Towamencin Twp. v. Pa. Labor Relations Bd.
| Decision Date | 07 October 2022 |
| Docket Number | 789 C.D. 2020 |
| Parties | Towamencin Township, Petitioner v. Pennsylvania Labor Relations Board, Respondent |
| Court | Commonwealth Court of Pennsylvania |
Towamencin Township, Petitioner
v.
Pennsylvania Labor Relations Board, Respondent
No. 789 C.D. 2020
Commonwealth Court of Pennsylvania
October 7, 2022
OPINION NOT REPORTED [1]
Argued: June 10, 2021
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
ANNE E. COVEY, JUDGE
Towamencin Township (Township) petitions this Court for review of the Pennsylvania Labor Relations Board's (Board) July 24, 2020 Final Order (Final Order) that dismissed in part and sustained in part the Township's exceptions (Exceptions) to Hearing Examiner Jack E. Marino's (Hearing Examiner Marino) Proposed Decision and Order (PDO), wherein the Board ruled that the Township violated Section 6(1)(a) and (e) of the Pennsylvania Labor Relations Act (PLRA),[2]as read in pari materia with the act commonly referred to as Act 111.[3] The Township
presents four issues for this Court's review: (1) whether the Board misapplied the Family and Medical Leave Act of 1993 (FMLA);[4] (2) whether the Board erred as a matter of law by concluding that the Township violated a past practice concerning designation of FMLA leave for pregnancy and childbirth; (3) whether the Board considered and decided issues beyond the scope of a Charge of Unfair Labor Practices (Charge) and Complaint; and (4) whether the Board's findings of fact are supported by substantial evidence.
Background
The Officers of the Towamencin Township Police Department (Union) is the collective bargaining representative for the Township's police officers.[5]Pursuant to Act 111 and the PLRA, the Township and the Union are parties to a collective bargaining agreement (CBA),[6] which governs the terms and conditions of the Township's police officers' employment. Relevant to this appeal, Section XIII of the CBA grants every Township police officer "unlimited [s]ick [l]eave," subject to the following relevant requirements:
A. SICK LEAVE may only be used for bona fide sickness or injury which prevents an [o]fficer from performing his or her official duties and confines the [o]fficer to bed or home for the purpose of recovery, except when the [o]fficer has left the home to seek medical consultation and/or treatment which may or may not include hospitalization
E. OFF-DUTY DISABILITY. Any officer, who is unable to perform the essential duties of his/her position as a police officer . . . as a result of a non-work related injury or accident, for a continuous period of more than 90 days, shall be required to apply for disability insurance . . [B]eginning on the 91st day, the Township shall continue to pay said officer at 80% of his/her salary prior to the onset of the accident or illness for five (5) years or until the date of retirement, whichever is earlier . . . .
Board Br., App. A (CBA) at 23-24. The CBA does not contain any FMLA provisions, and the Township does not have a separate, written FMLA policy for its police officers.[7]
Detective Jamie Pierluisse (Detective Pierluisse)[8] has been a Township police officer since 2008. She was the Township's only female police officer, and the first and only officer to take leave under the FMLA for the birth of a child. In 2016, while pregnant with her first child, health issues required Detective Pierluisse to take leave from work in March 2016, seven months before her baby was due.[9]Detective Pierluisse took 90 days of short-term disability, during which she received 100% of her Township salary pursuant to the CBA. Detective Pierluisse also applied for long-term disability benefits, which eventually paid her 80% of her salary until she was cleared to return to duty. On May 6, 2016, the Township's Finance Director Maureen Doyle (Doyle) sent Detective Pierluisse a letter notifying her that her long-term disability would commence on June 18, 2016, explaining:
Chief [of Police, Paul T.] Dickinson [(Chief Dickinson)] informed me you plan to take FMLA time to care for your baby. The paperwork is enclosed. Our policy[10] states you'll have 12 weeks available to you. You will have to use benefit time (excluding sick days) first and unpaid leave for the balance of the 12[-]week period.
Reproduced Record (R.R.) at 66a.
Detective Pierluisse gave birth to her first child by Cesarian section (C-section) on October 5, 2016. On October 13, 2016, Township Manager Robert Ford (Ford) sent a letter to Detective Pierluisse, stating:
I understand that you delivered your baby on October 5, 2016[,] via [C-]section, and that you are not currently cleared to return to work, with or without accommodation.
Under these circumstances, your absence due to the birth and/or care of your newborn child is FMLA[-]qualifying. Therefore, the Township is designating your absence as FMLA leave beginning on October 5, 2016, the date of your delivery. Your FMLA leave will run concurrently with the receipt of any disability benefits, as permitted by the FMLA and in accordance with the terms of the Township's FMLA policy, a copy of which is enclosed. I have also attached a notice of designation of your leave.
It is our understanding that you wish to use twelve (12) weeks of FMLA leave. Your leave of absence is therefore approved through December 28, 2016.
R.R. at 67a.
However, at some point thereafter, the Township realized that Detective Pierluisse was not eligible for FMLA leave because she had not worked the required 1,250 hours in the previous 12-month period.[11] The Township
nevertheless maintained its approval of Detective Pierluisse's absence for 12 weeks of leave (i.e., through December 28, 2016). Detective Pierluisse received long-term disability benefits for 8 weeks after she gave birth, and then used her paid time off (i.e., vacation and holiday time) (PTO) to cover her remaining 4 weeks in 2016. See R.R. at 20a, 43a, 86a. She returned to duty on January 2, 2017.
Detective Pierluisse became pregnant again in 2017. On October 31, 2017, Detective Pierluisse informed the Township that her doctor instructed her to stop working as of November 22, 2017. The Township approved Detective Pierluisse's use of PTO to cover the week of November 22 through 26, 2017, and she began her leave of absence effective November 27, 2017. Detective Pierluisse again took 90 days of short-term disability, during which she received 100% of her Township salary pursuant to the CBA. Detective Pierluisse also applied for long-term disability benefits, which paid her 80% of her salary until she was cleared to return to duty.
On December 5, 2017, Ford and Doyle called Detective Pierluisse and notified her that she was approved for FMLA leave for the birth of her second child as of November 27, 2017, the day she stopped working. Detective Pierluisse expressed that she had expected her leave to run the way it had in 2016, such that she would have 12 weeks after the birth to care for her child, heal from the second C-section, and physically prepare for her return to duty. See R.R. at 21a, 26a. Ford informed Detective Pierluisse that if she needed additional time off after she was cleared to return to work, she could discuss that with Chief Dickinson or the Police Department's Lieutenant.[12] See R.R. at 51a, 57a.
By December 5, 2017 letter, Ford confirmed:
Your absence due to your pregnancy, birth, and care of your newborn child is [FMLA-]qualifying.[13] Therefore, the Township is designating your absence as FMLA leave beginning on November 27, 2017, the date that you went out on leave. Your FMLA leave will run concurrently with the receipt of any disability benefits, as permitted by the FMLA and in accordance with the terms of the Township's FMLA policy, a copy of which is enclosed. I have also attached a notice of designation of your leave.
It is our understanding that you wish to use twelve (12) weeks of FMLA leave. Your leave of absence pursuant to the FMLA is approved and your period of FMLA will run through February 18, 2018. If you do not wish to utilize twelve (12) weeks of leave or your circumstances change, please contact [Doyle] or me . . . .
R.R. at 77a-78a. The Township enclosed an FMLA Notice of Eligibility and Rights & Responsibilities form (Form WH-381) on which the Township designated that Detective Pierluisse was eligible for 12 weeks of FMLA leave for a serious health condition beginning November 27, 2017. See R.R. at 79a. The Form WH-381 reflected that Detective Pierluisse would be required to "use [her] available paid . . . vacation, and/or other leave during [her] FMLA absence[,]"[14] and report her status every four weeks. R.R. at 80a.
Detective Pierluisse gave birth to her second child by C-section on January 10, 2018. On January 12, 2018, the Union notified the Township:
We believe the FMLA should be effective with a new starting date of Wednesday[,] January 10[,] 2018[,] coinciding with the birth [of] Detective Pierluisse's second child. This would follow with [the] doctrine of past
practice established by the [T]ownship and how it was applied to Detective Pierluisse's first pregnancy leave.
Again[,] said [p]ast practice was established during Detective Pierluisse's first pregnancy when the FMLA leave was applied from the date of birth[] of [her] daughter Amelia, rather than the day Detective Pierluisse started sick leave. The current FMLA leave having already been started by the [T]ownship is now going against said past practice. We further believe this is actually a matter of collective bargaining. We wish to avoid litigation and the legal bill this will generate for both sides in said matter. We request the [T]ownship [sic] reverse its current position.
R.R. at 87a.
On January 16, 2018, the Union filed the Charge with the Board, alleging therein that the Township violated Section 6(1)(a) and (e)...
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