P.E.R.C. No. 2014-57, Henry Hudson Reg B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HENRY HUDSON REGIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2013-052 HENRY HUDSON REGIONAL EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission determines the negotiability of a contract clauses in an expired collective negotiations agreement between the Henry Hudson Regional Board of Education and the Henry Hudson Regional Education Association. The Commission holds that N.J.S.A. 18A:16-19 preempts negotiability of a retiree health benefits clause to the extent the clause applies to employees who obtain 25 years or more of qualifying service and elect State-paid coverage under the State plan, but finds that the clause is otherwise mandatorily negotiable for employees who meet the minimum eligibility requirements of N.J.S.A. 40A:10-23(b) for discretionary employer- paid retiree health insurance coverage. ¶

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 HENRY HUDSON REGIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2013-052 HENRY HUDSON REGIONAL EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Taylor, Whalen and Hybbeneth, Consultants (William F. Hybbeneth, Jr., consultant) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys (Sanford R. Oxfeld, of counsel and on the brief; Samuel B. Wenocur, on the brief) ¶

DECISION ¶

On February 26, 2013, the Henry Hudson Regional Board of Education petitioned for a scope of negotiations determination. The Board seeks a determination that a clause in its current collective negotiations agreement ( “CNA” ) with the Henry Hudson Regional Education Association is not mandatorily negotiable and cannot be retained in a successor contract. ¶

The parties have filed briefs and exhibits. The Board has submitted the certifications of its Business Administrator, Board Secretary, and a Board member. The Association has submitted the certification of its President.1/ These facts appear. ¶

The Association represents a unit of full time certificated personnel. The parties’ CNA expired on June 30, 2012. They are in negotiations for a successor agreement. ¶

Article X of the CNA is entitled “Insurance Protection” . The parties dispute the negotiability of Article X, clause A.2., which provides: ¶

2. The Board will pay for single dental coverage for retirees whose retirement is effective after July 1, 2006. The Board will pay for single Dental and Prescription for retiree’s [sic] whose retirement is effective after June 30, 1986 to June 30, 2005. ¶

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.” We do not consider the wisdom of the clauses in question, only their negotiability. In re Byram Tp. Bd. of Ed., 152 N.J. Super. 12, 30 (App. Div. 1977). ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates 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. ¶

[Id. at 404-405]. ¶

The Board asserts that Article X.A.2. is not negotiable because it is preempted by N.J.S.A. 18A:16-19b which provides that a school board may assume the cost of retiree health coverage for employees who have retired after 25 or more years of service, however, retired employees and dependents who have elected to take State-paid coverage under the State plan are not eligible for employer-paid coverage. The Board further asserts that N.J.S.A. 40A:10-23, which sets out minimum eligibility requirements for discretionary employer-paid retiree health insurance coverage, when read in conjunction with N.J.S.A 18A:16- 19b, sets out that 25 years of service as the minimum qualifier for any employer-paid benefits in retirement. ¶

The Association responds that retiree health benefits are negotiable for local boards of education which, as in the instant case, have chosen not to participate in the State plan. It further responds that retiree health benefits are mandatorily negotiable for retirees meeting the statutory age and service requirements of N.J.S.A. 40A:10-23 and N.J.S.A. 40A:10-23.3. ¶

The level of health benefits is a mandatorily negotiable subject. Middlesex Cty., P.E.R.C. No. 79-80, 5 NJPER 194 (¶10111 1979), aff’d in relevant pt. 6 NJPER 338 (¶11169 App. Div. 1980). N.J.S.A. 18A:16-19b, “payment for coverage” , provides that a school board may assume the cost of retiree health benefits for employees who have retired after 25 years or more service, however, retired employees and dependents who have elected to take State-paid coverage under the SHBP are not eligible for employer-paid coverage. N.J.S.A. 40A:10-23(b), “payments of premiums after retirement” , sets out the minimum eligibility requirements to be eligible for discretionary employer-paid retiree health insurance coverage by municipalities. In addition to employees who have obtained 25 years or more of qualifying service, the minimum eligibility requirements include employees who have retired on a disability pension and employees who have retired and reached the age of 62 years or older with at least 15 years of service with the employer. The Board asserts that N.J.S.A. 18A:16-19 preempts the parties from agreeing to Board- paid prescription and dental coverage for all retirees. We disagree. To be preemptive, a statute or regulation must specifically, expressly and comprehensively set a term and condition of employment, thereby eliminating the employer’s discretion to negotiate over that subject. Hunterdon Cty. Freeholder Bd. And CWA, 116 N.J. 322, 330 - 31 (1989). The express language of N.J.S.A. 18A:16-19 preempts the parties from agreeing to Board-paid prescription and dental coverage for retirees who have 25 or more years of qualifying service and elect State-paid coverage under the State plan. Thus, Article X:A-2 is not mandatorily negotiable to the extent it applies to an employee who has the qualifying 25 years or more of service and elects State-paid coverage. Lumberton Tp. Bd. of Ed., P.E.R.C. No. 2009-21, 34 NJPER 303 (¶111 2008). However, we also find that Article X:A-2 is mandatorily negotiable to the extent it applies to an employee who obtains the 25 years of qualifying service and does not elect State-paid coverage under the State plan, or who meets the minimum eligibility requirements of N.J.S.A. 40A:10-23(b) for discretionary employer-paid retiree health insurance coverage on a basis other than having 25 or more years of qualifying service.2/ We trust that with this guidance, the parties can return to negotiations regarding Article X:A-2. ¶

OrderORDER ¶

Article X:A-2 is not mandatorily negotiable to the extent it applies to employees who obtain 25 years or more of qualifying service and who elect State-paid coverage under the State plan. Article X:A-2 is mandatorily negotiable to the extent it applies to employees who obtain 25 years or more of qualifying service and who do not elect State-paid coverage under the State plan, or who otherwise meet the minimum eligibility requirements of N.J.S.A. 40A:10-23(b) for discretionary employer-paid retiree health insurance coverage. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson, Jones, Voos and Wall voted in favor of this decision. None opposed. ¶

ISSUED: February 27, 2014 ¶

Trenton, New Jersey ¶

Note1/ The certifications submitted by the Board and Association detail the negotiations history regarding Article X:A-2. ¶

2/ We note that our finding is applicable to current employees only. ¶