SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4315-16T2

IN THE MATTER OF

WEST ORANGE BOARD OF EDUCATION,

Petitioner-Respondent, 

v.

WEST ORANGE EDUCATION ASSOCIATION,

Respondent-Appellant.

__________________________________

Submitted January 8, 2018 - Decided 

Before Judges Accurso, O'Connor and Vernoia. 

On appeal from the Public Employment 

Relations Commission, Docket No. SN-2017-

013.

Zazzali, Fagella, Nowak, Kleinbaum & 

Friedman, attorneys for appellant (Genevieve 

Murphy-Bradacs, on the briefs).

Cleary Giacobbe Alfieri & Jacobs, LLC, 

attorneys for respondent (Matthew J. 

Giacobbe and Gregory J. Franklin, on the

brief).

Christine Lucarelli-Carneiro, Acting General 

Counsel, attorney for respondent New Jersey 

Public Employment Relations Commission 

(David N. Gambert, Deputy General Counsel, 

on the statement in lieu of brief.)

NOT FOR PUBLICATION WITHOUT THE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.

July 25, 2018
2 A-4315-16T2

PER CURIAM

Following expiration of its collective negotiations 

agreement with the West Orange Education Association, the West 

Orange Board of Education filed a scope petition with the Public 

Employment Relations Commission asserting certain provisions of 

the expired agreement were not mandatorily negotiable and should 

be stricken from any successor agreement. Among those 

provisions was Article XV, Section B (entitled "Supplementary 

Sick Leave"), which provided: 

Full-time employees shall be credited with 

five (5) days supplementary sick leave

allowance for each year of service, with 

unused days to be accumulated. Full-time 

employees who have exhausted their regular 

sick leave may utilize the accumulated 

supplementary sick leave to the extent 

necessary to provide total compensation of 

up to three (3) days beyond this period in 

any month wherein less than three (3) days' 

compensation has been earned.

The Board argued the provision was an extended sick leave 

benefits clause preempted by N.J.S.A. 18A:30-6.1 The Association 

 

1 N.J.S.A. 18A:30-6 provides:

When absence, under the circumstances 

described in section 18A:30-1 of this 

article, exceeds the annual sick leave and 

the accumulated sick leave, the board of 

education may pay any such person each day’s 

salary less the pay of a substitute, if a 

substitute is employed or the estimated cost 

(continued)
3 A-4315-16T2

countered that notwithstanding the wording of the provision and 

its reference to "sick days," "the sole purpose of Article XV, 

Section B was to codify the parties' longstanding past practice 

of providing employees with 'insurance days' based on years of 

service that could be used to continue their health benefits 

during unpaid leaves of absence."2 The Association contended 

there was no dispute that provision of health benefits coverage 

during unpaid leaves of absence was a mandatorily negotiable 

 

(continued)

of the employment of a substitute if none is 

employed, for such length of time as may be 

determined by the board of education in each 

individual case. A day’s salary is defined 

as 1/200 of the annual salary.

[Emphasis supplied.]

2 In a certification submitted to PERC, the president of the 

Association explained that over the last many years, all fulltime employees have been allowed to accumulate five so-called 

"insurance days" for each year of service annually. Use of 

three of those days entitled an employee to the Board's portion 

of the health premium for one calendar month. Thus, an employee 

with six years' service was entitled to thirty "insurance days,"

which could be used to continue the Board's contribution to the 

employee's health premium for ten months while on unpaid leave.

 Based on PERC's 1992 decision, which notes the supplementary 

sick leave provision became part of the parties' CNA beginning 

in the 1960-61 school year, counsel for PERC speculates the 

clause mutated "into the alleged past practice of providing 

solely for the 'insurance days'" after the blanket award of 

supplementary sick days was preempted by the enactment of 

N.J.S.A. 18A:30-6 in 1967. 
4 A-4315-16T2

subject, relying on a 1992 PERC decision against the Board in 

the Association's favor so holding.

PERC ruled for the Board, finding that although health 

benefits during periods of unpaid leave is a negotiable topic,

the Association "cannot achieve such a contractual benefit in 

the guise of supplementary sick leave that allows for extra paid 

sick leave days to be earned and utilized via blanket rule 

rather than per the Board's discretion within the constraints of 

N.J.S.A. 18A:30-6." It distinguished its prior decision, which 

arose in the context of a grievance arbitration, because there, 

"application of the relevant contract clause was confined to the 

known circumstances of the issues sought to be arbitrated." 

Although acknowledging that the supplementary sick leave 

provision in that case was "nearly identical" to Article XV, 

Section B, PERC found the issue in the prior case "was whether 

the Board violated the contract 'when it discontinued health 

insurance benefits for employees on unpaid leaves of absence.'"

The Association moved for reconsideration arguing that 

after PERC's decision of June 30, 2016, "the Board has advised 

that it will no longer honor the parties' longstanding 

contractual agreement to allow employees to use their 

accumulated 'supplementary sick leave' to continue their health 

benefits while on unpaid leaves of absence." The Association 
5 A-4315-16T2

complained the Board acted notwithstanding "that such an 

agreement involves a mandatorily negotiable term and condition 

of employment" and that "there is not now, nor has there ever 

been, any other permissible use for supplementary sick leave 

days provided by the parties' agreement other than for the 

continuation of health benefits during an unpaid leave of 

absence."3 

PERC, although noting "employers may not unilaterally 

change prevailing terms and conditions of employment," whether 

established by agreement or past practice, as doing so "would 

circumvent the statutory duty to bargain," see Galloway Tp. Bd. 

of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25, 48 (1978), agreed 

with the Board the Association had not established a basis for 

reconsideration.

The Association did not appeal those rulings. Two weeks 

later, however, it filed a grievance on behalf of a member

denied the use of supplementary sick days to secure continuation 

of her health benefits during an extended unpaid leave. The 

Board denied the grievance relying on PERC's decision striking 

 

3 The Board disputes that, contending the CNA further obligated

it to a $5000 "opt-out waiver payment" for employees foregoing 

such coverage. As our disposition does not rest on these 

grounds, we have no need to resolve the parties' dispute on the 

point.
6 A-4315-16T2

Article XV, Section B and PERC's rejection of the Association's 

past practice argument on reconsideration. 

When the Association demanded the issue be placed before a 

panel of arbitrators, the Board filed a scope petition with PERC

seeking to restrain arbitration. The Association argued PERC's 

decision striking Article XV, Section B was not controlling as 

that matter turned on a negotiability analysis, not the 

arbitrability analysis required here. PERC rejected the 

argument that whatever distinction might exist between 

arbitrability and negotiability could result in the past 

practice of awarding health insurance days remaining arbitrable 

despite the striking of the parties' supplementary sick leave 

clause. Finding it undisputed, based on its prior decisions and 

the Association president's certification, that "the past 

practice regarding 'insurance days' was solely rooted" in 

Article XV, Section B, PERC determined its removal left the past 

practice "without any foundation and . . . effectively 

eliminated."

On appeal, the Association reprises the arguments it made 

to PERC that the continuation of health insurance benefits for 

employees on unpaid leaves of absence is a mandatorily 

negotiable term and condition of employment, and adds that PERC 

exceeded its jurisdiction when it failed to limit its inquiry to 
7 A-4315-16T2

whether the subject matter of the grievance involved a 

mandatorily negotiable term and condition of employment. We 

disagree.

The Association's argument is premised on a proposition 

neither the Board nor PERC disputes, that health coverage for 

employees during unpaid leaves of absence is a mandatorily 

negotiable term of employment. Thus, if one squints at the 

issues so that it is the only one visible, the question might

appear initially to meet the test for negotiability established 

in In re Local 195, IFPTE, 88 N.J. 393, 404-05 (1982), that is, 

involve (1) an "item [that] intimately and directly affects the 

work and welfare of public employees"; (2) that "has not been 

fully or partially preempted by statute or regulation"; and (3) 

involves a matter where "a negotiated agreement would not 

significantly interfere with the determination of governmental 

policy." But so myopic a focus blurs, not sharpens, the dispute 

the parties presented to PERC.

PERC struck Article XV, Section B because it is plainly 

preempted by N.J.S.A. 18A:30-6, rejecting the Association's 

position that the clause, although worded as a supplementary 

sick leave provision, was actually only a mechanism for the 

provision of health benefits during a period of unpaid leave, a 

well-settled negotiable term of employment. PERC acknowledged
8 A-4315-16T2

the parties were free to negotiate for the provision of health 

coverage during leave, but ruled the Association could not 

"achieve such a contractual benefit in the guise of [a] 

supplementary sick leave" term preempted by statute — a

proposition the Association effectively conceded by failing to 

appeal PERC's decision striking the clause from the parties' 

Agreement. 

Permitting the Association to arbitrate the Board's denial 

of a member's request to use her supplemental sick days to 

secure paid health benefits based on the past practice 

established under Article XV, Section B would effectively 

nullify PERC's ruling striking the provision from the parties' 

contract. The clause, although stricken from the Agreement, 

would continue to live on, enforceable as past practice 

notwithstanding that the clause, and thus the practice, has been 

preempted by legislation, a result clearly contrary to law. See

State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 81-82 (1978) 

(holding "where a statute or regulation sets a maximum level of 

rights or benefits for employees on a particular term and 

condition of employment, no proposal to affect that maximum is 

negotiable nor would any contractual provision purporting to do 

so be enforceable").
9 A-4315-16T2

We accordingly can find no error, much less reversible 

error, in PERC's determination that excising the supplementary 

sick leave provision from the Agreement prevented the union from 

relying on the past practice of permitting District employees to 

compel the District to provide paid health benefits on the basis 

of supplementary sick days awarded on other than the case-bycase basis permitted by N.J.S.A. 18A:30-6. See City of Jersey 

City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 

555, 568 (1998) (directing that a decision by PERC concerning 

the scope of negotiations will stand unless clearly demonstrated 

to be arbitrary or capricious).

Moreover, as observed by PERC's counsel on appeal, and not 

disputed by the Association, N.J.S.A. 18A:16-16, the statute on 

which the Association relies to establish the negotiability of 

health benefits during periods of leave, conditions such 

coverage on an express contractual provision negotiated by the 

parties.4 PERC having struck Article XV, Section B from the

 

4 N.J.S.A. 18A:16-16 provides:

The coverage of any employee, and of 

his dependents, if any, shall cease upon the 

discontinuance of his employment or upon 

cessation of active full-time employment in 

the classes eligible for coverage subject to 

such provision as may be made in any 

contract made by the local board of 

(continued)
10 A-4315-16T2

parties' Agreement, N.J.S.A. 18A:16-16 preempts the 

Association's reliance on past practice alone to establish an 

employee's entitlement to continued health benefits while on 

unpaid leave. The parties are free to negotiate for health 

coverage during periods of unpaid leave; PERC's decision, which 

we affirm, only requires they do so within the parameters 

established by the Legislature in N.J.S.A. 18A:30-6 and N.J.S.A. 

18A:16-16.

Affirmed.

 

(continued)

education for limited continuance of 

coverage during disability, part-time 

employment, leave of absence other than 

leave for military service, and for 

continuance of coverage after retirement. 

[Emphasis supplied.]