POLICE BENEVOLENT ASSOCIATION LOCAL NO. 249 v. COUNTY OF BURLINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3705-11T2

POLICE BENEVOLENT ASSOCIATION

LOCAL NO. 249,

Plaintiff-Respondent,

v.

COUNTY OF BURLINGTON,

Defendant-Appellant.

____________________________________

January 17, 2013

Argued December 18, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2871-11.

Carmen Saginario, Jr., argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Robert J. Hagerty, of counsel and on the brief).

Mark W. Catanzaro argued the cause for respondent.

PER CURIAM

Defendant County of Burlington (County) appeals from the Law Division's February 10, 2012 order setting aside an arbitrator's decision in a dispute between the County and plaintiff Police Benevolent Association Local No. 249 (PBA) concerning the County's sick leave policy for employees assigned to the county jail. We affirm.

I.

The parties stipulated to the following in connection with the underlying arbitration:

1. The 2005-2008 Agreement Between the Board of Chosen Freeholders of the County of Burlington and Policeman's Benevolent Association (PBA) Local #249 Correction Officers (Agreement) between the parties provides, at Article VII:

Family and Medical Leave shall be in accordance with the federal Family and Medical Leave Act (29 U.S.C.A. 2601 et seq.) and/or the New Jersey Family Leave Act (N.J.S.A. 34:11B-1 et seq.).

2. The Agreement further provides, at Article V. Section K:

If it is reasonably suspected that the employee is abusing the sick leave privilege, the Jail Administrator may require the employee seeking leave to submit proof of illness. If the employee fails to provide proof of illness, the employee shall suffer loss of pay for such time.

3. Approximately, every six (6) months, Warden Cox sends a memo to the President of PBA Local 249 and all supervisors listing those staff members required to submit proof of illness (doctor's note) after each sick day usage at the Jail. The Warden also sends a memo to the individual officer on the list wherein the officer is advised that based on the Jail's findings, it is reasonably suspected that the officer has abused his/her sick leave privileges, the officer is required to submit proof of illness for a period of six months. The memo also states that failure to do so shall result in loss of pay and a potential for discipline.

4. The Burlington County Jail maintains a policy (Section 1083) which provides that "Doctor notes regarding intermittent family leave must be submitted no later than 7 days from the date of return to work or issue will not be accepted." This portion of the policy is applied only to employees on the list of staff members generated by the Warden that are required to submit proof of illness pursuant to the Warden's memo.

5. Officer Ralph West is employed by the County of Burlington as a Corrections Officer, and has been so employed since March 12, 1990.

6. On January 15, 2010 Warden Ronald Cox sent a memo to the PBA and all supervisors and captains regarding sick abuse. The memo gave a list of staff members required to submit proof of illness after each sick day usage. Officer West was listed on the memo. On January 8, 2010, Officer West was notified via a memo from Warden Cox that a review of his attendance has been submitted and based on the findings it is reasonably suspected that he had abused his sick leave privileges.

7. On March 3, 2010, the Burlington County Department of Human Resources received a Burlington County Notice to Employees, FMLA/NJFLA Leave Eligibility & Leave Request Form which was completed by Ralph West. The form completed by Officer West states the specific reasons for requesting a leave of absence as "son has sickle cell disease."

8. On March 4, 2010 Officer Ralph West was approved for intermittent family leave (IFL) pursuant to the federal Family and Medical Leave Act, 29 U.S.C.A. 2601 et seq. and the New Jersey Family Leave Act due to a serious health condition affecting his child. His request for IFL was approved for the reasons outlined in his medical certification form effective March 3, 2010 through December 31, 2010. If called to testify, Officer West would testify that he applied for IFL in order to care for his son, who has sickle cell anemia and as a result, suffers intermittently from a variety of serious health conditions, including strokes.

9. On May 2, 2010, Officer West called out IFL. If called to testify, Officer West would testify that his son had awoken that morning jaundiced and in pain, and that his request for an IFL day was related to his son's condition. This call out was noted on the Burlington County Detention Center Daily Shift Report.

10. If called to testify, Warden Cox would testify that because Officer West had been placed on the list of staff members required to submit proof of illness after each sick day usage effective January 17, 2010 through June 30, 2010 as stated in the memo dated January 8, 2010, Officer West was required by the Jail to submit proof of illness for May 2, 2010, when he called out IFL.

11. Officer West did not provide a doctor's note in connection with his absence on May 2, 2010 within seven days of his return, as required by Section 1083 of the County's policy. Therefore, Officer West was docked eight (8) hours for the day of May 2, 2010.

12. On June 10, 2010, PBA Local 249 filed a grievance (GR-2010-007) alleging that the employer's decision to dock Officer [West] eight (8) hours pay for May 2, 2010 and to require Officer West to provide proof of illness for each use of pre-approved IFL constituted a violation of Article VII of the contract and, by extension, state and federal law.

13. Officer Ralph West also filed a companion grievance (GR-2010-009) challenging the employer's policy of requiring any employee with approved IFL to provide a separate doctor's note for each use of IFL as contrary to both Article VII and applicable law. The two grievances have been consolidated for the purpose of hearing.

14. The union's grievances were denied by the County at each level of the grievance procedure. The County asserted that its policy requiring submission of a separate doctor's note for each use of intermittent family leave is confined to those officers who, like Officer West, had been placed on the list of staff members required to submit proof of illness (doctor's note) after each sick day usage at the Jail, and was therefore consistent with contract and law.

15. If called to testify, Officer West would testify that in June 2010, he was notified by his son's medical provider that it would not provide a note for Officer West's son unless Officer West actually brought his son into the hospital. Officer West would also testify that the provider further confirmed that it had completed the required paperwork for intermittent family leave, which it deemed sufficient in terms of notice to Officer West's employer.

We find it significant for the purposes of our analysis that the County does not contend that West was put on the sick leave abuse list because of any allegations that he abused IFL, although his inclusion on the list for other instances of abuse has not been challenged.

We discern the following additional facts and procedural history from the record on appeal. On August 15, 2010, West called out sick to care for his son who was ill on that date, again relying on his pre-approved IFL. The County consequently disciplined West for failing to provide a doctor's note, imposing a two-day suspension on September 27, to be served on November 8 and 15.

In August 2010, the PBA filed a request to resolve the matter via binding arbitration. An arbitration hearing was held before a single arbitrator on February 3, 2011. On June 7, the arbitrator issued an opinion and award, denying the grievance and determining that the County's requirement that an employee with a record of suspected sick leave abuse submit a medical note did not violate the collective bargaining agreement, the federal Family and Medical Leave Act (FMLA), 29 U.S.C.A. 2601-2654, or the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16. The arbitrator reasoned that the PBA's argument would produce the following: "grievant, a suspected sick leave abuser, would have carte blanche to take time off, free of any requirement to verify the reason for the absence; a result not exactly drenched in common sense."

The PBA moved before the Law Division to set the award aside, arguing that the arbitrator had made a mistake of law. On February 10, 2012, the judge granted the application. She found that

the [County]'s required doctor's note policy as applied here diminished [West's] rights under the FMLA because he has been approved for intermittent family leave and was using intermittent family leave on the days that are in issue here. It is unlawful for any employer to interfere with, restrain, or deny the exercise of, the attempt to exercise any FMLA right. The FMLA allows an employee to take IFL because of [the employee's] own serious health condition or the health condition of a family member. To obtain IFL, the employee must obtain a medical certification as to his own serious health condition or that of his family member. There is not any requirement under the IFL that every time the serious health condition causes that person to be out a medical note or certification is necessary to prove that use of the IFL day was appropriate. Plainly not every use of an IFL day would require a doctor or hospital visit.

An implementing order was entered the same day. This appeal followed.

II.

On appeal, the County contends that the motion judge applied the wrong standard of review, arguing that she should have used the "reasonably debatable" standard and determined that the arbitrator's decision was reasonably debatable. It also argues that its sick leave verification policy did not violate the FMLA or any other applicable law. Finally, the County argues that it had the unilateral right to adopt its policy outside of the collective bargaining process.

It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

A.

We first address the issue raised with respect to the standard of review on an application to set aside an arbitrator's award in the context of public-sector employment.

We employ a limited standard of review on appeals from arbitration decisions. In particular, an "arbitrator's award is not to be cast aside lightly" and "judicial interference . . . is to be strictly limited." Cnty. Coll. of Morris Staff Ass'n v. Cnty. Coll. of Morris, 100 N.J. 383, 390 (1985). Also, "'the party opposing confirmation ha[s] the burden of establishing that the award should be vacated pursuant to N.J.S.A. 2A:24-8.'" Twp. of Wyckoff v. PBA Local 261, 409 N.J. Super. 344, 354 (App. Div. 2009) (quoting Jersey City Educ. Ass'n v. Bd. of Educ. of City of Jersey City, 218 N.J. Super. 177, 187 (App. Div.), certif. denied, 109 N.J. 506 (1987)).

"In the public sector, an arbitrator's award will be confirmed 'so long as the award is reasonably debatable.'" Linden Bd. of Educ. v. Linden Educ. Ass'n, 202 N.J. 268, 276 (2010) (quoting Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1, 11 (2007)); see also Policemen's Benev. Ass'n, Local No. 11 v. City of Trenton, 205 N.J. 422, 428-29 (2011). Under this standard, we "'may not substitute [our] judgment for that of the arbitrator, regardless of [our] view of the correctness of the arbitrator's interpretation.'" Linden, supra, 202 N.J. at 277 (quoting N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 554 (2006)).

Nevertheless, there is an exception to the reasonably- debatable standard. In Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 364 (1994), the Supreme Court held that "in rare circumstances a court may vacate an arbitration award for public-policy reasons." The Court added that

in a public-sector arbitration setting, a court can properly vacate an award because of a mistake of law. Communications Workers v. Monmouth County Bd. of Social Servs.,96 N.J.442 (1984). That exception is necessary because public policy demands that a public-sector arbitrator, who must consider the effect of a decision on the public interest and welfare, issue a decision in accordance with the law. Kearny PBA Local #21 v. Town of Kearny,81 N.J.208, 217 (1979).

[Id.at 364-65.]

The United States Supreme Court also has held that courts may not enforce public-sector collective bargaining agreements that are contrary to a "well defined and dominant" public policy. W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183, 76 L. Ed. 2d 298, 307 (1983).

The "public policy exception requires 'heightened judicial scrutiny' when an arbitration award implicates 'a clear mandate of public policy[.]'" N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 294 (2007) (quoting Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420, 429-30, 443 (1996)). This standard will only be met in rare instances. Ibid. The Court has explained:

Assuming that the arbitrator's award accurately has identified, defined, and attempted to vindicate the pertinent public policy, courts should not disturb the award merely because of disagreements with arbitral fact findings or because the arbitrator's application of the public-policy principles to the underlying facts is imperfect. If the correctness of the award, including its resolution of the public-policy question, is reasonably debatable, judicial intervention is unwarranted. The judiciary's duty to provide an enhanced level of review of such arbitration awards is discharged by a careful scrutiny of the award, in the context of the underlying public policy, to verify that the interests and objectives to be served by the public policy are not frustrated and thwarted by the arbitral award.

However, if the arbitrator's resolution of the public-policy question is not reasonably debatable, and plainly would violate a clear mandate of public policy, a court must intervene to prevent enforcement of the award. In such circumstances, judicial intervention is necessary because arbitrators cannot be permitted to authorize litigants to violate either the law or those public-policy principles that government has established by statute, regulation or otherwise for the protection of the public.

[Weiss, supra, 143 N.J. at 443.]

Significantly, in determining whether the public policy exception applies, the courts should concentrate on the award, not the conduct which gave rise to the dispute. N.J. Tpk. Auth., supra, 190 N.J. at 297-98.

"[F]or purposes of judicial review of labor arbitration awards, public policy sufficient to vacate an award must be embodied in legislative enactments, administrative regulations, or legal precedents," not "amorphous considerations" of the public's well-being. Id. at 295. In that regard, we note (1) that 29 U.S.C.A. 2615(a)(1) makes it "unlawful" for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA and (2) that 29 U.S.C.A. 2652(b) provides that the rights established by the FMLA "shall not be diminished by any collective bargaining agreement or any employment benefit program or plan." Consequently, it does not matter whether the policy at issue was adopted through a collective bargaining agreement or the County's inherent authority.

B.

The FMLA allows an employee to take IFL as a result of the employee's or the employee's family member's serious health condition "when medically necessary." 29 U.S.C.A. 2612(b)(1); see Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S. Ct. 1155, 1160, 152 L. Ed. 2d 167, 175 (2002). West applied for and received permission for IFL due to his son's medical condition, which permission was based upon a doctor's certification. The very nature of that condition made intermittent leave necessary.

We find persuasive the reasoning of the district court in Jackson v. Jernberg Indus., 677 F. Supp. 2d 1042, 1050-53 (N.D. Ill. 2010), that requiring recertification by a doctor for each exercise of IFL interferes with the exercise of FMLA rights, especially where, as here, there is no evidence of prior abuse of intermittent leave involving West's son. The County's reliance on Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005) is misplaced. That case involved a call-in policy rather than a requirement that there be a recertification by a doctor for every use of intermittent leave. Such a call-in requirement is patently less onerous than requiring a doctor's recertification for each use of IFL that has already been approved on the basis of a doctor's certification.

Because we have concluded that, under the circumstances of this case, the County's recertification requirement improperly interfered with West's rights under the FMLA, we affirm the decision on appeal.

Affirmed.