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In the Matter of

May 5, 2011

IN THE MATTER OF TOWNSHIP OF PARSIPPANY-TROY HILLS, PETITIONER-APPELLANT,
AND PARSIPPANY PUBLIC EMPLOYEES LOCAL 1, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2010-41.

The opinion of the court was delivered by: Koblitz, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 15, 2011

Before Judges Wefing, Baxter and Koblitz.

The opinion of the court was delivered by KOBLITZ, J.S.C. (temporarily assigned).

Township of Parsippany-Troy Hills (Township) appeals from a decision of the New Jersey Public Employment Relations Commission (PERC) that the Township had neither a statutory nor a managerial right to require employees who decline Family Medical Leave Act (FMLA) leave to complete a FMLA medical certification. PERC decided that this issue is within the scope of negotiations between the Parsippany Public Employees Local 1 (Union) and the Township. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The Union represents the Township's blue collar employees. A member of the Union wanted to use paid sick leave rather than unpaid FMLA leave when taking approximately four to six weeks off from work to care for a sick relative.*fn1 The Township asked the employee to submit a FMLA certification form completed by a health care provider and threatened suspension when he initially refused.*fn2 Although the employee ultimately submitted the completed form, the Union subsequently filed an unfair practice charge claiming that the Township could not require an employee to fill out the FMLA form if the employee chose not to use FMLA leave.

PERC noted its determination was limited to whether or not 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). The test for such a determination is set forth in Local 195, IFPTE v. State, 88 N.J. 393, 404 (1982) as follows,

[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. . . . 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.

N.J.S.A. 34:13A-5.3 requires that public employers "negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment." "PERC's interpretation of [the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -30], is entitled to substantial deference . . . unless its interpretation is plainly unreasonable, . . . contrary to the language of the Act, or subversive to the Legislature's intent." Tpk. Auth. v. AFSCME Council 73, 150 N.J. 331, 352 (1997). We will not disturb a PERC decision "'unless it is clearly demonstrated to be arbitrary and capricious.'" Jersey City v. Police Officers, 154 N.J. 555, 568 (1998) (internal citation omitted).

The Township argues that PERC improperly found that it could not require employees to submit a completed FMLA medical certification so that the Township could determine whether the employees are eligible to take FMLA leave. The Township argues that the issue is not subject to negotiation because it is preempted by federal regulations adopted under the FMLA, which place an obligation on the employer to request information from employees in order to determine FMLA eligibility.

"[T]he mere existence of legislation relating to a given term or condition of employment does not automatically preclude negotiations. Negotiation is preempted only if the regulation fixes a term and condition of employment expressly, specifically and comprehensively." Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Bd. of Educ. Ass'n, 91 N.J. 38, 44 (1982) (citation and internal quotation marks omitted).

"Both state law, N.J.S.A. 34:11B-1 to -16, and federal law, 29 U.S.C.A. § 2612 [(the FMLA)], require that a qualifying employer must provide its employees with twelve weeks of unpaid leave for certain family and medical reasons during a consecutive twelve month period." Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 393 (2005). The employer may not "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title," 29 U.S.C.A. ยง 2615(a)(1). The FMLA shall not be construed to discourage employers from providing more generous leave. ...


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