P.E.R.C. No. 2025-15, Cedar Grove Tp B/E

Notice to employeesNOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CEDAR GROVE TOWNSHIP BOARD OF EDUCATION Respondent, -and- Docket No. CO-2023-055 CEDAR GROVE EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

On a jointly stipulated record, the Public Employment Relations Commission summarily decides an unfair practice charge filed against the Cedar Grove Township Board of Education by the Cedar Grove Education Association. The charge alleges the Board violated the Act by unilaterally designating employees’ qualifying leaves of absence as “FMLA leave” under the Family Medical Leave Act, even if employees want to delay that designation pursuant to a contractual provision, and despite an undisputed practice of allowing FMLA leave to be taken after other types of paid leave. The Commission finds: (1) FMLA regulations relied upon by the Board do not “expressly, specifically and comprehensively” remove an employer’s discretion to agree to have paid leave and FMLA leave run consecutively instead of concurrently as the parties have previously agreed to here; (2) by so agreeing, employees are deferring or postponing their right to FMLA leave, which does not equate to an impermissible “waiver” of FMLA rights under FMLA regulations; (3) Department of Labor Opinion Letters, issued in 2019, that the Board relies on lack the force of law and have not been adopted or endorsed by any federal or New Jersey court opinion; and (4) the Board violated the Act when, as stipulated, it unilaterally implemented its position that employees were required to use sick leave and FMLA concurrently, without negotiating with the Association. ¶

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 CEDAR GROVE TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2023-055 CEDAR GROVE EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Weiner Law Group LLP, attorneys (Stephen J. Edelstein, of counsel) ¶

For the Charging Party, Zazzali, P.C., attorneys (Raymond M. Baldino, of counsel) ¶

DECISION ¶

In this matter we are asked to summarily address on a stipulated record whether a public employer, during contract negotiations, violates the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), by unilaterally designating employees’ qualifying leaves of absence as “FMLA leave,” even if employees want to delay that designation pursuant to a contractual provision covering various extended leaves of absence, and despite an undisputed practice of allowing FMLA leave1/ to be taken after other types of paid leave. ¶

The question is central to an unfair practice charge (Charge) against the Respondent, Cedar Grove Township Board of Education (Board), filed by the Charging Party, Cedar Grove Township Education Association (Association) on October 7, 2022, as amended on January 18, 2024. The Director of Unfair Practices issued a Complaint on the Charge on January 25, 2024. The Charge, as amended, alleges the Board violated sections 5.4a(1) and (5)2/ of the Act in connection with the Board’s handling of employees’ requests for maternity leave (First Count), and other leaves of absence such as personal illness, disability or injury of a family member, whether related to childbirth or otherwise (Second Count). ¶

The parties have waived a proceeding before a hearing examiner and agreed to submit this dispute to the Commission for a decision without a hearing, on a jointly stipulated record. The parties’ joint submission includes their agreement “that the stipulated facts constitute the complete record before the Commission; that the Commission may dismiss the Complaint if the stipulated record is insufficient to sustain the Charging Party’s burden of proof; that the Respondent may rely upon the sufficiency of the stipulated record to sustain any affirmative defenses it has asserted or to rebut or disprove the existence of a prima facie case established by the Charging Party; and that if the Commission determines summary judgment is not appropriate based upon the stipulated record, it can request additional facts or hold a hearing.” 3/ ¶

JOINT STIPULATION OF FACTS ¶

1. The Cedar Grove Board of Education (the “Board” ) is a public employer within the meaning of the New Jersey Employer- Employee Relations Act ( “EERA” ), N.J.S.A. 34:13A-1, et seq. ¶

2. The Cedar Grove Education Association (the “Association” ) is the duly organized employee representative under the EERA representing the positions of Athletic Trainer, Learning Disabilities Teacher Consultants, Media Specialists, Psychologists, Speech Therapists, Teachers, Counselors, Long-term substitutes under contract, Nurses, Social Workers, Student Assistance Counselors, and Teachers of English as a Second Language. ¶

3. The Cedar Grove Education Association (the “Association” ) and the Cedar Grove Board of Education (the “Board” ) were parties to a Collective Negotiations Agreement covering the period from July 1, 2020, to June 30, 2023 ( “Agreement” ) (Exhibit A). ¶

4. The parties entered into a Memorandum of Understanding governing the period from July 1, 2023, through June 30, 2027 (Exhibit B). ¶

5. Article XVIII of the Agreement governs extended leaves of absence and states: ¶

A. Types of Extended Leaves. A teacher may apply for a variety of extended leaves of absence. Such eaves may be taken individually or in combination with each other. ¶

1. District extended leave allows a teacher to be absent for an extended period of time without pay and without benefits. The three types of district extended leave are: ¶

a. General Extended Leave may be granted at the Board's discretion for any viable reason documented by a teacher. ¶

b. Maternity Leave may be granted for the teacher’s preparation for delivery, delivery, and recovery from delivery. Within such a leave, a staff member may utilize up to a maximum of forty (40) days of accumulated sick leave and receive pay and benefits for those days. ¶

c. Child Care Leave may be granted for childcare following the delivery of or adoption of a child. ¶

2. Federal Family Leave allows a teacher to be absent for specific reasons for 12 weeks within a 12-month period. Federal Family Leave is without pay but with benefits. ¶

3. New Jersey Family Leave allows a teacher to be absent for specific reasons for 12 weeks within a 24- month period. New Jersey Family Leave is without pay but with benefits. ¶

6. In or about April of 2022, a dispute arose between the parties regarding the administration of leaves of absence for Association members seeking to take Maternity Leave. ¶

7. The parties have a past practice whereby Association members were permitted to utilize accumulated paid sick leave, prior to utilizing leave under the federal Family and Medical Leave Act ( “FMLA” ) and/or the New Jersey Family Leave Act ( “NJFLA” ). ¶

8. The parties have a past practice whereby Association members were permitted to utilize sick leave, FMLA, and NJFLA consecutively. The parties have a past practice whereby Association members were permitted to utilize sick leave, FMLA, and NJFLA consecutively. ¶

9. Several requests for maternity leaves were filed with the Board from April through June of 2022. ¶

10. The Board designated each leave of absence as FMLA qualifying leave at the commencement of the member’s disability period and permitted employees to substitute unpaid leave under the FMLA with paid sick leave days, i.e., employees were caused to use sick leave and FMLA concurrently. ¶

11. On June 22, 2022, the Association filed a written intent to bargain for a successor collective negotiations agreement. ¶

12. On August 16, 2022, the parties met at which time the Board expressed its position that based on the FMLA’s statutory or regulatory language and as interpreted by the United States Department of Labor it is required to designate a qualifying leave of absence as “FMLA leave” even if the employee wants to delay the designation, notwithstanding whether an employee wishes to utilize accumulated paid sick leave. The Association disputed the Board’s position, and the Board unilaterally implemented its position without negotiating with the Association. ¶

13. At the August 16, 2022, meeting, the Board recommended that the parties file a Joint Scope Petition with the Public Employment Relations Commission to determine the substantive issues outlined in the charge. ¶

14. On or about October 7, 2022, the Association filed an Unfair Practice Charge. ¶

15. On January 24, 2023, an Exploratory Conference was held, and it was agreed that the parties would enter into a “settlement agreement” , whereby the matter would be referred for a Scope of Negotiations Determination in connection with the issues raised in the Association’s Unfair Practice Charge (Exhibit C). ¶

16. The Settlement Agreement provided that if the Commission found the matter negotiable, the Board would return to its prior practice and make whole any impacted members. ¶

17. On October 31, 2023, the parties filed a Joint Petition for Scope of Negotiations Determination in connection with the issues raised in the Association’s Unfair Practice Charge (Exhibit D). ¶

18. On December 14, 2023, the Public Employment Relations Commission refused to exercise jurisdiction over the parties’ Joint Petition for a Scope of Negotiations Determination (Exhibit E [4/]). ¶

19. On January 18, 2024, the Association filed an Amended Unfair Practice Charge to include employees seeking to take extended leaves for FMLA or NJFLA qualifying reasons other than pregnancy. ¶

20. Since April of 2022, multiple employees have requested medical leave (for maternity or other health reasons). They asked to do so in the manner permitted prior to April 2022: using accrued sick time, followed by FMLA, then NJFLA. ¶

21. For employees taking leave to care for their own serious health condition, the Board designated each leave of absence as FMLA qualifying leave at the commencement of the member’s disability period and permitted employees to substitute unpaid leave under the FMLA with paid sick leave days, i.e., employees were caused to use sick leave and FMLA concurrently. ¶

22. The CGEA is also the duly organized employee representative under the EERA representing the positions of Secretaries, Custodians, and Paraprofessionals. ¶

23. The Collective Negotiations Agreements between the Board and the Secretaries, Custodians, and Paraprofessionals units all contain the same or similar language regarding leaves of absence. ¶

24. The parties agree that the Commission’s determination with regard to the application of sick leave, FMLA leave and NJFLA leave shall apply to all units. ¶

25. If the Commission determines that Association members are entitled to take their leave consecutively, the leave members’ leave information shall be submitted to the Commission for a determination and order providing the remedy to affected members. ¶

26. The parties have agreed to waive a hearing examiner’s report and recommended decision and to submit this Joint Stipulation of Facts to the Commission pursuant to the terms of the Agreement above. ¶

The Summary Judgment Standard ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). N.J.A.C. 19:14- 4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). Summary judgment “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DeMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

ANALYSIS ¶

N.J.S.A. 34:13A-5.3 requires that: “the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.” “[U]nilateral imposition of working conditions is the antithesis of [the Legislature’s] goal that the terms and conditions of public employment be established through bilateral negotiation.” Atlantic Cty., 230 N.J. 237, 252 (2017), quoting Galloway Twp. Bd. of Educ., 78 N.J. 25, 48 (1978). ¶

Public employers are prohibited from “[r]efusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit.” N.J.S.A. 34:13A- 5.4a(5). Public employers are also prohibited from “[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.” N.J.S.A. 34:13A-5.4a(1). This provision will be violated derivatively when an employer violates another unfair practice provision. Lakehurst Bd. of Ed., P.E.R.C. No. 2004-74, 30 NJPER 186 (¶69 2004). ¶

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. [In re Local 195, IFPTE, 88 N.J. 393, 404-405 (1982).] ¶

Negotiations are preempted if contract language or established practice conflicts with a statute or regulation that “fixes a term and condition of employment ‘expressly, specifically and comprehensively.’” Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J. 38, 44 (1982). The legislative provision must “speak in the imperative and leave nothing to the discretion of the public employer.” State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80 (1978). ¶

It is well-settled that sick leave and other leaves of absence are generally mandatorily negotiable, unless preempted by statute or regulation. Bayonne Bd. of Ed., P.E.R.C. No. 89-25, 14 NJPER 579 (¶19245 1988) (citing, Bd. of Ed. v. Piscataway Maintenance & Custodial Ass’n, 152 N.J. Super. 235, 243-44 (App. Div. 1977)). See also, Burlington Cty. Coll. Fac. Ass’n v. Bd. of Trs., 64 N.J. 10, 14 (1973); Hoboken Bd. of Educ. v. Hoboken Teachers’ Ass’n (App. Div. 1982), aff’ g, P.E.R.C. No. 81-97, 7 NJPER 135 (¶12058 1981). It is is also well-settled that the implementation of a policy requiring employees to use paid leave concurrently with federal and/or state statutory family and medical leave is mandatorily negotiable, as is the specific sequence in which paid leave must be used. See, e.g., In re City of E. Orange & E. Orange Superior Officers’ Ass’n (App. Div. 2022), aff’ g, P.E.R.C. No. 2021-50, 47 NJPER 530 (¶124 2021); Lumberton Educ. Ass’n v. Lumberton Bd. of Ed. (App. Div. 2002), aff’ g, P.E.R.C. No. 2002-13, 27 NJPER 372 (¶32136 2001). See also, Ocean Cty Vocational Technical School, P.E.R.C. No. 2022-32, 48 NJPER 359 (¶80 2022)(same re N.J. Family Leave Act (NJFLA)); Union Cty, P.E.R.C. No. 2021-57, 48 NJPER 46 (¶12 2021)(same, re NJFLA).5/ ¶

The Board solely argues, under Local 195’s second prong, that negotiation is preempted by a federal regulation, 29 CFR 825.300(d)(1), in conjunction with 29 CFR 825.220(d). FMLA regulations require employers to provide certain notice to employees.6/ 29 CFR 825.300(a)-(d) details four such types of notice: (a) “general notice,” which must be conspicuously posted in the workplace, “explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act” ; (b) “eligibility notice,” which must be provided to each employee who “requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason” ; (c) “rights and responsibilities notice,” which must be a “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations” ; and (d) “designation notice” which, the Board contends, preempts negotiations in this matter. ¶

The Board specifically relies on the designation-notice language in 29 CFR 825.300(d)(1), which states: ¶

The employer is responsible in all circumstances for designating leave as FMLA- qualifying, and for giving notice of the designation to the employee as provided in this section. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Only one notice of designation is required for each FMLA-qualifying reason per applicable 12- month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave. If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination. If the employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave. ¶

[29 CFR 825.300(d)(1).] ¶

We decline to find that the above language is so clear that it “expressly, specifically and comprehensively” removes an employer’s discretion to agree to have paid leave and FMLA leave run consecutively instead of concurrently as the parties have previously agreed to here. Bethlehem, supra. 29 CFR 825.300(d) (1) sets out that employers under all circumstances must immediately designate FMLA-qualifying leave and provide notice to the employee of that designation. However, the regulation then goes on to provide an employer discretion as to whether to actually designate otherwise qualifying leave as FMLA leave. Moreover, 29 U.S.C. 2652(a) provides that “[n]othing in this Act or any amendment made by the Act shall be construed to diminish the obligation if an employer to comply with any collective bargaining agreement . . . that provides greater family or medical leave rights to employees than the rights established under this Act. . . . Before the change in the instant practice, employees were receiving greater benefits by using their paid leave first, prior to using FMLA leave. That practice extended the length of medical leave available to the employee and preserved FMLA leave. The discretion provided to the employer in deciding whether to actually designate otherwise qualifying leave as FMLA leave in 29 CFR 825.300(d) (1), combined with the clear language in 29 U.S.C. 265 2(a) allowing for greater benefits to be provided pursuant to a collective bargaining agreement, supports that the regulation does not meet the standard for preemption. ¶

In In re Tp. of Parsippany-Troy Hills, 419 N.J. Super. 512, 523 (App. Div. 2011), the Court held that an employer had no “obligation to designate” requested leave as FMLA leave where the employee unequivocally “told the Township he did not wish to take FMLA leave.” In so ruling, the Appellate Division affirmed the Commission’s decision on appeal, finding “PERC correctly found that if the employee specifically states that he or she is not requesting FMLA leave, these [FMLA notice] regulations do not apply.” Id. at 522, aff’ g, P.E.R.C. No. 2011-18, 36 NJPER 326, 327 and n.3 (¶127 2010) (noting parties had “not reached an agreement on whether or not paid leave and FMLA leave must run concurrently,” and employer was not “implement[ing] a negotiated leave system requiring employees to take FMLA leave whenever eligible” ); see also Salem Community College, P.E.R.C. No. 2012-11, 38 NJPER 149 (¶42 2011) (rejecting the employer’s preemption argument that relied upon 29 CFR 825.300 in support of its petition to restrain binding arbitration of a grievance asserting the college violated the parties’ collective negotiations agreement when it required an employee to take FMLA leave at the onset of his sick leave). ¶

We also note that federal court decisions have found that when employees affirmatively choose not to exercise their FMLA rights, employers will not be held liable for failing to designate otherwise qualifying leave as FMLA leave. See, e.g., Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014) (employee can affirmatively decline FMLA leave, even if underlying reason for leave would have invoked FMLA protection; preservation of future FMLA leave is compelling reason why employee might do so); Gravel v. Costco Wholesale Corp., 230 F. Supp. 3d 430 (E.D.Pa. 2017) (employer not liable for failing to grant FMLA leave that was expressly declined by employee). ¶

Moreover, the court in Escriba found guidance for its holding in another FMLA notice regulation, 29 CFR 825.302. That regulation requires employees to provide notice to their employers when a need for FMLA leave is “forseeable,” and details how employers should respond to such notice. 743 F.3d at 1243- 1244. The Escriba court focused on the language of the regulation that stated “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.” 743 F.3d at 1244 (quoting 29 CFR 825.302(c), emphasis by Ninth Circuit). The court then reasoned: ¶

An employer’s obligation to ascertain ‘whether FMLA leave is being sought’ strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA. And a compelling practical reason supports this conclusion. Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers . . . in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee. We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. ¶

[Escriba, 743 F.3d at 1244 (internal citations omitted, emphasis added).] ¶

The Board also contends that this matter is preempted by 29 CFR 825.220(d), which states: ¶

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot trade off the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the Department of Labor or a court. Nor does it prevent an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition. See § 825.702(d). An employee’s acceptance of such light duty assignment does not constitute a waiver of the employee’s prospective rights, including the right to be restored to the same position the employee held at the time the employee’s FMLA leave commenced or to an equivalent position. The employee’s right to restoration, however, ceases at the end of the applicable 12-month FMLA leave year. ¶

[29 CFR 825.220(d) (emphasis added).] ¶

We also find that the language in this regulation does not meet the standard for preemption set out in Bethlehem, supra. By agreeing to have FMLA leave run consecutively instead of concurrently with paid leave, employees are deferring their right to FMLA leave. Deferral does not equate to a “waiver” of rights but is a postponement of rights. The Escriba court found that “affirmatively declining FMLA leave is [not] tantamount to waiving it,” in violation of 29 CFR 825.220(d), because “affirmatively declining the present exercise of a right in order to preserve it for the future is fundamentally different from permanently relinquishing that right.” 743 F.3d at 1244. Further, there is no evidence here that the parties “trade[d] off the right to take FMLA leave against some other benefit offered by the employer.” 29 CFR 825.220(d) ¶

Consistent with the above precedent, we find that negotiations are not preempted by either the “designation notice” provisions of 29 CFR 825.300(d)(1) or the “waiver” provisions of 29 CFR 825.220(d). ¶

Lastly, we note that there are two Department of Labor Opinion Letters that the Board relies on in support of its position. Those Opinion Letters, issued in 2019, lack the force of law.7/ The Board has not cited, nor are we aware of, any federal or New Jersey court opinion that has since adopted or endorsed them. ¶

In light of the foregoing, we find there are no material facts in dispute and the Association is entitled to relief as a matter of law on its Charge that the Board violated sections 5.4(a)(1) and (5) of the Act when, as stipulated, it unilaterally implemented its position that employees were required to use sick leave and FMLA concurrently, without negotiating with the Association. ¶

OrderORDER ¶

The Cedar Grove Township Board of Education is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by unilaterally requiring them to use sick leave and FMLA concurrently; ¶

2. Refusing to negotiate in good faith with the Cedar Grove Education Association concerning terms and conditions of employment of employees in all units represented by the Association by unilaterally requiring them to use sick leave and FMLA concurrently. ¶

B. Take the following action: ¶

1. Negotiate in good faith with the Association over terms and conditions of employment prior to changing or modifying terms and conditions of employment, including but not limited to the issue of concurrent sick leave and FMLA leave. ¶

2. Restore the sick leave of Association members who, because of the Board’s unilateral decision to require them to use sick leave and FMLA concurrently, were denied leave to which they were entitled. ¶

3. Compensate Association members for time periods in which they were denied sick leave because of the Board’s unilateral decision to require them to use sick leave and FMLA concurrently. ¶

4. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

5. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this ORDER. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter and Commissioners Eaton, Ford, Higgins, Kushnir and Papero voted in favor of this decision. None opposed. ¶

ISSUED: October 24, 2024 ¶

Trenton, New Jersey ¶

Notice to employeesWE SHALL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by unilaterally requiring them to use sick leave and FMLA concurrently. WE SHALL cease and desist from refusing to negotiate in good faith with the Cedar Grove Education Association concerning terms and conditions of employment of employees in all units represented by the Association by unilaterally requiring them to use sick leave and FMLA concurrently. WE SHALL negotiate in good faith with the Association over terms and conditions of employment prior to changing or modifying terms and conditions of employment, including but not limited to the issue of concurrent sick leave and FMLA leave. WE SHALL restore the sick leave of Association members who, because of the Board’s unilateral decision to require them to use sick leave and FMLA concurrently, were denied leave to which they were entitled. WE SHALL compensate Association members for time periods in which they were denied sick leave because of the Board’s unilateral decision to require them to use sick leave and FMLA concurrently. ¶

Note1/ The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. 29 USC § 2612(a). Such leave is unpaid unless employees substitute other accrued paid leave concurrently with their FMLA leave. ¶

2/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act” ; and “(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶

3/ Despite the parties’ agreement to have this dispute decided on a stipulated record, in its brief the Association characterizes the procedural context of its position as a motion for summary judgment. Therefore, we will apply the legal standards for summary judgment in deciding this dispute. ¶

4/ P.E.R.C. No. 2024-26, 50 NJPER 288 (¶68 2023). The Commission found no special circumstances warranted the exercise of its scope of negotiations jurisdiction, among other things because “the 2019 DOL guidance memo cited by the Board in support of its preemption argument was issued prior to the start of the parties’ current July 2020 through June 2023 CNA,” and thus there was “no intervening judicial or administrative decision that allegedly declared the parties’ consecutive sick leave/FMLA practice an illegal subject of negotiations.” Id. ¶

5/ Cf., City of E. Orange, 47 NJPER 530, supra (rejecting employer’s policy-based argument that allowing FMLA leave to follow other paid leave promoted sick-leave abuse, where employer did not attempt other means of curbing that problem, such as through sick-leave verification or disciplinary measures, before unilaterally requiring employees to use paid leave concurrently with FMLA leave). ¶

6/ An employer’s failure to follow the notice requirements “may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights,” exposing the employer to potential liability for “compensation and benefits lost by reason of the violation,” as well as “other actual monetary losses sustained as a direct result of the violation,” and equitable remedies including “employment, reinstatement, promotion, or any other relief.” 29 CFR 825.300(e). See also, 29 CFR 825.301 (such remedies are available if employer’s failure to timely designate leave in accordance with § 825.300 “causes the employee to suffer harm” ). Employees must also satisfy certain notice requirements, set forth in 29 CFR 825.302 and 825.303, depending on whether a need for FMLA leave is foreseeable or unforeseeable. ¶

7/ New Jersey courts follow Christenson v. Harris County, 529 U.S. 576, 587 (2000), which holds that interpretations in agencies’ opinion letters “lack the force of law” and “do not warrant Chevron-style deference.” See, e.g., Big M, Inc. v. Texas Roadhouse Holding, LLC, 415 N.J. Super. 130, 136 (App. Div. 2010); Nutley PBA Local #33 v. Township of Nutley, 419 N.J. Super. 160, 168 (App. Div. 2011). Under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), courts had to defer to “permissible” agency interpretations of the statutes those agencies administer, even when a reviewing court reads the statute differently. But recently, the U.S. Supreme Court overruled Chevron, holding courts must now exercise their independent judgment and may not defer to an agency interpretation of a law simply because a statute is ambiguous. Loper Bright Enterprises, et al. v. Raimondo, 144 S. Ct. 2244, 2273 (September 28, 2024). However, as it was issued after briefing was completed here, Loper does not inform our decision. ¶

Notice to employeesDocket No. CO-2023-055 Cedar Grove Board of Education (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 292-9830 APPENDIX “A” ¶