Opinion
DOCKET NO. A-3794-14T2
05-06-2016
IN THE MATTER OF MADISON BOARD OF EDUCATION, Petitioner-Appellant, and MADISON EDUCATION ASSOCIATION, Respondent-Respondent.
Bruce W. Padula argued the cause for appellant (Cleary Giacobbe Alfieri Jacobs LLC, attorneys; Mr. Padula, of counsel and on the brief; Dustin F. Glass, on the brief). Gail Oxfeld Kanef argued the cause for respondent Madison Education Association (Oxfeld Cohen, P.C., attorneys; Ms. Kanef, of counsel and on the brief). Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Frank C. Kanther, Deputy General Counsel, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Public Employment Relations Commission, Docket No. SN-2014-093. Bruce W. Padula argued the cause for appellant (Cleary Giacobbe Alfieri Jacobs LLC, attorneys; Mr. Padula, of counsel and on the brief; Dustin F. Glass, on the brief). Gail Oxfeld Kanef argued the cause for respondent Madison Education Association (Oxfeld Cohen, P.C., attorneys; Ms. Kanef, of counsel and on the brief). Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Frank C. Kanther, Deputy General Counsel, on the statement in lieu of brief). PER CURIAM
The Madison Board of Education (Board) appeals from a final determination of the Public Employment Relations Commission (PERC) denying the Board's request to restrain an arbitration requested by the Madison Education Association (MEA). We affirm.
I.
The pertinent facts are not disputed. In August 2013, Shelly Emann, a teacher employed by the Board, requested to be placed on leave for her own disability due to her pregnancy and then to care for the child she anticipated would be delivered in December 2013. She requested thirty days of pregnancy disability leave time before and after the birth of her child, followed by leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, to be followed by leave under the New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B-1 to -16, to care for her newborn child. Under Emann's request, her leave time would end on May 30, 2014.
The Board granted Emann's request for leave until May 30, 2014, but upon terms different than those she requested. The Board granted the requested pregnancy disability leave time before and after her child's birth. The Board also granted twelve weeks of leave for Emann to care for her child concurrently under the FMLA and NJFLA, followed by unpaid child -rearing leave through May 30, 2014.
The MEA is the collective negotiations representative for the teachers and certain staff employed by the Board, and is party to a collective negotiations agreement with the Board. In March 2014, the MEA filed a grievance with the Board challenging the Board's requirement that Emann take FMLA and NJFLA leave time concurrently to care for her newborn child. The MEA asserted that the requirement violated a past practice that permitted teachers to take leave under the FMLA and NJFLA consecutively to care for newborn children.
The MEA filed a request with PERC for a panel of arbitrators to decide whether the Board violated the collective negotiations agreement and past practice "when it denied consecutive leaves" to Emann and other employees. In response, the Board filed a Petition For Scope Of Negotiations Determination with PERC to restrain the arbitration.
One of PERC's seven commissioners recused himself from participation in the determination of the Board's petition. The remaining six commissioners' vote on a proposed decision was tied. The parties agree that under PERC's published policy, the tie vote functioned as a rejection of the Board's position and a denial of its request to restrain the arbitration. This appeal followed.
Notice to Interested Parties from the Public Employment Relations Commission on Resolving Tie Votes in Certain Scope of Negotiations Cases (Dec. 23, 2014), www.state.nj.us/perc//ProtocalResolvingVotes.pdf ("In such cases, the Commission's final action is either an interim or recommended decision made by a commission designee or officer (e.g. Hearing Examiner) or the status quo of the parties' dispute that existed at the time the proceeding before the Commission was initiated.")
II.
"PERC has primary jurisdiction to make a determination on the merits of the question of whether the subject matter of a particular dispute is within the scope of collective negotiations." 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)). In making a scope of negotiations determination, PERC decides the "limited" issue of whether "the subject matter in dispute [is] within the scope of collective negotiations." Ibid. (quoting In re Hillside Bd. of Educ, 1 N.J.P.E.R. 55, 57 (1975)).
We will not overturn PERC's decision on a scope of negotiations issue "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute." Commc'ns Workers of Am., Local 1034 v. N.J. State Policemen's Benevolent Ass'n, Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (quoting In re Camden Cty. Prosecutor, 394 N.J. Super. 15, 22-23 (App. Div. 2007)). We are not, however, bound by PERC's "interpretation of a statute or its determination of a strictly legal issue." Bd. of Educ. of Twp. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
In public sector employment, issues are deemed to be either "mandatorily negotiable terms and conditions of employment [or] non-negotiable matters of governmental policy." In re Local 195, IFPTE v. State, 88 N.J. 393, 402 (1982) (quoting Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 162).
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy.See also Borough of Keyport v. Int'l Union of Operating Eng'rs, Local 68, 222 N.J. 314, 336 (2015) (holding that the Local 195 standard for determining negotiability is the "indisputable test guiding our analysis in scope of negotiations matters").
[Id. at 404.]
The Board argues that PERC's decision denying the request to restrain the arbitration is incorrect as a matter of law. The Board contends that coordination of FMLA and NJFLA leave is non-negotiable under the second prong of the Local 195 standard because the issue is preempted by a regulation which leaves no discretion to the Board.
The Board does not argue that the coordination of FMLA and NJFLA time is non-negotiable under the first (i.e., "the item intimately and directly affects the work and welfare of public employees") or third (i.e., "a negotiated agreement would not significantly interfere with the determination of governmental policy") prongs of the Local 195 standard. --------
"The preemption standard for prong two of the Local 195 test is clear in its limits and rigid within its parameters." Borough of Keyport, supra, 222 N.J. at 336. "[A]n otherwise negotiable topic cannot be the subject of a negotiated agreement if it is preempted by legislation." Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 44 (1982). "When legislation or a regulation 'establishes a specific term or condition of employment that leaves no room for discretionary action, then negotiation on that term is fully preempted.'" Borough of Keyport, supra, 222 N.J. at 336-37 (quoting Local 195, supra, 88 N.J. at 403).
The existence of a statute or regulation pertaining to a "term or condition of employment does not automatically preclude negotiations." Bethlehem Twp. Bd. of Educ., supra, 91 N.J. at 44. A statute or regulation does not preempt negotiations over an employment condition unless it fixes the condition "expressly, specifically and comprehensively." Ibid. (citation omitted). "The legislative provision must 'speak in the imperative and leave nothing'" to the employer's discretion. Ibid. (citation omitted). "For preemption to apply, there must be no room for debate on the matter of discretion . . . ." Borough of Keyport, supra, 222 N.J. at 337.
The Board asserts that the coordination of FMLA and NJFLA leave time is preempted by N.J.A.C. 13:14-1.6(a), which provides that "[w]here an employee requests leave for a reason covered by both the [NJFLA] and another law, the leave simultaneously counts against the employee's entitlement under both laws." The Board contends that because Emann's requested leave for the care of her child was covered under the FMLA and NJFLA, N.J.A.C. 13:14-1.6(a) mandates that she take it concurrently under the FMLA and NJFLA. The Board asserts that the regulation allows no discretion to grant Emann's request for consecutive leave under the FMLA and NJFLA and therefore the regulation preempts negotiations over the coordination of the leave. We disagree.
The NJFLA expressly permits an employer to provide benefits to employees greater than those set forth in the act. N.J.S.A. 34:11B-4 provides that nothing in the NJFLA
shall be deemed to justify an employer in reducing employment benefits provided by the employer or required by a collective bargaining agreement which are in excess of those required by this act. Nor shall any provision of this act, or any regulations promulgated to implement or enforce this act, be construed to prohibit the negotiation and provision through collective bargaining agreements of leave policies or benefit programs which provide benefits in excess of those required by this act. This provision shall apply irrespective of the date that a collective bargaining agreement takes effect.
[N. J.S.A. 34:11B-14 (emphasis added).]
This provision expressly authorizes the Board to negotiate with the MEA over leave benefits in excess of those provided for in the NJFLA and its accompanying regulations. The parties do not dispute that consecutive use of FMLA and NJFLA leave time for the care of a child is a greater benefit than concurrent use. Consecutive use provides the benefit of an extended period of leave.
The coordination of Emann's use of FMLA and NJFLA leave time for the care of her child is not preempted by N.J.A.C. 13:14-1.6(a) because N.J.S.A. 34:11B-14 provides the Board with discretion to provide a leave benefit greater than the concurrent use of NJFLA and FMLA leave time otherwise required under the regulation. Borough of Keyport, supra, 222 N.J. at 336-37. "[W]here a statute or regulation mandates a minimum level of rights or benefits for public employees but does not bar the public employer from choosing to afford them greater protection," issues related to the provision of greater benefits are "mandatorily negotiable." State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 81 (1978).
We decline to address the parties' arguments regarding whether the length of the presumptive disability period for pregnancies is mandatorily negotiable. The issue was not raised in the MEA's grievance, which was limited to the "denial of consecutive leaves," and the record reflects the Board granted Emann's request for pregnancy disability leave without modification or condition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION