By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.

Leave time to perform union business has been a traditional component of most public-sector collective negotiations agreements for decades. Most Local contracts have some form of full or partial release time without loss of pay for union representatives to perform PBA business.  For decades, PERC has also found that such clauses are negotiable. Last year, however, the Appellate Division issued a decision entitled Rozenblit v. Jersey City Board of Education, in which the court threatened these settled legal concepts. Fortunately, on an appeal our firm handled, the Supreme Court has reversed the Appellate Division and upheld the legality of paid leave time for union officers.

Although the case arose in the context of an education association rather than a PBA, the decision would appear to apply to all public-sector unions. The Jersey City Board of Education (“Board”) and the Jersey City Education Association (“Association”) entered into a collective negotiations agreement which provided for full-time release time for two teachers who were also union representatives. They were completely excused from any work-related responsibilities while also being paid their full teacher salaries. Neither the Association nor the individual representatives were required to reimburse the Board for their salaries.

Two citizens filed suit, claiming that this arrangement was not permitted by any New Jersey statute and violated the New Jersey constitutional provision prohibiting the expenditure of public funds without receipt of a reciprocal public benefit. The Association and Board defended the contractual union leave clause and argued that the leaves were authorized by several educational statutes because there was a benefit to the release time, namely the advancement of labor peace and harmony in the district and the opportunity to ensure that labor problems are addressed at the earliest possible time without disrupting educational activities.

The Appellate Division reviewed the various leave statutes adopted by the legislature and concluded that this contractual provision had not been authorized, although the decades-long practice had never been questioned by the legislature. It also concluded that there is no “benefit” conferred upon the Board – or taxpayers – when union officers receive full-time leave to perform union activity at public expense. It held that the union officers were not advancing any interest of the employer, but rather were actually pursuing and representing the concerns of union members.  The Appellate Division also rejected the concept of “labor peace” as a reciprocal benefit which the Board received in return. As a result, the Appellate Division concluded that the provisions of the contract granting full-time paid release from work without any reimbursement to the two union representatives or their Association, was a “violation of public policy,” and, consequently, unenforceable.

We filed an emergency appeal with the Supreme Court, which granted a stay, freezing the Appellate Division decision until the court could hear arguments in the case. And in a unanimous decision in early February, the Supreme Court resoundingly reversed the Appellate Division, upheld the right of public employers to give union representatives paid leave time and thus scored a major victory for public-sector negotiations.

The Supreme Court disagreed with the entire analysis the Appellate Division advanced.  First, it concluded that existing statutes do, in fact, permit a board of education to provide full-time leave for union officials to perform union activity. The court relied upon statutes granting boards of education substantial latitude in affording leaves to its employees. Equally important, the Court noted that the Employer-Employee Relations (PERC) Act specifically recognizes the benefits in employers and employee representatives acting cooperatively to ensure labor peace.

The court also completely rejected the theory that full union leave time constitutes a violation of the New Jersey constitution’s prohibition against gifts of public funds to private individuals. The plaintiffs had contended that the employer is effectively providing a gift to the union representatives by providing them with full salary without receiving anything in return.  To the contrary, the Supreme Court held that there is indeed a benefit that is afforded to the employer when it gives union leave time for the specific purpose of helping to ensure the very public benefit of labor peace.

For example, the court noted that in many instances union representatives were asked to help resolve disputes between individual bargaining unit members and the employer. The court also noted that the union representatives were required to periodically report to the employer regarding efforts made to ensure harmony in the workplace, and the reduction of labor disputes.  Put differently, the Supreme Court took an expansive approach toward the concept of what constitutes a benefit to the employer in return for its expenditure of funds and concluded that full-time union leave fell well within the parameters of a legitimate benefit to the public.

The case illustrates the twists and turns that can occur when attacks are made on long-standing policies under the guise of a revised view of existing practices. Here, union leave time had historically been in place for decades without attack. Nonetheless, the plaintiffs almost succeeded in their effort to reverse years of such unquestioned authority of public employers and public employee unions to negotiate paid union leave time.

For PBA Locals, the issue and its resolution are critical. We believe the decision is equally applicable to public sector representatives like PBAs in light of the court’s heavy reliance on PERC law and its affirmation that union leave clauses advance a public benefit. Many PBA Local contracts do provide for either ful-l or part-time leave and would have been threatened had the Appellate Division decision remained in effect. It also bears noting that the legislature could always limit, or even eliminate, such leave provisions, illustrating why the NJ State PBA’s legislative activities are so important. In any event, the Supreme Court’s unanimous decision should guarantee that union leave clauses are safe for the future.