P.E.R.C. No. 2025-2, Sayreville Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of Sayreville Borough Petitioner, -and- Docket No. SN-2024-036 AFSCME Local 3527, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Borough's scope of negotiations petition seeking a determination that three provisions of its expired collective negotiations agreement with the Local are statutorily preempted, and therefore, cannot be retained in a successor agreement. The provisions concerned sick and vacation and leave, which the Commission finds are not statutorily preempted by N.J.S.A. 11A:6- 19.2 and 11A:6-3(e). ¶

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 SAYREVILLE BOROUGH, PETITIONER, -and- Docket No. SN-2024-036 AFSCME LOCAL 3527, RESPONDENT. ¶

AppearancesAppearances: ¶

For the Petitioner, Rothstein, Mandell, Strohm, & Cipriani, attorneys (Andrea E. Wyatt, Esq., of counsel) ¶

For the Respondent, AFSCME New Jersey Council 63 (Rickie Simpkins, staff representative) ¶

DECISION ¶

On May 23, 2024, Sayreville Borough (Borough) petitioned for a scope of negotiations determination. The Borough seeks a determination that three provisions of its expired collective negotiations agreement (CNA) with AFSCME Local 3527 (Local) are statutorily preempted, and therefore, cannot be retained in a successor agreement. The Association asserts that the three provisions are not statutorily preempted. The Borough filed a brief with exhibits and the certification of its Business Administrator. The Local filed a response letter by its staff representative. ¶

The Local is the exclusive representative for all covered employees as set forth in Appendix A of the parties’ CNA. The Board and Local are parties to a CNA with a term of January 1, 2017 to December 31, 2022, which remains in effect until a successor agreement is negotiated. ¶

Our jurisdiction is narrow. The Commission is addressing the abstract issue of whether the subject matter in dispute is within the scope of collective negotiations. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). 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). ¶

The Supreme Court of New Jersey articulated the standards for determining whether a subject is mandatorily negotiable in Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (1982): ¶

[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 addresses a term and condition of employment, negotiations are preempted only if it speaks in the imperative and 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); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). ¶

The Borough disputes the negotiability of the CNA’s Article 26 ( “Sick Leave” ), Sections F and K(3), which state respectively: ¶

F. Up to four (4) days of sick leave may be utilized by an employee in any one (1) year for personal business, provided that such days may not be taken consecutively and provided that the employee requests the use of the personal leave from his/her supervisor at least two days in advance. Exceptions to the notice requirement will be made on a case by case basis in exceptional circumstances. No reason need be stated, other than that day is being used for personal business. If personal days are to be taken consecutively, then a justifiable reason must be stated. Personal days may not be taken either on the day before or the day after the employee’s vacation or holiday except for a justifiable reason with documentation. If the employee used his/her yearly allowance of sick leave, he cannot use accumulated sick time for personal leave or personal days. ¶

* * * ¶

K(3). Communication Operators shall be granted up to four (4) days off per calendar year with pay for personal reasons, provided, however, that they make application with the Chief of Police or his/her designee for such personal leave two (2) days in advance of the requested leave. Requests for the use of personal leave on less than two days’ notice shall be considered on a case by case basis. If the employee has used his/her yearly allowance of sick leave, he cannot use accumulated sick leave for personal leave or personal days. ¶

The Borough argues that these provisions are statutorily preempted by N.J.S.A. 11A:6-19.2, which provides: ¶

Notwithstanding any law, rule or regulation to the contrary, a political subdivision of the State, or an agency, authority or instrumentality thereof, that has adopted the provisions of Title 11A of the New Jersey Statutes, shall not pay supplemental compensation to any officer or employee for accumulated unused sick leave in an amount in excess of $15,000. Supplemental compensation shall be payable only at the time of retirement from a State-administered or locally-administered retirement system based on the leave credited on the date of retirement. This provision shall apply only to officers and employees who commence service with the political subdivision of the State, or the agency, authority or instrumentality thereof, on or after the effective date of P.L.2010, c. 3. This section shall not be construed to affect the terms in any collective negotiations agreement with a relevant provision in force on that effective date. ¶

The Borough asserts that both Sections F and K(3) allow employees to convert sick leave into leave for personal business and such a conversion of leave time constitutes prohibited supplemental compensation under N.J.S.A. 11A:6-19.2. In support of this assertion, the Borough relies on the July 2022 report issued by the Office of State Comptroller (OSC), entitled "A Review of Sick Leave and Vacation Leave Policies in New Jersey Municipalities," (OSC’s Report), which indicates that a provision providing for the conversion of sick leave to any other leave violates N.J.S.A. 11A:6-19.2. ¶

Here, we find that N.J.S.A. 11A:6-19.2 does not statutorily preempt the challenged sick leave provisions. We have previously held that N.J.S.A. 11A:6-19.2 does not specifically preempt negotiation over the issue of the conversion of sick leave to other forms of leave in a scope of negotiations case involving substantially similar sick leave conversion provisions. Little Egg Harbor Tp., P.E.R.C. No. 2023-46, 49 NJPER 535 (¶127 2023). In Little Egg Harbor we found that N.J.S.A. 11A:6-19.2 only “expressly, specifically and comprehensively preempted collective negotiations on the conversion or exchange of sick leave to financial remuneration, (i.e., the payment of supplemental compensation.) Thus, a municipality such as the Township is not preempted from negotiating a contractual provision allowing for the conversion of sick leave to some other form of leave, including vacation leave.” Moreover, the Township in Little Egg Harbor similarly relied on the OSC’s Report, and we noted that the OSC’s Report states, “[n]o court or other adjudicative entity has ruled on whether something less than a financial payment...constitutes supplemental compensation that would violate state law.” OSC’s Report at 14-15. ¶

The Borough also disputes the negotiability of the CNA’s Article 19 ( “Vacations” ), Section F, which provides: ¶

Employees shall be permitted to cash out up to 10 vacation days each year. Employees must notify the Business Administrator no later than November 15 of their intention to sell back vacation time. Employees shall not be permitted to sell back vacation time not yet earned. The sell back of vacation time shall take place one time each year between November 15 and December 31 at the prevailing rate of pay. ¶

The Borough argues that this provision is statutorily preempted by N.J.S.A. 11A:6-3(e), which provides: ¶

Vacation not taken in a given year because of business demands shall accumulate and be granted during the next succeeding year only; except that vacation leave not taken in a given year because of duties directly related to a state of emergency declared by the Governor may accumulate at the discretion of the appointing authority until, pursuant to a plan established by the employee’s appointing authority and approved by the commission, the leave is used or the employee is compensated for that leave, which shall not be subject to collective negotiation or collective bargaining. ¶

Here, we find that N.J.S.A. 11A:6-3(e) does not statutorily preempt this vacation provision. We have previously held that the issue of payment for unused accumulated vacation days is mandatorily negotiable. Mount Holly Tp., P.E.R.C. No. 2011-41, 36 NJPER 423 (¶164 2010).1/ In Mount Holly, the Commission found that although Civil Service regulations prohibit the accumulation of more than two years of vacation leave, they do “not expressly and specifically prohibit an employer from agreeing to give an employee the option of a cash payment for unused but still available vacation days instead.” Ibid.; see also I.A.F.F. v. City of Hoboken (App. Div. 2014) (Appellate Division upheld an arbitrator’s award requiring City to pay retiring fire officer terminal leave on up to three years of accrued vacation time, even though the CNA’s allowance of up to three years of vacation time to be carried over annually violated N.J.S.A. 11A:6-3(e)). ¶

For the foregoing reasons and based on the above-cited precedent, we conclude that the three CNA provisions that are the subject of the Borough’s scope of negotiations petition are not statutorily preempted and are mandatorily negotiable. ¶

OrderORDER ¶

Sayreville Borough’s scope of negotiations petition is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Kushnir and Papero voted in favor of this decision. None opposed. Commissioner Ford recused himself. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ We note that the OSC’s Report also cites Mt. Holly for the proposition that employers are not prohibited from agreeing to give an employee the option of a cash payment for unused but still available vacation days. OSC’s Report at 16, n.37. However, the OSC’s report states that this practice “may contravene the intent of the Legislature in enacting the vacation leave reforms.” Ibid. (Emphasis added). ¶