P.E.R.C. No. 2017-6, W Orange B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WEST ORANGE BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2016-055 WEST ORANGE EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Association’s motion for reconsideration of P.E.R.C. No. 2016-86. In that decision, among other determinations, the Commission found that Article XV, Section B of the parties’ expired collective negotiations agreement was preempted by N.J.S.A. 18A:30-6 and therefore not mandatorily negotiable. The Commission concludes there are no extraordinary circumstances warranting reconsideration. ¶

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 WEST ORANGE BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2016-055 WEST ORANGE EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary, Giacobbe, Alfieri & Jacobs, LLC, attorneys (Matthew J. Giacobbe, of counsel and on the brief; Gregory J. Franklin, of counsel and on the brief) ¶

For the Respondent, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys (Richard A. Friedman, of counsel and on the brief; Genevieve M. Murphy-Bradacs, on the brief) ¶

DECISION ¶

On July 15, 2016, the West Orange Education Association (Association) moved for reconsideration of P.E.R.C. No. 2016-086, __ NJPER __ (¶ __ 2016). In that decision we determined the negotiability of portions of the West Orange Board of Education’s (Board) expired collective negotiations agreement (CNA) with the Association. Among other determinations, we found that Article ¶

XV, Section B., entitled “Supplementary Sick Leave,” 1/ was preempted by N.J.S.A. 18A:30-6 and therefore not mandatorily negotiable. The Association has filed a brief and the certification of its President in support of the motion. The Board has filed an opposition brief. ¶

Reconsideration “will only be granted based on a demonstration of extraordinary circumstances and exceptional importance. The movant shall specify and bear the burden of establishing the grounds warranting reconsideration.” N.J.A.C. 19:13-3.12(a). ¶

The Association maintains that for at least 20 years, supplementary sick days have only been used to allow unit members who are out on unpaid leaves of absence to continue their insurance coverage (i.e., use of three supplementary sick days entitles an employee to the employer’s portion of insurance coverage for one month); they cannot be used as regular sick days and have no independent monetary value. Since the Commission issued its decision, however, the Association President certifies that the Board has advised that it will no longer honor the parties’ longstanding agreement. Notwithstanding the Board’s advisement, the Association maintains that the provision of health insurance benefits to employees out on unpaid leaves of absence is a mandatorily negotiable subject for collective negotiations. ¶

The Board argues that the Association has failed to meet its burden of establishing extraordinary circumstances and exceptional importance warranting reconsideration. The Board maintains that the Commission decision acknowledges applicable case law interpreting N.J.S.A. 18A:30-6 which requires that extended sick leave determinations be based upon a school board’s consideration of individual circumstances rather than the application of a negotiated rule. ¶

In P.E.R.C. No. 2016-086, __ NJPER __ (¶ ____ 2016), the Commission addressed an abstract issue of negotiability placed before it by the Board; specifically, whether Article XV, Section B. as written is a mandatorily negotiable subject for collective negotiations. See N.J.A.C. 19:13-3.10. N.J.S.A. 18A:30-6 and related case law require that extended sick leave determinations be made at the discretion of a local board of education. See, e.g., Carteret Bd. of Ed., P.E.R.C. No. 2009-71, 35 NJPER 213 (¶76 2009) (citing Piscataway Tp. Bd. of Ed. v. Piscataway Maintenance and Custodial Ass’n, 152 N.J. Super. 235 (App. Div. 1977) for the proposition that pursuant to N.J.S.A. 18A:30-6, a local board of education cannot negotiate away the discretion to grant extra sick leave days on a case-by-case basis). Given that Article XV, Section B. does not grant the Board authority to make extended sick leave determinations on a case-by-case basis, it is not mandatorily negotiable as written. ¶

We note that employers may not unilaterally change prevailing terms and conditions of employment, which may be set by agreement or by past practice, because to do so would circumvent the statutory duty to bargain. See Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass’n, 78 N.J. 25, 48 (1978); see also, Middletown Tp. and Middletown PBA Loc. 124, P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1997), aff’d 334 N.J. Super. 512 (App. Div. 1999), aff’d 166 N.J. 112 (2000); N.J.S.A. 34:13A-5.3; N.J.S.A. 34:13A-33.2/ However, the issue in the instant motion for reconsideration, as set forth above, is whether the Association has established the grounds for a demonstration of extraordinary circumstances and exceptional importance under N.J.A.C. 19:13-3.12(a). We find that the Association has not met the burden for reconsideration. ¶

OrderORDER ¶

The West Orange Education Association’s motion for reconsideration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Boudreau, Eskilson and Wall voted in favor of this decision. Commissioners Jones and Voos voted against this decision. Commissioner Bonanni recused himself. ¶

ISSUED: August 18, 2016 ¶

Trenton, New Jersey ¶

Note1/ Article XV, Section B., provides: ¶

Full-time employees shall be credited with five (5) days of supplementary sick leave allowance for each year of service, with unused days to be accumulated. Full-time employees who have exhausted their regular sick leave may utilize the accumulated supplementary sick leave to the extent necessary to provide total compensation of up to three (3) days beyond this period in any month wherein less than three (3) days’ compensation has been earned. ¶

2/ Additionally, the Commission has held that the continuation of health insurance benefits for employees out on unpaid leaves of absence is mandatorily negotiable. Hopewell Valley Reg. Bd. of Ed., P.E.R.C. No. 97-91, 23 NJPER 133 (¶28065 1997) (citing West Orange Bd. of Ed., P.E.R.C. No. 92-114, 18 NJPER 272 (¶23117 1992), aff’d NJPER Supp.2d 291 (¶232 App. Div. 1993)); see also, N.J.S.A. 18A:16-16. ¶