P.E.R.C. No. 2025-6, Lodi Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PBA LOCAL 26, Respondent, -and- Docket No. SN-2024-035 BOROUGH OF LODI, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Borough’s request for a restraint of binding arbitration of Local 26's grievance contesting the calculation of minimum annual paid sick leave days/hours for unit employees who work 12-hour days. The Commission finds that the relevant Civil Service statutes and regulations N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6-1.3 require a minimum of 15 sick days annually but do not specifically define “working days” for purposes of converting 12-hour work days into sick leave. Therefore, the Commission holds that the issue of whether the unit employees are entitled to more annual sick leave hours based on 12-hour work days rather than 8-hour work days is not specifically preempted and is legally arbitrable. ¶

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 BOROUGH OF LODI, Petitioner, -and- Docket No. SN-2024-035 PBA LOCAL 26, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Anthony G. LoBrace, of counsel) ¶

For the Respondent, Sciarra & Catrambone, LLC, attorneys (Christopher A. Gray, of counsel and on the brief; Frank C. Cioffi, on the brief) ¶

DECISION ¶

On April 24, 2024, the Borough of Lodi (Borough) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by PBA Local 26 (Local 26). The grievance asserts that pursuant to N.J.A.C. 4A:6-1.3, officers are entitled to fifteen (15) “working days” of sick leave each year and that officers who work twelve-hour shifts each day are entitled to fifteen (15) twelve-hour days, or 180 hours, of annual sick leave. ¶

The Borough filed briefs, exhibits, and the certification of its Borough Manager, Marc N. Schrieks. Local 26 filed a brief, exhibits, and the certification of its counsel, Frank C. Cioffi, regarding the authenticity of the grievance documents submitted as exhibits. These facts appear. ¶

Local 26 represents police officers employed by the Borough. The Borough and Local 26 are parties to a collective negotiations agreement (CNA) with a term of January 1, 2021 through December 31, 2025, with an option to extend through 2026. The grievance procedure ends in binding arbitration. ¶

The Borough is a Civil Service jurisdiction subject to the provisions of Title 11A of the New Jersey statutes and Title 4A of the New Jersey Administrative Code. The Borough Manager certifies that, pursuant to the CNA, Local 26 unit employees work a twelve-hour workday schedule. He certifies that, under Appendix C of the CNA, the parties agreed that members working twelve-hour days are entitled to ten twelve-hour days of sick leave each year. ¶

On February 2, 2024, Local 26 filed a grievance asserting that, pursuant to N.J.A.C. 4A:6-1.3 and the arbitration decision rendered in the matter of Borough of Wallington and PBA Local 321, AR-2022-112,1/ members working twelve-hour work days are entitled to fifteen (15) days, or 180 hours, of paid sick leave each year. The Borough denied the grievance at each step of the grievance procedure. On March 1, 2024, Local 26 filed a request for Submission of a Panel of Arbitrators. This petition ensued. ¶

In a scope of negotiations determination, the Commission’s 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 contractual merits of the grievance or any contractual defenses the employer may have. ¶

The scope of negotiations for police officers and firefighters is broader than for other public employees because N.J.S.A. 34:13A-16 provides for a permissive as well as a mandatory category of negotiations. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981), outlines the steps of a scope of negotiations analysis for firefighters and police: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. State v. State Supervisory Employees Ass’n, 78 N.J. 54, 81 (l978). If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government’s policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. ¶

Arbitration is permitted if the subject of the grievance is mandatorily or permissively negotiable. See Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982), aff’d, NJPER Supp.2d 130 (¶111 App. Div. 1983). Thus, if a grievance is either mandatorily or permissively negotiable, then an arbitrator can determine whether the grievance should be sustained or dismissed. Paterson bars arbitration only if the agreement alleged is statutorily preempted or would substantially limit government’s policy-making powers. ¶

Where a statute is alleged to preempt an otherwise negotiable term or condition of employment, it must do so expressly, specifically, and comprehensively. Bethlehem Tp. Bd.of Ed. v. Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44-45 (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, 80-82 (1978). ¶

The Borough asserts that N.J.A.C. 4A:6-1.3 does not require a 15-day minimum sick leave entitlement because it is not applicable to police officers. It argues that N.J.A.C. 4A:6- 1.1(a)(4) provides that vacation and sick leave for police officers is established by local ordinance pursuant to N.J.S.A. 40A:14-118. The Borough contends that the parties previously agreed that Local 26 unit employees would receive 120 hours of annual sick leave, but it was not required by N.J.A.C. 4A:6-1.3 or N.J.S.A. 11A:6-5. The Borough asserts that the definition of “working days” for computing sick leave should be construed consistent with a Civil Service decision finding it is equal to an eight-hour work day. ¶

Local 26 asserts that N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6-1.3 require that local Civil Service employees be provided with a minimum of 15 working days of annual sick leave. It argues that Local 26 unit employees currently receive 120 hours of sick leave but, because some work 12-hour shifts, they are entitled to 180 hours (15 days multiplied by 12-hour working days) of sick leave annually. It contends that the Civil Service decision relied on by the Borough did not find that working days should be based on an 8-hour work day. ¶

It is well-established that “[l]eave time for employees in the public sector is a term and condition of employment within the scope of negotiations, unless the term is set by a statute or regulation.” Headen v. Jersey City Bd. of Educ., 212 N.J. 437, 445 (2012); see also Burlington Cty. College Faculty Ass’n, 64 N.J. 10, 14 (1973). The Commission and courts have thus held that absent preemption, sick leave and other leaves are mandatorily negotiable issues. See, e.g., Piscataway Tp. Bd. of Ed., 152 N.J. Super. 235, 243-44 (1977); City of East Orange (App. Div. 2022), aff’ g P.E.R.C. No. 2021-50, 47 NJPER 530 (¶124 2021); and Lumberton Tp. Bd. of Ed. (App. Div. 2002), aff’ g P.E.R.C. No. 2002-13, 27 NJPER 372 (¶32136 2001). ¶

We must determine whether the regulatory and statutory language relied on by the Borough preempts the issue of how much sick leave its employees are entitled to, as well as whether the language relied on by Local 26 sets a minimum. ¶

The Borough is a Civil Service jurisdiction and N.J.S.A. 11A:6-5 of the Civil Service Act sets forth a minimum sick leave credit in the amount of 15 “working days” following an employee’s first year of service. It provides: ¶

11A:6-5. Sick leave ¶

Full-time State and political subdivision employees shall receive a sick leave credit of no less than one working day for each completed month of service during the remainder of the first calendar year of service and 15 working days in every year thereafter. Unused sick leave shall accumulate without limit. ¶

There are no Civil Service statutes exempting police and firefighters from this statutory minimum. We therefore find that N.J.S.A. 11A:6-5 expressly preempts the parties from negotiating for anything less than 15 working days of sick leave annually. Bethlehem; State Supervisory. ¶

The Borough’s reliance on N.J.S.A. 11A:6-9 as directing sick leave issues for police and firefighters to Title 40A is misplaced.2/ N.J.S.A. 11A:6-9 specifically concerns only leaves of absence, which is distinct from regular “sick leave” accrual under N.J.S.A. 11A:6-5. N.J.S.A. 11A:6-9 has only been found relevant to regular sick leave for purposes of finding a statutory maximum of 1-year of sick leave by reading it and N.J.S.A. 40A:14-16 in pari materia. See Union City, P.E.R.C. No. 91-87, 17 NJPER 225 (¶22097 1991).3/ ¶

The Civil Service Act’s implementing regulations provide the following regarding sick and vacation leave for local government employees: ¶

4A:6-1.1 General provisions. ¶

(a) In local service, appointing authorities shall establish types of leaves and procedures for leaves of absence. ¶

1. Pursuant to this subchapter, employees in local service shall also be entitled to vacation leave (N.J.A.C. 4A:6-1.2(b) through (h)); sick leave (N.J.A.C. 4A:6-1.3(a) through (h)); ¶

. . . ¶

4. Vacation and sick leaves for police officers and firefighters are established by local ordinance. See N.J.S.A. 40A:14-7 and 40A:14-118. . . . ¶

[N.J.A.C. 4A:6-1.1(a).] ¶

N.J.A.C. 4A:6-1.3, in turn, consistent with N.J.S.A. 11A:6-5, provides in relevant part: ¶

After the initial month of employment and up to the end of the first calendar year, employees shall be credited with one working day for each month of service. Thereafter, at the beginning of each calendar year in anticipation of continued employment, employees shall be credited with 15 working days. ¶

[N.J.A.C. 4A:6-1.3(a)(2).] ¶

The parties have cited to conflicting Commission precedent concerning the interplay of N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6- 1.3 and the applicability of the 15-day sick leave minimum to police and firefighters in light of N.J.A.C. 4A:6-1.1(a)(4). In Union City, P.E.R.C. No. 91-87, supra, the Commission specifically agreed with the CSC (then Department of Personnel) that N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6-1.3 “afford local Civil Service employees a minimum of 15 sick leave days a year.” Id., 17 NJPER at 225-226. As discussed above, we went on to also find a maximum of one year of sick days based on the leave of absence maximum set by N.J.S.A. 11A:6-9 and N.J.S.A. 40A:14-16. ¶

The Commission has also interpreted 4A:6-1.1(a)(4) to exempt police and firefighters from Civil Service sick and vacation leave regulations. See City of Orange Tp., P.E.R.C. No. 2001-17, 26 NJPER 433 (¶31170 2000); and No. Hudson Regional Fire and Rescue, P.E.R.C. No. 2004-17, 29 NJPER 428 (¶146 2003) and P.E.R.C. No. 2004-18, 29 NJPER 453 (¶147 2003). ¶

Most recently, in Point Pleasant Beach Bor., P.E.R.C. No. 2018-20, 44 NJPER 262 (¶75 2017), the Commission found that N.J.A.C. 4A:6-1.3(a)2 was applicable to a Civil Service police officer and preempted the granting of annual sick leave in excess of his anticipated continued employment that year. ¶

To help provide some clarity regarding the conflicting interpretations of N.J.A.C. 4A:6-1.1(a)(4), we look to the decisions of the Civil Service Commission (CSC), the agency that promulgated the regulations and is responsible for enforcing the Civil Service statutes and regulations. In In the Matter of Woodbridge Fire District # 1 Sick Leave Policy, *13 (1/13/2010), the CSC held that the Civil Service sick leave regulations of N.J.A.C. 4A:6-1.3 are applicable to local police officers and firefighters in Civil Service jurisdictions. The CSC held that, while N.J.A.C. 4A:6-1.1(a)(4) provides that the appointing authority must enact provisions for sick leave for firefighters by ordinance, “that rule does not permit such ordinances to contravene Civil Service law and rules regarding what constitutes sick leave.” Ibid. ¶

Following Woodbridge Fire, the CSC has held that the Civil Service sick leave accrual statute (N.J.S.A. 11A:6-5) and sick leave regulations (N.J.A.C. 4A:6-1.3) apply to Civil Service police officers. In the Matter of Donald Mitchell, Hudson County (5/17/2012); and In the Matter of David Hopkins, Mercer County, *22-23 (3/14/2014) (per N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6-1.3, officer accumulated sick leave from year to year without limit and was entitled to 45 days of sick leave for his final 3 years). ¶

This precedent demonstrates that the CSC has considered N.J.A.C. 4A:6-1.1(a)(4) and determined that Civil Service statutes and regulations concerning sick leave (i.e., N.J.S.A. 11A:6-5 and N.J.A.C. 4A:6-1.3) apply to police and firefighters in Civil Service jurisdictions. We find it appropriate to give substantial deference to the CSC’s own interpretation of the statutes and regulations it is tasked with enforcing.4/ ¶

Next, we reject the Borough’s assertion that the reference in N.J.A.C. 4A:6-1.1(a)(4) to N.J.S.A. 40A:14-118 means that the number of sick days are set by ordinance. N.J.S.A. 40A:14-118 is a general authorizing statute providing for the creation of a municipal police department; it does not preempt negotiations or arbitration over an otherwise negotiable term and condition of employment. Roselle Bor. (App. Div. 1981), aff’ g P.E.R.C. No. 80-137, 6 NJPER 247 (¶11120 1980); Rochelle Park Tp. (App. Div. 1988), aff’ g P.E.R.C. No. 88-40, 13 NJPER 818 (¶18315 1987); and River Edge Bor., P.E.R.C. No. 2019-33, 45 NJPER 311 (¶82 2019). Therefore, an ordinance cannot override either N.J.S.A. 11A:6-5 or any sick leave provisions the parties may have negotiated beyond that statutory floor. ¶

Finally, neither party has supplied authority that clearly defines “working days” for purposes of converting sick leave days to hours for Local 26 unit employees working 12-hour days. We therefore cannot find that the issue is expressly, specifically, or comprehensively preempted in favor of either party’s interpretation. The arbitrator may determine the merits of the disputed application of “working days” to the 12-hour work schedules. See West Windsor Tp., 78 N.J. 98, 116 (1978); and Old Bridge Bd. of Ed., 98 N.J. 523, 527-528 (1985) (arbitrator may resolve disputes over application or claimed violation of controlling statutes or regulations). ¶

OrderORDER ¶

The request of the Borough of Lodi for a restraint of binding grievance arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ This arbitration decision referenced and relied upon by Local 26 was included in the record as a Borough exhibit. However, it has no bearing on the Commission’s scope of negotiations determination in this case. ¶

2/ N.J.S.A. 11A:6-9 provides: “Leaves of absence for police officer and fire fighter titles shall be governed by the applicable provisions of Title 40A of the New Jersey Statutes and N.J.S. 11A:6-10.” ¶

3/ N.J.S.A. 40A:14-16, applicable to firefighters, and its police counterpart, N.J.S.A. 40A:14-137, limit leaves of absence with pay for illness, injury, or disability to one year. ¶

4/ Assistance in interpreting a statute can be derived from the understanding of the administrative agency charged with enforcing it. The meaning ascribed to legislation by the administrative agency responsible for its implementation, including the agency’s contemporaneous construction, long usage, and practical interpretation, is persuasive evidence of the Legislature’s understanding of its enactment. See, e.g., Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 212 (1991); Malone v. Fender, 80 N.J. 129, 137 (1979). ¶