NOT FOR PUBLICATION WITHOUT THE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-4310-18T3
IN THE MATTER OF CITY
OF ORANGE TOWNSHIP,
Respondent-Appellant,
and
PBA LOCAL 89,
Charging Party-Respondent.
____________________________
Submitted March 4, 2020 – Decided June 3, 2020
Before Judges Whipple, Gooden Brown and Mawla.
On appeal from the New Jersey Public Employment
Relations Commission, P.E.R.C. No. 2019-40.
Scarinci & Hollenbeck LLC, attorneys for appellant
(Ramon Emeterio Rivera, of counsel; John J.D. Burke,
on the brief).
Detzky, Hunter & De Fillippo, LLC, attorneys for
respondent (David John De Fillippo, of counsel and on
the brief).
Christine R. Lucarelli, General Counsel, attorney for
respondent New Jersey Public Employment Relations
Commission (John Andrew Boppert, Deputy General
Counsel, on the statement in lieu of brief).
PER CURIAM
The City of Orange appeals from an April 25, 2019 final decision of the
Public Employment Relations Commission (PERC), adopting the Hearing
Examiner's finding that the City violated the New Jersey Employer -Employee
Relations Act (EERA) when it adopted an ordinance that eliminated terminal
leave to Policemen's Benevolent Association Local No. 89 (PBA) unit members
on December 31, 2020. We affirm.
The PBA "is the collective negotiations agent for all full[-]time police
officers employed by the City . . . below the rank of Sergeant." The City and
the PBA are parties to a collective negotiation agreement (CNA) which expires
on December 31, 2020. Article V, Section 7 of the CNA provides for the
payment of terminal leave based on the employee's accumulated sick leave.
Article V, Section 7 provides, in pertinent part:
(a) Terminal Leave –
For employees hired before January 1, 1988.
Upon ordinary retirement, or disability
retirement, if an employee has accumulated sick leave
to his credit, said employee shall opt for payment at the
rate of 70% for all accumulated sick days or for
compensation in time-off up to one (1) year or in cash,
A-4310-18T3
2
(which may be paid in a lump sum or in payments over
time at the employee's option) at the rate of pay in effect
at the date of retirement according to the following
formula:
Amount of Accumulated Compensation
Sick Leave
1 through 126 days 1 day's pay or leave for
each day of
accumulated sick leave
127 days or more 1 day's pay or leave for
each day of
accumulated sick leave
to 126 days plus 20% of
a day's pay or leave for
each day of
accumulated sick leave
in excess of 126 days.
An employee who avails himself of the time-off option
will be paid for the remaining days in excess of 1 year
according to the preceding schedule.
Under Section 7, employees hired between January 1, 1988 and May 31, 1995,
are entitled to the same terminal leave payment options as employees hired prior
to January 1, 1998, except the formula for calculation is adjusted as follows:
Amount of Accumulated
Sick Leave Compensation
1 through 96 days inclusive 1 day's pay or
leave for each day
of accumulated
sick leave not to
A-4310-18T3
3
exceed ninety-six
(96) days in total.
Employees hired after May 1, 1995 "shall receive payment at the rate of 70%
for all accumulated sick days." The CNA remains in full force and effect beyond
the date of expiration set forth during collective bargaining negotiation between
the parties.
On November 8, 2017, without prior negotiations with the PBA, the City
adopted Ordinance No. 63-2017. The ordinance provided in relevant part:
AN ORDINANCE TO AMEND TITLE 23 CITY OF
ORANGE TOWNSHIP EMPLOYEE HANDBOOK
OF PERSONNEL POLICIES AND PROCEDURES,
CHAPTER V-UNUSED SICK LEAVE AND
TERMINAL LEAVE FOR THE CITY OF ORANGE
TOWNSHIP POLICE, FIRE, AND NON-
UNIFORMED WORKERS OF THE CODE OF THE
CITY OF ORANGE TOWNSHIP PERTAINING TO
UNUSED SICK LEAVE AND TERMINAL LEAVE.
....
23:1-5.4 UNUSED SICK LEAVE AND TERMINAL
LEAVE.
All employees who have accumulated more than
$12,000 worth of sick leave as of December 31, 2020
cannot accumulate additional time and the dollar value
($12,000) is frozen in place and cannot be increased.
This does not affect the accrual of sick leave days that
are earned; it only caps the amount of cash received at
retirement.
A-4310-18T3
4
There shall be no accumulated sick leave
payment for employees who resign, die, or are
terminated beyond December 31, 2020.
Terminal Leave for Members of OMEBA, [1] the
Police and Fire Departments.
At the expiration of the current collective
bargaining agreements, or December 31, 2020,
whichever is later, unless already agreed to in an
existing Collective Bargaining Agreement, the terms of
this Ordinance must apply as follows: there will be no
terminal leave payout for accumulated unused sick
leave.
Terminal Leave for OMEBA Members- In
accordance with their current collective bargaining unit
agreement.
....
EFFECTIVE DATE.
This Ordinance Shall take effect twenty (20) days
after final reading and passage.
On January 22, 2018, the PBA filed an unfair practice charge against the
City, seeking to compel the city to rescind or amend the Ordinance. The charge
1
As noted by the Hearing Examiner,"[w]hile not described in the Ordinance,
the 'OMEBA' stands for the 'Orange Municipal Employees Benevolent
Association.'"
A-4310-18T3
5
alleged that the City violated section 5.4(a)(1), (2), (3), (5), and (7) 2 of the
EERA, when it adopted the ordinance. On July 19, 2018, the Acting Director
of Unfair Practices issued a complaint and notice of prehearing. In September
2018, the PBA moved for summary judgment, which the City opposed and cross-
moved for summary judgment.
The Hearing Examiner issued a report and recommendation, granting the
PBA's motion concluding the City violated N.J.S.A. 34:13A-5.4(a)(5) and
derivatively (a)(1) of the EERA when it adopted the ordinance "without
negotiating in good faith with the PBA over changes to the provision of terminal
leave."
The City filed exceptions on December 21 to the Hearing Examiner's
report and recommendation. On April 25, 2019, PERC issued its decision
2
Under those provisions, a public employer is prohibited from: (1)
"[i]nterfering with, restraining or coercing employees in the exercise of the
rights guaranteed to them by" the EERA; (2) "[d]ominating or interfering with
the formation, existence or administration of any employee organization "; (3)
"[d]iscriminating in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage employees in the exercise
of the rights guaranteed to them by" the EERA; (5) "[r]efusing to negotiate in
good faith with a majority representative of employees in an appropriate u nit
concerning terms and conditions of employment of employees in that unit, or
refusing to process grievances presented by the majority representative"; and (7)
"[v]iolating any of the rules and regulations established by the commission."
A-4310-18T3
6
adopting the Hearing Examiner's recommended conclusions of law. This appeal
followed.
On appeal, the City argues PERC's interpretation of the ordinance's
operation is arbitrary and capricious for the following reasons: (1) PERC's
characterization of the ordinance as a change in the existing terms and
conditions of employment is unreasonable as the ordinance does not change the
terms and conditions of employment unless one is negotiated as part of the next
CNA; (2) PERC made no finding in its decision that the City refused to negotiate
and therefore, PERC's conclusion that the City violated section 5.4(a)(5) of the
EERA is without fair support in evidence; and (3) PERC's decision that the City
imposed an unspecified condition upon negotiations has no rational basis. The
City also contends PERC disregarded an explicit section heading, "Terminal
Leave for Members of OMEBA," set forth in the ordinance. We disagree.
"PERC is charged with administering the [EERA] . . . and its interpretation
of the [EERA] is entitled to substantial deference." 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) (citation omitted). We "will not upset a State
agency's determination in the absence of a showing that it was arbitrary,
capricious or unreasonable, or that it lacked fair support in evidence, or that it
A-4310-18T3
7
violated a legislative policy expressed or implicit in the governing statute." Ibid.
(citation omitted). We also "grant administrative agency action a 'strong
presumption of reasonableness.'" Twp of Franklin v. Franklin Twp. PBA Local
154, 424 N.J. Super. 369, 377 (App. Div. 2012).
Although PERC's "'interpretation of the statute it is charged with
administering . . . is entitled to great weight,' . . . [we] will not yield to PERC if
its interpretation is 'plainly unreasonable, contrary to the language of the Act, or
subversive of the Legislature's intent.'" Commc'ns Workers of Am., 412 N.J.
Super. at 291 (citation omitted). "Deference is not afforded when PERC's
interpretation gives a provision of the [EERA] greater reach than the Legislature
intended, . . . and no special deference is owed in an interpretation of a statute
outside the agency's charge." Twp. of Franklin, 424 N.J. Super. at 378 (citations
omitted).
"The established rules of statutory construction govern the interpretation
of a municipal ordinance." Twp. of Pennsauken v. Schad, 160 N.J. 156, 170
(1999) (citations omitted). "Those principles require that an ordinance should
be interpreted to 'effectuate the legislative intent in light of the language used
and the objects sought to be achieved.'" Ibid. (quoting Merin v. Maglaki, 126
N.J. 430, 435 (1992)). We start with considering the language of the ordinance.
A-4310-18T3
8
Ibid. "When the language of the ordinance is clear and unambiguous on its face,
we need not look beyond the literal dictates of the words to divine the legislative
intent." Kim Real Estate Enters. v. N. Bergen, 215 N.J. Super. 255, 258 (App.
Div. 1987). In interpreting ordinances, we are guided by the assumption that
the Legislature did not implement "any unnecessary or meaningless language,"
and therefore, "[w]e must presume that every word in a statute has meaning and
is not mere surplusage." Jersey Cent. Power & Light Co. v. Melcar Utility Co.,
212 N.J. 576, 587 (2013) (citation omitted).
Applying those principles, we discern no error in PERC's adoption of the
Hearing Examiner's conclusion that the ordinance eliminates terminal leave for
PBA members if no CNA is in place by December 31, 2020. The Hearing
Examiner reasoned:
This interpretation gives effect and meaning to each
word in the above-quoted portion of the Ordinance.
The "current collective bargaining agreement" is the
2010-2020 CNA, which is set to expire on December
31, 2020 and provides for terminal leave. The
Ordinance clearly eliminates the payment of terminal
leave by providing "there will be no terminal leave
payout for accumulated unused sick leave," unless "an
existing Collective Bargaining Agreement" has been
reached. The language, "existing Collective
Agreement" must refer to a successor CNA to the 2010-
2020 CNA that would provide for terminal leave. The
City's interpretation would conflate "existing
Collective Bargaining Agreement" with the "current
A-4310-18T3
9
collective bargaining agreement" and thus render the
former clause superfluous. The City's interpretation
would also not give effect to the language prohibiting
the payment of terminal leave since, in its view, the
expired CNA (which provides terminal leave) would
continue to exist beyond December 31, 2020 regardless
of whether parties reached a successor agreement.
This is consistent with the plain language of the ordinance and complies
with our bedrock assumption that the Legislature did not use any unnecessary
or meaningless language. The City's assertion that the ordinance simply
announced its intention to negotiate the issue, contradicts the unambiguous
language of the ordinance. The ordinance plainly states: "unless already agreed
to . . . there will be no terminal leave payout for accumulated unused sick leave."
The language leaves no doubt as to the status of terminal leave absent an
agreement. We turn to whether the adoption of the ordinance violated sections
5.4(a)(5) and (a)(1) of the EERA.
Having reviewed the record and considered PERC's unique ability to reach
such determinations, there is no basis to conclude PERC's decision, that the
City's adoption of Ordinance No. 63-2017 violated section 5.4(a)(5) and,
derivatively, (a)(1) of the EERA, was arbitrary capricious or unreasonable or
that it lacked fair support in the record.
A-4310-18T3
10
"The EERA affords public employees a vast array of rights, including the
ability to appoint a majority representative to represent their interests and
negotiate agreements on their behalf with an employer." In re Cty. of Atlantic,
230 N.J. 237, 252 (2017) (citing N.J.S.A. 34:13A-5.3). The EERA also provides
that "[p]roposed new rules or modifications of existing rules governing working
conditions shall be negotiated with the majority representative before they are
established." Ibid. (quoting N.J.S.A. 34:13A-5.3). Thus, employers are
prohibited from "unilaterally altering . . . mandatory bargaining topics, whether
established by expired contract or by past practice, without first bargaining to
impasse." Ibid. (citation omitted).
Further, the EERA prohibits employers from "[i]interfering with,
restraining or coercing employees in the exercise of the rights guaranteed to
them . . .," N.J.S.A. 34:13A-5.4(a)(1), and "[r]efusing to negotiate in good faith
with a majority representative of employees in an appropriate unit concerning
terms and conditions of employment of employees in that unit . . .," N.J.S.A.
34:13A-5.4(a)(5).
The City does not dispute terminal leave is, in general, a mandatorily
negotiable term and condition of employment. See Caponegro v. State Operated
Sch. Dist. of City of Newark, Essex Cty., 330 N.J. Super 148, 156 (App. Div.
A-4310-18T3
11
2000) ("[A] contractual right to compensable accumulated leave is typically
characterized as deferred compensation . . . [and] is not subject to unilateral
divestment by the employer."). Therefore, when the City unilaterally adopted
the ordinance, ultimately eliminating terminal leave for PBA unit members if no
CNA is in place by December 31, 2020, it violated both section 5.4(a)(1) and
(5) of the EERA.
Indeed, the ordinance has the effect of announcing a change of a
negotiable term, which generally cannot be done absent prior negotiation.
Moreover, the City's adoption of the ordinance, in effect, works contrary to the
public policy of the EERA because it unilaterally discontinues a negotiable term
and forces the PBA to negotiate for it back.
Affirmed.
A-4310-18T3
12