P.E.R.C. No. 2000-9, Maplewood Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF MAPLEWOOD, Petitioner, -and- Docket No. SN-99-69 P.B.A. LOCAL 44, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Genova, Burns & Vernoia, attorneys ¶

(Sandro Polledri, on the brief) ¶

For the Respondent, Loccke & Correia, P.A., attorneys ¶

(Charles J. Sciarra, on the brief) ¶

DECISION ¶

On March 15, 1999, the Township of Maplewood petitioned for a scope of negotiations determination. The Township seeks a determination that a negotiations proposal made by P.B.A. Local 44 is not mandatorily negotiable and may not be submitted to interest arbitration for inclusion in a successor collective negotiations agreement between the parties. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

The PBA represents all sworn police officers, excluding the chief. The parties' most recent collective negotiations agreement expired on December 31, 1998. The Township and the PBA are in negotiations for a successor contract and the PBA has petitioned for interest arbitration. ¶

Article XIII of the expired agreement is entitled Sick Leave and sets forth how employees on sick leave shall be paid. The PBA has submitted this proposal to augment that provision: ¶

The PBA proposes that members on sick leave status shall not be the subject of sick leave home checks without a valid compelling reason. Any such checks shall be made only during normal day time business hours and in no circumstances shall there be checks done during the middle of the night. Unless ordered by a treating physician, there shall be no requirement of confinement at the member's home during sick status. ¶

The Township asserts that the PBA's proposal would prohibit it from verifying the use of sick time unless there were valid compelling reasons. It asserts that applicable case law does not impose such restrictions on an employer's right to verify use of sick time. Further, the Township argues that the proposal would limit verifications to normal day time business hours and that since the police department operates around-the-clock the proposal would bar it from verifying sick time of officers who work during the evening. Finally, the Township asserts that we have long upheld an employer's right to establish policies that require employees to remain at home during sick leave. ¶

A sick leave verification directive was the subject of an unfair practice charge filed by the PBA on November 4, 1998 and settled a month later. The PBA asserts that the charge was filed as a result of a directive requiring watch commanders on each tour of duty to contact officers or dispatchers who have called out sick and to continue to call until contact is made. The PBA asserts that the charge was based on the "onerous nature of the policy itself." The charge and the interim relief request were dismissed when the parties reached an agreement which called for a "reasonable verification policy." The PBA further asserts that the Township has instituted standard operating procedures (SOP 037 and SOP 169) to identify and deal with sick leave abuse and abusers and that a blanket onerous verification policy would upset an agreement between both sides on the sick leave policy. ¶

Paterson Police PBA No. 1 v. Paterson, 87 N.J . 78 (1981), outlines the steps of a scope of negotiations analysis for police officers and firefighters: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. [ State v. State Supervisory Employees Ass'n, 78 N.J . 54, 81 (1978).] If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government's policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. ¶

[87 N.J. at 92-93; citations omitted] ¶

We will consider only whether the proposal is mandatorily negotiable. We do not decide whether contract proposals concerning police officers are permissively negotiable since the employer need not negotiate over such proposals or consent to their retention in a successor agreement. Town of West New York, P.E.R.C. No. 82-34, 7 NJPER 594 (¶12265 1981). ¶

In Piscataway Tp. Bd. of Ed., P.E.R.C. No. 82-64, 8 NJPER 95 (¶13039 1982), we held that the employer had a prerogative to establish a sick leave verification policy and to use "reasonable means to verify employee illness or disability." Id . at 96. We distinguished the mandatorily negotiable issue of whether a policy has been properly applied to deny sick leave benefits. We stated: ¶

In short, the Association may not prevent the Board from attempting to verify the bona fides of a claim of sickness, but the Board may not prevent the Association from contesting its determination in a particular case that an employee was not actually sick. Id. at 96. ¶

Since Piscataway , we have decided dozens of cases involving sick leave verification policies. We have repeatedly stated and held that an employer has a prerogative to require employees taking sick leave to produce doctors' notes verifying their sickness. See, e.g., Rahway Valley Sewerage Auth ., P.E.R.C. No. 96-69, 22 NJPER 138 (¶27069 1996); State of New Jersey (Dept. of Treasury), P.E.R.C. No. 95-67, 21 NJPER 129 (¶26080 1995); Hudson Cty ., P.E.R.C. No. 93-108, 19 NJPER 274 (¶24138 1993); City of Elizabeth , P.E.R.C. No. 93-84, 19 NJPER 211 (¶24101 1993); South Orange Village Tp ., P.E.R.C. No. 90-57, 16 NJPER 37 (¶21017 1989): City of Camden , P.E.R.C. No. 89-4, ¶

14 NJPER 504 (¶19212 1988); Borough of Spring Lake , P.E.R.C. No. 88-150, 14 NJPER 475 (¶19201 1988); Jersey City Med. Center , P.E.R.C. No. 87-5, 12 NJPER 602 (¶17226 1986); Newark Bd. of Ed ., P.E.R.C. No. 85-26, 10 NJPER 551 (¶15256 1984). But we have also repeatedly stated and held that the issues of who pays for doctors' notes and what the penalties will be for violating a policy are mandatorily negotiable. See, e.g., City of Elizabeth v. Elizabeth Fire Officers Ass'n, Local 2040, IAFF, 198 N.J. Super. 382 (App. Div. 1985); Rahway Valley Sewerage Auth.; Teaneck Tp., P.E.R.C. No. 93-44, 19 NJPER 18 (¶24009 1992); City of Paterson , P.E.R.C. No. 92-89, 18 NJPER 131 (¶23061 1992); Mainland Reg. H.S. Dist. Bd. of Ed., P.E.R.C. No. 92-12, 17 NJPER 406 (¶22192 1991); Aberdeen Tp ., P.E.R.C. No. 90-24, 15 NJPER 599 (¶20246 1989); cf. City of Passaic , P.E.R.C. No. 89-77, 15 NJPER 93 (¶20041 1989), aff'd NJPER Supp .2d 221 (¶194 App. Div. 1989)(reporting procedures that do not implicate right to demand proof of illness permissively negotiable). ¶

Piscataway itself involved a verification policy that included telephone checks. In most instances, the employer's need to prevent sick leave abuse outweighs the absent employee's right to be free of the intrusion of a telephone call at home. Accordingly, the employer generaly need not negotiate over a proposal to justify a home check by a "valid compelling reason." Nor must it negotiate over a proposal to limit home checks to "normal day time business hours." ¶

Piscataway recognized that a sick leave verification policy might be implemented in an unreasonable manner which unduly interferes with the employee's welfare. See also Passaic . An employer has a significant interest in verifying illness when paying sick leave and in combatting sick leave abuse by employees who work nighttime shifts. Employees and their families have a separate, legitimate interest in avoiding the discomfort and anxiety associated with having someone telephone in the middle of the night. However, the PBA's proposal strikes an inappropriate balance of the employee and employer interests. It prohibits any home checks during the middle of the night. Thus, for example, even if the employer had a valid reason to suspect sick leave abuse, it would be prohibited from conducting a home check. That prohibition is too broad and is thus not mandatorily negotiable. ¶

Finally, the last sentence of the PBA's proposal is not mandatorily negotiable as written. There may be circumstances where requiring an employee on sick leave to remain at home is unreasonable. In fact, a December 1998 memorandum to watch commanders states that it is not necessary to telephone an employee who is out "for an extended illness or injury where a doctor's note stipulates a non restriction to the house." Having an employee stay at home when sick is not purely an issue of sick leave verification. It also involves restrictions on employees who may be too sick or injured to work, but not too sick or injured to engage in other activities. This proposal, however, is too broad in that it prohibits an employer from requiring that a sick or injured employee be at home unless ordered by a treating physician. Such a rule could significantly interfere with an employer's ability to verify illness. Given the employer's existing policy and this determination, the parties may be able to craft compromise language that addresses all concerns. ¶

OrderORDER ¶

The PBA's sick leave verification proposal is not mandatorily negotiable as written. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Buchanan opposed. Commissioner Madonna abstained from consideration. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶