                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-4107-18T3

IN THE MATTER OF
STATE OF NEW JERSEY
STATE POLICE,

       Petitioner-Respondent,

and

STATE TROOPERS FRATERNAL
ASSOCIATION,

       Respondent-Appellant.


                Argued March 4, 2020 – Decided May 22, 2020

                Before Judges Alvarez, Suter, and DeAlmeida.

                On appeal from the New Jersey Public Employment
                Relations Commission, P.E.R.C. Nos. 2019-30 and
                2019-43.

                Michael Albert Bukosky argued the cause for appellant
                (Loccke Correia & Bukosky, attorneys; Michael Albert
                Bukosky, of counsel and on the briefs).

                Emily Marie Bisnauth, Deputy Attorney General,
                argued the cause for respondent State of New Jersey,
                Division of State Police (Gurbir S. Grewal, Attorney
             General, attorney; Donna Sue Arons, Assistant
             Attorney General, of counsel; Emily Marie Bisnauth,
             on the brief).

             John Andrew Boppert, Deputy General Counsel, argued
             the cause for respondent New Jersey Public
             Employment Relations Commission (Christine R.
             Lucarelli, General Counsel, attorney; John Andrew
             Boppert, on the statement in lieu of brief).

PER CURIAM

      The State Troopers Fraternal Association (STFA) appeals a February 28,

2019 final decision made by the New Jersey Public Employment Relations

Commission (PERC). The STFA also appeals an April 25, 2019 PERC decision

denying reconsideration. 1 For the reasons stated by PERC in its cogent analysis,

we affirm.

      On January 3, 2017, New Jersey State Trooper Joseph Trogani requested

twelve weeks of paid family leave to care for his newborn child; his fiancée was

due within days. He was granted six weeks of paid leave, deducted from his

vacation and disability leave, however, he was informed the remaining six weeks

of leave would be without pay.



1
  STFA's notice of appeal listed only the February 28 order, and should have
included the reconsideration decision. Because SFTA acknowledges the
oversight but points out that it gave the respondents notice of its intent to appeal
that decision by attaching it to the notice, we include it in our discussion.
                                                                            A-4107-18T3
                                         2
      On behalf of Trogani, the STFA appealed the denial. In its response, the

Time and Leave Management Unit of the New Jersey State Police stated that

"[a] fiancée is not recognized as an immediate family member under N.J.A.C.

4A:6-1.21 and 4A:4-1.3 and use of sick time to bond with a newborn is not

appropriate use of sick leave."

      Ultimately, STFA filed with PERC a request to submit the issue to a panel

of arbitrators. The State Police's responding petition alleged that "since the state

is required to follow the law governing permissible use of leave benefit time the

issue/s being arbitrated are outside the scope of negotiations petition."

      PERC agreed that the subject matter in dispute did not come within the

scope of collective negotiations. Pursuant to Patterson Police PBA No. 1 v. City

of Patterson, arbitration of a grievance is barred when preempted. 87 N.J. 78,

92-93 (1981).    PERC concluded that both the Family Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601 to 2654, and the New Jersey Family Leave Act

(FLA), N.J.S.A. 34:11B-1 to -16, preempted the issues Trogani raised.

      The FMLA does not prevent employers from negotiating more generous

leave policies than those established by the Act. But, in New Jersey's FMLA

implementing regulation, childbirth is not included in allowable reasons for sick

leave. PERC further held that the FLA also preempted negotiations because it


                                                                            A-4107-18T3
                                         3
relies on identical language to that found in the FMLA. Leave for childbirth

may be paid, at an employee's election, from "accrued paid vacation leave,

personal leave, or family leave."

      Furthermore, routine childbirth is not a "serious health condition" and ,

thankfully, there was no evidence that the as-yet unborn child was ill. Trogani's

fiancée was not an "immediate family member" for purposes of sick leave.

      PERC also declined to consider the STFA's discrimination claim, because

arbitration was not the appropriate forum. Thus, it granted the State Police's

request for restraint of binding arbitration.

      In the reconsideration petition, Trogani raised arguments not previously

made. They included that N.J.S.A. 34:11B-14 permitted his proposed use of

paid sick leave, that the Civil Service regulations cited by PERC in its original

decision might not apply to State troopers, and, in the alternative, that the

regulations did not preempt arbitration. By the time the reconsideration petition

was filed, the Civil Service Commission had proposed a rule change which

would likely include Trogani's fiancée in the definition of "immediate family

member." See N.J.A.C. 4A:1-1.3.

      PERC concluded that the STFA had not "demonstrated extraordinary

circumstances" or issues of "exceptional importance" which would have


                                                                         A-4107-18T3
                                         4
compelled reconsideration, and denied the motion. On appeal, the STFA raises

the following issues:

            POINT I
            THE    LEGISLATURE HAS  SPECIFICALLY
            MANDATED THAT BENEFITS WHICH EXCEED
            THE STATE FAMILY LEAVE ACT ARE
            MANDATORILY NEGOTIABLE

            POINT II
            ADMINISTRATIVE COMITY REQUIRED THAT
            PERC "STAY ITS HAND" AND [] TRANSFER THE
            MATTER TO CIVIL SERVICE FOR THAT
            AGENCIES [sic] CLARIFICATION OF ITS OWN
            REGULATIONS

            A.    THE COMMISSION ERRED WHEN IT
                  DETERMINED THAT THE REGULATION IN
                  QUESTION WAS PREEMPTIVE WHERE
                  CIVIL   SERVICE  HAS   LIBERALLY
                  INTERPRETED THE REGULATION IN THE
                  PAST

            POINT III
            PERC ERRED WHEN IT APPLIED CIVIL SERVICE
            SICK LEAVE REGULATIONS WHICH ARE
            INAPPLICABLE TO STATE TROOPERS

            POINT IV
            PERC ERRED WHERE ENTITLEMENT TO A PAID
            LEAVE OF ABSENCE IS MANDATORILY
            NEGOTIABLE AND IS NOT PREEMPTED BY THE
            FAMILY LEAVE ACT

            POINT V
            PERC    ERRED  AS   THE   EMPLOYER'S
            DISCRIMINATORY  TREATMENT   OF  THE

                                                                     A-4107-18T3
                                     5
            GRIEVANT FOLLOWING HIS REQUEST FOR
            FAMILY LEAVE IS NOT PREEMPTED BY ANY
            LAW

                                        I.

      Generally, we defer to the findings of an administrative agency in the

absence of a showing that it was arbitrary, capricious, or unreasonable, or not

supported by substantial credible evidence. Zimmerman v. Sussex Cty. Educ.

Srvs. Comm'n, 237 N.J. 465, 475 (2019) (citing In re Stallworth, 208 N.J. 182,

194 (2011)). However, where a legal question of statutory construction is

involved, we are not bound by the agency's interpretation of a statute or

determination of a strictly legal issue, if unreasonable. Id. at 475-76.

                                        II.

      "PERC has primary jurisdiction to make a determination on the merits of

the question of whether the subject matter of a particular dispute is within the

scope of collective negotiations." Ridgefield Park Educ. Ass'n v. Ridgefield

Park Bd. of Educ., 78 N.J. 144, 154 (1978). Such subject matter includes either

"mandatorily negotiable terms and conditions of employment [or] non -




                                                                           A-4107-18T3
                                        6
negotiable matters of governmental policy." In re Local 195, IFPTE, AFL-CIO,

88 N.J. 393, 402 (1982).

      A subject is negotiable when it "has not been fully or partially p reempted

by statute or regulation . . . ." Id. at 404. "[A]n otherwise negotiable topic

cannot be the subject of a negotiated agreement if it is preempted by legislation."

Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 44

(1982).   "When legislation or a regulation 'establishes a specific term or

condition of employment that leaves no room for discretionary action, then

negotiation on that term is fully preempted.'" Borough of Keyport v. Int'l Union

of Operating Eng'rs, 222 N.J. 314, 336-37 (2015) (quoting Local 195, 88 N.J. at

403). A statute or regulation does not preempt negotiations over an employment

condition unless     it   fixes   the condition "expressly, specifically and

comprehensively." Bethlehem Twp. Bd. of Educ., 91 N.J. at 44. For preemption

to apply, there must be no room for debate as to the employer's discretion on the

subject. Ibid; Borough of Keyport, 222 N.J. at 337.

      The FMLA allows an employee to use paid vacation, personal, or family

leave on the occasion of the birth of a child. 29 U.S.C. § 2612(d)(2)(A). This

does not include sick leave. An employee may use paid sick leave to care for a

spouse, child, or a parent with a serious health condition. § 2612(d)(2)(B).


                                                                           A-4107-18T3
                                        7
      New Jersey's regulation regarding the FMLA recognizes an employee's

use of paid leave as FMLA leave so long as the entitlement to the leave is proven.

N.J.A.C. 4A:6-1.21B(i). Both the FMLA and FLA permit the use of sick leave

for the care of a seriously ill member of the employee's immediate family, but

the definition does not explicitly include fiancées. See N.J.A.C. 4A:1-1.3;

N.J.A.C. 4A:6-1.3(g)(3).

      New Jersey allows twelve weeks of family leave when a family member

has a serious health condition or for the birth of a child. Such leave may be

"paid, unpaid, or a combination of" both. N.J.S.A. 34:11B-4(d). An employee

may use paid leave for family leave purposes—and by paid leave, the term

includes an employee's vacation, sick, or administrative leave time. N.J.A.C.

4A:6-1.21A(j). The regulation governing sick leave includes care for a seriously

ill member of the employee's immediate family. N.J.A.C. 4A:6-1.3(g).

      The FMLA and the FLA preclude the use of paid sick leave for the birth

of an employee's child. The FMLA permits use of vacation, personal, or family

leave for the birth of a child. § 2612(d)(2)(A). The FLA regulation allows use

of paid sick leave for personal injury to the employee or care of a seriously ill

member of the employee's immediate family, among other circumstances.

N.J.A.C. 4A:6-1.3(g). Thus, conditions for using sick leave as it relates to the


                                                                          A-4107-18T3
                                        8
birth of a child are "express[], specific[,] and comprehensive[]." Bethlehem

Twp. Bd. of Educ., 91 N.J. at 44. The legislation preempted negotiation of the

matter or arbitration of the issue.

      Under both the FMLA or the FLA, the normal birth of a healthy child is

simply not a "serious health condition," as Trogani suggests. Nothing further

needs to be said on that point.

      Currently, the definition of "immediate family member" includes "other

relatives residing in the employee's household or any other individual whose

close association with the employee is the equivalent of a family relationship[.]"

N.J.A.C. 4A:1-1.3. This definition likely includes Trogani's fiancée and would

have allowed him to use paid sick leave while she was recovering from the

childbirth, or at least bring the issue before the panel of arbitrators. However,

at the time PERC considered the matter in April 2019, the regulation did not

include that phrase, and nothing suggests the updated definition was meant to

be applied retroactively.    We see no error in PERC's interpretation of the

amendment to mean it did not apply.

      We discuss the statute belatedly raised by the STFA only briefly. The

statute provides that an employer may not reduce benefits required by a

collective bargaining agreement which may be in excess of the provisions found


                                                                          A-4107-18T3
                                        9
in the FLA. N.J.S.A. 34:11B-14. The statute does not bar negotiation in excess

of the statutory floor but does not affect consideration of preempted arguments.

      The STFA urges us to consider an unpublished case, In re Madison Board

of Education, No. A-3794-14 (App. Div. May 6, 2016), 2 as support because since

PERC was a party to the litigation, the case is binding. But Madison, even if it

were binding on PERC, addresses a different question. It involved the discretion

vested in an employer to provide greater leave benefits than the minimum level

of rights or benefits statutorily secured to a public employee. If the Board had

discretion to provide a greater leave benefit, then the issue would not have been

preempted and would have been mandatorily negotiable. However, when a

statute or regulation sets a maximum level of rights or benefits, any proposal to

go beyond that maximum is not negotiable and is preempted. See State v. State

Supervisory Emp. Ass'n, 78 N.J. 54, 81-82 (1978). Such is the case here.

      Here, the Legislature established the maximum level of sick leave rights.

The regulation lists four ways in which an employee may use sick leave, and

that is the maximum level of the right to do so under the FLA.



2
  Rule 1:36-3 states that unpublished opinions do not constitute precedent on
any court and, with few exceptions, no court shall cite to an unpublished opinion.
However, since the STFA contends the case is binding on the agency, we will
briefly address the issue.
                                                                          A-4107-18T3
                                       10
N.J.A.C. 4A:6-1.3(g). Use of sick leave is not negotiable because it has been

limited by statute and regulation.

      On questions of statutory construction, although not bound by the agency's

interpretation, we will defer to it in the absence of any showing it was arbitrary,

capricious, or unreasonable. See Zimmerman, 237 N.J. at 475. We do so here.

                                       III.

      In its original petition, the STFA argued that the distinction between a

fiancée and a spouse was discriminatory. As PERC correctly opined, however,

claims of discrimination are not subject to binding arbitration when based on a

term of employment not mandatorily negotiable. See Troy v. Rutgers, 168 N.J.

354, 382-85 (2001); Teaneck Bd. of Educ. v. Teaneck Teachers Ass'n, 94 N.J.

9, 20 (1983). The issue of sick leave, because it is not mandatorily negotiable,

requires the alleged discrimination claim be addressed in another forum.

                                       IV.

      Finally, the STFA contended for the first time on reconsideration that the

provisions relied upon by PERC in concluding that preemption barred

arbitration were not applicable to State trooper employees because they fall

within an unclassified service. As the STFA acknowledges in its brief, "it is

unclear whether they apply to the STFA or its members."


                                                                           A-4107-18T3
                                       11
      To the contrary, the State Family Leave Regulation defines "employee" as

"a person who is employed for at least [twelve] months by an employer, . . . and

includes employees in the career, senior executive and unclassified services."

N.J.A.C. 4A:6-1.21A(b)(3). For purposes of application of the FLA to State

troopers, the issue is certain. FLA regulations apply to State troopers who are

in the unclassified services.

      Affirmed.




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                                      12
