P.E.R.C. No. 2027-12, Union Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF UNION, Petitioner, -and- Docket Nos. SN-2026-024; UNION COUNCIL 8, SN-2026-028 CONSOLIDATED Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission partially grants consolidated requests of the County of Union to restrain binding arbitration of two grievances filed by Union Council 8. One grievance was filed on behalf of an employee who received a written warning pertaining to his sick leave use, and the other grievance was filed on behalf of all unit members impacted by a sick leave verification policy referenced in the written warning. The Commission restrains arbitration of both grievances to the extent they challenge the County’s non-negotiable managerial prerogatives to require doctor’s notes as part of a sick leave verification policy and to issue non-disciplinary warning notices to employees after a certain number of sick leave absences. The Commission finds the warning was not disciplinary as it was neutral in tone and was limited to citing the employee’s absenteeism record, referencing the applicable policy and requiring him to produce doctor’s notes for future absences. The warning also did not trigger the withholding of sick leave or other discipline. The Commission declines to restrain arbitration of the employee’s grievance to the extent it contends the County disciplined him without just cause by extending the doctor’s note requirement beyond the calendar year in which the need for sick leave verification arose, contrary to the County’s written policy and the parties’ CNA. ¶

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 COUNTY OF UNION, Petitioner, -and- Docket Nos. SN-2026-024; UNION COUNCIL 8, SN-2026-028 CONSOLIDATED Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Hatfield Schwartz Law Group, LLC, attorneys (Kathryn V. Hatfield, of counsel) ¶

For the Respondent, Law Offices of Michael A. Bukosky & Associates, attorneys (Michael A. Bukoksy, of counsel) ¶

DECISION ¶

On March 6, 2026, the County of Union (County) filed a scope of negotiations petition (Docket No. SN-2026-024) seeking a restraint of binding arbitration of a grievance filed by Union Council 8 (Council 8). The grievance challenged the County’s issuance of a written warning pertaining to sick leave use by a Council 8 unit member employed in the County’s Public Works Department. ¶

On April 6, 2026, the County filed a scope of negotiations petition (Docket No. SN-2026-028) seeking a restraint of binding arbitration of a “class grievance” filed by Council 8 on March 9, 2026, on behalf of all Council 8 unit members impacted by the sick leave verification policy referenced in F.A.’s written warning. ¶

Council 8 moved to consolidate both scope petitions with a related unfair practice charge (UPC) filed by Council 81/ and requested an evidentiary hearing.2/ The County filed opposition to Council 8’s motion. We consolidate the scope petitions because they involve common questions of fact and law. We deny Council 8’s motion to also consolidate the UPC because a complaint has not yet issued, and because the UPC is governed by different legal standards. ¶

The County filed briefs, exhibits, and the certifications of its counsel. Council 8 filed briefs, exhibits, and the certifications of its counsel and Council 8 President Jamar Cherry.3/ These facts appear. ¶

Council 8 represents all regularly employed non-supervisory blue collar and white-collar County employees including specified titles in certain departments, and all non-contractual employees. The County and Council 8 are parties to a collective negotiations agreement (CNA) in effect from January 1, 2021, through December 31, 2023, as modified by a Memorandum of Agreement (MOA) with a term of January 1, 2024, through December 31, 2027. The CNA states that all discipline shall be for “just cause” and its grievance procedure ends in binding arbitration. The CNA also prohibits “discrimination, interference, or sanction by the County” against unit employees “because of any membership or activity in the Association.” 4/ ¶

The CNA provides that whenever an employee’s total number of sick leave absences reaches 15 days in one calendar year (aggregated from leave periods of less than 5 days each), the employee is required to submit doctor’s notes for “any additional sick leave in that year.” The CNA further states that “the County in its discretion may require proof of illness of an employee on sick leave whenever such proof is reasonable.” The County’s Employee Handbook similarly specifies that any employee accruing fifteen or more absences (of five days or less) in one calendar year “may be required to submit acceptable medical certifications of illness for any additional request for sick leave in that calendar year.” ¶

SN-2026-024 ¶

Grievant F.A. (SN-2026-024) has been employed by the County as a Heavy Equipment Operator at all times relevant to this matter. Council 8 certifies that as a Civil Service employee, F.A. is statutorily entitled to 15 sick days per year, and the County makes no claim that F.A. abused sick leave or was otherwise not entitled to it. On July 31, 2025, the County issued a warning letter to F.A., stating: ¶

This Written Warning is being served to you as you have used your annual allotment of fifteen (15) sick days for the current calendar year. ¶

Please be advised that beginning today, you will be required to produce medical documentation upon returning to work to substantiate any absence when sick time is used, whether it be used in whole days or partial days. ¶

As referenced in the County of Union Employee Handbook, proof of illness of an employee may be required whenever such proof of illness is reasonable or warranted. ¶

In order to avoid future discipline, please be mindful of your use of sick time and the requirement to produce doctor’s notes for absences going forward. ¶

In August of 2025 F.A. filed a grievance contesting the July 31 warning letter. The grievance stated: ¶

Regarding the annual 15 sick days, I understand I may need to provide a doctor’s note, even if a family member is sick. In my current situation with a wife and four kids, if one of them requires a trip to the emergency room, I might be able to get a note if the condition is serious. However, any attempt by my employer to contact the doctor without my written consent would be a HIPAA violation, making a note somewhat pointless. Furthermore, if my wife were to get sick, I’d also need to take a day off to care for our four children. Neither my wife nor I and my kids typically go to the doctor for minor illnesses, making a doctor’s note impossible in this scenario. What steps can I take to avoid being reprimanded in this situation? [5/] ¶

As a remedy, F.A. requested “[n]ot to require a doctor note, for not all sickness requires me or my family to go to the doctor,” and in those situations taking his children to a doctor just to obtain a doctor’s note would put them “more at risk.” ¶

On August 13, 2025, the County’s Deputy Director, Department of Engineering, Public Works & Facilities Management, denied the grievance after discussing it with F.A. in the presence of the General Supervisor. The denial letter advised the grievant that the written warning “shall stand” and further stated (emphasis in original): ¶

The written warning was served to you as you exhausted your annual accrual of fifteen (15) sick days for the current calendar year. ¶

I explained to you that as per our policy because you are required to produce doctor’s notes in 2025, this requirement would carry over into calendar year 2026 and you would be required to produce doctor’s notes for any sick time used in 2026 as well. If you do not use your accrual of fifteen (15) sick days in calendar year 2026, the requirement to produce a doctor’s note would be lifted beginning January 1, 2027. ¶

In addressing your concerns, I advised you of the options of applying for intermittent FMLA if applicable or using your three (3) emergency vacation days throughout the year in lieu of sick days. I also discussed with you your concern of family members being sick and advised you that doctor’s notes would still be required when a family member is sick if it causes you to be absent from work using sick time. ¶

On January 28, 2026, Council 8’s counsel submitted a “Step 3” grievance letter to the County. The letter also sought to clarify F.A.’s grievance. It contended: the warning letter was discipline without just cause as to which F.A. was not provided with notice or opportunity to be heard; the County’s letter denying the grievance, by extending the period of sick leave verification beyond the calendar year in question, imposed a disciplinary penalty that unreasonably exceeded the terms of the CNA and County policy, and did not take into account whether F.A.’s recorded sick leave usage was for legitimate reasons. The letter further asserted that this violated the Americans with Disability Act (ADA) as well as Equal Employment Opportunity Commission (EEOC) policy. As a remedy Council 8 requested compliance with the CNA’s sick leave verification provisions and with “any and all other contract Articles relevant to this matter.” ¶

SN-2026-028 ¶

On March 9, 2026, Council 8 filed a class grievance on behalf of “all Council 8 unit members impacted by a new sick leave policy which [the County] unilaterally established” in violation of “the [CNA], County Policy and State and Federal Law.” In pertinent part, the grievance alleged the new policy: “automatically” requires “employees to obtain a [d]octor[ ‘]s note following the usage of 15 or more sick days in a calendar year in the remainder of that calendar year and . . . for the next calendar year” ; arbitrarily and capriciously “singl[es] out employees in which there is no reasonable evidence of sick leave abuse” and “punishes them for use of sick leave which is no different than other employees usage” ; the policy “is applied unaffected by the reason for the absence” ; written warnings under the policy are “being issued without just cause” on a “no fault” basis “which does not take into consideration legitimate usage of sick leave” ; and the new policy penalizes protected leave in violation of the EEOC. As a remedy, Council 8 again requested compliance with the CNA’s sick leave verification provisions and with “any and all other contract Articles relevant to this matter.” The County denied the grievance on March 9. ¶

According to counsel for the County, when employees use their annual allotment of 15 sick days in a year, the County sends them a warning memorandum, such as the one sent to F.A. Its purpose, the County states, was not to criticize or penalize the grievant, but rather to warn him regarding his sick leave usage, notify him of the requirement to produce doctor’s notes, and to counsel him to avoid any future discipline related to same. The County states it did not discipline the grievant in connection with the substance of the memorandum, nor has it disciplined or denied sick leave to any other employees in connection with the substance of such memoranda. ¶

Council 8 filed requests for arbitration on February 20, 2026 (SN-2026-024), and March 26, 2026 (SN-2026-028). These petitions ensued. ¶

The Commission’s inquiry in a scope of negotiations petition is quite narrow. We are addressing a single issue in the abstract: whether the subject matter in dispute is within the scope of collective negotiations. The merits of the union’s claimed violation of the agreement, as well as the employer’s contractual defenses, are not in issue, because those are matters for the arbitrator to decide if the Commission determines that the question is one that may be arbitrated. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

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]. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The County argues that arbitration must be restrained because it has a non-negotiable managerial prerogative to verify the use of sick leave, including by requiring employees to submit doctor’s notes. The memorandum issued to F.A. only counseled and warned him regarding his future utilization of sick leave without imposing any form of discipline, and its reference to potential future discipline does not make it disciplinary. The County denies that it unilaterally established a new sick leave policy of “automatic” warnings while asserting it has a managerial prerogative to do so. ¶

Council 8 argues the County unreasonably exercised its sick leave verification prerogative in F.A.’s case. It contends the written warning is a form of minor discipline that may be grieved, and that the County retaliated against F.A. for doing so by requiring him to provide doctor’s notes outside of the relevant calendar year. Council 8 argues this penalty exceeds existing policy and CNA requirements and does not consider legitimate usage of sick leave, which thus violates New Jersey’s Law Against Discrimination (NJLAD) and Civil Service laws. Council 8 further argues the County implemented the policy unilaterally without negotiation over impact items. ¶

The County replies that the record contains no information showing that Council 8 members were disciplined, denied the use of sick leave, or suffered any specific impact from the County’s verification procedure, or that Council 8 ever requested negotiations over purported impact issues. The County further argues that its right to verify sick leave does not require a prior finding of sick leave abuse, and that its exercise of that prerogative here did not violate statutes such as the NJLAD. ¶

ANALYSIS ¶

We restrain arbitration of both grievances to the extent they challenge the County’s non-negotiable managerial prerogatives to require doctor’s notes as part of a sick leave verification policy and to issue non-disciplinary warning notices to employees after a certain number of sick leave absences. However, we decline to restrain arbitration of the grievance concerning F.A. to the extent it contends the County disciplined F.A. by extending the sick leave verification period beyond the calendar year in which it arose. ¶

It is well-settled that a public employer has a managerial prerogative to use reasonable means to verify employee illness, including requiring the production of a doctor’s note, while employees may contest a “determination in a particular case that an employee was not actually sick.” Piscataway Tp. Bd. of Ed., P.E.R.C. No. 82-64, 8 NJPER 95 (¶13039 1982). See also, e.g., Mt. Laurel Bd. of Ed., P.E.R.C. No. 2026-46, 53 NJPER 36 (¶13 2026); State Judiciary (Ocean Vicinage), P.E.R.C. No. 2005-24, 30 NJPER 436 (¶143 2004). ¶

Limitations on an employer’s prerogative to determine the number of absences that would trigger a requirement for doctor’s notes are not negotiable. Bor. of Cresskill, P.E.R.C. No. 89-19, 14 NJPER 569 (¶19239 1988) (union’s proposal that sick leave verification be required only after five days of absence not mandatorily negotiable) (citing, e.g., Bor. of Butler, P.E.R.C. No. 87-121, 13 NJPER 292 (¶18123 1987)). ¶

We have further held that employers have “a managerial prerogative to unilaterally implement measures to verify [sick] leave at any time,” while the issues of who pays for doctors’ notes and what the penalties will be for violating a policy are mandatorily negotiable. City of East Orange, P.E.R.C. No. 2021-50, 47 NJPER 530 (¶124 2021), aff’d (App. Div. 2022); Maplewood Tp., P.E.R.C. No. 2000-9, 25 NJPER 374 (¶30163 1999).6/ ¶

The issue of non-disciplinary warning notices informing employees that they had used specified amounts of sick leave and are required to provide doctors’ notes for future absences is also not mandatorily negotiable, where such notices merely convey information in a neutral tone and do not trigger the withholding of sick leave benefits. Town of Kearny, P.E.R.C. No. 92-40, 17 NJPER 481 (¶22233 1991) (restraining arbitration over notices recording employees’ absenteeism statistics and informing them they will be monitored).7/ ¶

However, we have permitted arbitration of “counseling conferences” that pertained to an employee’s excessive absenteeism and were memorialized in her personnel file, where the record showed the conferences “were in fact a form of discipline imposed for a sick leave violation already found,” and where the counseling forms in her file stated she had violated a general order and “warned her that her pattern of absences needed to be corrected.” N.J. Transit Corp., P.E.R.C. No. 2006-90, 32 NJPER 171 (¶77 2006). ¶

In so holding, we acknowledged the employer’s assertion that the counseling was not disciplinary, as stated in the relevant policy. Id. Nonetheless, we permitted arbitration of the union’s claim that the counseling “was in fact being used as an automatic form of discipline even if negotiated sick leave benefits were being properly used.” Id. We also found to be arbitrable the union’s claim that the counseling was a form of retaliation against the grievant for, among other things, putting the employer on notice of various workplace health and safety concerns. Id. The union claimed such retaliation violated a provision in the parties’ CNA prohibiting discrimination against employees based upon their union membership or activity. Id.8/ ¶

Applying the above-discussed principles to the record presented, we find the disputed warning notice to F.A. was not disciplinary, as it only cited the employee’s absenteeism record, referenced the applicable policy and informed the employee that he would be required to produce doctor’s notes for future absences. Kearny, supra, 17 NJPER 481. The notice also had a neutral tone and did not trigger the withholding of any sick leave benefits or otherwise impose a schedule of discipline. Id. Therefore, the warning notice, as applied specifically to F.A. or similarly to other employees (SN-2026-028), is not legally arbitrable as disciplinary action. ¶

Further, calling for doctor’s notes to verify sick leave absences is not an unusual requirement. Council 8 does not allege the County imposed unusual restrictions or demands upon F.A., such as by limiting his choice of doctor or requiring disclosure of medical information, unlike cases relied upon by Council 8.9/ And while the issue of who pays for doctor’s notes is mandatorily negotiable, that issue was not raised in F.A.’s initial grievance, in Council 8’s Step 3 clarification or in the class grievance, nor does the record presented contain evidence that such costs are at issue with respect to either grievance. ¶

However, we permit arbitration of Council 8’s contention that the County disciplined F.A. without just cause by extending his period of sick leave verification beyond the calendar year in which it arose, contrary to the County’s written policy and the CNA. ¶

The July 31, 2025, warning notice instructed F.A. “to produce doctor’s notes for absences going forward,” but did not specify the duration of time to do so. It also contained no indication of a need for an extended verification period. The County offers no explanation as to why, in its later August 13, grievance denial letter, it extended the verification period to include the next calendar year. Moreover, the County provided no information contradicting Council 8’s assertion that F.A. did not abuse sick leave and was otherwise entitled to contractual sick leave taken. Under these circumstances, we find legally arbitrable the issue of whether F.A.’s additional year of sick leave verification was a form of discipline without just cause. N.J. Transit, supra. ¶

Council 8’s claims that the County unilaterally implemented a new sick leave policy without negotiating over alleged impact issues, that the establishment of the policy was retaliatory for F.A.’s protected activity of filing a grievance, and that the County refused to provide requested information relating to the new policy, present questions of fact and law appropriate for resolution through the processing of the related pending UPC. ¶

Lastly, Council 8’s claims of alleged discrimination in violation of civil rights laws are outside the Commission’s jurisdiction and must be made in an appropriate forum provided by anti-discrimination laws, such as the U.S. Equal Employment Opportunity Commission, the New Jersey Division on Civil Rights, or the courts. See, e.g., Teaneck Bd. of Ed. v. Teaneck Teachers Ass’n, 94 N.J. 9, 14-18 (1983); Gloucester Cty., P.E.R.C. No. 2027-8, __ NJPER __, n.3 (¶ __ 2026). ¶

OrderORDER ¶

The requests of the County of Union for restraints of binding arbitration (SN-2026-024 and SN-2026-028) are granted to the extent the grievances challenge the County’s non-negotiable managerial prerogatives to require doctor’s notes as part of a sick leave verification policy and to issue non-disciplinary warning notices to employees after a certain number of sick leave absences. The County’s request is denied regarding the issue of whether F.A.’s additional year of sick leave verification was a form of discipline without just cause. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: October 22, 2026 ¶

Trenton, New Jersey ¶

Note1/ Council 8 certifies that its UPC claims the County established a new sick leave policy as to which: (a) the procedures, costs, penalties and other impacts were not negotiated; (b) the establishment of the policy was retaliatory; and (c) the County failed to provide the union with requested information relating to the new policy. Docket No. CO-2026-162. We reject Council 8’s contention that processing the scope petitions before the County responds to the union’s document requests would be “premature.” Adjudication of the UPC need not precede our determination, in the abstract, of whether or to what extent the subject matter in dispute here (the sick leave verification policy as applied) is within the scope of collective negotiations. ¶

2/ We deny Council 8’s request for an evidentiary hearing. The parties have fully briefed the scope of negotiations issues that we decide herein. ¶

3/ N.J.A.C. 19:13-3.6(f) requires that all pertinent facts be supported by certifications based upon personal knowledge. The County filed certifications of its counsel in support of each scope petition (SN-2026-024 and -028). ¶

4/ Council 8 does not specifically cite the CNA’s non- discrimination clause in its papers. However, we mention it because we find it has relevance to this dispute, as further discussed infra. ¶

5/ F.A. initially asserted he had 6.5 unused sick days as of the date of the warning letter. However, at subsequent steps of the grievance procedure Council 8 did not contest the factual issue of whether F.A. fully exhausted his annual allotment of sick days. Nor did Council 8 pursue F.A.’s allegation regarding the federal Health Insurance Portability and Accountability Act (HIPAA). Neither party raised these issues in their respective legal arguments. ¶

6/ Citing, e.g.: City of Elizabeth v. Elizabeth Fire Officers Ass’n, Local 2040, IAFF, 198 N.J. Super. 382 (App. Div. 1985); Rahway Valley Sewerage Auth., P.E.R.C. No. 96-69, 22 NJPER 138 (¶27069 1996); Teaneck Tp., P.E.R.C. No. 93-44, 19 NJPER 18 (¶24009 1992); City of Paterson, P.E.R.C. No. 92-89, 18 NJPER 131 (¶23061 1992); Mainland Reg. H.S. Dist. Bd. of Ed., P.E.R.C. No. 92-12, 17 NJPER 406 (¶22192 1991); Aberdeen Tp., P.E.R.C. No. 90-24, 15 NJPER 599 (¶20246 1989). See also, Old Bridge Tp., P.E.R.C. No. 2020-1, 46 NJPER 95 (¶17 2019). ¶

7/ See also, Franklin Tp., P.E.R.C. No. 94-96, 20 NJPER 193 (¶25090 1994) (restraining arbitration over notice about police officer’s traffic violations that was not disciplinary or accusatory); City of Newark, P.E.R.C. No. 90-95, 16 NJPER 265 (¶21113 1990) (restraining arbitration over daily personnel reports containing statistics and other evaluative information); North Plainfield Bd. of Ed., P.E.R.C. No. 89-94, 15 NJPER 252 (¶20102 1989) (restraining arbitration over evaluation recording number of absences). ¶

8/ See also, Ringwood Bor., P.E.R.C. No. 2002-29, 28 NJPER 52 (¶33016 2001) ( “a dispute that is legally arbitrable does not become non-arbitrable simply because it also involves an allegation of anti-union discrimination,” citing, Teaneck Tp., P.E.R.C. No. 2002-20, 28 NJPER 15 (¶33003 2001) (arbitrability of otherwise negotiable disputes not displaced by fact that PERC’s unfair practice jurisdiction could be invoked to review an aspect of those disputes)). ¶

9/ See, Belmar Bor., P.E.R.C. No. 2003-63, 29 NJPER 104 (¶32 2003) (declining to restrain arbitration of requirement that employee be examined by borough doctor the day she called in sick and to be escorted to that examination by police officer, before she could see her own doctor); City of Trenton, P.E.R.C. No. 2005-20, 30 NJPER 413 (¶135 2004) (union could arbitrate requirement that doctors’ notes verifying sick leave indicate condition being treated and application of that requirement to an individual employee). ¶