IN THE MATTER OF CITY OF BURLINGTON BOARD OF EDUCATION AND CITY OF BURLINGTON EDUCATION ASSOCIATION (PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2440-18T3
IN THE MATTER OF
CITY OF BURLINGTON
BOARD OF EDUCATION,
Petitioner-Appellant,
and
CITY OF BURLINGTON
EDUCATION ASSOCIATION,
Respondent-Respondent.
___________________________
Argued November 14, 2019 – Decided November 27, 2019
Before Judges Mayer and Enright.
On appeal from the New Jersey Public Employment
Relations Commission, PERC No. 2019-27.
Jeffrey R. Caccese argued the cause for appellant
(Comegno Law Group, PC, attorneys; Jeffrey R.
Caccese and Alexandra A. Stulpin, of counsel and on
the briefs).
Steven R. Cohen argued the cause for respondent City
of Burlington Education Association (Selikoff &
Cohen, PA, attorneys; Steven R. Cohen, of counsel and
on the brief; Hop T. Wechsler, on the brief).
Ramiro A. Perez argued the cause for respondent New
Jersey Public Employment Relations Commission
(Christine Lucarelli-Carneiro, General Counsel,
attorney; Ramiro A. Perez, Deputy General Counsel, on
the statement in lieu of brief).
PER CURIAM
Petitioner City of Burlington Board of Education (Board) appeals from a
January 17, 2019 order and decision issued by the New Jersey Public
Employment Commission (PERC) denying its request for restraint of binding
arbitration. We affirm.
The facts are undisputed. Respondent City of Burlington Education
Association (Association) filed a grievance on behalf of Robert Gurry,1 asserting
the Board violated Article XIII(F) of the parties' collective negotiations
agreement (CNA) by requiring Association members who were absent from
work on February 8, 2018, to submit a physician's note verifying their illness.
The February 8, 2018 date was significant because it was the day of the
Philadelphia Eagles' Super Bowl victory parade. In anticipation of the parade,
1
Mr. Gurry is an employee of the Board and a member of the Association.
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on February 6, 2018, the superintendent sent an email to all school district staff
that provided:
Five (5) personal business days requests were approved
for Thursday, February 8, 2018. No more will be
approved. Please note Article XII[I] of the negotiated
contract, Absence on Account of Personal Business –
"Requests for personal days shall be granted upon five
(5) calendar days' notice to the superintendent or his
designee."
If it is determined that the number of staff members
absent on Thursday, February 8th, cause a school
emergency or jeopardize opening the schools, all
approvals will be rescinded.
Please also be aware that a doctor's note can be
requested, by code, for any staff absence. If you do not
come to work because of personal illness on Thursday,
February 8, 2018, you will be required to provide a
doctor's note that indicates you were unable to come to
work due to illness.
Gurry had been feeling sick for approximately two weeks prior to the
parade date. Gurry used sick days on February 7, February 8, and February 12
in accordance with the Board's sick leave policy.
Only for his illness-related absence on February 8, 2018 did the Board
request Gurry provide a physician's note. Gurry, in a written email, explained
he had the flu and "did not see a physician due to the fact that they do not want
people with the [f]lu in their offices and it is a viral infection." Without a
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doctor's note, Gurry was notified that his absence on February 8 would be
construed as either a personal business absence or unpaid leave.
On March 14, 2018, the Association filed a grievance against the Board
on behalf of Gurry and other members similarly situated, asserting that the
Board's denial of sick leave on February 8, 2018 constituted discipline without
just cause. The Board's superintendent denied the grievance, basing her decision
on Board Policy 3212 and N.J.S.A. 18A:30-4, which allows a superintendent or
board of education to require a doctor's note for an employee seeking to use sick
leave. The Association then requested a hearing before the Board.
The Board affirmed the superintendent's denial of the grievance. In
addition to relying on the superintendent's reasons, the Board further explained,
"[t]he grievance is also denied because it implicates [a] non-arbitrable topic and
is preempted by statute."
The Association requested arbitration in accordance with Article III of the
the CNA. In response, the Board filed a petition for scope of negotiations
determination with PERC. The Board claimed that arbitration should be
restrained because the subject matter of the grievance was non-negotiable. The
Board asserted the matter was neither negotiable nor legally arbitrable because
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the Board had the managerial prerogative to verify sick leave by requesting a
doctor's note. The Association opposed the Board's petition.
Because the facts were not disputed, PERC decided the Board's scope of
negotiations petition without a hearing. In its order and decision, PERC held
that "the application of a sick leave verification policy, i.e. whether an employee
was improperly denied sick leave, may be challenged through the contractual
grievance procedures." In addition, PERC held that "disciplinary penalties for
abusing sick leave and the cost of obtaining verification are mandatorily
negotiable." PERC concluded the Association's grievance did not
challeng[e] the Board's ability to verify grievant's
illness. It is challenging the application of the sick
leave policy to the grievant, specifically the denial of
sick leave on February 8, 2018 after the Board allegedly
failed to insist that he obtain a doctor's note at the
Board's expense. Thus, the grievance as framed by the
Association is mandatorily negotiable.
PERC's order denied the Board's request to restrain binding arbitration of the
Association's grievance.
On appeal, the Board argues PERC erred as a matter of law in deeming
the request for sick leave verification a negotiable issue. The Board furth er
contends PERC's decision was arbitrary, capricious, unreasonable, and lacked
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credible support in the record. In addition, it claims PERC erred in failing to
dismiss the Association's grievance as moot.
"The standard of review of a PERC decision concerning the scope of
negotiations is 'thoroughly settled.'" City of Jersey City v. Jersey City Police
Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998). We will uphold PERC's
decision regarding negotiability unless "it was arbitrary, capricious or
unreasonable," "lacked fair support in the evidence," or "violated a legislative
policy expressed or implicit in the governing statute." Twp. of Franklin v.
Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 377 (App Div. 2012)
(quoting 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)).
"The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Adoption of Amendments to Ne., Upper Raritan, Sussex Cty., 435
N.J. Super. 571, 582 (App. Div. 2014) (alteration in original) (quoting In re
Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)).
Our role in reviewing PERC decisions is "sensitive and circumspect." In
re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). PERC
decisions are "regulatory determination[s] of an administrative agency that is
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invested by the Legislature with broad authority and wide discretion in a highly
specialized area of public life." Ibid. Substantial deference is accorded to
PERC's exercise of its authority in making a scope of negotiations
determination. Twp. of Franklin, 424 N.J. Super. at 377.
In In re Local 195, IFPTE v. State, 88 N.J. 393 (1982), the New Jersey
Supreme Court created the following test for determining a scope of negotiation
issue:
[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.
[Id. at 404; see also Bd. of Educ. v. Woodstown-
Pilesgrove Reg'l Educ. Assoc., 81 N.J. 582, 590-91
(1980).]
The Board's establishment of a sick leave verification policy is a non-
negotiable managerial prerogative, a legal concept not disputed by the
Association. City of Elizabeth v. Elizabeth Fire Officers Assn., Local 2040,
IAFF, 198 N.J. Super. 382, 384 (App. Div. 1985).2 However, the application of
2
The Board argues N.J.S.A. 18A:30-4 preempts arbitration related to the sick
leave policy. The issue as framed by PERC is not preemption but whether the
Board abused the sick leave policy.
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the sick leave policy, including the disciplinary penalty imposed for abusing
sick leave and the payment of costs associated with verification of sick leave, is
severable and subject to mandatory negotiation. Ibid. In its decision, PERC
noted the distinction between establishment of a verification policy, which is the
prerogative of the employer, Carteret Bd. of Educ., P.E.R.C. No. 2009-71, 35
N.J.P.E.R. ¶ 76, 2009 N.J. PERC LEXIS 212 at 11-12 (2009), and issues
involving the application of those policies, which may be subject to contractual
grievance procedures. In re Piscataway Twp. Bd. of Educ., P.E.R.C. No. 82-
64, 1982 N.J. PERC LEXIS 590 at 7 (1982). Whether an employer may impose
a disciplinary penalty in applying a sick leave verification policy may be
reviewed through binding arbitration. New Jersey State Judiciary (Ocean
Vicinage), P.E.R.C. No. 2005-24, 30 N.J.P.E.R. ¶ 143, 2004 N.J. PERC LEXIS
168 at 9-10 (2004).
The Board argued PERC erred in allowing arbitration of its non-
negotiable right to establish a sick leave verification policy. However, that is
not the subject of the Association's grievance. The Association challeng ed the
application of the sick leave verification policy to Association members absent
on February 8, 2018. PERC held that while requiring a doctor's note to verify
employee absences is fully within the Board's statutory rights, "the application
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of a sick leave verification policy . . . may be challenged through contractual
grievance procedures."
Having reviewed the record, and mindful of the applicable standards for
review of PERC determinations, we are satisfied the Board has not shown
PERC's decision was arbitrary, unreasonable, capricious, or contrary to well-
established precedent. PERC's decision that the Association's grievance is
arbitrable is fully supported by the evidence in the record. The merits of the
Association's grievance, including the Association's failure to raise issues during
the grievance process, and any contractual defenses offered by the Board may
be adjudicated by an arbitrator.
Affirmed.
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