IN THE MATTER OF VACATION LEAVE ENTITLEMENT, VINELAND CITY SCHOOL DISTRICT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3029-07T33029-07T3

IN THE MATTER OF VACATION LEAVE

ENTITLEMENT, VINELAND CITY SCHOOL

DISTRICT.

_______________________________________________

 

Submitted February 10, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2007-3267.

Cleary & Josem, L.L.P., attorneys for appellant United Auto Workers Local 2327 (Regina C. Hertzig, of counsel; Ms. Hertzig and Jeremy E. Meyer, on the brief).

Gruccio, Pepper, De Santo & Ruth, P.A., attorneys for respondent Vineland City School District (Robert A. De Santo, on the brief).

Anne Milgram, Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The United Auto Workers Local 2327 (UAW) appeals from the decision of the Merit System Board (Board) regarding the accrual of vacation time for UAW members working ten months a year for the Vineland City School District (School District). UAW contended that the vacation time should be "front loaded," that is, the employees should receive credit at the beginning of each year for the vacation time that will be earned that year. For example, if a full-time employee working ten months is entitled to ten vacation days a year and vacation time is front loaded, the employee is allocated the ten vacation days at the beginning of the year. The School District maintained that vacation time accrues proportionately at the beginning of each month. If the vacation time accrues proportionately on a monthly basis, an employee entitled to ten vacation days a year accrues one vacation day at the beginning of each of the ten months.

The Board determined that the governing statute and regulations do not require that vacation time for these employees be front loaded. We agree and affirm.

I

Christopher M. Possumato, employed by the School District as a full-time security guard ten months a year, was a member of UAW. Under the terms of the UAW collective bargaining agreement with the School District, no vacation benefits were provided to full-time employees working ten months a year. In response to his inquiry, the Board advised Possumato that under the civil service laws, he was entitled to vacation benefits.

In light of this information, a class action was filed on behalf of employees of the School District seeking vacation time. In addition, UAW brought this action before the Board in order to require the School District to extend vacation benefits to its ten month employees. The Board held the application in abeyance pending the outcome of the class action litigation. The litigation settled, with the School District agreeing to provide specified vacation benefits to the employees. The settlement did not address how the vacation time would accrue. As a result, this action before the Board was resumed to resolve that issue.

The School District maintained that vacation time should be accrued at the rate of one vacation day a month. UAW contended that an employee's vacation time should be front loaded, so that the employee receives credit at the beginning of each year for the vacation time that will be earned that year. It argued that State employees governed by a similar statute, N.J.S.A. 11A:6-2, have their vacation time credited in this manner pursuant to N.J.A.C. 4A:6-1.2(a) (crediting vacation time at the beginning of the calendar year for full-time state employees).

In a decision dated January 17, 2008, the Board determined that the governing statute and regulations do not require that local governments front load vacation time. The statute and regulations also do not require that State and local government employees be treated similarly. Rather, the Board found that the manner of crediting annual vacation time is left to local discretion. The School District could either "credit vacation leave each month as it is earned or credit all earned vacation leave at the beginning of the calendar year."

The statute governing State workers does not specify how the vacation time is to accrue, whether front loaded or accruing monthly. N.J.S.A. 11A:6-2. It merely provides the number of allocated vacations days as follows:

Vacation leave for full-time State employees in the career and senior executive service shall be at least:
 
a. Up to one year of service, one working day for each month of service;
 
b. After one year and up to five years of continuous service, 12 working days;
 
c. After five years and up to 12 years of continuous service, 15 working days;
 
d. After 12 years and up to 20 years of continuous service, 20 working days;
 
e. Over 20 years of continuous service, 25 working days . . . .

[N.J.S.A. 11A:6-2(a) to (e).]

The statute governing vacation time for local government workers has similar language, except that the amount of vacation time allocated differs. N.J.S.A. 11A:6-3. It provides:

Vacation leave for full-time political subdivision employees shall be at least:
 
a. Up to one year of service, one working day for each month of service;
 
b. After one year and up to 10 years of continuous service, 12 working days;
 
c. After 10 years and up to 20 years of continuous service, 15 working days;

 
d. After 20 years of continuous service, 20 working days . . . .

[N.J.S.A. 11A:6-3.]

The two statutes, N.J.S.A. 11A:6-2 (addressing State workers) and N.J.S.A. 11A:6-3 (addressing local government workers) do not specify how the vacation time is to be accrued after the first year, whether front loaded or on a monthly basis. The statutes are silent on this point.

The governing regulations provide the same method for calculating vacation time during the first year of employment for both State and local government employees. N.J.A.C. 4A:6-1.2(a)(1) and (2); N.J.A.C. 4A:6-1.2(b). The regulations also provide that after the first year, the annual vacation time for State employees is front loaded, expressly providing: "[f]ull-time State employees in the career service shall be entitled to annual paid vacation leave, credited at the beginning of each calendar year in anticipation of continued employment." N.J.A.C. 4A:6-1.2(a). The regulations do not contain a similar provision allowing front loading of vacation time for local government workers. N.J.A.C. 4A:6-1.2. Indeed, the regulations do not address the method of accruing vacation time for local government workers after the first year, but merely specify the minimum amount of vacation time allocated reflecting the schedule in the statute. N.J.A.C. 4A:6-1.2(b).

UAW argued that because the statutes are drafted in a similar manner, the regulations on the accrual of vacation time should be the same. Addressing this argument, the Board stated:

With respect to the issue of "front loading" vacation entitlement credits for local service employees in the current matter, as correctly noted by the School District, the provisions of N.J.A.C. 4A:6-1.2(a) specifically apply only to State, not local employees. Thus, the provision crediting annual paid leave at the beginning of each calendar year in anticipating of continued employment based on continuous State full or part-time service, does not apply to local employees. . . . Further, neither N.J.S.A. 11A:6-2 nor N.J.S.A. 11A:6-3 specify whether vacation leave should be advanced or earned by an employee before he or she can use it. In this regard, the provision to credit annual vacation leave allotments for State employees at the beginning of the calendar year is the intended policy of the State for its appointing authorities. The fact that the State chose this policy in its crediting of annual vacation leave allotments does not mean that the policy is mandated for local service appointing authorities.

[emphasis supplied]

Neither the statute nor regulations governing the accrual of vacation time for local government employees require the local government entity to front load vacation time as UAW demands. N.J.S.A. 11A:6-3; N.J.A.C. 4A:6-1.2(b). The statutes governing State and local government workers are silent on how vacation time is to accrue. N.J.S.A. 11A:6-2; N.J.S.A. 11A:6-3. The regulations implementing the statutes require the State to front load vacation time after the first year, but do not impose a similar requirement on local governments. N.J.A.C. 4A:6-1.2. Thus, under both statutory and regulatory law, the local governments are not required to front load vacation time. N.J.S.A. 11A:6-3; N.J.A.C. 4A:6-1.2. As the Board explained, the fact that the State has adopted a front loading policy for its workers, does not require local governments to do so. See

GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 308 (1993) (stating that when discerning the Legislature's intent in the construction of a statute, the court should not imply the existence of a term where the Legislature has used a specific term in one place and excluded that same language in another place); Medford Convalescent & Nursing Ctr. v. Div. of Med. Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div.) (noting that regulations are to be construed in the same manner as statutes), certif. denied, 102 N.J. 385 (1985). This regulation provides local governments with the flexibility to determine how vacation time will accrue in order to permit them to best address their local government and personnel needs.

Our review of an administrative agency action is limited. In re Musick, 143 N.J. 206, 216 (1996). The administrative agency is presumed to have acted reasonably. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). The Board's decision will be sustained unless an appellant makes "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). In this inquiry, we look at whether the Board followed the law in light of the express or implied legislative policies involved, whether the agency's findings are supported by substantial evidence, and "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). Administrative agencies are allowed "wide discretion and authority to select the means and procedures by which to meet their statutory objectives." County of Hudson v. Dep't of Corr., 152 N.J. 60, 71 (1997). In light of this standard we find no basis to overturn the decision of the Board.

On appeal, the School Board indicates that its policy accruing vacation time at the rate of one day per month is being corrected, since some employees are entitled to more than ten days vacation per year. As a result, employees working ten months will be credited with one-tenth of their yearly vacation allotment at the beginning of each of the ten months. We reject UAW's argument that this correction requires reversal of the Board's decision. The Board directed the School District to "credit vacation leave each month as it is earned or credit all earned vacation leave at the beginning of the calendar year." This correction is in compliance with the Board's determination.

UAW also argues that the Board failed to address UAW's disparate treatment argument, namely, that the vacation time for some employees (in different bargaining units) was front loaded and not others. It contends that the Board was compelled to hold an evidentiary hearing on this issue. However, UAW cites no legal authority and provides no legal theory that would require the School Board to treat employees governed by different bargaining units uniformly on this point.

We affirm the decision of the Board.

 

The functions, powers, and duties of the Merit System Board have been transferred to the newly created Civil Service Commission effective June 30, 2008, after the Board's decision in this case. N.J.S.A. 11A:11-1.

(continued)

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A-3029-07T3

July 22, 2009