PER
CURIAM
Appellant
City of East Orange (the City or East Orange) appeals from a
final decision and order of the Public Employment Relations
Commission (PERC) that it violated two sections of the New
Jersey Employer-Employee Relations Act (the Act), N.J.S.A
34:13A-1 to -64, specifically N.J.S.A. 34:13A-5.4(a)(1) and
(5), by unilaterally implementing a sick leave policy (the
Policy) without negotiating with respondent Fraternal Order
of Police, Lodge No. Local 188 (FOP).
We take
the following facts from the record. On December 6, 2018,
East Orange unilaterally implemented Revised General Order
6:27 (RGO 6:27) that required superior officers of the East
Orange Police Department (EOPD) to use paid leave
concurrently with leave under the Family and Medical Leave
Act (FMLA), 29 U.S.C. §§ 2601 to -2654, and/or the
New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B-1 to
-16, and that such paid leave must be taken in a specified
sequence. RGO 6:27 was unilaterally implemented by the City
while the parties were engaged in negotiations for a
successor contract.
In May
2019, FOP filed an unfair practice charge and amended charge
that alleged the City's unilateral implementation of RGO
6:27 violated N.J.S.A. 34:13A-5.4(a)(1) and (5). In February
2020, the Director of Unfair Practices issued a complaint
against the City and assigned the matter to a hearing
examiner. In its answer, the City denied violating N.J.S.A.
34:13A-5.4(a)(1) and (5) and asserted certain affirmative
defenses.
The
parties cross-moved for summary judgment pursuant to N.J.A.C.
19:14-4.8. PERC referred the motions to a hearing examiner
for decision. The hearing examiner made the following
findings of fact:
1. East Orange and FOP are, respectively, public employer and
public employee representative within the meaning of the Act.
2. FOP is the exclusive majority representative for all
sergeants, lieutenants and captains employed by East Orange.
3. FOP and East Orange are parties to a collective
negotiations agreement (CNA), effective July 1, 2013 through
December 31, 2017.
4. Upon expiration of the CNA, the parties engaged in
negotiations for a successor agreement until August 28, 2019,
when the parties entered into a Memorandum of Agreement,
effective January 1, 2018 through December 31, 2022.
5. Article IX of the parties' expired CNA, entitled
"Vacation and Vacation Pay," outlines the manner in
which employees may earn and use vacation time.
6. Article X of the parties' expired CNA, entitled
"Sick Leave Incentive Program and Retirement
Benefit," outlines an incentive program through which
employees may receive additional vacation days for non-use of
sick leave.
7. Neither Article IX nor Article X address FMLA or NJFLA
leave in any way.
8. On December 6, 2018, during negotiations for a successor
agreement, East Orange implemented [RGO] 6:27, amending
certain provisions of the sick leave policy as it relates to
leave taken under the FMLA and/or NJFLA.
9. Specifically, [RGO] 6:27 requires that employees use their
paid leave entitlements concurrently with any FMLA and/or
NJFLA leave, and further requires that such paid leave must
be taken in a specific sequence as set forth in the Order.
Section II, Part E of [RGO] 6:27 provides in pertinent part:
Employees
of this agency are required to use paid leave concurrently
with FMLA leave in the following sequence, which is subject
to change at the Chief's discretion:
1. Vacation leave (including contract vacation days, sick
leave incentive days and "in lieu" days) accrued in
the current year; then
2. If
applicable, accumulated vacation leave (including contract
vacation days, sick leave incentive days and "in
lieu" days) carried over from prior years with the
Chief's approval; then, 3. Personal leave; then,
4. Excused days off (applicable only to employees with a 5/2
work schedule); then,
5.Compensatory time; then,
6.Accumulated sick leave.
FMLA leave taken after all other paid leaves are exhausted
shall be unpaid.
If an employee's vacation leave is already scheduled in
accordance with the agency's policy on vacation selection
under General Order 2:25 (Vacation Selection), but he/she
takes FMLA leave prior to that vacation leave, the number of
days (or hours) taken for FMLA leave will be deducted from
the employee's scheduled vacation leave in the order it
falls on the calendar.
10. Section III, Part E of [RGO] 6:27 includes the same
requirements and language as Section II, Part E above, but
with regard to NJFLA leave instead of FMLA leave.
11. As provided above in [RGO] 6:27, if an employee takes
FMLA and/or NJFLA leave prior to "already
scheduled" vacation leave, the employee may have the
amount of FMLA and/or NJFLA leave taken deducted from the
"already scheduled" vacation leave.
12. There were no negotiations between East Orange and FOP
regarding these new requirements that paid leave must be used
to run concurrently with FMLA and/or NJFLA leave, and that
concurrent paid leave must be taken in a specific sequence
prior to East Orange's implementation of [RGO] 6:27.
The
hearing examiner noted that the parties agreed that the City
implemented RGO 6:27 without prior negotiations. Accordingly,
the hearing examiner found there was no genuine issue of
material fact that would require a plenary hearing.
The
hearing examiner found that the City's unilateral,
unnegotiated implementation of RGO Order 6:27 violated
N.J.S.A. 34:13A-5.4(a)(1) and (5). She issued a recommended
order that granted FOP's motion for summary
judgment, denied East Orange's cross-motion for summary
judgment, and ordered East Orange to cease and desist from:
1. Interfering with, restraining or coercing employees in the
exercise of the rights guaranteed to them by the Act,
particularly by implementing [RGO] 6:27, which requires paid
leave time to be used concurrently with FMLA and/or NJFLA
leave and in a specific sequence, without prior negotiations.
2. Refusing to negotiate in good faith with FOP concerning
terms and conditions of employment of employees in its unit,
particularly by implementing [RGO] 6:27, which requires paid
leave time to be used concurrently with FMLA and/or NJFLA
leave and in a specific sequence, without prior negotiations.
The
hearing examiner ordered East Orange to undertake the
following actions:
1.Restore the status quo ante with respect to the policy
prior to the issuance of [RGO] 6:27, implemented in December
2018.
2.Negotiate in good faith with FOP over any proposed changes
by East Orange to General Order 6:27, and maintain the status
quo during negotiations.
East
Orange filed exceptions to the hearing examiner's
recommended decision. It contended the hearing examiner
failed to give appropriate consideration to the emergency
measures it was forced to take to address abuse of sick leave
by some EOPD members that resulted in forty or more officers
being on FMLA leave at the same time. East Orange also
contended that the
policy it implemented, including the specific sequence in
which paid leave must be used, was not mandatorily
negotiable.
PERC
adopted the hearing examiner's findings of fact. PERC
noted that in her certification in support of the City's
cross-motion for summary judgment, Chief of Police Phyllis
Bindi stated:
3. Prior to the enactment of the Policy, the Police
Department was experiencing a huge abuse of leave time by
certain members of the department. At the time, the
Department consisted of approximately two hundred and two
(202) sworn officers, fifty-eight (58) of which were patrol
officers. However, at times, there were anywhere between (40)
and (50) officers out on FMLA and/or intermittent FMLA leave
at the same time.
4. With so many officers out on FMLA and/or intermittent FMLA
leave at the same time, there was a tremendous negative
impact on the abilities of the Department to carry out its
responsibilities. Such manpower issues resulted in
significant overtime payments by the City and in
"forced" overtime for officers who were not out on
leave and who were required to work double shifts on a
regular basis.
5. The above circumstances created a domino effect when the
officers who were being forced into overtime and working
double shifts began to "burn-out" resulting in them
taking leave as well.
6.The clear abuse of leave time by some members of the
Department necessitated the enactment of the Policy in which
paid leaves are required to be used concurrently with
FMLA/NJFLA leave in the sequence
7. Since the enactment of the Policy, the Department has seen
a significant reduction in the abuse of leave time taken by
its officers.
Excepting
as modified, PERC affirmed and adopted the hearing
examiner's decision and order:
We agree with the Hearing Examiner's conclusion that the
City was required to negotiate with the FOP before
implementing the
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