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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2440-18T3

IN THE MATTER OF
CITY OF BURLINGTON
BOARD OF EDUCATION,

      Petitioner-Appellant,

and

CITY OF BURLINGTON
EDUCATION ASSOCIATION,

     Respondent-Respondent.
___________________________

                Argued November 14, 2019 – Decided November 27, 2019

                Before Judges Mayer and Enright.

                On appeal from the New Jersey Public Employment
                Relations Commission, PERC No. 2019-27.

                Jeffrey R. Caccese argued the cause for appellant
                (Comegno Law Group, PC, attorneys; Jeffrey R.
                Caccese and Alexandra A. Stulpin, of counsel and on
                the briefs).

                Steven R. Cohen argued the cause for respondent City
                of Burlington Education Association (Selikoff &
             Cohen, PA, attorneys; Steven R. Cohen, of counsel and
             on the brief; Hop T. Wechsler, on the brief).

             Ramiro A. Perez argued the cause for respondent New
             Jersey Public Employment Relations Commission
             (Christine Lucarelli-Carneiro, General Counsel,
             attorney; Ramiro A. Perez, Deputy General Counsel, on
             the statement in lieu of brief).

PER CURIAM

       Petitioner City of Burlington Board of Education (Board) appeals from a

January 17, 2019 order and decision issued by the New Jersey Public

Employment Commission (PERC) denying its request for restraint of binding

arbitration. We affirm.

       The facts are undisputed.    Respondent City of Burlington Education

Association (Association) filed a grievance on behalf of Robert Gurry,1 asserting

the Board violated Article XIII(F) of the parties' collective negotiations

agreement (CNA) by requiring Association members who were absent from

work on February 8, 2018, to submit a physician's note verifying their illness.

       The February 8, 2018 date was significant because it was the day of the

Philadelphia Eagles' Super Bowl victory parade. In anticipation of the parade,




1
    Mr. Gurry is an employee of the Board and a member of the Association.
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                                       2
on February 6, 2018, the superintendent sent an email to all school district staff

that provided:

            Five (5) personal business days requests were approved
            for Thursday, February 8, 2018. No more will be
            approved. Please note Article XII[I] of the negotiated
            contract, Absence on Account of Personal Business –
            "Requests for personal days shall be granted upon five
            (5) calendar days' notice to the superintendent or his
            designee."

            If it is determined that the number of staff members
            absent on Thursday, February 8th, cause a school
            emergency or jeopardize opening the schools, all
            approvals will be rescinded.

            Please also be aware that a doctor's note can be
            requested, by code, for any staff absence. If you do not
            come to work because of personal illness on Thursday,
            February 8, 2018, you will be required to provide a
            doctor's note that indicates you were unable to come to
            work due to illness.

      Gurry had been feeling sick for approximately two weeks prior to the

parade date. Gurry used sick days on February 7, February 8, and February 12

in accordance with the Board's sick leave policy.

      Only for his illness-related absence on February 8, 2018 did the Board

request Gurry provide a physician's note. Gurry, in a written email, explained

he had the flu and "did not see a physician due to the fact that they do not want

people with the [f]lu in their offices and it is a viral infection." Without a


                                                                          A-2440-18T3
                                        3
doctor's note, Gurry was notified that his absence on February 8 would be

construed as either a personal business absence or unpaid leave.

      On March 14, 2018, the Association filed a grievance against the Board

on behalf of Gurry and other members similarly situated, asserting that the

Board's denial of sick leave on February 8, 2018 constituted discipline without

just cause. The Board's superintendent denied the grievance, basing her decision

on Board Policy 3212 and N.J.S.A. 18A:30-4, which allows a superintendent or

board of education to require a doctor's note for an employee seeking to use sick

leave. The Association then requested a hearing before the Board.

      The Board affirmed the superintendent's denial of the grievance.           In

addition to relying on the superintendent's reasons, the Board further explained,

"[t]he grievance is also denied because it implicates [a] non-arbitrable topic and

is preempted by statute."

      The Association requested arbitration in accordance with Article III of the

the CNA. In response, the Board filed a petition for scope of negotiations

determination with PERC.       The Board claimed that arbitration should be

restrained because the subject matter of the grievance was non-negotiable. The

Board asserted the matter was neither negotiable nor legally arbitrable because




                                                                          A-2440-18T3
                                        4
the Board had the managerial prerogative to verify sick leave by requesting a

doctor's note. The Association opposed the Board's petition.

      Because the facts were not disputed, PERC decided the Board's scope of

negotiations petition without a hearing. In its order and decision, PERC held

that "the application of a sick leave verification policy, i.e. whether an employee

was improperly denied sick leave, may be challenged through the contractual

grievance procedures." In addition, PERC held that "disciplinary penalties for

abusing sick leave and the cost of obtaining verification are mandatorily

negotiable." PERC concluded the Association's grievance did not

            challeng[e] the Board's ability to verify grievant's
            illness. It is challenging the application of the sick
            leave policy to the grievant, specifically the denial of
            sick leave on February 8, 2018 after the Board allegedly
            failed to insist that he obtain a doctor's note at the
            Board's expense. Thus, the grievance as framed by the
            Association is mandatorily negotiable.

PERC's order denied the Board's request to restrain binding arbitration of the

Association's grievance.

      On appeal, the Board argues PERC erred as a matter of law in deeming

the request for sick leave verification a negotiable issue. The Board furth er

contends PERC's decision was arbitrary, capricious, unreasonable, and lacked




                                                                           A-2440-18T3
                                        5
credible support in the record. In addition, it claims PERC erred in failing to

dismiss the Association's grievance as moot.

      "The standard of review of a PERC decision concerning the scope of

negotiations is 'thoroughly settled.'" City of Jersey City v. Jersey City Police

Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998). We will uphold PERC's

decision regarding negotiability unless "it was arbitrary, capricious or

unreasonable," "lacked fair support in the evidence," or "violated a legislative

policy expressed or implicit in the governing statute." Twp. of Franklin v.

Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 377 (App Div. 2012)

(quoting Commc'ns Workers of Am., Local 1034 v. N.J. State Policemen's

Benevolent Ass'n, Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010)).

      "The burden of demonstrating that the agency's action was arbitrary,

capricious or unreasonable rests upon the [party] challenging the administrative

action." In re Adoption of Amendments to Ne., Upper Raritan, Sussex Cty., 435

N.J. Super. 571, 582 (App. Div. 2014) (alteration in original) (quoting In re

Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)).

      Our role in reviewing PERC decisions is "sensitive and circumspect." In

re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). PERC

decisions are "regulatory determination[s] of an administrative agency that is


                                                                        A-2440-18T3
                                       6
invested by the Legislature with broad authority and wide discretion in a highly

specialized area of public life." Ibid. Substantial deference is accorded to

PERC's exercise of its authority in making a scope of negotiations

determination. Twp. of Franklin, 424 N.J. Super. at 377.

         In In re Local 195, IFPTE v. State, 88 N.J. 393 (1982), the New Jersey

Supreme Court created the following test for determining a scope of negotiation

issue:

              [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.

              [Id. at 404; see also Bd. of Educ. v. Woodstown-
              Pilesgrove Reg'l Educ. Assoc., 81 N.J. 582, 590-91
              (1980).]

         The Board's establishment of a sick leave verification policy is a non-

negotiable managerial prerogative, a legal concept not disputed by the

Association. City of Elizabeth v. Elizabeth Fire Officers Assn., Local 2040,

IAFF, 198 N.J. Super. 382, 384 (App. Div. 1985).2 However, the application of


2
  The Board argues N.J.S.A. 18A:30-4 preempts arbitration related to the sick
leave policy. The issue as framed by PERC is not preemption but whether the
Board abused the sick leave policy.
                                                                         A-2440-18T3
                                         7
the sick leave policy, including the disciplinary penalty imposed for abusing

sick leave and the payment of costs associated with verification of sick leave, is

severable and subject to mandatory negotiation. Ibid. In its decision, PERC

noted the distinction between establishment of a verification policy, which is the

prerogative of the employer, Carteret Bd. of Educ., P.E.R.C. No. 2009-71, 35

N.J.P.E.R. ¶ 76, 2009 N.J. PERC LEXIS 212 at 11-12 (2009), and issues

involving the application of those policies, which may be subject to contractual

grievance procedures. In re Piscataway Twp. Bd. of Educ., P.E.R.C. No. 82-

64, 1982 N.J. PERC LEXIS 590 at 7 (1982). Whether an employer may impose

a disciplinary penalty in applying a sick leave verification policy may be

reviewed through binding arbitration.       New Jersey State Judiciary (Ocean

Vicinage), P.E.R.C. No. 2005-24, 30 N.J.P.E.R. ¶ 143, 2004 N.J. PERC LEXIS

168 at 9-10 (2004).

      The Board argued PERC erred in allowing arbitration of its non-

negotiable right to establish a sick leave verification policy. However, that is

not the subject of the Association's grievance. The Association challeng ed the

application of the sick leave verification policy to Association members absent

on February 8, 2018. PERC held that while requiring a doctor's note to verify

employee absences is fully within the Board's statutory rights, "the application


                                                                          A-2440-18T3
                                        8
of a sick leave verification policy . . . may be challenged through contractual

grievance procedures."

      Having reviewed the record, and mindful of the applicable standards for

review of PERC determinations, we are satisfied the Board has not shown

PERC's decision was arbitrary, unreasonable, capricious, or contrary to well-

established precedent.    PERC's decision that the Association's grievance is

arbitrable is fully supported by the evidence in the record. The merits of the

Association's grievance, including the Association's failure to raise issues during

the grievance process, and any contractual defenses offered by the Board may

be adjudicated by an arbitrator.

      Affirmed.




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