P.E.R.C. No. 2011-13, Pohatcong B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of POHATCONG BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2010-047 POHATCONG EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the Pohatcong Board of Education for a restraint of binding arbitration of a grievance filed by the Pohatcong Education Association. The grievance asserts that the Board underpaid a teacher who was on unpaid leave for the last three days that teachers were required to work during the 2008-2009 school year. The Commission holds that the grievance concerns a mandatorily negotiable compensation issue. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of POHATCONG BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2010-047 POHATCONG EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Comegno Law Group, P.C., attorneys (John B. Comegno II and Kimberly A. Sukinik, of counsel) ¶

For the Respondent, Oxfeld Cohen, P.C. attorneys (Gail Oxfeld Kanef, of counsel) ¶

DECISION ¶

On December 14, 2009, the Pohatcong Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Pohatcong Education Association. The grievance asserts that the Board underpaid a teacher who was on unpaid leave for the last three days that teachers were required to work during the 2008-2009 school year. We decline to restrain arbitration over this compensation issue. ¶

The parties have filed briefs and documents. The Board has filed the certification of its Superintendent of Schools. These facts appear. ¶

The Association represents the Board’s non-supervisory, certified personnel, except for per diem substitutes. The Board and Association are parties to a collective negotiations agreement effective from July 1, 2006 through June 30, 2009. The grievance procedure ends in binding arbitration. Article VII reads, in pertinent part: ¶

In the event that the specifically enumerated provisions of [this article] afford employees greater protection than those set forth in the Federal Family and Medical Leave Act and the New Jersey Family Leave Act, then the relevant provisions of this article will supersede those provisions of the Federal Family and Medical Leave Act and the New Jersey Family Leave Act; which afford employees lesser protection. ¶

The Board may grant an extended leave without pay to any male or female staff member. . . . ¶

Article XI, Teaching Hours and Teaching Load, provides in Section H, “The student year will be 183 days and the teacher year will be 186 days.” Article XVI, Grievance Procedure, provides, in relevant part, that “the term ‘grievance’ shall not apply to any matter of which a method of review is prescribed by law or State Board of Education rule; or is contrary to law or rules of the State Board of Education.” ¶

Generally, teachers are paid on the 15th and 30th of each month during the school year. The payments are made in equal installments regardless of the number of work days during a particular pay period. The last pay date is June 30. ¶

There were 186 work days for teachers during the 2008-2009 school year. Teaching staff member Erin Sebring used 60 days of her accumulated sick leave. Her accumulated sick leave expired on Monday, June 15, 2009. The last day of school for teaching staff was Friday, June 19. Sebring advised the Board that she did not intend to report to work for the remaining days of that week and requested unpaid leave for those dates. The leave was granted. However, Sebring received no paycheck on June 30. Sebring expected to receive compensation that did not include payment for her unpaid leave during the last week of the school year, but did include salary for the period from June 19 through June 30 as no other teachers were required to report to work on those dates. ¶

The Association filed a grievance asserting that it disagreed with the Board’s decision and that Sebring should have lost only three days’ pay as she worked or used approved medical/sick days for 183 of the 186 contracted teacher days as outlined in Article XI, Section H.1/ The Board denied the grievance stating that the requested payment has never been provided to any other ten month employee placed on voluntary leave prior to the conclusion of the school year and that Sebring’s request for leave was made with the understanding that she would be working without compensation for the remainder of the school year. The Association demanded arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we cannot consider the merits of the grievance or any contractual defenses the employer may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), lists the standards for determining mandatory negotiability: ¶

[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. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405]. ¶

Negotiations are preempted only when a statute or regulation fixes a term and condition of employment expressly, specifically and comprehensively. Bethlehem Tp. Ed. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982). ¶

The Board argues that: its decision to deny Sebring compensation was based on Commissioner of Education decisions and the grievance procedure does not allow binding arbitration of any rule or regulation of the State Board of Education or dispute arising under the school laws; all family leaves under the contract are without pay; and it is within the Board’s discretion to grant more rights, benefits and privileges than what the contract requires. ¶

The Association responds that no statute or regulation preempts negotiations over payment after an unpaid leave of absence and the Board’s contractual arguments must be made to the arbitrator. ¶

The contractual defenses asserted by the Board are beyond our limited scope of negotiations jurisdiction. Ridgefield Park. Specifically, we do not decide whether the grievance procedure excludes any issues that arise under the school laws or if the contract provides that all family leaves are unpaid. ¶

Here, the dispute centers on whether being on unpaid leave from June 16 through June 19 precluded Sebring from receiving compensation for June 22 through June 30, a period when other teachers were not working but were paid. This is a compensation question that is generally negotiable and no statute or regulation would preclude Sebring’s being compensated for those days. ¶

Two Commissioner of Education decisions2/ cited by the Board ruled on claims that employees should have been granted paid leave for the balance of the school year pursuant to N.J.S.A. 18A:30-6, a statute that vests a school board with case-by-case discretion to decide whether to grant extended sick leave. See Piscataway Tp. Bd. of Ed. v. Piscataway Maintenance & Custodial Ass'n, 152 N.J. Super. 235 (App. Div. 1977) . In both cases, the teachers were on unpaid leaves for the balance of the school year and were seeking paid leave under N.J.S.A. 18A:30-6 for the days at the end of the school year for which other teachers were paid without having to work. Here, the Superintendent states that Sebring was granted an unpaid family leave for the balance of the school year, but Sebring claims that she is entitled to compensation for June 20 through 30. Nothing in the record indicates that Sebring was seeking extended sick leave under N.J.S.A. 18A:30-6 for June 20 through June 30. ¶

Absent a statute or regulation that would prohibit payment for the days after an unpaid leave, the questions of whether Sebring was on an unpaid leave for the balance of the school year or should have been compensated for the last few days raise questions of fact and contract interpretation that can be considered by the arbitrator selected to decide disputes arising under the parties’ collective negotiations agreement. ¶

OrderORDER ¶

The request of the Pohatcong Board of Education for a permanent restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Commissioners Colligan, Eaton, Fuller, Krengel, Voos and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: August 12, 2010 ¶

Trenton, New Jersey ¶

Note1/ It is not clear why the grievance refers to three days of unpaid leave rather than four days. That fact is not material to this decision. ¶

2/ Berkowitz v. Elizabeth Bd. of Ed ., adopting and Cuthbertson v. Elizabeth Bd. of Ed ., adopting . ¶