In re City of E. Orange & E. Orange Superior Officers' Ass'n

Decision Date04 May 2022
Docket NumberA-2786-20
CourtNew Jersey Superior Court — Appellate Division


Submitted April 6, 2022

Eric M. Bernstein & Associates, LLC, attorneys for appellant City of East Orange (Brian M. Hak on the briefs).

Markowitz and Richman, attorneys for respondent East Orange Superior Officers' Association, Fraternal Order of Police, Lodge No. 188 a/w FOP New Jersey Labor Council (Matthew D. Areman, on the brief).

Christine Lucarelli, General Counsel, attorney for New Jersey Public Employment Relations Commission (Ramiro A. Perez Deputy General Counsel, on the statement in lieu of brief).

Before Judges Whipple, Geiger and Susswein.


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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