P.E.R.C. No. 2011-44, Hoboken

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF HOBOKEN, Petitioner, -and- Docket No. SN-2010-067 HOBOKEN MUNICIPAL SUPERVISORS ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the City of Hoboken for a restraint of binding arbitration of a grievance filed by the Hoboken Municipal Supervisors Association. The grievance alleges that the City inappropriately denied an employee, who participated in a donated leave program, payment for his unused vacation time at retirement. The Commission holds that Civil Service regulations preempt the grievant’s claim. ¶

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 CITY OF HOBOKEN, Petitioner, -and- Docket No. SN-2010-067 HOBOKEN MUNICIPAL SUPERVISORS ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, David F. Corrigan, LLC, attorneys (David F. Corrigan, of counsel) ¶

For the Respondent, Cohen, Leder, Montalbano & Grossman, LLC, attorneys (Bruce D. Leder, of counsel) ¶

DECISION ¶

On February 25, 2010, the City of Hoboken petitioned for a scope of negotiations determination. The City seeks a restraint of binding arbitration of a grievance filed by the Hoboken Municipal Supervisors Association. The grievance alleges that the City inappropriately denied an employee payment for his unused vacation time at retirement. We conclude that Civil Service regulations preempt the grievant’s claim and we therefore restrain arbitration. ¶

The parties have filed briefs and exhibits. The City has filed a certification from its Personnel Officer. These facts appear. ¶

The City is a Civil Service jurisdiction. The Association represents the City’s non-uniformed, supervisory employees. The parties entered into a collective negotiations agreement effective from July 1, 2005 through June 30, 2008. The agreement’s grievance procedure ends in binding arbitration. ¶

Article XIV of the agreement provides: ¶

An employee shall have the option to request his terminal leave and accumulated vacation in a 100% lump sum payment. This would be paid in two (2) installments if the terminal leave and accumulated vacation incorporate more than one (1) calendar year. ¶

On March 24, 2008, an employee suffered a work-related injury and was placed on workers’ compensation leave. The employee recovered from the injury, and was scheduled to return to work when he suffered a heart attack. Beginning July 25, the City began deducting the employee’s sick time to maintain his pay status. On August 15, when the employee’s sick leave was exhausted, he was placed on vacation leave to permit him to stay on the payroll. His vacation days were exhausted in November 2008. ¶

Although the City does not have a Civil Service-approved donated leave program and the parties’ agreement does not contain a donated leave program, the City permitted seven employees to donate ten days each to the grievant’s sick leave bank. The grievant retired in December 2008. At that time, the City returned 52 unused donated days to the donator employees. ¶

On January 14, 2009, the Association filed a grievance alleging that the City had refused to pay the grievant for his unused vacation days upon retirement. The matter was not resolved. On September 15, the Association filed for 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 do not consider the merits of this grievance or any contractual defenses the City may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (1982), sets the standards for determining whether a subject is mandatorily negotiable: ¶

[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. ¶

Where a statute or regulation is alleged to preempt a negotiable term and condition of employment, it must do so expressly, specifically and comprehensively. See Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44-45 (1982). ¶

The City asserts that the grievant is seeking payment of the remaining donated sick leave days and that Civil Service regulations concerning donated sick leave, specifically N.J.A.C. 4A:6-1.22(e), preempt the issue raised in the grievance. That regulation provides: ¶

1. Any unused, donated leave shall be returned to the leave donors on a prorated basis upon the leave recipient’s return to work, except that if the proration of leave days results in less than one day per donor to be returned, that leave time shall not be returned. ¶

2. Upon retirement, the leave recipient shall not be granted supplemental compensation on retirement for any unused sick days which he or she had received through the leave donation program. ¶

The Association responds that its grievance concerns vacation leave, not sick leave, and, therefore, is not preempted by these regulations. The Association further responds that an arbitrator can determine whether the grievant is entitled to be paid for accumulated but unused vacation days. ¶

The City replies although it did not have a Civil Service- approved donated leave program, it is undisputed that the employee received donated leave and he is therefore not entitled to any additional monies. ¶

It is undisputed that the grievant received donated sick leave in a Civil Service jurisdiction. N.J.A.C. 4A:6-1.22(a)2 provides that employees must meet certain criteria to utilize a donated leave program, including exhaustion of “all [their] accrued sick, vacation and administrative leave, all sick leave injury benefits, if any, and all compensatory time off.” Thus, the grievant was required to exhaust any accumulated vacation leave before receiving donated leave. In addition, N.J.A.C. 4A:6-1.22(e) requires that the grievant not receive any portion of the excess donated leave. Unused leave must be returned to the leave donors. Under these facts, Civil Service regulations preempt any claim for payment for unused vacation days.1/ Accordingly, we restrain binding arbitration. ¶

OrderORDER ¶

The request of the City of Hoboken for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: November 23, 2010 ¶

Trenton, New Jersey ¶

Note1/ We find no basis to hold that the City’s failure to get Civil Service approval for its donated leave program permits the grievant to receive donated leave without first exhausting his accumulated vacation leave. ¶