J. at 162. We give appropriate deference to PERC's

expertise in public sector employer-employee relations. In re Hunterdon Cty.

Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989).

      CNAs are contracts; "contract interpretation is a question for judicial

resolution." Ridgefield Park, 78 N.J. at 155. "When . . . there are no material

factual disputes, 'the interpretation of a contract is subject to de novo review by

an appellate court.'" Cty. of Atl., 230 N.J. at 255 (quoting Kieffer v. Best Buy,

205 N.J. 213, 222-23 (2011)).


                                                                          A-4464-18T4
                                       11
      Thus, PERC and the courts serve two distinct functions: PERC makes the

threshold determination whether the disputed issue is a matter the parties can

legally negotiate and enforce through arbitration while the court determines

whether the CNA involves a matter the parties agreed to arbitrate. Ridgefield

Park, 78 N.J. at 154-55. As the Ridgefield Park Court explained:

             where a party resists an attempt to have a dispute
             arbitrated, it may go to the Superior Court for a ruling
             on the issue of its contractual obligation to arbitrate.
             However, the issue of contractual arbitrability may not
             be reached if the threshold issue of whether the subject
             matter of the grievance is within the scope of collective
             negotiations is contested. In that event, a ruling on that
             issue must be obtained from PERC.

             [Id. at 155.]

Therefore, in some cases, "it may be necessary to go to both PERC and the

Superior Court in order to completely resolve a disagreement concerning the

arbitrability of a particular dispute." Id. at 153.

      Here, the grievance challenged the "mechanical application" of the

Attendance Policy that subjects teaching staff members to corrective action

plans or other disciplinary action if their absences equal or exceed 3.5% of

workdays, without considering the reasons for the absences. The Board did not

file a scope of negotiations petition with PERC. Instead, it filed this action in

the Superior Court.     In its complaint, the Board alleged "[t]he criteria for

                                                                          A-4464-18T4
                                        12
evaluation of teachers" is "a matter of 'inherent managerial prerogative,'" rather

than "a term and condition of employment," and is therefore "nonnegotiable."

Moreover, the Board argued that because the Commissioner of Education

approved the McREL teacher evaluation rubric, which includes attendance, it is

not subject to collective negotiations, citing N.J.S.A. 18A:6-125.4

      The trial court found "the Board's application and use of employment

attendance as one of its evaluation criteria is a mandatorily negotiable term or

condition of employment," rather than a "non-negotiable managerial

prerogative," and "therefore is subject to arbitration." However, "[w]here the

trial judge determines that the real controversy is not one of contractual

arbitrability, but rather concerns the propriety of the parties negotiating and

agreeing on the item in dispute, he should refrain from passing on the merits of

that issue." Ridgefield Park, 78 N.J. at 153-54. Here, the CNA contains, but

does not define, the phrase "terms and conditions of employment." Thus, by

contesting whether the Attendance Policy is subject to arbitration, the parties

are necessarily contesting whether the policy is within the scope of negotiations.




4
   N.J.S.A. 18A:6-125 provides that "[a] school district's evaluation rubric
approved by the commissioner pursuant to [N.J.S.A. 18A:6-122] shall not be
subject to collective negotiations."
                                                                         A-4464-18T4
                                       13
      Our opinion in Piscataway Township. Education Association v.

Piscataway Township Board of Education, 307 N.J. Super. 263 (App. Div. 1998)

is instructive. There, the board unilaterally altered the school calendar due to

weather-related closings, without submitting the proposed changes to collective

negotiations. Id. at 267-68. The union initiated an action challenging the board's

failure to negotiate "over changes in the school calendar and over the impact of

those changes on [b]oard employees." Id. at 265. A PERC hearing examiner

concluded that the board "had a contractual right to reschedule the school days,"

but no "duty to negotiate over any impact issues." Id. at 269. The union

appealed.

      We reversed and remanded the case to PERC, finding that while the

decision to change the school calendar was not negotiable, the impact of that

decision may be negotiable. Id. at 270, 276. In reaching that conclusion, we

addressed the "impact" issue under the scope of negotiations test. Id. at 271-

275. We explained that:

            the mere connection between the exercise of a managerial
            prerogative and the impact of that exercise on employees
            does not render the impact issue non-negotiable. In each
            case, a determination should be made under Board of
            Education of Woodstown-Pilesgrove Regional School
            District v. Woodstown–Pilesgrove Regional Education
            Association, 81 N.J. 582 (1980) whether negotiating the
            impact issue would significantly or substantially encroach

                                                                         A-4464-18T4
                                       14
            upon the management prerogative. If the answer is yes,
            the duty to bargain must give way. If the answer is no,
            bargaining should be ordered.

            [Id. at 276.]

      Here, as in Piscataway, the parties contested the negotiability of the

Attendance Policy's impact before the trial court and this court. The Board

argues "that the establishment of an attendance policy is a matter within the

discretion given to the Board, and thus can be [done so] absent negotiations."

The Union acknowledges "PERC distinguishe[s] . . . between an employer's

establishment of a sick leave verification policy, which is neither statutorily

negotiable nor contractually arbitrable, and the employer's application of that

policy, which is negotiable and thus can be subject to contractual grievance

procedures." According to the Union, the mechanical application (i.e., impact)

of the Attendance Policy improperly subjects teachers to disciplinary actions. It

contends that "[t]he effect of an attendance policy that imposes a [corrective

action plan] and counseling on teaching staff members based on the total number

of absences without considering the reason for each absence is to presumptively

classify certain staff members as sick leave abusers."

      Accordingly, because the parties contest whether the Attendance Policy's

impact on employees is a "managerial prerogative" or a "term and condition of


                                                                        A-4464-18T4
                                      15
employment," the trial court "should have refrained from ruling whether the

parties had contractually agreed to arbitrate the dispute until PERC had decided

the threshold issue of negotiability." Bd. of Educ. of Bernards Twp. v. Bernards

Twp. Educ. Ass'n, 79 N.J. 311, 316 (1979) (citing Ridgefield Park, 78 N.J. at

155).

        The Board further argues that the Union is improperly asserting a blanket

challenge to the Attendance Policy without naming a member who has been

impacted by it. We are unpersuaded by this argument. According to the Union,

it appears that certain teaching staff members have now been affected by the

challenged policy through incorporation of its attendance goal into their

professional development plans. This outcome is hardly surprising considering

the mandatory nature of the Attendance Policy, which requires the principal to

develop a corrective action plan whenever a teaching staff member's rate of

absence or tardiness reaches or exceeds 3.5%. The Attendance Policy also

requires each teaching staff member's annual evaluation to include his or her

absentee and tardiness rate. This may lead to counseling and subject the member

to disciplinary consequences, "which may include the withholding of a salary

increment, dismissal, and/or certification of tenure charges."      Notably, the

Attendance Policy does not consider the member's attendance during prior


                                                                         A-4464-18T4
                                       16
school years, the member's accumulated sick leave, the legitimacy of the sick

leave utilized, or whether the sick leave usage was patterned.

      Given the mandatory nature and as-applied impact of the Attendance

Policy, we do not view the grievance as impermissibly hypothetical and

conclude that PERC is the appropriate forum to resolve "whether negotiating the

impact [of the Attendance Policy] would significantly or substantially encroach

upon the management prerogative." Piscataway Twp., 307 N.J. Super. at 276.

      For these reasons, we refer this matter to PERC for a scope of negotiations

determination and dismiss the appeal without prejudice. Any aggrieved party

may file a renewed appeal after PERC issues a determination. The March 25,

2019 order directing arbitration is stayed in the meantime. If PERC determines

the issue is negotiable the stay will automatically expire in 30 days, subject to

the Board's right to: (1) move to reopen this appeal: (2) appeal PERC's ruling;

and (3) move to consolidate the appeals. If PERC determines it is not negotiable,

the stay shall remain in force, subject to the Union's right to appellate review of

PERC’s ruling. We do not retain jurisdiction.

      Appeal dismissed.




                                                                          A-4464-18T4
                                       17
