Towamencin Twp. v. PA LRB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Towamencin Township, :

Petitioner :

:

v. :

:

Pennsylvania Labor Relations Board, : No. 789 C.D. 2020

Respondent : Argued: June 10, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED1

MEMORANDUM OPINION BY

JUDGE COVEY FILED: October 7, 2022

Towamencin Township (Township) petitions this Court for review of

the Pennsylvania Labor Relations Board’s (Board) July 24, 2020 Final Order (Final

Order) that dismissed in part and sustained in part the Township’s exceptions

(Exceptions) to Hearing Examiner Jack E. Marino’s (Hearing Examiner Marino)

Proposed Decision and Order (PDO), wherein the Board ruled that the Township

violated Section 6(1)(a) and (e) of the Pennsylvania Labor Relations Act (PLRA),2

as read in pari materia with the act commonly referred to as Act 111.3 The Township

1

The vote of the panel of judges that heard this case resulted in a 2 to 1 vote to reverse.

Pursuant to this Court’s Internal Operating Procedures, all commissioned judges vote on the

opinion. Currently, there is a vacancy among the commissioned judges of this Court and a 4-4 tie

vote resulted. Accordingly, this opinion is filed pursuant to Section 256(b) of the Internal

Operating Procedures of the Commonwealth Court, 210 Pa. Code § 69.256(b).

2

Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6(1)(a), (e).

3

Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.12. “Act 111 gives

police and fire personnel, who are not permitted to strike, the right to bargain collectively with

their public employers.” Fraternal Ord. of Police Fort Pitt Lodge No. 1 v. City of Pittsburgh, 203

A.3d 965, 966 n.3 (Pa. 2019); see also City of Pittsburgh v. Fraternal Ord. of Police Fort Pitt

Lodge No. 1, 111 A.3d 794 (Pa. Cmwlth. 2015).

presents four issues for this Court’s review: (1) whether the Board misapplied the

Family and Medical Leave Act of 1993 (FMLA);4 (2) whether the Board erred as a

matter of law by concluding that the Township violated a past practice concerning

designation of FMLA leave for pregnancy and childbirth; (3) whether the Board

considered and decided issues beyond the scope of a Charge of Unfair Labor

Practices (Charge) and Complaint; and (4) whether the Board’s findings of fact are

supported by substantial evidence.

Background

The Officers of the Towamencin Township Police Department (Union)

is the collective bargaining representative for the Township’s police officers.5

Pursuant to Act 111 and the PLRA, the Township and the Union are parties to a

collective bargaining agreement (CBA),6 which governs the terms and conditions of

the Township’s police officers’ employment. Relevant to this appeal, Section XIII

of the CBA grants every Township police officer “unlimited [s]ick [l]eave,” subject

to the following relevant requirements:

A. SICK LEAVE may only be used for bona fide sickness

or injury which prevents an [o]fficer from performing his

or her official duties and confines the [o]fficer to bed or

home for the purpose of recovery, except when the

[o]fficer has left the home to seek medical consultation

and/or treatment which may or may not include

hospitalization.

....

4

29 U.S.C. §§ 2601; 2611-2620; 2631-2636; 2651-2654. In Section 2654 of the FMLA,

29 U.S.C. § 2654, Congress authorized the United States Department of Labor to promulgate

regulations necessary to carry out the FMLA’s requirements.

5

At the relevant time, the Township employed 23 police officers.

6

The relevant CBA was effective January 1, 2016 to December 31, 2019. See Reproduced

Record (R.R.) at 12a.

2

E. OFF-DUTY DISABILITY. Any officer, who is

unable to perform the essential duties of his/her position

as a police officer . . . as a result of a non-work related

injury or accident, for a continuous period of more than 90

days, shall be required to apply for disability

insurance. . . . [B]eginning on the 91st day, the Township

shall continue to pay said officer at 80% of his/her salary

prior to the onset of the accident or illness for five (5) years

or until the date of retirement, whichever is earlier . . . .

Board Br., App. A (CBA) at 23-24. The CBA does not contain any FMLA

provisions, and the Township does not have a separate, written FMLA policy for

its police officers.7

Detective Jamie Pierluisse (Detective Pierluisse)8 has been a Township

police officer since 2008. She was the Township’s only female police officer, and

the first and only officer to take leave under the FMLA for the birth of a child. In

2016, while pregnant with her first child, health issues required Detective Pierluisse

to take leave from work in March 2016, seven months before her baby was due.9

Detective Pierluisse took 90 days of short-term disability, during which she received

100% of her Township salary pursuant to the CBA. Detective Pierluisse also applied

for long-term disability benefits, which eventually paid her 80% of her salary until

she was cleared to return to duty. On May 6, 2016, the Township’s Finance Director

Maureen Doyle (Doyle) sent Detective Pierluisse a letter notifying her that her long-

term disability would commence on June 18, 2016, explaining:

7

There is also no record evidence that the CBA contains a maternity leave policy, or that

the Township had a maternity leave policy applicable to its police officers.

8

Detective Pierluisse has since accepted a position as Detective in the Township’s Criminal

Investigations Unit.

9

Although the Board declared that Detective Pierluisse’s 2016 disability was prenatal or

pregnancy-related, see Final Order at 1, Hearing Examiner Marino made no such finding, see

Township Br. Ex. A (PDO) at 2, R.R. at 113a (“During her first pregnancy, Detective Pierluisse

had to go out on leave on March 19[] or 21, 2016, approximately six months before the birth of

her first child.” Finding of Fact 5). While implied, it is not clear based on the record before this

Court that Detective Pierluisse’s 2016 disability was prenatal or pregnancy-related.

3

Chief [of Police, Paul T.] Dickinson [(Chief Dickinson)]

informed me you plan to take FMLA time to care for your

baby. The paperwork is enclosed. Our policy[10] states

you’ll have 12 weeks available to you. You will have to

use benefit time (excluding sick days) first and unpaid

leave for the balance of the 12[-]week period.

Reproduced Record (R.R.) at 66a.

Detective Pierluisse gave birth to her first child by Cesarian section (C-

section) on October 5, 2016. On October 13, 2016, Township Manager Robert Ford

(Ford) sent a letter to Detective Pierluisse, stating:

I understand that you delivered your baby on October 5,

2016[,] via [C-]section, and that you are not currently

cleared to return to work, with or without accommodation.

Under these circumstances, your absence due to the birth

and/or care of your newborn child is FMLA[-]qualifying.

Therefore, the Township is designating your absence as

FMLA leave beginning on October 5, 2016, the date of

your delivery. Your FMLA leave will run concurrently

with the receipt of any disability benefits, as permitted by

the FMLA and in accordance with the terms of the

Township’s FMLA policy, a copy of which is enclosed. I

have also attached a notice of designation of your leave.

It is our understanding that you wish to use twelve (12)

weeks of FMLA leave. Your leave of absence is therefore

approved through December 28, 2016.

R.R. at 67a.

However, at some point thereafter, the Township realized that

Detective Pierluisse was not eligible for FMLA leave because she had not worked

the required 1,250 hours in the previous 12-month period.11 The Township

10

The Township’s FMLA policy is only included in the Township’s civilian employee

handbook, which does not apply to police officers. See R.R. at 35a, 44a-45a, 55a, 58a-59a.

11

The Township notified Detective Pierluisse’s counsel of her ineligibility. Although the

Township did not notify her directly, Detective Pierluisse was aware that there had been some

issue with her FMLA eligibility.

4

nevertheless maintained its approval of Detective Pierluisse’s absence for 12 weeks

of leave (i.e., through December 28, 2016). Detective Pierluisse received long-term

disability benefits for 8 weeks after she gave birth, and then used her paid time off

(i.e., vacation and holiday time) (PTO) to cover her remaining 4 weeks in 2016. See

R.R. at 20a, 43a, 86a. She returned to duty on January 2, 2017.

Detective Pierluisse became pregnant again in 2017. On October 31,

2017, Detective Pierluisse informed the Township that her doctor instructed her to

stop working as of November 22, 2017. The Township approved Detective

Pierluisse’s use of PTO to cover the week of November 22 through 26, 2017, and

she began her leave of absence effective November 27, 2017. Detective Pierluisse

again took 90 days of short-term disability, during which she received 100% of her

Township salary pursuant to the CBA. Detective Pierluisse also applied for long-

term disability benefits, which paid her 80% of her salary until she was cleared to

return to duty.

On December 5, 2017, Ford and Doyle called Detective Pierluisse and

notified her that she was approved for FMLA leave for the birth of her second child

as of November 27, 2017, the day she stopped working. Detective Pierluisse

expressed that she had expected her leave to run the way it had in 2016, such that

she would have 12 weeks after the birth to care for her child, heal from the second

C-section, and physically prepare for her return to duty. See R.R. at 21a, 26a. Ford

informed Detective Pierluisse that if she needed additional time off after she was

cleared to return to work, she could discuss that with Chief Dickinson or the Police

Department’s Lieutenant.12 See R.R. at 51a, 57a.

By December 5, 2017 letter, Ford confirmed:

12

The record does not contain the Lieutenant’s name.

5

Your absence due to your pregnancy, birth, and care of

your newborn child is [FMLA-]qualifying.[13] Therefore,

the Township is designating your absence as FMLA leave

beginning on November 27, 2017, the date that you went

out on leave. Your FMLA leave will run concurrently

with the receipt of any disability benefits, as permitted by

the FMLA and in accordance with the terms of the

Township’s FMLA policy, a copy of which is enclosed. I

have also attached a notice of designation of your leave.

It is our understanding that you wish to use twelve (12)

weeks of FMLA leave. Your leave of absence pursuant to

the FMLA is approved and your period of FMLA will run

through February 18, 2018. If you do not wish to utilize

twelve (12) weeks of leave or your circumstances change,

please contact [Doyle] or me . . . .

R.R. at 77a-78a. The Township enclosed an FMLA Notice of Eligibility and Rights

& Responsibilities form (Form WH-381) on which the Township designated that

Detective Pierluisse was eligible for 12 weeks of FMLA leave for a serious health

condition beginning November 27, 2017. See R.R. at 79a. The Form WH-381

reflected that Detective Pierluisse would be required to “use [her] available paid . . .

vacation, and/or other leave during [her] FMLA absence[,]”14 and report her status

every four weeks. R.R. at 80a.

Detective Pierluisse gave birth to her second child by C-section on

January 10, 2018. On January 12, 2018, the Union notified the Township:

We believe the FMLA should be effective with a new

starting date of Wednesday[,] January 10[,] 2018[,]

coinciding with the birth [of] Detective Pierluisse’s second

child. This would follow with [the] doctrine of past

13

The Township designated on the FMLA form that Detective Pierluisse’s “own serious

health condition” was the FMLA-qualifying event. R.R. at 79a; see also R.R. at 59a.

Notwithstanding, the Township’s December 5, 2017 letter and Ford’s testimony confirmed, and

the Township does not dispute, that Detective Pierluisse’s entire leave was FMLA-qualifying.

14

The Form WH-381 explained: “This means that you will receive your paid leave and the

leave will also be considered protected FMLA leave and counted against your FMLA leave

entitlement.” R.R. at 80a.

6

practice established by the [T]ownship and how it was

applied to Detective Pierluisse’s first pregnancy leave.

Again[,] said [p]ast practice was established during

Detective Pierluisse’s first pregnancy when the FMLA

leave was applied from the date of birth[] of [her] daughter

Amelia, rather than the day Detective Pierluisse started

sick leave. The current FMLA leave having already been

started by the [T]ownship is now going against said past

practice. We further believe this is actually a matter of

collective bargaining. We wish to avoid litigation and the

legal bill this will generate for both sides in said matter.

We request the [T]ownship [sic] reverse its current

position.

R.R. at 87a.

On January 16, 2018, the Union filed the Charge with the Board,

alleging therein that the Township violated Section 6(1)(a) and (e) of the PLRA, as

read in pari materia with Act 111, by designating Detective Pierluisse’s absence as

FMLA-protected leave beginning on November 27, 2017 (the date her leave began),

rather than on January 10, 2018 (the date she gave birth to her second child). See

R.R. at 4a-5a. The Union declared that, by designating Detective Pierluisse’s

absence as FMLA leave on the earlier date, the Township unilaterally changed its

policy of commencing FMLA leave for childbirth on the date of delivery without

negotiating with the Union, and violated an alleged past practice established during

Detective Pierluisse’s leave of absence for the birth of her first child. See id. After

reviewing the Charge, on January 31, 2018, the Board issued a Complaint and Notice

of Hearing. See R.R. at 6a-12a.

On February 1, 2018, the Township responded to the Union’s January

12, 2018 notice, in pertinent part, as follows:

After thorough review of the circumstances, the Township

has concluded that it appropriately designated Detective

Pierluisse’s absence as FMLA leave beginning on

November 27, 2017, the date she qualified for leave under

7

the statute. Therefore, the Township will deny your

request that it revise its designation of leave.

As an initial matter, the decision to designate leave as

FMLA under these circumstances constitutes a managerial

prerogative. The manner in which the Township

designated [Detective] Pierluisse’s leave previously did

not establish a past practice contrary to the Township’s

position; it is an example of how the Township handled

one prior situation, not evidence of how the Township has

reacted to a recurring situation.

In addition, the factual circumstances surrounding

Detective Pierluisse’s prior leave are distinguishing.

Specifically, as explained to [the Union’s counsel] in

correspondence dated November 11, 2016, the Township

approved Detective Pierluisse for FMLA leave in 2016 in

error, since she had not worked the required 1,250 hours

to be eligible for leave. However, the Township granted

her [] leave commencing at the birth of her first daughter,

because it had previously communicated approval of her

request for leave.

The Township will consider any requests to use accrued

paid leave to extend Detective Pierluisse’s absence beyond

March 6, 2018, the date her [l]ong[-t]erm [d]isability leave

will expire.

R.R. at 94a-95a.

Detective Pierluisse returned to duty on March 7, 2018, after her

obstetrician issued her eight-week postpartum medical clearance.15 See R.R. at 71a.

However, Detective Pierluisse used PTO and worked only two days per week for the

next four weeks. See R.R. at 23a.

15

Although Detective Pierluisse testified that she had concerns about her physical ability

to perform her job duties when she returned to work, see R.R. at 22a-23a, she admitted that she

did not share them with Ford or Chief Dickinson and, although she purportedly expressed them to

her doctor, her doctor nevertheless released her to return to work without limitations. See R.R. at

29a-32a, 61a.

According to the Board, had the Township applied Detective Pierluisse’s FMLA leave as

she requested, she would have had off work until April 4, 2018, to care for her second child. See

Board Br. at 6 n.1.

8

Hearing Examiner Marino conducted a hearing on May 10, 2019. See

R.R. at 13a-105a. Detective Pierluisse testified that during her December 5, 2017

conversation with Ford, after telling him that she anticipated her FMLA leave

running from the date she gave birth to her second child, Ford informed her that the

Township had adopted a new FMLA policy for its police officers, and he had no

choice but to calculate her FMLA-qualifying leave on the day her leave began -

November 27, 2017. See R.R. at 21a-22a. She expressed to him that, based on her

reading of the FMLA, she could choose when her FMLA leave would commence;

however, Ford responded that, although she had a choice, the Police Department was

short on police officers and the Township “really needed [her] back.” R.R. at 21a.

Detective Pierluisse recalled expressing her concerns to Ford about not being

physically capable of returning by the Township’s February 18, 2018 deadline, and

Ford rejoined: “Well, we’ll be sorry to see you go.” R.R. at 21a.

Ford admitted that, although he is part of the Township’s collective

bargaining team, he has never bargained with the Union about applying the FMLA,

and it is not included in the CBA. See R.R. at 50a, 53a, 55a. He explained that the

Township relied upon the FMLA itself and the United States Department of Labor

(DOL), Employment Standards Administration, Wage and Hour Division, Fact

Sheet #28 (DOL Fact Sheet #28), in making its decision. See R.R. at 56a, 90a, 98a-

105a. Ford claimed that the Township did not change its FMLA policy; rather, over

the intervening time between Detective Pierluisse’s pregnancies, the Township

learned more about the FMLA’s requirements. See R.R. at 51a, 54a, 57a, 59a. He

also testified that staff predictability is important when managing the Township’s

police officer coverage, and the Police Department was in a constant flux because

of absences due to retirement vacancies, administrative leaves, new hires, training,

vacations, illnesses, and/or injury. See R.R. at 62a-63a.

9

The parties filed post-hearing briefs. On October 24, 2019, Hearing

Examiner Marino issued the PDO, wherein he concluded that “[t]he Township has

committed unfair labor practices within the meaning of Section 6(1)(a) and (e) of

the PLRA as read in pari materia with Act 111,” because the FMLA is a mandatory

subject of bargaining, and the Township unilaterally changed a past practice of

allowing officers to dictate when to commence FMLA leave. Township Br. Ex. A

(PDO) at 17. Hearing Examiner Marino ordered the Township to, inter alia:

immediately restore its FMLA policy that was in place prior to December 5, 2017;

permit officers to choose when they take FMLA leave, and cease requiring officers

to commence FMLA leave concurrently with paid leave benefits against their will;

immediately reimburse Detective Pierluisse for any out-of-pocket expenses,

including day care expenditures and other related costs; and immediately make

Detective Pierluisse whole for any leave use affected by the expiration of her FMLA-

designated leave before 12 weeks following the birth of her second child. See PDO

at 18.

On November 13, 2019, the Township filed the Exceptions, arguing

that Hearing Examiner Marino misconstrued the fundamental principles underlying

the FMLA and interpretive legal authorities to conclude that the Township

committed an unfair labor practice. See R.R. at 106a-130a. Specifically, the

Township asserted:

8. [] Hearing Examiner [Marino] erred as a matter of law

and abused his discretion and authority by requiring the

Township to ignore its statutory obligation to designate

qualified leave taken by eligible employees as leave

protected by the FMLA.

9. [] Hearing Examiner [Marino] erred as a matter of law

in concluding that designation of FMLA leave is not a

managerial prerogative. ([PDO] pp. 15-17). In reaching

this conclusion, [] Hearing Examiner[] [Marino’s]

10

decision was contrary to the provisions of the FMLA and

the overall policies and goals of Act 111 and the [PLRA].

10. [] Hearing Examiner [Marino] erred as a matter of law

and abused his discretion by concluding that a single prior

instance regarding designation of FMLA leave for the

birth of a child was legally sufficient to establish a binding

past practice of the parties. ([PDO] p. 16).

11. [] Hearing Examiner [Marino] erred as a matter of law

in concluding that the Township’s designation of leave

pursuant to its obligations under the FMLA operates as a

“sword” to “reduce the length of leave for employes who

are temporarily unable to perform the functions of their

jobs.” ([PDO] p. 17).

12. [] Hearing Examiner [Marino] erred as a matter of law

and abused his discretion by requiring public employers to

provide leave in excess of that provided under the FMLA

and existing case precedent. ([PDO] p. 17).

R.R. at 108a-109a. On December 6, 2019, the Union opposed the Exceptions,

claiming that Hearing Examiner Marino correctly interpreted the FMLA and found

that the Township committed an unfair labor practice. See R.R. at 131a-137a. The

Township and the Union submitted briefs in support of their positions on December

11, 2019 (see R.R. at 138a-194a), and February 28, 2020 (see R.R. at 195a-213a),

respectively.

On July 24, 2020, the Board issued the Final Order, wherein it held that

“the reimbursement of day care expenses is not a benefit provided for in the parties’

CBA and, therefore, Detective Pierluisse is not entitled to reimbursement for those

personal expenses,” Township Br. Ex. A (Final Order) at 12, but otherwise declared

that Hearing Examiner Marino

properly concluded that the Township violated its

statutory duty to bargain under Section 6(1)(a) and (e) of

the PLRA by unilaterally requiring Detective Pierluisse to

use contractual leave concurrently with unpaid FMLA

leave benefits contrary to its past practice of permitting

11

employes to use contractual leave prior to unpaid FMLA

benefits.

Final Order at 13. Accordingly, the Board sustained the Township’s Exceptions in

part and dismissed them in part, and made the PDO absolute and final, as modified.

The Township appealed to this Court.16

The parties agree, and substantial evidence supports,17 the following

relevant facts as found by Hearing Examiner Marino: the Township does not have

an FMLA leave policy for its police officers (PDO Finding of Fact (FOF) 35, R.R.

at 119a); the CBA does not address FMLA leave (FOF 35, R.R. at 119a); Detective

Pierluisse was not eligible for FMLA leave related to the pregnancy and birth of her

16

This Court’s “review of the Board’s order is limited to determining whether

constitutional rights were violated, whether the Board committed an error of law, or whether the

Board’s findings are supported by substantial evidence.” Bristol Twp. v. Pa. Lab. Rels. Bd., 230

A.3d 523, 526 n.6 (Pa. Cmwlth. 2020).

Furthermore, it is well settled that a decision of the Board must be

upheld if the Board’s factual findings are supported by substantial

evidence, and if the conclusions of law drawn from those facts are

reasonable, [and/or] not capricious, arbitrary, or illegal. Substantial

evidence is more than a mere scintilla and must do more than create

a suspicion of the existence of the fact to be established. It means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.

Lancaster Cnty. v. Pa. Lab. Rels. Bd., 124 A.3d 1269, 1286 (Pa. 2015) (citation and quotation

marks omitted).

On August 28, 2020, the Union intervened in this matter. On December 30, 2020, the

Pennsylvania State Association of Township Supervisors filed an Amicus Curiae Brief in support

of the Township’s appeal.

17

“Generally, because the hearing examiner is best able to observe the manner and

demeanor of the witnesses, the Board gives deference to the hearing examiner’s decision to credit

some, all, or none of a witness’s testimony. The Board will not disturb the hearing examiner’s

credibility determinations absent compelling circumstances.” Pa. State Troopers Ass’n v. Pa.

State Police, 33 PPER ¶ 33011 (2001). Here, the Board adopted Hearing Examiner Marino’s

crediting of Detective Pierluisse’s testimony over Ford’s testimony regarding their December 5,

2017 conversation. See Final Order at 7. “[I]f the Board’s findings are supported by substantial

evidence, they are conclusive for purposes of appellate review.” Kaolin Workers Union v. Pa.

Lab. Rels. Bd., 140 A.3d 748, 751 n.6 (Pa. Cmwlth. 2016) (quoting Blue Mountain Mushroom Co.

v. Pa. Lab. Rels. Bd., 735 A.2d 742, 746 (Pa. Cmwlth. 1999)).

12

first child because she had not worked the required 1,250 hours during the preceding

12 months (FOF 11, R.R. at 114a); the Township nevertheless granted Detective

Pierluisse 12 weeks of non-FMLA leave that it calculated beginning when her first

child was born (FOFs 11-14, R.R. at 114a); Detective Pierluisse became pregnant

with her second child in 2017 (FOF 15, R.R. at 114a); effective November 27, 2017,

Detective Pierluisse took leave from work for a serious health condition related to

her second pregnancy (FOFs 15-19, R.R. at 114a-115a); Detective Pierluisse

requested 12 weeks of leave after the birth of her second child (FOFs 19, 24, R.R. at

115a-117a); the Township notified Detective Pierluisse that her leave beginning on

November 27, 2017, was FMLA-qualifying (FOFs 19, 24, R.R. at 115a-117a); the

Township designated Detective Pierluisse’s leave as FMLA leave, and elected to

have it run concurrently with her paid leave (FOFs 19, 24-25, R.R. at 115a-117a);18

the Township calculated Detective Pierluisse’s FMLA leave as of November 27,

2017, when her FMLA-qualifying leave commenced (FOFs 19-20, R.R. at 115a-

116a); and Detective Pierluisse received 12 weeks of leave - the approximately 6

weeks before her second child was born was FMLA-qualifying as a serious health

condition related to her pregnancy, and the approximately 6 weeks after her child

was born was FMLA-qualifying for the birth and/or care of a newborn child (FOF

26, R.R. at 117a).

Discussion

The “institution of unfair [labor] practice charges is fueled entirely by

complainants[.]” Teamsters Local 771 v. Pa. Lab. Rels. Bd., 760 A.2d 496, 502 (Pa.

Cmwlth. 2000). Here, the Union claimed in the Charge:

18

As a result, Detective Pierluisse received sick leave pay for the first 90 days, and she

received long-term disability thereafter until she was medically released to return to work on

March 7, 2018. She used her available PTO to work part-time for an additional four weeks.

13

12. Policy concerning implementation of FMLA leave is

a mandatory subject of bargaining.

13. [Ford’s] change in the commencement of FMLA

[leave] for the birth of [Detective Pierluisse’s] child on

December 5, 2017, was a unilateral change in working

conditions without bargaining with the [Union].

14. In unilaterally changing the FMLA policy on

December 5, 2017, the [] Township violated an established

past practice regarding the implementation of FMLA leave

with regard to childbirth coverage.

R.R. at 5a.19 The Union bears the burden of proving the allegations in the Charge.

Lancaster Cnty. v. Pa. Lab. Rels. Bd., 124 A.3d 1269 (Pa. 2015). The Board’s

jurisdiction to find an unfair labor practice is limited to the Charge.20 Teamsters

Local Union No. 384 v. Kennett Consol. Sch. Dist., 37 PPER ¶ 89 (2006).21 Thus,

in order to prevail on the Charge, the Union had to prove that the Township had a

policy regarding when FMLA leave for the birth and care of a newborn child

19

Notwithstanding the Dissent’s claim to the contrary, because the Union expressly limited

its Charge to specific instances of police officer childbirth-related FMLA leave, see R.R. at 5a,

non-childbirth-related FMLA coverage cannot be “fairly subsumed in the Union’s Charge[.]”

Towamencin Twp. v. Pa. Lab. Rels. Bd., __ A.3d __ (Pa. Cmwlth. No. 789 C.D. 2020, filed Oct.

7, 2022), slip op. at 4 (Fizzano Cannon, J., dissenting).

Accordingly, Hearing Examiner Marino announced: “The Union specifically alleged that

the Township violated its bargaining obligation when it changed its policy of designating the start

of FMLA leave for [Detective] Pierluisse’s second pregnancy and childbirth from the policy it

applied to her first pregnancy and childbirth.” PDO at 1. The Board also framed the issue as

follows: “The Union specifically alleged that the Township violated its bargaining obligation when

it changed its policy [from when Detective Pierluisse was pregnant with and gave birth to her first

child in 2016] concerning the commencement of leave under the [FMLA] and use of contractual

paid leave.” Final Order at 1; see also Final Order at 11-12.

20

“As a matter of due process, a charging party may not allege one charge and then

prosecute another.” Teamsters Local Union No. 384 v. Kennett Consol. Sch. Dist., 37 PPER ¶ 89

(2006).

21

This Court acknowledges that, although the Board’s decisions are not binding on this

Court, they may be instructive. Cmty. Coll. of Phila. v. Pa. Lab. Rels. Bd., 205 A.3d 436 (Pa.

Cmwlth. 2019).

14

commenced after FMLA leave for a prenatal or pregnancy-related serious health

condition, that it unilaterally changed such policy, and that the change was a

mandatory subject of bargaining.

Hearing Examiner Marino nevertheless restated the issue and in doing

so expanded the Charge, stating:

The issue under consideration in this case is whether the

Township violated Section 6(1)(a) and (e) of the PLRA as

read with Act 111 when it designated the commencement

of FMLA leave for [Detective] Pierluisse when she left

work for an FMLA[-]qualifying event resulting from her

incapacity to perform police officer duties due to her

second pregnancy and when she desired to use negotiated

paid leave benefits instead of FMLA[-]designated leave,

as the Township permitted during her first pregnancy. The

Township argues that an employer has an obligation and

responsibility[] under [DOL’s] Regulations[] to designate

qualifying leave as FMLA leave within five business

days[,] and that a failure to do so could subject an

employer to liability. (Township Br[.] at 9.) The case law

in this area from multiple jurisdictions holds contrary to

the Township’s position and draws a distinction between

designating leave as FMLA[-]qualifying and mandating

that employes take leave under the FMLA instead of using

other leave benefits.

PDO at 8.

On review of the Township’s Exceptions, the Board further broadened

the issue:

[T]he issue presently before us . . . [is] whether an

employer is required to collectively bargain over the

discretionary aspects of the FMLA before implementing a

leave policy prohibiting the “stacking” of leave benefits

where two FMLA-qualifying absences occur back-to-

back, such as here, where the employe suffered her own

serious health condition which was then followed by the

necessity to care for a newborn child.

Final Order at 11.

15

Relative to the Board’s enlarged issue, the Township argues that, since

Detective Pierluisse’s November 27, 2017 leave for a serious health condition

related to her second pregnancy was clearly FMLA-qualifying, the Township lacked

discretion to delay counting the 12 weeks until the child was born, and the

Township’s election to have Detective Pierluisse’s FMLA leave run concurrently

with her paid leave is a managerial prerogative,22 not a mandatory subject of

bargaining. See Township Br. at 38, 41. The Township asserts that, in reaching its

decision to the contrary, the Board misapplied the FMLA by interpreting that an

employer must bargain over its obligation to designate qualifying leave taken by

eligible employees or provide more leave than the FMLA requires.23

The Board responds:

To be clear, the Board is not saying that the Township

cannot require an employe to run FMLA leave entitlement

concurrent with paid sick leave benefits when

experiencing a serious medical condition, other than a

pregnancy prior to the birth of a child.[24] Neither is the

22

The Board asserts in its brief that the Township waived its argument that designation of

FMLA leave is not subject to bargaining because it is a managerial prerogative by failing to raise

it before the Board. See Board Br. at 27 n.12. However, Hearing Examiner Marino acknowledged

in the PDO that the Township had raised that issue, see PDO at 12, R.R. at 123a, and the Township

raised that argument in its Exceptions and brief in support thereof. See Exceptions at 3, R.R. at

108a; Br. in Support of Exceptions at 16-23, R.R. at 153a-160a. Because the Township raised the

issue before the Board, it is not waived.

23

This Court addresses the Township’s claim that the Board’s findings of fact are not

supported by substantial evidence. The Township’s other issues - that the Board erred by

concluding that the Township violated a past practice, and the Board decided matters beyond the

scope of the Charge - will be addressed herein in conjunction with this Court’s analysis of this

issue.

24

The Dissent contends that what it terms “sick leave and parental leave under the FMLA”

are so “inextricably intertwined,” Towamencin Twp., __ A.3d at __, dissenting slip op. at 3, that

the Board’s consideration of the Township’s prior sick leave approval for a male police officer’s

knee and hip surgery was relevant in adjudicating this matter, and “fairly subsumed in the Union’s

Charge.” Id., __ A.3d at __, dissenting slip op. at 4. However, not only do the FMLA and DOL’s

Regulations refer to and provide for those two circumstances separately, see Section 2612(a)(1)(A)

and (D) of the FMLA, 29 U.S.C. § 2612(a)(1)(A) and (D); see also Section 825.112(a)(1) and (4)

16

Board proposing that employers are required to provide

for more than 12 weeks of FMLA[ ]leave for the care of a

. . . newborn. It is the Board’s position that by changing

the manner in which it had allowed an employe to use the

paid sick leave provisions contained in the parties’ CBA

during pregnancy, and use FMLA leave in connection with

the care of the newborn child, without bargaining that

change with the Union, the Township violated Section

6(1)(a) and (e) of the PLRA, as read in pari materia with

Act 111.

Final Order 18-19 (footnote omitted).

This Court necessarily begins its review with a comprehensive analysis

of the FMLA and PLRA/Act 111.

of DOL’s Regulations, 29 C.F.R. § 825.112(a)(1) and (4), but they serve fundamentally different

purposes. FMLA leave for a serious health condition pursuant to Section 2612(a)(1)(A) of the

FMLA protects an employee’s job for up to 12 weeks during which the employee is physically

incapable of doing his/her job, and it ceases when the employee regains his/her physical ability to

do his/her job duties. FMLA leave for birth and/or newborn childcare under Section 2612(a)(1)(D)

of the FMLA, protects an employee’s job after a child is born, regardless of the employee’s

physical ability to do the job, and may be taken up to a maximum of whatever remains of the

employee’s 12 weeks of FMLA protection in a given year. Moreover, the Township and the Union

specifically negotiated police officer sick leave, which does not extend to a police officer’s leave

for birth and/or care of a newborn child. See Board Br., App. A (CBA) at 23-24. They could have,

but did not, negotiate a police officer’s leave for birth and/or care of a newborn child and, thus,

are bound by the minimum unpaid leave to care for a newborn child mandated by Congress.

Accordingly, the Board could not reasonably conclude that FMLA leave necessitated by a serious

health condition is inextricably intertwined in the Union’s Charge related solely to FMLA leave

for the birth and/or newborn childcare.

Further, because the Union’s Charge and the Board’s argument (i.e., “in the case of an

employe’s pregnancy and childbirth, the Township is required to collectively bargain over its

concurrent application of the 12[ ]weeks of FMLA [leave] to the unlimited sick and disability

benefits available for the employe’s use during her pregnancy under the CBA[,]” Board Br. at 15

(emphasis added)), are expressly limited to the circumstances of the Township’s calculation of

FMLA leave for an employee who experiences a prenatal- or pregnancy-related serious health

condition and also seeks FMLA leave for the birth and/or care for a newborn child, the Board erred

by relying on the Township’s actions relative to leave taken by a male police officer for knee and

hip surgery. See R.R. at 44a-45a. The Board clearly limited its decision to sick leave use during

pregnancy and leave related to post-birth childcare, see Final Order at 18-19, and here concedes

that this case presents “unique circumstances.” Board Br. at 17 n.7.

17

1. FMLA

The FMLA is a job protection statute. See Nev. Dep’t of Hum. Res. v.

Hibbs, 538 U.S. 721 (2003), and 29 C.F.R. § 825.207; see also Tredyffrin/Easttown

Sch. Dist. v. Tredyffrin/Easttown Educ. Ass’n, 56 A.3d 17 (Pa. Cmwlth. 2012).

Section 2612(a)(1) of the FMLA guarantees that “an eligible employee[25] shall be

entitled to a total of 12 workweeks of [unpaid26] leave during any 12-month

period”27 for FMLA-specified family and medical reasons, 29 U.S.C. § 2612(a)(1)

(emphasis added), during which the employer must maintain the employee’s group

health plan coverage, see Section 2614(c) of the FMLA, 29 U.S.C. § 2614(c), and

after which the employee shall be “reinstate[d] . . . to the position of employment

held before leave or to an ‘equivalent position.’” Tredyffrin/Easttown Sch. Dist., 56

A.3d at 19 n.2 (quoting 29 U.S.C. § 2614(a)(1)(B)).

Specifically,

[e]mployers covered by [the] FMLA[28] are required to

grant leave to eligible employees:

25

An “eligible employee” is “an employee who has been employed . . . for at least 12

months by the employer . . . [] and [] for at least 1,250 hours of service with such employer during

the previous 12-month period.” Section 2611(2)(A) of the FMLA, 29 U.S.C. § 2611(2)(A).

26

“FMLA leave is unpaid leave.” Section 825.207(a) of DOL’s Regulations, 29 C.F.R. §

825.207(a).

27

Section 825.200(b) of DOL’s Regulations, 29 C.F.R. § 825.200(b), states that the

employer may choose a calendar year, a fixed year (i.e., fiscal year of anniversary date, a 12-month

period measured forward from the employee’s first FMLA leave), or a rolling 12-month period

(measured backward from when the employee uses qualifying leave). The Township utilized a

rolling 12-month period in 2017. See R.R. at 80a.

28

Public agencies, including political subdivisions of a state, like the Township, are

employers covered by the FMLA. See Section 203(x) of the federal Fair Labor Standards Act of

1938, 29 U.S.C. § 203(x), and Section 2611(4)(A)(iii) of the FMLA, 29 U.S.C. § 2611(4)(A)(iii).

Although the FMLA applies to private employers with 50 or more employees, Section 825.104(a)

of DOL’s Regulations specifies that “[p]ublic agencies are covered employers without regard to

the number of employees employed.” 29 C.F.R. § 825.104(a).

18

(1) For birth of a son or daughter, and to care for the

newborn child (see [Section 825.120 of DOL’s

Regulations, 29 C.F.R.] § 825.120);[29]

....

(4) Because of a serious health condition that makes the

employee unable to perform the functions of the

employee’s job (see [Sections 825.120 of DOL’s

Regulations, 29 C.F.R.] §§ 825.113[,] 825.123)[.]

Section 825.112(a) of DOL’s Regulations, 29 C.F.R. § 825.112(a) (italics added);

see also Section 2612(a)(1)(A), (D) of the FMLA, 29 U.S.C. § 2612(a)(1)(A), (D);

Section 825.113 of DOL’s Regulations (Serious Health Condition), 29 C.F.R. §

825.113; Section 825.120 of DOL’s Regulations (Leave for Pregnancy or Birth), 29

C.F.R. § 825.120.

Although, “[g]enerally, FMLA leave is unpaid leave[,]” 29 C.F.R. §

825.207(a), Section 2612(d)(2)(A) of the FMLA specifies:

An eligible employee may elect, or an employer may

require the employee, to substitute [(run concurrently)]

any of the accrued paid vacation leave, personal leave, or

family leave of the employee for leave provided under

[FMLA Section 2612(a)(1)(A) (relating to the birth of a

child)] for any part of the 12-week period of such leave

under such subsection.

29 U.S.C. § 2612(d)(2)(A) (emphasis added). Section 2612(d)(2)(B) of the FMLA

similarly specifies, relative to serious health conditions:

An eligible employee may elect, or an employer may

require the employee, to substitute [(run concurrently)]

any of the accrued paid vacation leave, personal leave, or

29

Section 825.112(b) of DOL’s Regulations provides: “The right to take leave under [the]

FMLA applies equally to male and female employees. A father, as well as a mother, can take

family leave for the birth . . . of a child.” 29 C.F.R. § 825.112(b). Section 825.120(a)(1) of DOL’s

Regulations also states: “Both parents are entitled to FMLA leave for the birth of their child.” 29

C.F.R. § 825.120(a)(1). In addition, Section 825.120(a)(2) of DOL’s Regulations declares that

“[b]oth parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding

time) during the 12-month period beginning on the date of birth.” 29 C.F.R. § 825.120(a)(2).

19

family leave of the employee for leave provided under

[FMLA Section 2612(a)(1)(D) (relating to a serious health

condition)] for any part of the 12-week period of such

leave, except that nothing in this subchapter shall require

an employer to provide paid sick leave or paid medical

leave in any situation in which such employer would not

normally provide any such paid leave.

29 U.S.C. § 2612(d)(2)(B) (emphasis added).

Procedurally,

[a]n employee taking leave under the FMLA must provide

at least verbal notice to the employer sufficient to make

the employer aware that the employee needs FMLA-

qualifying leave. [See] 29 C.F.R. § 825.302(c). The

employee need not expressly assert rights under the

FMLA or even mention the FMLA, but may state only that

leave is needed for an expected birth or adoption, for

example. Id. If it is necessary to have more information

about whether FMLA leave is being sought by the

employee, the employer must inquire further of the

employee and obtain the necessary details of the leave to

be taken. Id.

Eshbach v. Unemployment Comp. Bd. of Rev., 855 A.2d 943, 948 (Pa. Cmwlth.

2004); see also Section 825.301 of DOL’s Regulations, 29 C.F.R. § 825.301.

Once an employer is aware of an eligible employee’s need for

potentially FMLA-qualifying leave, the employer must take affirmative steps to

process the leave request. Section 825.300(b)(1) of DOL’s Regulations mandates:

When an employee requests FMLA leave, or when the

employer acquires knowledge that an employee’s leave

may be for an FMLA-qualifying reason, the employer

must notify the employee of the employee’s eligibility to

take FMLA leave within five business days, absent

extenuating circumstances. . . . Employee eligibility is

determined (and notice must be provided) at the

commencement of the first instance of leave[30] for each

Optional DOL Form WH-381, which satisfies an employer’s eligibility notice obligation

30

under Section 825.300(b)(1) of DOL’s Regulations, is available on DOL’s website. See

www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf (last visited Oct. 6, 2022); see

20

FMLA-qualifying reason in the applicable 12-month

period. See [Section] . . . 825.200(b) [of DOL’s

Regulations, 29 C.F.R. § 825.200(b)].

29 C.F.R. § 825.300(b)(1). Section 825.301(a) of DOL’s Regulations declares, in

relevant part: “Once the employer has acquired knowledge that the leave is being

taken for a[n] FMLA-qualifying reason, the employer must notify the employee as

provided in [Section 825.300(d) of DOL’s Regulations, 29 C.F.R.] § 825.300(d).”

29 C.F.R. § 825.301(a).

Section 825.300(d) of DOL’s Regulations further requires, in pertinent

part:

(1) The employer is responsible in all circumstances for

designating leave as FMLA-qualifying, and for giving

notice of the designation to the employee as provided in

this section. When the employer has enough information

to determine whether the leave is being taken for a FMLA-

qualifying reason (e.g., after receiving a certification), the

employer must notify the employee whether the leave will

be designated and will be counted as FMLA leave within

five business days absent extenuating circumstances. . . .

If the employer determines that the leave will not be

designated as FMLA-qualifying (e.g., if the leave is not

for a reason covered by [the] FMLA or the FMLA leave

entitlement has been exhausted), the employer must notify

the employee of that determination. If the employer

requires paid leave to be substituted for unpaid FMLA

leave, or that paid leave taken under an existing leave plan

be counted as FMLA leave, the employer must inform the

employee of this designation at the time of designating the

FMLA leave.

....

(6) The employer must notify the employee of the amount

of leave counted against the employee’s FMLA leave

entitlement. If the amount of leave needed is known at the

time the employer designates the leave as FMLA-

also 29 C.F.R. § 825.300(b)(2). The Township issued a Form WH-381 to Detective Pierluisse

with its December 5, 2017 letter.

21

qualifying, the employer must notify the employee of the

number of hours, days, or weeks that will be counted

against the employee’s FMLA leave entitlement in the

designation notice. . . .[31]

29 C.F.R. § 825.300(d). Pursuant to Section 825.300(e) of DOL’s Regulations, an

employer that fails to carry out or interferes with an employee’s FMLA rights may

be liable for compensation, actual monetary losses, and/or other appropriate relief.32

See 29 C.F.R. § 825.300(e); see also 29 C.F.R. § 825.301(e).

Moreover, Section 2653 of the FMLA states: “Nothing in th[e FMLA]

. . . shall be construed to discourage employers from adopting or retaining leave

policies more generous than any policies that comply with the requirements under

th[e FMLA] . . . .”33 29 U.S.C. § 2653; see also 29 C.F.R. § 825.700(b). “Nothing

in th[e FMLA] . . . shall be construed to diminish the obligation of an employer to

comply with any [CBA] or any employment benefit program or plan that provides

greater . . . rights to employees than the rights established under th[e

31

Optional DOL FMLA Designation Notice form WH-382 (Form WH-382), which

satisfies an employer’s designation notice obligations under Section 825.300(d)(1) of DOL’s

Regulations, is available on DOL’s website. See

www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-382.pdf (last visited Oct. 6, 2022); see

also 29 C.F.R. § 825.300(d)(4). “If[, as in the instant matter,] the employer has sufficient

information to designate the leave as FMLA leave immediately after receiving notice of the

employee’s need for leave, the employer may provide the employee with the designation notice at

that time.” 29 C.F.R. § 825.300(d)(2); see also DOL Fact Sheet #28: “When the employer has

enough information to determine that leave is being taken for a FMLA-qualifying reason, the

employer must notify the employee that the leave is designated and will be counted as FMLA

leave. Employers may use the optional [F]orms WH-381 and WH-382 prepared by [DOL] to meet

these notification requirements.” R.R. at 104a. Although it is not clear whether the Township

issued Form WH-382 to Detective Pierluisse relative to her FMLA leave request, the Township’s

December 5, 2017 letter supplied Detective Pierluisse with the necessary notice of its designation,

in accordance with Section 825.300(d) of DOL’s Regulations. See R.R. at 77a-78a.

32

“[A]n employer violates the FMLA when it violates either the FMLA statute itself . . .

or its implementing [DOL R]egulations.” Bradley v. Mary Rutan Hosp. Assoc., 322 F. Supp. 2d

926, 937 (S.D. Ohio 2004).

33

Likewise, “[n]othing in [the] FMLA supersedes any provision of [s]tate or local law that

provides greater family or medical leave rights than those provided by [the] FMLA.” 29 C.F.R. §

825.701(a). The parties have not proffered that Pennsylvania or the Township has any such law.

22

FMLA] . . . [,]”34 Section 2652(a) of the FMLA, 29 U.S.C. § 2652(a), and “[t]he

rights established for employees under th[e FMLA] . . . shall not be diminished by

any [CBA] or any employment benefit program or plan.” 29 U.S.C. § 2652(b); see

also Section 825.700(a) of DOL’s Regulations, 29 C.F.R. § 825.700(a). Thus, in the

absence of a more generous leave policy, or where an employer’s policy conflicts

with the FMLA, the FMLA controls. See 29 U.S.C. § 2652; see also Callison v. City

of Phila., 430 F.3d 117 (3d Cir. 2005).

FMLA-Qualifying Leave Limited to 12 Weeks Unpaid Leave

In its brief to this Court, the Board asserts that Detective Pierluisse’s

leave necessitated by her pre-birth serious health condition, and the birth and/or care

of her newborn are “discrete FMLA-qualifying event[s],” Board Br. at 15, and that

“the Township lumped her pregnancy in with the birth and care of her newborn.”

Board Br. at 17 n.7. The Board adds that, “[b]y insisting that there are only 12 weeks

of job security under the FMLA, the Township and [the Pennsylvania State

Association of Township Supervisors (Amicus)] appear to take the position that

employes are only permitted 12 weeks of leave under the FMLA[,]” regardless of

contractual sick leave and disability benefits. Board Br. at 18 n.8. The Board’s (and

the Dissent’s) position appears to be that Detective Pierluisse was entitled to sick

leave plus disability leave for her own serious health condition, and another 12

weeks of FMLA leave for the care and/or birth of her second child.

However, Section 825.200(a) of DOL’s Regulations declares that “an

eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks

of leave during any 12-month period for any one, or more, of the [qualifying]

34

“‘The purpose of the FMLA is to make leave available to eligible employees and

employers within its coverage, and not to limit already existing rights and protection.’ S. Rep. No.

103-3, at 38 (1993).” 29 C.F.R. § 825.702(a).

23

reasons[.]” 29 C.F.R. § 825.200(a) (emphasis added); see also November 17, 2005

DOL Op. Letter FMLA 2005-3-A (“The fact that an employee may be eligible for

and takes leave for more than one FMLA-qualifying condition does not change the

fact that an employee is entitled to a total of 12 weeks of FMLA leave within the []

12-month period.” Id. at 2.); Jeanna E. Crocker, J.D., Senior Legal Ed., Fam. &

Med. Leave Handbook ¶ 261, HOW TO COUNT WEEKS, 2017 WL 11001961. In

addition, the United States Supreme Court ruled in Ragsdale v. Wolverine World

Wide, Inc., 535 U.S. 81 (2002), that former Section 825.700(a) of DOL’s

Regulations, which required Wolverine World Wide, Inc. to grant Ragsdale 12

additional weeks of leave because Wolverine had not informed Ragsdale that her 30-

week absence would count against her FMLA entitlement, was contrary to the

FMLA and exceeded DOL’s authority, because, inter alia, it amended the FMLA’s

guarantee of only 12 weeks of leave. The Ragsdale Court observed:

Like any key term in an important piece of legislation, the

12-week figure was the result of compromise between

groups with marked but divergent interests in the

contested provision. Employers wanted fewer weeks;

employees wanted more. See H.R. Rep. No. 102-135, pt.

1, p.37 (1991). Congress resolved the conflict by choosing

a middle ground, a period considered long enough to serve

“the needs of families” but not so long that it would upset

“the legitimate interests of employers.” [Section

2601(b)(1), (3) of the FMLA, 29 U.S.C.] § 2601(b)[(1),

(3)].

Courts and agencies must respect and give effect to these

sorts of compromises.

Ragsdale, 535 U.S. at 93-94.

As Section 2612(a)(1)(A) of the FMLA makes clear, leave for the birth

and/or care of a newborn child commences when the child is born. A prenatal- and

pregnancy-related health issue that renders an employee incapable of performing the

functions of the job constitutes a serious health condition under Section

24

2612(a)(1)(D) of the FMLA,35 the leave for which commences when the incapacity

begins. Thus, if an employee uses FMLA leave for a pregnancy-related serious

health condition before the child is born, an employer may limit the length of an

employee’s FMLA leave related to the birth and/or care of a newborn child to the

“amount of FMLA leave remaining in [that employee’s] allotment for that 12-month

period.”36 Fam. & Med. Leave Handbook ¶ 130, FREQUENTLY ASKED LEAVE

QUESTIONS (“Q: Can an employer limit the amount of FMLA leave an employee may

take after giving birth?”), 2003 WL 25316974;37 see also id. (“Q: . . . If an employee

35

Section 2611(11)(B) of the FMLA defines “serious health condition” as “an illness,

injury, impairment, or physical or mental condition that involves . . . continuing treatment by a

health care provider.” 29 U.S.C. § 2611(11); see also 29 C.F.R. § 825.102. Section 825.115(b)

of DOL’s Regulations provides: “A serious health condition involving continuing treatment by a

health care provider includes . . . [a]ny period of incapacity due to pregnancy, or for prenatal care.

See also [29 C.F.R.] § 825.120.” 29 C.F.R. § 825.115; see also DOL Fact Sheet #28, R.R. at 102a-

103a. Section 825.120(a)(4) of DOL’s Regulations acknowledges, in relevant part:

The expectant mother is entitled to FMLA leave for incapacity due

to pregnancy, for prenatal care, or for her own serious health

condition following the birth of the child. Circumstances may

require that FMLA leave begin before the actual date of birth of a

child. An expectant mother may take FMLA leave before the birth

of the child for prenatal care or if her condition makes her unable to

work.

29 C.F.R. § 825.120(a)(4). Therefore, women who experience prenatal- and pregnancy-related

health issues that render them unable to perform their job functions are entitled to leave under

Section 2612(a)(1) of the FMLA because of a “serious health condition.” 29 U.S.C. §

2612(a)(1)(D).

36

Although not applicable in the instant matter, such is the case even if a state or local law

also provides for family and medical leave. See Section 825.701(a) of DOL’s Regulations, 29

C.F.R. § 825.701(a).

37

A: An eligible employee working for a covered employer is entitled

to take 12 weeks of FMLA leave in a 12-month period for the birth

of a child. The only way an employer may limit the length of the

FMLA leave in such cases is when the employee has a limited

amount of FMLA leave remaining in her allotment for that 12-

month period. If the employee has available other forms of leave,

such as vacation or sick leave, which may be used for such purposes,

the employee may take such leave. If the employee has no other

25

uses part o[r] all of her FMLA leave before she needs leave for a pregnancy, does

she still have a right to additional FMLA leave?”).38 Congress clearly intended for

eligible employees to have a total of 12 weeks of job-protected, unpaid leave within

a 12-month period for all FMLA-qualifying events during the 12-month period, even

if the FMLA-qualifying event changes during that time.

Accordingly, under the FMLA, Detective Pierluisse was limited to a

total of 12 weeks of job-protected, unpaid leave for the consecutive events of her

serious health condition and birth and/or care of her second child. Detective

Pierluisse’s entitlement to unlimited sick leave under the CBA did not change the

fact that her FMLA-protected leave was statutorily limited to 12 weeks during the

leave available, there would be no additional FMLA leave provided;

instead, it would be counted as unpaid leave, if available from the

employer.

An employer may not limit, as a matter of policy, an employee to

six or eight weeks of maternity leave, if that employee has available

her full allotment of FMLA leave and wishes to take that FMLA

leave following the birth of her child.

FREQUENTLY ASKED LEAVE QUESTIONS, ¶ 130-7, 2003 WL 25316974.

38

A: No. Congress may have had pregnancy leave in mind when it

passed [the] FMLA, but only 12 weeks of leave for any and all

qualifying events are available.

That may not be the end to the discussion. Although the federal law

provides for 12 weeks of leave under [the] FMLA, some states, such

as California, have separate pregnancy/bonding leaves with separate

criteria and separate entitlements. As a result, an employer should

consult its state’s law. (See the summary of state leave laws in Tab

700 of the Handbook.)

Further, there is nothing to prevent an employer from offering more

leave to accommodate its employees’ medical events if it does so in

a gender-neutral way. And a pregnant employee may qualify for

short-term disability leave, independent of [the] FMLA

requirements, depending on her physical condition and the

employer’s disability leave insurance requirements.

FREQUENTLY ASKED LEAVE QUESTIONS, ¶ 130-7, 2003 WL 25316974.

26

12-month period. Once she was cleared by her physician to return to work on March

7, 2018, Detective Pierluisse was no longer entitled to sick leave/long-term disability

under the CBA, and she could only invoke the number of unused FMLA weeks she

had remaining to care for her newborn.39 The Board and the Dissent’s position that

Detective Pierluisse was entitled to an additional 12 weeks of FMLA leave after the

birth of her second child is contrary to the FMLA and DOL’s Regulations, because

it will provide her more than the statutorily permitted 12 weeks of FMLA, put the

Township in an adverse position of treating employees differently, and is contrary

to the law’s concern with open-ended leave that unduly burdens the Township’s

legitimate interests. See 29 U.S.C. § 2601(b); see also Ragsdale; Strickland v. Water

Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1205-06 (11th Cir.

2001).

Board Authority to Interpret the FMLA

Notably, “a labor union . . . cannot bring an action under [the] FMLA

as a matter of law, whether on its own or on behalf of its members.” Port Auth.

Police Benevolent Ass’n, Inc. v. Port Auth. of N.Y. & N.J., 283 F. Supp. 3d 72, 89

(S.D.N.Y. 2017). Moreover, DOL’s Regulations declare that “[s]tates may not

enforce the FMLA.” 29 C.F.R. § 825.701(a). Further, although “[w]hen considering

an agency’s interpretation of a statute [] it is charged with implementing and

enforcing, [courts] afford substantial deference to that interpretation[,]”40 Off. of

39

That was the case whether Detective Pierluisse’s FMLA for sick leave ended and her

FMLA for parental leave began the day her second child was born on January 10, 2018, or whether

her FMLA for sick leave ended and her parental leave began on March 7, 2018, the day she was

cleared to return to work. In either event, Detective Pierluisse was only entitled to a total of 12

weeks of FMLA-protected leave.

40

An agency’s interpretation of its governing statute is entitled to deference if it is

consistent with the statute itself, and in the absence of fraud, bad faith, or an abuse of discretion.

See Off. of Admin. v. Pa. Lab. Rels. Bd., 916 A.2d 541 (Pa. 2007).

27

Admin. v. Pa. Lab. Rels. Bd., 916 A.2d 541, 550 n.11 (Pa. 2007),41 a state agency’s

interpretation of a federal statute is not entitled to such deference. See Nw. Youth

Servs., Inc. v. Dep’t of Pub. Welfare, 66 A.3d 301 (Pa. 2013) (Commonwealth

agency interpretation of a law it is not charged with administering or enforcing is

not entitled to deference); see also Twp. of Bordentown N.J. v. Fed. Energy Regul.

Comm’n, 903 F.3d 234 (3d Cir. 2018); MCI Telecomm. Corp. v. Bell Atl. Pa., 271

F.3d 491 (3d Cir. 2001). Even when an agency is authorized to interpret a law, “no

deference is due where [the] agency exceeds its legal authority or its interpretation

is clearly erroneous.” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 193 A.3d 447,

462-63 (Pa. Cmwlth. 2018). Thus, in this case, the Board’s interpretation of the

FMLA is not entitled to deference.

FMLA Leave Designation Not Discretionary

Congress expressly authorized DOL to interpret the FMLA and

promulgate the Regulations to carry out the FMLA’s requirements. See Section

2654 of the FMLA, 29 U.S.C. § 2654. DOL initially promulgated its implementing

Regulations in 1995, and subsequently amended them in 2008.42

41

See also Snyder Bros., Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d 1056 (Pa. 2018), order

amended on reconsideration, 203 A.3d 964 (Pa. 2019).

42

Congress authorized [DOL] to promulgate regulations

implementing the FMLA. 29 U.S.C. § 2654. [DOL’s] reasonable

interpretations of the statute are therefore entitled to deference under

Chevron U[.]S[.]A[.,] Inc. v. Natural Resources Defense Council,

467 U.S. 837 . . . (1984). See Ninilchik Traditional Council v.

United States, 227 F.3d 1186, 1191 (9th Cir. 2000) (agency’s

interpretation of statute pursuant to statutory delegation of authority

is entitled to Chevron deference); Duckworth v. Pratt & Whitney,

Inc., 152 F.3d 1, 5 (1st Cir. 1998) ([DOL’s R]egulations were

promulgated pursuant to statutory delegation and are entitled to

Chevron deference).

28

At issue in this case is Section 825.300 of DOL’s Regulations, wherein

DOL mandates that, once an employer learns that an employee’s leave request is for

an FMLA-qualifying reason, “the employer must notify the employee of the

employee’s eligibility to take FMLA leave within 5 business days,” 29 C.F.R. §

825.300(b)(1) (emphasis added), and “[t]he employer is responsible in all

circumstances for designating leave as FMLA-qualifying, and for giving notice

of the designation to the employee . . . whether the leave will be designated and

will be counted as FMLA leave within five business days[.]” 29 C.F.R. §

825.300(d) (emphasis added); see also 29 C.F.R. § 825.301(a).

The Township asserts that the designate and count language in Section

825.300(d)(1) of DOL’s Regulations requires an employer to: (1) notify the

employee that his/her leave request is FMLA-eligible; (2) designate the requested

leave as FMLA-qualifying and begin counting it against his/her FMLA leave

entitlement as of when it commenced; and (3) notify the employee of the designation

and that it will be counted. The Board claims that, since those provisions are nothing

more than mandatory notice requirements that do not impose an affirmative duty on

an employer to immediately designate and commence counting FMLA-qualifying

leave, they are discretionary.

“When interpreting a regulation, a court must first determine whether

the regulation itself is ‘genuinely ambiguous.’” Belt v. P.F. Chang’s China Bistro,

Inc., 401 F. Supp. 3d 512, 529 (E.D. Pa. 2019) (quoting Kisor v. Wilkie, 139 S. Ct.

2400, 2415 (2019)). “[A court’s] starting point on any question concerning the

application of a [federal] regulation is its particular written text.” Pa. Fed’n of

Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir. 2007) (quoting

Wilson v. U. S. Parole Comm’n, 193 F.3d 195, 197 (3d Cir. 1999)). Based on the

Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1123 n.9 (9th Cir. 2001). Accordingly, DOL’s

Regulations, which were subject to notice and comment, are generally entitled to deference.

29

federal rules of statutory construction, which apply to DOL’s Regulations,43 this

Court must “consider the particular [regulatory] language, as well as the design of

the [regulation] and its purposes in determining the meaning of a federal

[regulation].” Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 51 (Pa. 2011).

“[I]f the [regulation’s] language is clear, [courts] should refrain from searching other

sources in support of a contrary result.” 44 Id.

Relevant to the instant matter, Section 825.300 of DOL’s Regulations

mandates that, within five days of an employee’s leave request, the employer must

notify the employee whether such leave is FMLA-eligible. See 29 C.F.R. §

825.300(b)(1). An employer’s designation obligation exists even if the employee

does not request or even reference FMLA leave. See 29 C.F.R. § 825.301(b); see

also Eshbach. The employer is also “responsible in all circumstances for

designating leave as FMLA-qualifying, and for giving notice of the designation

to the employee[.]” 29 C.F.R. § 825.300(d)(1) (emphasis added). The above-quoted

provision clearly includes two parts: (1) designation; and (2) notice. The reference

therein that an “employer must notify the employee whether the leave will be

designated and will be counted as FMLA leave within five business days[,]” id.

(emphasis added), does not render an employer’s designation optional. Further,

DOL expressly provides as an example that “leave will not be designated as FMLA-

qualifying” “if the leave is not for a reason covered by [the] FMLA or the FMLA

leave entitlement has been exhausted[.]” Id. Thus, under Section 825.300(d)(1) of

43

“The basic tenets of [federal] statutory construction apply to construction of [federal]

regulations . . . .” Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir.

2007).

44

“A court does not defer to an administrative agency’s interpretation of the plain meaning

of an unambiguous statute because statutory interpretation is a question of law for the court.”

Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234 A.3d 665, 677 (Pa. 2020); see also

Chevron.

30

DOL’s Regulations, an employer shall designate that the leave is FMLA-qualifying

and count it against an employee’s 12-week entitlement when the leave commences.

Based on the foregoing, the text of Section 825.300(d) of DOL’s

Regulations clearly specifies that, once a covered employer becomes aware that an

eligible employee is taking FMLA-qualifying leave, the employer shall designate it

as FMLA leave and count it against the employee’s FMLA entitlement when the

leave commences. Accordingly, the Township lacked discretion to delay counting

Detective Pierluisse’s FMLA leave until after her second child was born.

Even assuming, arguendo, that Section 825.300(d) of DOL’s

Regulations is ambiguous, the result would be the same. To the extent a regulation

is ambiguous, this Court may look beyond its text to agency rulings, interpretations,

and opinions, which are entitled to deference if not clearly erroneous.45 See

Christopher v. Smith-Kline Beecham Corp., 567 U.S. 142 (2012); see also

Christensen v. Harris Cnty., 529 U.S. 576 (2000); Auer v. Robbins, 519 U.S. 452

(1997);46 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984);

Skidmore v. Swift & Co., 323 U.S. 134 (1944); Belt.

Importantly, “the FMLA does not expressly state [that] an employee

may defer the exercise of FMLA rights under the statute.” Escriba v. Foster Poultry

Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). The Board claims that Section

825.300(d)(1) of DOL’s Regulations does not and cannot mandate an employer to

immediately designate and count FMLA leave, because case law has established that

an employee has the option of declining or delaying FMLA protection.47 The Board

45

DOL opinions “are [generally] entitled to the level of deference announced in Skidmore

v. Swift & Co., 323 U.S. 134 . . . (1944) [(i.e., Skidmore deference)]. They ‘constitute a body of

experience and informed judgment to which courts and litigants may properly resort for guidance.’

Id. at 140 . . . [.]” Chavez v. City of Albuquerque, 630 F.3d 1300, 1308 (10th Cir. 2011).

46

Auer was superseded by statute on other grounds. See Higgins v. Bayada Home Health

Care, Inc. (M.D. Pa. No. 3:16-CV-02382, filed Sept. 22, 2021), 2021 WL 4306125.

47

The Dissent agrees. See Towamencin Twp., __ A.3d at __, dissenting slip op. at 8.

31

relies on Escriba, and Gravel v. Costco Wholesale Group, 230 F. Supp. 3d 430 (E.D.

Pa. 2017), for its conclusion.

In Escriba, although employee Escriba had taken FMLA leave in the

past, she expressly requested two weeks of paid vacation time off from work to care

for her sick father in Guatemala. Despite that her leave request was FMLA-

qualifying, the employer did not designate it as FMLA-protected, and later

terminated Escriba’s employment for violating its three-day no-show, no-call policy

when she failed to return to work at the end of the two weeks. Escriba filed an

FMLA interference claim, arguing that the employer was required to designate her

time off as FMLA-protected, regardless of whether she declined it. The United

States District Court for the Eastern District of California entered judgment in the

employer’s favor because evidence established that Escriba affirmatively declined

to use FMLA leave and, thus, the employer did not interfere with her FMLA rights.

On appeal, the United States Court of Appeals for the Ninth Circuit

affirmed. The Ninth Circuit Court observed that “the FMLA does not expressly state

whether an employee may defer the exercise of FMLA rights under the statute[,]”

Escriba, 743 F.3d at 1243, and that “nothing in the FMLA precludes an employee

from deferring the exercise of his or her FMLA rights[,]”id. at 1247, and agreed that

an employee may affirmatively decline to use FMLA leave. The Escriba Court

reasoned:

An employer’s obligation to ascertain “whether FMLA

leave is being sought” strongly suggests that there are

circumstances in which an employee might seek time off

but intend not to exercise his or her rights under the

FMLA. And a compelling practical reason supports this

conclusion. Holding that simply referencing an FMLA-

qualifying reason triggers FMLA protections would place

employers . . . in an untenable situation if the employee’s

stated desire is not to take FMLA leave. The employer

could find itself open to liability for forcing FMLA leave

32

on the unwilling employee. See, e.g., Wysong v. Dow

Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007) (noting that

“[a]n involuntary[ ]leave claim,” alleging that an

“employer forces an employee to take FMLA leave,” is

“really a type of interference claim”). We thus conclude

that an employee can affirmatively decline to use FMLA

leave, even if the underlying reason for seeking the leave

would have invoked FMLA protection. See, e.g., Ridings

v. Riverside Med. Ctr., 537 F.3d 755, 769 n. 3 (7th Cir.

2008) (“If an employee does not wish to take FMLA leave

but continues to be absent from work, then the employee

must have a reason for the absence that is acceptable under

the employer’s policies, otherwise termination is

justified.” ([E]mphasis added.))[.]

Escriba, 743 F.3d at 1244.

While assessing whether the evidence was sufficient to support the

lower court’s conclusion that Escriba declined to invoke her FMLA rights, the Ninth

Circuit Court recognized that “the preservation of future FMLA leave is a

compelling practical reason why an employee might wish to do so.” Id. at 1247.

The Escriba Court described:

Under [the employer’s] policies, FMLA leave runs

concurrently against the balance of both an employee’s

accrued vacation time and the employee’s FMLA-

protected leave until the paid vacation time is exhausted.

When an employee’s paid vacation time expires, that

employee may remain on unpaid leave until a total of 12

weeks elapses. See 29 U.S.C. § 2612(a)(1) (limiting

FMLA leave to 12 weeks per year). A different result

occurs if an employee initially declines FMLA leave. By

declining to take FMLA leave and subsequently

requesting it at a later date, an employee can first take paid

vacation, after which that employee would still have the

full 12 weeks of FMLA leave remaining.

Under the facts of this case, if Escriba purposefully

deferred asking for FMLA leave until after the expiration

of her paid leave, she would have had two more weeks of

protected leave than if she had initially requested family

leave.

33

Escriba, 743 F.3d at 1245-46. Based on the Ninth Circuit Court’s ruling in Escriba,

other courts and agencies, as cited infra, have concluded that an employee may

refuse or delay FMLA leave, even if the reason for his/her absence is FMLA-

qualifying.

In Gravel, the employee expressly requested a flexible schedule in lieu

of FMLA leave to bond with his foster child. Despite that the employer granted all

of the employee’s schedule adjustments related to his foster child, the employer

discovered that the employee was falsifying his time records. After the employer

notified the employee that he was being investigated, the employee applied for

FMLA leave. The employer eventually terminated the employee’s employment, and

the employee filed an FMLA interference claim. The United States District Court

for the Eastern District of Pennsylvania, relying on Escriba, entered judgment in the

employer’s favor, holding that the employee could and did decline FMLA job

protection and, since he never invoked the FMLA, the employer did not violate his

FMLA rights. See also Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 226 F. Supp. 3d 26,

38 (D.D.C. 2017) (noting that the employee had properly indicated to employer that

he was not electing to take FMLA leave for his rib injury and instead would use

vacation time); Amstutz v. Liberty Ctr. Bd. of Educ., 127 F. Supp. 3d 846, 854 (N.D.

Ohio 2015) (once the employee declines FMLA protection to instead use paid sick

leave, the employer cannot be liable for denying it or interfering with her FMLA

rights); Salem Cmty. Coll. & Salem Cmty. Coll. Fac. Ass’n, 38 N.J. Pub. Emp. Rep.

42 (N.J. Pub. Emp. Rels. Comm’n 2011) (where an employee declines to use FMLA

leave, the FMLA does not require an employer to force an employee to take it, or

subject an employer to liability for not designating it as such).

However, the Board’s reliance on Escriba and its progeny in the instant

case is misplaced. First, although they may be considered persuasive authority with

regard to interpreting federal statutes and regulations, “decisions of the federal courts

34

lower than the U[nited] S[tates] Supreme Court are not binding on Pennsylvania

courts[.]” W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 630 (Pa. Cmwlth.

2017); see also Wheeling-Pittsburgh Steel Corp. v. Dep’t of Env’t Prot., 979 A.2d

931 (Pa. Cmwlth. 2009). This is particularly so when other federal courts have

reached the opposite conclusion. See McCalla v. Avmed, Inc. (S.D. Fla.,11-60007-

CIV, filed Sept. 6, 2011), slip op. at 1, 2011 WL 3918538 (wherein the court

determined that, where FMLA was to be taken concurrent with paid leave, the

employee’s FMLA leave to care for her ill son commenced the first day she was out

of work for that reason);48 see also Bloom v. Metro Heart Grp. of St. Louis, Inc., 440

F.3d 1025 (8th Cir. 2006) (holding that commencement of FMLA is determined by

when employee can no longer perform her job duties because of a serious health

condition; substituting paid leave for unpaid leave does not entitle the employee to

additional leave); Strickland, 239 F.3d at 1205-06 (“If employers could not require

a sick employee to use accrued paid sick leave and FMLA leave concurrently when

the employee’s condition qualifies for both, then the employee could choose to use

his paid leave benefit and his 12 weeks of FMLA leave sequentially.”).49 Therefore,

the Escriba holding is not binding on this Court.

48

Unreported federal court decisions may be cited by this Court for their persuasive value.

See Nagle v. TrueBlue, Inc., 148 A.3d 946 (Pa. Cmwlth. 2016). McCalla is cited solely for its

persuasive value.

49

In Employment Discrimination Law and Litigation, under the heading Designation

Notice, the author recognized:

There was a question whether an employer could delay the

designation of leave, whether an employee could decline the

designation of leave, or whether an employer could designate leave

of more than 12 (or, if applicable, 26) weeks. According to a [March

14, 2019 DOL Wage and Hour Division (WHD)] [O]pinion [L]etter

[FMLA2019-1-A (R.R. at 180a)], . . . the answer is a resounding no.

For years, most employers understood that once they were on notice

that a leave was FMLA-qualifying, they were required to designate

that leave as FMLA leave. The Ninth Circuit [Court] injected

uncertainty into this area in its opinion in Escriba. . . .

35

Second, when DOL amended the Regulations in 2008, Appendix E of

Part 825 proffered the prototype form FMLA Designation Notice (Form WH-382),

which declared: “Leave covered under the [FMLA] must be designated as

[] DOL’s [O]pinion [L]etter [FMLA2019-1-A] firmly rejects the

Escriba decision, concluding that once an employee communicates

a need to take leave for an FMLA-qualifying reason, neither the

employee nor the employer may decline FMLA protection for that

leave. In other words, employee preferences are irrelevant and

employer compliance is mandatory. [] DOL further reiterated that

this does not prevent employers from permitting or requiring that

employees substitute paid leave to cover otherwise unpaid FMLA

leave. FMLA leave will run concurrently with any paid leave, and

neither employees nor employers can expand an employee’s FMLA

entitlement with paid time off benefits. For employers in the Ninth

Circuit, however, the issue is still unsettled. [] DOL [O]pinion

[L]etter [FMLA2019-1-A], however provides solid counsel and

good reason to designate FMLA leave regardless of employee

preference.

4 EMPLOYMENT DISCRIMINATION LAW & LITIGATION § 30.27.50 (Aug. 2022 update) (footnotes

omitted).

In the Human Resources Guide, under the heading, “What Escriba Means for Employers,”

the author observed:

Escriba’s statement that employees have the right to decline FMLA

leave should not be taken out of context. Escriba involved a leave

to care for a family member; it did not involve a leave for the

employee’s own serious health condition. Thus, Escriba did not

address whether an employee could decline FMLA entitlement -

thereby saving it for future use - while demanding a leave to

accommodate the employee’s own disability . . . .

The Escriba decision should not be read to mean that an employee

can decline FMLA leave while seeking leave as a reasonable

accommodation for the employee’s own disability. An employer

faced with that situation could argue that it is entitled to designate

and count the leave against the employee’s FMLA or state leave law

entitlement, because a leave to accommodate the employee’s

disability that did not also exhaust any available FMLA leave

would not be a reasonable accommodation.

Robert J. Nobile, HUMAN RESOURCES GUIDE § 4:180 (Family Leave) (July 2022 update).

36

FMLA-protected and the employer must inform the employee of the amount of

leave that will be counted against the employee’s FMLA leave entitlement.” FMLA,

Final Rule, 73 Fed. Reg. 68126 (Nov. 17, 2008) (bold and italic emphasis added).

DOL’s Form WH-382 in effect in 2017, when Detective Pierluisse requested FMLA

leave, contained the same language. See R.R. at 70a. Notably, DOL’s current Form

WH-382 (revised June 2020) clarifies:

The employer is responsible in all circumstances for

designating leave as FMLA-qualifying and giving notice

to the employee. Once an eligible employee

communicates a need to take leave for an FMLA-

qualifying reason, an employer may not delay

designating such leave as FMLA leave, and neither the

employee nor the employer may decline FMLA

protection for that leave.

See www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-382.pdf (last visited

Oct. 6, 2022) (additional bold emphasis added).

Third, DOL’s Wage and Hour Division (WHD) represented in a March

14, 2019 Opinion Letter FMLA2019-1-A:

[A]n employer is prohibited from delaying the designation

of FMLA-qualifying leave as FMLA leave. Once an

eligible employee communicates a need to take leave

for an FMLA-qualifying reason, neither the employee

nor the employer may decline FMLA protection for

that leave. See 29 C.F.R. § 825.220(d) (“Employees

cannot waive, nor may employers induce employees to

waive, their prospective rights under [the] FMLA.”);

Strickland . . . (noting that the employer may not “choose

whether an employee’s FMLA-qualifying absence” is

protected or unprotected by the FMLA). Accordingly,

when an employer determines that leave is for an

FMLA-qualifying reason, the qualifying leave is

FMLA-protected and counts toward the employee’s

FMLA leave entitlement. See 29 C.F.R. § 825.701(a)

(“If leave qualifies for FMLA leave . . . the leave used

counts against the employee’s entitlement . . . .”); WHD

Op[.] Letter FMLA2003-5 . . . at[ ]2 (Dec. 17, 2003)

37

(“Failure to designate a portion of FMLA-qualifying leave

as FMLA [leave] would not preempt FMLA

protections . . . .”).[FN]3 Once the employer has enough

information to make this determination, the employer

must, absent extenuating circumstances, provide notice of

the designation within five business days. 29 C.F.R. §

825.300(d)(1). Accordingly, the employer may not

delay designating leave as FMLA-qualifying, even if

the employee would prefer that the employer delay the

designation.

[FN]3

WHD therefore disagrees with the Ninth

Circuit’s holding that an employee may use non-

FMLA leave for an FMLA-qualifying reason and

decline to use FMLA leave in order to preserve

FMLA leave for future use. See Escriba . . . .

WHD Op. Letter FMLA2019-1-A at 2, R.R. at 180a (emphasis added);50 see also

Dougherty v. Cable Network News, 396 F. Supp. 3d 84 (D.D.C. 2019) (recognizing

that DOL disagrees with Escriba and interprets the FMLA to disallow employees

from using non-FMLA leave for FMLA-qualifying reasons).

In a September 10, 2019 Opinion Letter FMLA2019-3-A, the DOL

reiterated:

Once [an] employer has enough information to determine

that an employee’s leave request qualifies as FMLA leave,

[the] employer must designate the leave as FMLA leave.

As noted in WHD Opinion Letter FMLA2019-1-A, once

an eligible employee communicates a need to take leave

for an FMLA-qualifying reason, an employer may not

delay designating such leave as FMLA leave, and

neither the employee nor the employer may decline

FMLA protection for that leave.

50

See www.dol.gov/sites/dolgov/files/WHD/legacy/files/2019_03_14_1A_FMLA.pdf

(last visited Oct. 6, 2022).

38

WHD Op. Letter FMLA2019-3-A at 3, R.R. at 185a (emphasis added).51 DOL’s

WHD Opinion Letters clearly emphasize the nondiscretionary nature of an

employer’s obligation to designate and begin counting FMLA-qualifying leave.

The Board declared in the Final Order that the aforementioned WHD

Opinion Letters are not entitled to any weight because such opinions change with

the administrations, and they fail to recognize Pennsylvania jurisprudence that

protects bargaining rights for employees entitled to negotiated paid leave.52 See

Final Order at 11. As an example, the Board called attention to the fact that, in the

51

See www.dol.gov/sites/dolgov/files/WHD/legacy/files/2019_09_10_3A_FMLA.pdf

(last visited Oct. 6, 2022).

52

The Dissent agrees with Hearing Examiner Marino and the Board that DOL’s Opinion

Letters are not entitled to any weight, and “find[s] judicial decisions more persuasive than an

agency opinion letter.” Towamencin Twp., __ A.3d at __, dissenting slip op. at 10, However,

despite that DOL Opinion Letters may not be binding, because they reflect DOL’s “interpretation

and intended application” of the law it is authorized to interpret, Samson v. Apollo Res., Inc., 242

F.3d 629, 639 (5th Cir. 2001), the courts afford them “substantial weight.” Flood v. New Hanover

Cnty., 125 F.3d 249, 253 (4th Cir. 1997); see also Schultz v. W.R. Hartin & Son, Inc., 428 F.2d

186, 191 (4th Cir. 1970); Skidmore, 323 U.S. at 140. Giving DOL Opinion Letters substantial

weight is particularly necessary where, as here, judicial decisions are inconsistent on a particular

issue.

The Dissent cites National Cable & Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967 (2005), to conclude that “a court’s interpretation of a statute overrides an

agency’s interpretation if the court decision holds the statute is unambiguous.” Towamencin Twp.,

__ A.3d at __, dissenting slip op. at 11. As stated previously, the Majority agrees that this Court

need only rely on DOL’s Opinion Letters unless the subject provisions are ambiguous. The law is

well settled:

If the intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress. If, however, the court determines

Congress has not directly addressed the precise question at issue, the

court does not simply impose its own construction on the statute, as

would be necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of the

statute.

Chevron, 467 U.S. at 842-43 (footnotes omitted).

39

March 14, 2019 Opinion Letter FMLA2019-1-A, DOL’s position was the exact

opposite of the October 27, 1994 WHD Opinion Letter FMLA-49 (1994 WHD

Opinion Letter) (“[A]n employer may permit an employee to use accrued paid sick

leave for FMLA[-]qualifying events and . . . to bank the 12-week FMLA entitlement

leave for later use such as after the employee’s sick leave has been exhausted.”); see

also Section 825.207(a) of DOL’s Regulations (“[the] FMLA permits an eligible

employee to choose to substitute accrued paid leave for FMLA leave. If an employee

does not choose to substitute accrued paid leave, the employer may require the

employee to substitute accrued paid leave for unpaid FMLA leave.” 29 C.F.R. §

825.207(a)).

In Chevron, th[e United States Supreme] Court held that

ambiguities in statutes within an agency’s jurisdiction to

administer are delegations of authority to the agency to fill

the statutory gap in reasonable fashion. Filling these gaps,

the Court explained, involves difficult policy choices that

agencies are better equipped to make than courts. [See

Chevron,] 467 U.S.[] at 865-[]66 . . . . If a statute is

ambiguous, and if the implementing agency’s construction

is reasonable, Chevron requires a federal court to accept

the agency’s construction of the statute, even if the

agency’s reading differs from what the court believes is

the best statutory interpretation. Id.[] at 843-[]44, and

n.11 . . . .

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980

(2005). Where, as here, Congress delegated authority to DOL to promulgate

Regulations implementing the FMLA, see 29 U.S.C. § 2654, under Chevron

(typically applied to more formal agency rule making) and Skidmore (typically

applied to interpretive opinions), when an ambiguity exists, DOL’s reasonable

interpretations of the FMLA in its Regulations and the Opinion Letters are entitled

to deference. See Nat’l Cable; see also Chevron; Skidmore.

40

Further, the National Cable Court concluded that inconsistency is not a

basis on which to decline to consider an agency’s interpretation if the agency

adequately explains the reason for a policy change. See Nat’l Cable. The United

States Supreme Court explained:

“An initial agency interpretation is not instantly carved in

stone. On the contrary, the agency . . . must consider

varying interpretations and the wisdom of its policy on a

continuing basis,” Chevron, [467 U.S.] at 863-[]64 . . . ,

for example, in response to changed factual circumstances,

or a change in administrations[.] That is no doubt why in

Chevron itself, this Court deferred to an agency

interpretation that was a recent reversal of agency policy.

See [Chevron,] 467 U.S.[] at 857-[]58 . . . .

Nat’l Cable, 545 U.S. at 981 (citation omitted).

The Township responds that the 1994 WHD Opinion Letter lacks

persuasive value, reasoning:

[T]he 2019 Opinion Letters are in accord with the body of

case law developed after 1994. . . . [T]he DOL issued

revised [R]egulations in 2008, partly in response to cases

such as Ragsdale, which invalidated [DOL R]egulations

that impermissibly expanded the FMLA’s provisions

related to eligibility and leave entitlement. Fed[.] Reg[.],

Vol. 74, No. 28 at 7877 (Feb[.] 11, 2008). See also Fed[.]

Reg[.], Vol. 73, No. 222 (Nov. 17, 2008); Erdman [v.

Nationwide Ins. Co.], 582 F.3d [500,] 507 [(3d Cir. 2009)

(invalidating DOL Regulation that rendered an employee

eligible for FMLA leave if the employer failed to provide

eligibility notice, regardless of whether the employee

fulfilled the minimum work hours prerequisite)]; Fed[.]

Reg[.], Vol. 80, No. 37 at 9990 (Feb. 25, 2015) (noting

that the 2008 changes were “based on [DOL’s] experience

administering the law, two [DOL] studies and reports on

the FMLA issued in 1996 and 2001, several U[nited]

S[tates] Supreme Court and lower court rulings on the

FMLA, and a review of the comments received in

response to [a] 2006 [Request for Information]”). As such,

the [DOL R]egulations under which the DOL issued the

2019 Opinion Letters - which were in effect during the

41

events of this case - have evolved in significant respects

and are not [the] same [R]egulations that the 1994 [WHD]

Opinion Letter interpreted.

Moreover, the 1994 [WHD] Opinion Letter was

previously called into question by [] DOL following the

[United States] Supreme Court’s decision in Ragsdale.

See FMLA-49 [at 1] (“This letter is under review in light

of issues raised by the U[nited] S[tates] Supreme Court in

Ragsdale . . . and other judicial decisions. It may be

superseded by FMLA2002-5-A.”),

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files

/FMLA-49.pdf ([last visited Oct. 6, 2022]).

Township Br. at 35-36; see also Township Reply Br. at 15-16.

DOL’s WHD Opinion Letters are consistent with the text of Section

825.300(d) of DOL’s Regulations, and reasonably balance the FMLA’s purpose “‘to

entitle employees to take reasonable leave for medical reasons . . . in a manner that

accommodates the legitimate interests of employers.’ 29 U.S.C. § 2601(b)[.]”

Strickland, 239 F.3d at 1206 n.8 (i.e., creating predictability, particularly for public

employers, and minimizing an employee’s time away from the job). See Borough

of Ellwood City v. Pa. Lab. Rels. Bd., 998 A.2d 589 (Pa. 2010) (As custodians of

public funds, government employers must operate economically and effectively.);

Tredyffrin/Easttown Sch. Dist.

Therefore, to the extent DOL’s Regulations are considered ambiguous,

DOL’s FMLA forms and WHD Opinion Letters are entitled to deference. See

Christopher; Auer; Skidmore. Here, this Court agrees with the Township that DOL’s

forms and the 2019 WHD Opinion Letters FMLA2019-1-A and FMLA2019-3-A

represent DOL’s position on the subject since at least 2002 and, in particular, at the

time Detective Pierluisse requested FMLA leave. Thus, this Court holds that DOL’s

Regulations do not limit an employer’s duty merely to employee FMLA eligibility

notification but, rather, as DOL has interpreted, once a covered employer becomes

aware that an eligible employee is taking FMLA-qualifying leave, the employer is

42

mandated to designate and count such leave as FMLA leave when it commences.

Accordingly, notwithstanding the Board’s and the Dissent’s conclusions to the

contrary, the Township lacked discretion to delay counting Detective Pierluisse’s

FMLA leave until after her second child was born.

Employer Discretion to Substitute Accrued Paid Leave

The FMLA established a minimum amount of unpaid leave for which

an employee’s job is protected, see Ragsdale, and “is not meant as a required

addition to all employer-provided leave[.]” Cox v. Autozone, Inc., 990 F. Supp.

1369, 1380 (M.D. Ala. 1998), aff’d sub nom. McGregor v. Autozone, Inc., 180 F.3d

1305 (11th Cir. 1999). Rather, whether for FMLA leave for a serious health

condition or for the birth or care of a newborn child, “an employer may require the

employee[] to substitute [(run concurrently)] any of the accrued paid . . . leave . . .

for any part of the 12-week period of such leave . . . .” 29 U.S.C. § 2612(d)(2)(A),

(B); see also 29 C.F.R. § 825.207.

Section 825.207 of DOL’s Regulations expounds, in relevant part:

(a) Generally, FMLA leave is unpaid leave. However,

under the circumstances described in this section, [the]

FMLA permits an eligible employee to choose to

substitute accrued paid leave for FMLA leave. If an

employee does not choose to substitute accrued paid leave,

the employer may require the employee to substitute

accrued paid leave for unpaid FMLA leave. The term

substitute means that the paid leave provided by the

employer, and accrued pursuant to established policies

of the employer, will run concurrently with the unpaid

FMLA leave. Accordingly, the employee receives pay

pursuant to the employer’s applicable paid leave policy

during the period of otherwise unpaid FMLA leave. An

employee’s ability to substitute accrued paid leave is

determined by the terms and conditions of the employer’s

normal leave policy. When an employee chooses, or an

employer requires, substitution of accrued paid leave, the

43

employer must inform the employee that the employee

must satisfy any procedural requirements of the paid leave

policy only in connection with the receipt of such

payment. See [Section 825.300(c) of DOL’s Regulations,

29 C.F.R.] § 825.300(c). If an employee does not comply

with the additional requirements in an employer’s paid

leave policy, the employee is not entitled to substitute

accrued paid leave, but the employee remains entitled to

take unpaid FMLA leave. Employers may not

discriminate against employees on FMLA leave in the

administration of their paid leave policies.

(b) If neither the employee nor the employer elects to

substitute paid leave for unpaid FMLA leave under the

above conditions and circumstances, the employee will

remain entitled to all the paid leave which is earned or

accrued under the terms of the employer’s plan.

(c) If an employee uses paid leave under circumstances

which do not qualify as FMLA leave, the leave will not

count against the employee’s FMLA leave entitlement.

For example, paid sick leave used for a medical condition

which is not a serious health condition or serious injury or

illness does not count against the employee’s FMLA leave

entitlement.

(d) Leave taken pursuant to a disability leave plan would

be considered FMLA leave for a serious health condition

and counted in the leave entitlement permitted under [the]

FMLA if it meets the criteria set forth above in [Sections]

825.112 through 825.115 [of DOL’s Regulations (relating

to FMLA coverage)]. In such cases, the employer may

designate the leave as FMLA leave and count the leave

against the employee’s FMLA leave entitlement. Because

leave pursuant to a disability benefit plan is not unpaid, the

provision for substitution of the employee’s accrued paid

leave is inapplicable, and neither the employee nor the

employer may require the substitution of paid leave.

However, employers and employees may agree, where

state law permits, to have paid leave supplement the

disability plan benefits, such as in the case where a plan

44

only provides replacement income for two-thirds of an

employee’s salary.[53]

29 C.F.R. § 825.207 (emphasis added);54 see also DOL Fact Sheet #28;55 Int’l Ass’n

of Firefighters Local #1749 v. City of Butler, 32 PPER ¶ 32066 (PDO, Mar. 16,

2001) (“[T]his [DOL R]egulation is cast in discretionary rather than mandatory

language.”).

This Court has further explained:

[Under circumstances when an employer requires an

employee to concurrently use accrued paid leave], the

employee’s time on paid [] leave would count toward the

employee’s FMLA 12-week allotment, thereby

minimizing an employee’s time away from the job. The

employee would not be entitled to take her accrued sick

leave and an additional 12 weeks.

[Likewise, a]n employee may [] elect to take her paid sick

leave “concurrent” with the FMLA leave . . . to receive []

full salary for the . . . FMLA leave.

Tredyffrin/Easttown Sch. Dist., 56 A.3d at 25.

In Strickland, the United States Court of Appeals for the Eleventh

Circuit concluded:

53

Pursuant to Section 825.207(d) of DOL’s Regulations, qualifying paid disability leave

is counted against an employee’s FMLA leave entitlement, but “substitution of paid leave does not

apply when the employee is receiving paid disability leave,” except to cover the difference between

the disability plan payments and the employee’s income. Fam. & Med. Leave Handbook, GUIDE

TO THE FINAL FMLA REVISED REGULATIONS, SUPPLEMENTING DISABILITY LEAVE WITH PAID

LEAVE, 2009 WL 105818.

54

See also Forms WH-381 and WH-382.

55

DOL Fact Sheet #28 states:

Under certain conditions, employees or employers may choose to

“substitute” (run concurrently) accrued paid leave (such as sick

or vacation leave) to cover some or all of the FMLA leave. An

employee’s ability to substitute accrued paid leave is determined by

the terms and conditions of the employer’s normal leave policy.

R.R. at 102a (emphasis added).

45

The logical purpose underlying the substitution language

in the FMLA and accompanying [R]egulations is to

protect employers [that] offer paid sick leave benefits to

their employees from having to provide both the statutory

12 weeks of leave required by the FMLA and the paid

leave benefit separately. If employers could not require a

sick employee to use accrued paid sick leave and FMLA

leave concurrently when the employee’s condition

qualifies for both, then the employee could choose to use

h[er] paid leave benefit and h[er] 12 weeks of FMLA leave

sequentially. That would unduly and unfairly burden

employers.[FN]8 To balance the needs of employers and

sick employees, Congress intended that the FMLA

provide employees with a minimum entitlement of 12

weeks of leave, while protecting employers against

employees tacking their FMLA entitlement on to any paid

leave benefit offered by the employer.

[FN]8

The opening section of the FMLA makes clear

that the purpose of the [FMLA] is “to entitle

employees to take reasonable leave for medical

reasons . . . in a manner that accommodates the

legitimate interests of employers.” 29 U.S.C. §

2601(b).

Strickland, 239 F.3d at 1205-06.

Clearly, Congress intended, and DOL, this Court, federal courts, and

even the Board, have interpreted that an employer has the discretion to require an

employee to substitute paid leave for FMLA leave, thereby preventing an employee

from stacking (i.e., first exhausting paid leave and then taking another 12 weeks off

without pay). See id. Here, despite the Dissent’s interpretation to the contrary, the

Township was permitted, and did properly elect, to prohibit Detective Pierluisse

from using contractual sick leave until her second child was born on January 10,

2018, and then beginning 12 weeks of FMLA leave for the birth and/or care of that

child.

The Board nevertheless declared: “The Township’s mandate in 2017

that Detective Pierluisse take her FMLA leave for her own serious medical condition

46

during pregnancy when she had other contractual paid leave available, had the effect

of reducing her entitlement to [FMLA] leave following the birth of her second

child.” Final Order at 9. However, the Township afforded Detective Pierluisse the

12 weeks of FMLA-protected leave to which she was entitled. In fact, the Township

granted Detective Pierluisse all the time off she requested (even beyond the

minimum 12 weeks), without the risk of losing her job. Detective Pierluisse received

12 weeks of FMLA leave for the consecutive events of her serious health condition

and birth and/or care of her second child (from November 27, 2017 to February 18,

2018), and she used 100 of her contractual sick days from November 27, 2017 until

March 7, 2018, when her physician cleared her to return to work without limitation.56

Thereafter, the Township permitted Detective Pierluisse to use her accrued PTO to

work reduced hours for an additional four weeks. Therefore, as Congress intended,

the FMLA protected her job, while the Township-paid sick leave, long-term

disability insurance, and PTO provided her income (i.e., Detective Pierluisse

received 100% of her wages for the first 90 days of the 12 weeks, 80% of her wages

for 10 days, and PTO thereafter). Accordingly, the Township’s election to have

Detective Pierluisse’s sick leave run concurrently with her FMLA leave did not

reduce her entitlements under the CBA or the FMLA.

2. PLRA/Act 111

Section 5 of the PLRA mandates: “Employes shall have the right to

self-organization, to form, join or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage in concerted activities

for the purpose of collective bargaining or other mutual aid or protection.” 43 P.S.

56

Notwithstanding Detective Pierluisse’s post-Charge claim to the contrary, see R.R. at

22a-23a, there is no medical evidence that she was incapable of performing her job duties after

March 7, 2018. See R.R. at 29a-31a.

47

§ 211.5. Section 6(1) of the PLRA specifies that “[i]t shall be an unfair labor practice

for an employer . . . (a) [t]o interfere with, restrain or coerce employes in the exercise

of the rights guaranteed in th[e PLRA] . . . [and] (e) [t]o refuse to bargain collectively

with the representatives of his employes[.]” 43 P.S. § 211.6(1).

Section 1 of Act 111 more specifically provides:

Policemen or firemen employed by a political subdivision

of the Commonwealth . . . shall, through labor

organizations . . . , have the right to bargain collectively

with their public employers concerning the terms and

conditions of their employment, including compensation,

hours, working conditions, retirement, pensions and other

benefits[.]

43 P.S. § 217.1. Section 4 of Act 111 further authorizes the parties to seek binding

arbitration when necessary. 43 P.S. § 217.4.

Simply stated, Act 111 expressly and broadly requires that

the parties must bargain over legal mandatory subjects of

bargaining . . . before a party may unilaterally change such

benefits. This fundamental mandate of labor law is

applicable regardless of whether the [CBA] expressly

mentions such benefits; whether they have been

incorporated into the [CBA] by reference; or whether the

agreement is silent on that mandatory subject of

bargaining.

City of Erie v. Pa. Lab. Rels. Bd., 32 A.3d 625, 637 (Pa. 2011).

This Court has explained:

Under Act 111, a matter is deemed a mandatory subject of

bargaining if it bears a rational relationship to the

employees’ duties. . . . Thus, any unilateral change by the

[governing body] with respect to the officers’

compensation would be an unfair labor practice in

violation of Section[] 6(1)(a) and (e) of the PLRA.

Pa. State Park Offs. Ass’n v. Pa. Lab. Rels. Bd., 854 A.2d 674, 680 (Pa. Cmwlth.

2004) (citation omitted).

48

Conversely,

managerial prerogatives [a]re not deemed to be subject to

the bargaining process. Borough of Ellwood City . . . . The

rationale for this extra-statutory limitation on bargaining

is that such topics are essential to a municipality in

managing its employees and providing government

services; even more so, certain managerial matters “strike

at the heart of policy decisions that directly implicate the

public welfare, and, thus, should be insulated from the

give-and-take of collective bargaining.” Id. at 600.

Topics that fall into the category of inherent managerial

prerogatives include “the functions and programs of the

public employer, standards of services, its overall budget,

utilization of technology, the organizational structure, and

selection and direction of personnel.” Id. at 599 (citations

omitted). As we stated in City of Philadelphia v.

[International Association of Firefighters], Local 22, [999

A.2d 555, 569-70 (Pa. 2010),] “matters of managerial

decision-making that are fundamental to public policy or

to the public enterprise’s direction and functioning do not

fall within the scope of bargainable matters.”

City of Allentown v. Int’l Ass’n of Fire Fighters Local 302, 157 A.3d 899, 906 (Pa.

2017) (footnote omitted). Moreover, “[w]here a managerial policy concern

substantially outweighs any impact the issue will have on employees, the subject

will be deemed a managerial prerogative and non-bargainable.” Schuylkill Haven

Borough v. Schuylkill Haven Police Offs. Ass’n, 914 A.2d 936, 941 (Pa. Cmwlth.

2006).

[I]t is common sense that the salutary prohibition on

bargaining over inherent managerial prerogatives stems in

part from the nature of the government as an employer. . . .

As we stated in [Pennsylvania Labor Relations Board] v.

State College Area Sch[ool] Dist[rict], . . . 337 A.2d 262,

264 ([Pa.] 1975), “public employers are custodians of

public funds and mandated to perform governmental

functions as economically and effectively as possible.[”]

Borough of Ellwood City, 998 A.2d at 599-600.

49

The Pennsylvania Supreme Court recognized:

[T]he divisions between [mandatory subjects of

bargaining and managerial prerogatives] are not always

clear. One may envision a Venn diagram with topics in

the overlapping space that are terms and conditions of

employment - which are subject to collective

bargaining . . . - that also implicate matters of managerial

responsibility - over which negotiation is not

mandated[.] . . .

In these circumstances, our Court has created a framework

by which to analyze and resolve whether such overlapping

topics are subject to mandatory negotiation . . . , or whether

they are insulated from collective bargaining as a

managerial prerogative and not permitted to be part of

such an award. Borough of Ellwood City (arising in

challenge to ban on use of tobacco products in workplace);

City of Phila[.] (arising in context of closure of fire

companies). Specifically, given the history of Act 111, its

terms, and the interpretation of that legislation by our

Court, when considering topics that . . . may implicate both

mandatory subjects of bargaining and managerial

responsibility, a court should initially determine whether

the topic is subject to the right of collective bargaining -

i.e., whether it is rationally related to the terms and

conditions of employment. If the topic does not speak to

a mandatory subject of bargaining, the inquiry ends . . . .

If the topic is germane to the terms and conditions of the

workplace, the court should next ask whether the award

also implicates a managerial responsibility. If not, [it]

must be upheld as the topic is bargainable[.]

If, however, the topic is both a mandatory subject of

bargaining and implicates managerial responsibilities, the

final inquiry is “whether collective bargaining over the

topic would unduly infringe upon the public employer’s

essential managerial responsibilities.” Borough of

Ellwood City, 998 A.2d at 600 (emphasis added). If

bargaining over the subject would unduly infringe upon

managerial responsibilities, the topic will be considered a

managerial prerogative and non-bargainable . . . . If not,

the topic is subject to mandatory collective

bargaining . . . . Id.; City of Phila[.], 999 A.2d at 570-71.

50

City of Allentown, 157 A.3d at 907-08 (footnote omitted).

Bargainability of Non-Discretionary FMLA Mandate

The Pennsylvania Supreme Court expressed that “Act 111 . . . requires

that the parties must bargain over legal mandatory subjects of bargaining[.]” City of

Erie, 32 A.3d at 637. This Court has also declared:

[T]here must be excluded from the scope of [] Act [111]

and necessarily outside of the definition of bargainable

issues[] any subject which would require the government

employer to perform any duty or to take some action

which is specifically or impliedly prohibited by the

statutory law governing its affairs. Such subjects are

equally beyond the scope of an arbitration award.

Cheltenham Twp. v. Cheltenham Twp. Police Dep’t, 312 A.2d 835, 838 (Pa. Cmwlth.

1973); see also Commonwealth v. Pa. State Troopers Ass’n, 23 A.3d 966 (Pa. 2011)

(upholding Act 111 arbitration award that did not violate Section 5302(b)(2) of the

State Employees’ Retirement Code57); City of Wash. v. Police Dep’t of City of Wash.,

259 A.2d 437 (Pa. 1969)58 (Act 111 arbitration award requiring the city to pay

hospitalization premiums for police officers’ family members vacated because

statute prohibited the city from paying such premiums for anyone not actually

employed by the city); Int’l Ass’n of Firefighters Local 1400, Chester City

Firefighters v. City of Chester, 991 A.2d 1001 (Pa. Cmwlth. 2010) (firefighters’

salary increase could not exceed the Municipalities Financial Recovery Act59 cap);

57

71 Pa.C.S. § 5302(b)(2) (union leave provisions).

58

City of Washington was superseded by statute on other grounds. See AFSCME, Dist.

Council 33 v. City of Phila., 95 A.3d 966 (Pa. Cmwlth. 2014).

59

Commonly referred to as Act 47, Act of July 10, 1987, P.L. 246, as amended, 53 P.S. §§

11701.101-11701.108; 11701.121-11701.123; 11701.141; 11701.201-11701.204; 11701.221-

11701.224.1; 11701.241-11701.252; 11701.254-11701.257; 11701.261-11701.264;11701.281-

11701.282; 11701.301-11701.303; 11701.431-1701.439; 11701.441-11701.447; 11701.601-

11701.610; 11701.701-11701.712.

51

Upper St. Clair Police Offs. Ass’n v. Pa. Lab. Rels. Bd., 689 A.2d 362 (Pa. Cmwlth.

1997); Int’l Ass’n of Fire Fighters, Local 655, AFL-CIO v. City of Bradford, 21

PPER ¶ 21168 (1990) (where the Third Class City Code60 specified that firefighters’

pensions shall be determined by a particular formula, the employer had no duty to

bargain over a different pension formula).

The FMLA and DOL’s Regulations require a covered employer, the

Township herein, which elected to have Detective Pierluisse substitute accrued

vacation and other paid leave for FMLA leave, see 29 U.S.C. § 2612(d)(2)(A), (B);

see also 29 C.F.R. § 825.207, to immediately designate an eligible employee’s leave

as FMLA-qualifying, and begin calculating such leave at the time it commences. As

stated above, Section 2652(b) of the FMLA declares: “The rights established for

employees under th[e FMLA] . . . shall not be diminished by any [CBA] . . . .” 29

U.S.C. § 2652(b); see also 29 C.F.R. § 825.700(a). Therefore, the Township is

expressly prohibited from collectively bargaining over whether and when to

designate and calculate FMLA leave. If the Township was to bargain over such

matters, it would specifically or impliedly violate the law. Accordingly, because

whether and when an employer must designate and calculate FMLA leave is not

discretionary, it is “necessarily outside of the definition of bargainable issues[.]”

Cheltenham Twp., 312 A.2d at 838.

Bargainability of Discretionary FMLA Provision

The FMLA and DOL’s Regulations clearly afford the Township

discretion to have police officers substitute their paid leave for FMLA leave. See 29

U.S.C. § 2612(d)(2); 29 C.F.R. § 825.207. The Board adopted Hearing Examiner

Marino’s conclusion that leave policies and discretionary FMLA provisions are

60

11 Pa.C.S. §§ 10101-14702.

52

mandatorily negotiable under Act 111 and, thus, “the Township was not at liberty to

unilaterally implement a change in its policy to now mandate that Detective

Pierluisse take her FMLA leave for her own serious health condition.” Final Order

at 9. The Township asserts that electing to have FMLA leave run concurrently with

paid leave is a managerial prerogative, which the Township is free to change without

bargaining, because “[r]equiring the Township to bargain over its statutory duty to

designate leave or allowing a[] [police] officer to delay the designation of leave

would unduly impact the Township’s ability to discharge its essential responsibility

to provide adequate police protection and services to its residents.” Township Br. at

43.

The amount of time a public employee is off work may bear a rational

relationship to the employee’s duties (i.e., a mandatory subject of bargaining), and

also affects the Township’s ability to manage its employees and provide government

services (i.e., a managerial prerogative). When a topic is arguably both a mandatory

subject of bargaining and implicates a managerial prerogative, this Court must

determine “whether collective bargaining over the topic would unduly infringe upon

the public employer’s essential managerial responsibilities.” City of Allentown, 157

A.3d at 908 (quoting Borough of Ellwood City, 998 A.2d at 600 (emphasis added)).

This Court has previously held that the scope of a municipality’s

managerial prerogative extends to decisions “which might be considered ‘essential

for the proper and efficient functioning of a police force.’” Int’l Ass’n of Fire

Fighters, Local 669 v. City of Scranton, 429 A.2d 779, 781 (Pa. Cmwlth. 1981)

(quoting City of Sharon v. Rose of Sharon Lodge No. 3, 315 A.2d 355 (Pa. Cmwlth.

1973)). Specifically, “[i]t is well settled that a municipality decides the extent to

which it will provide police coverage and services[,] and that such decisions fall

within the municipality’s managerial prerogative.” Town of McCandless v.

53

McCandless Police Offs. Ass’n, 952 A.2d 1193, 1197 (Pa. Cmwlth. 2008); see also

City of Jeannette v. Pa. Lab. Rels. Bd., 890 A.2d 1154 (Pa. Cmwlth. 2006).

This Court has explained:

The bottom line . . . is whether the court will permit the

members of fire and police forces to decide how much of

the municipal budget will be spent in the areas of fire and

police protection . . . [, or] . . . give the public employees’

union the right to have a major decision-making impact on

government spending, budgeting, the level of police and

fire protection that the municipality must provide, and

even taxation, because salaries for [] additional employees

must come from public funds. [If it does so] . . . , the

[C]ourt [will] effectively put [unions] on an equal footing

with their employer on a major policy-making question.

These people are, after all, employees, not employers.

. . . . [T]he municipality [has] the ultimate decision

concerning what level of [police and/or] fire protection it

wishes, or can afford, to provide to the citizens. If it finds

that . . . situations cause an imbalance in certain areas of

the force, it retains the authority to decide whether to hire

more employees, close stations, revamp the force, or take

some other managerial action. Since the method of

resolving the imbalance may have far-reaching political

and economic implications, especially if taxes must be

raised, it should remain within the purview of those who

were elected and/or appointed to make such decisions.

City of Scranton, 429 A.2d at 781. Accordingly, this Court has ruled that it is within

“the scope of a municipality’s managerial decision-making [to] determin[e] [] the

total number of [police officers] it deems necessary for the level of [] protection it

wishes to afford to its citizens.” Id. at 781-82.

Notably, regarding the FMLA, as the Township argues, see Township

Br. at 7, 43-44, Hearing Examiner Marino has previously concluded:

[I]n balancing the interests of both the [municipality] and

[the officer] (as well as the unit as a whole) as required by

Section 2601 of the FMLA and [Borough of] Ellwood

City, it is clear that the [municipality] has a greater

54

interest. The [municipality] is a public employer operating

a police department. The [municipality] has a managerial

interest in determining the appropriate level of police

service and protection within the community given its

operating budget. Police services are at the heart of a

municipality’s function to provide for the health, safety

and welfare of the community. Because its core

managerial function would be unduly infringed upon (if

the Board required the [municipality] to bargain the

decision of when an employe’s FMLA[-]qualifying leave

could or should be taken), this matter constitutes a

managerial prerogative.

. . . . The [municipality] cannot compromise its duty to fill

[the officer’s] position and provide optimal, budgeted

police coverage as soon as possible. . . . The

[municipality], on behalf of its citizens, has a real interest

in knowing when it can replenish its police complement

with a new officer or welcome [the officer] back into the

police department as a capable officer. Either way, the

[municipality] has a legitimate interest in limiting the

amount of time it maintains a police vacancy when it needs

to fill the position with a capable and healthy officer.

The core managerial functions of a public employer to

provide adequate police protection requires the conclusion

that the [municipality] had a managerial prerogative to

unilaterally place [the officer] on FMLA leave as soon as

it was determined that h[er] leave resulted from a

condition that qualified h[er] for such leave. This

managerial decision protected the [municipality’s] ability

to plan either for [the officer’s] return or h[er] replacement

such that the previous and expected level of police services

could again be provided to the citizens of the

[municipality].

New Cumberland Police Emps. v. New Cumberland Borough, 43 PPER ¶ 28 (PDO,

Aug. 2, 2011).61

61

City of Butler is a proposed decision by a hearing examiner. “The Board is not bound

by proposed decisions[.]” Pa. Emergency Mgmt. Agency v. Pa. Lab. Rels. Bd., 768 A.2d 1201,

1206 (Pa. Cmwlth. 2001). However, Section 95.98(b) of the Board’s Regulations declares: “When

no exceptions are filed to a proposed decision, it will become final upon the expiration of 20-

calendar days from the date of issuance.” 34 Pa. Code § 95.98(b). Further, Section 95.98(d) of

55

In reaching its conclusion to the contrary, the Board relied on City of

Butler and Verizon North, Inc. & International Brotherhood of Electrical Workers,

Local 1637, 352 NLRB 1022 (2008). In City of Butler, a city firefighter suffered a

work-related injury for which he received benefits under what is commonly referred

to as the Heart and Lung Act62 (HLA) while he was off from work. Based on its

view that it was a managerial prerogative over which it did not need to bargain, the

city began calculating the firefighter’s FMLA leave entitlement from when his HLA

leave began, thereby running his FMLA benefits concurrently with his HLA

benefits. The firefighter’s union filed an unfair labor practice charge, arguing that

the city violated its bargaining obligation by mandating that the firefighter use

FMLA leave, despite the fact that he was receiving paid time off pursuant to the

HLA. Without supporting analysis, the hearing examiner simply declared that leave

policies and discretionary FMLA provisions are mandatorily negotiable under Act

111, and concluded that, since the city’s FMLA leave substitution election is

mandatorily negotiable, the city was required to bargain with the union before

implementing such a policy.

In applying the 2001 City of Butler decision to the case at bar, Hearing

Examiner Marino and the Board disregarded the Pennsylvania Supreme Court’s

mandate to analyze “whether collective bargaining over the topic would unduly

infringe upon the public employer’s essential managerial responsibilities.” Borough

of Ellwood City, 998 A.2d at 600 (emphasis added). They also directly contradicted

the more recent and factually similar New Cumberland decision, wherein Hearing

the Board’s Regulations authorizes the Board “on its own motion, [to] decide to review the

proposed decision within 20-calendar days following the date of issuance of the decision.” 34 Pa.

Code § 95.98(d). In light of Section 95.98(b), (d) of the Board’s Regulations, this Court has

concluded that, “hearing examiner decisions have some weight when the Board has left them in

effect[.]” Fraternal Ord. of Police, Star Lodge No. 20 v. Pa. Lab. Rels. Bd., 522 A.2d 697, 700

(Pa. Cmwlth. 1987), aff’d, 560 A.2d 145 (Pa. 1989).

62

Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.

56

Examiner Marino did undertake a Borough of Ellwood City analysis. Although the

Board is not bound by a hearing examiner’s proposed decisions, this Court has held

that “the Board should not disregard consistent trends in the work of its hearing

examiners.” Pa. Emergency Mgmt. Agency v. Pa. Lab. Rels. Bd., 768 A.2d 1201,

1206 (Pa. Cmwlth. 2001).

The Board also based its determination that the Township’s leave

substitution policy was a mandatory subject of bargaining on Verizon North, Inc.,

wherein an employer changed its policy from one that prevented its employees from

taking paid leave benefits before invoking unpaid FMLA leave, to requiring the

concurrent use of both contractual paid leave and unpaid FMLA leave. Therein,

Verizon argued that DOL’s Regulations allowed it to preclude employees from

stacking their FMLA unpaid leave benefits on top of their other paid leave

entitlements. The National Labor Relations Board (NLRB) disagreed, declaring that

an employer may not unilaterally designate FMLA commencement to run

concurrently with other available paid leave benefits without bargaining. However,

as the Township correctly notes, Verizon North, Inc. has since been abrogated by the

United States Supreme Court’s decision in New Process Steel, L.P. v. National

Labor Relations Board, 560 U.S. 674 (2010),63 and the NLRB has not since

reinstated or adopted its analysis. Therefore, as the Township argues, Verizon North,

Inc. “cannot serve as even persuasive authority in this case.” Township Br. at 45.

This Court agrees.

In addition, the Board attempts to carve out an exception for serious

health conditions preceding the birth of a child. See Board Br. at 18. The Board

63

In Verizon North, Inc., although only the NLRB chairman and one member participated,

they constituted a quorum. “In New Process Steel[, L.P.], the United States Supreme Court held

that, in cases such as Verizon North[, Inc.], where the NLRB only had [those] two active members,

the agency could not meet the statutory requirement of a three-member quorum, and therefore, it

lacked the authority to exercise its powers.” Township Br. at 44; see New Process Steel, L.P.

57

claims that, “in the case of an employe’s pregnancy and childbirth, the Township is

required to collectively bargain over its concurrent application of the 12[ ]weeks of

FMLA [leave] to the unlimited sick and disability benefits available for the

employe’s use during her pregnancy under the CBA.” Board Br. at 15 (emphasis

added); see also Final Order at 9. The Board declares: “[T]he unique circumstances

of this case militates in favor of collective bargaining where under the CBA . . . a

serious condition arising out of pregnancy and the birth/care of a newborn were

deemed separate and distinct events . . . for purposes of [the] employe’s contractual

sick leave and the FMLA.” Board Br. at 17 n.7.

In its Reply Brief, the Township rejoins that “[t]he Board’s attempt to

narrow the scope of its decision should be rejected as contrary to the provisions of

the FMLA.” Township Reply Br. at 9. The Township specifically argues: First, the

Board’s Final Order did not limit its decision to such circumstances but, rather,

ordered the Township to “[i]mmediately permit officers to choose when they would

take FMLA leave, and immediately cease requiring officers to commence FMLA

leave concurrently with paid leave benefits[.]” Final Order at 13. Second, the

Board’s position would result in pregnant female employees being treated differently

than male employees, which is contrary to the FMLA’s purpose of making leave

available on a gender-neutral basis,64 and expressly contradicts Section 825.112(b)

of DOL’s Regulations, which declares that “[t]he right to take leave under [the]

FMLA applies equally to male and female employees.” 29 C.F.R. § 825.112(b).

Third, the Board’s concession that the Township has the managerial right to count

64

The FMLA’s purposes include, inter alia, “to . . . minimize[] the potential for

employment discrimination on the basis of sex by ensuring generally that leave is available for

eligible medical reasons (including maternity-related disability) and for compelling family

reasons, on a gender-neutral basis;” and “to promote the goal of equal employment opportunity

for women and men[.]” 29 U.S.C. § 2601(b)(4)-(5).

58

FMLA leave concurrently with paid leave in some situations, but not others, defies

logic.

This Court agrees that police officer staffing “strike[s] at the heart of

policy decisions that directly implicate the public welfare,” Borough of Ellwood

City, 998 A.2d at 600, and “substantially outweighs any impact the issue will have

on employees[’]” working conditions, Schuylkill Haven Borough, 914 A.2d at 941,

“and, thus, should be insulated from the give-and-take of collective bargaining.”

Borough of Ellwood City, 998 A.2d at 600. Accordingly, this Court holds that the

Township’s election to require its police officers to substitute accrued paid leave for

FMLA leave is a managerial prerogative that is not subject to collective bargaining.

Further, considering that, among the FMLA’s purposes are “minimiz[ing] the

potential for employment discrimination on the basis of sex by ensuring generally

that leave is available for eligible medical reasons . . . on a gender-neutral basis[,]”

and “promot[ing] the goal of equal employment opportunity for women and men,”

29 U.S.C. § 2601(b)(4)-(5), no distinction shall be made in the case of an employee’s

pregnancy and childbirth.

3. The Charge

In order to prevail on the Charge, the Union had to prove that the

Township had a policy regarding when FMLA leave for the birth and care of a

newborn child commenced after FMLA leave for a prenatal or pregnancy-related

serious health condition, that it unilaterally changed such policy, and that the

policy was a mandatory subject of bargaining. See Lancaster Cnty.

At the time of Detective Pierluisse’s second FMLA leave, the

Township did not have an FMLA or maternity leave policy governing its police

officers. Rather, when faced for the first and only time with an FMLA-qualifying

event in which an eligible police officer who sought FMLA leave for the birth and/or

59

care of a newborn child, but who first used FMLA-qualifying leave for her own

prenatal- or pregnancy-related serious health condition that rendered her incapable

of performing the essential functions of her job,65 the Township followed federal

law.

In accordance with the FMLA and DOL’s Regulations, the Township

timely notified Detective Pierluisse that her requested leave was FMLA-qualifying,

65

The Township’s handling of Detective Pierluisse’s leave for the birth of her first child in

2016 did not create a past practice that bound the parties relative to the birth of her second child.

Although “[e]vidence of past practice can be used . . . to create or prove a separate, enforceable

condition of employment which cannot be derived from the express language of the [CBA][,]” Pa.

State Corr. Offs. Ass’n v. Dep’t of Corr., State Corr. Inst. at Benner, 244 A.3d 85, 95 (Pa. Cmwlth.

2020) (quoting Penns Manor Area Sch. Dist. v. Penns Manor Area Educ. Support Pers. Ass’n, 953

A.2d 614, 618 (Pa. Cmwlth. 2008) (emphasis omitted)), the past practice “must be shown to be

the accepted course of conduct characteristically repeated in response to the given set of underlying

circumstances.” Pa. State Corr. Offs. Ass’n, 244 A.3d at 95 (quoting Allegheny Cnty. v. Allegheny

Cnty. Prison Emps. Indep. Union, 381 A.2d 849, 852 n.12 (Pa. 1977)). The Pennsylvania Supreme

Court explained that “[a] custom or practice is not something which arises simply because a given

course of conduct has been pursued by [m]anagement or the employees on one or more occasions.

A custom or a practice is a usage evolved by men as a normal reaction to a recurring type situation.”

Allegheny Cnty., 381 A.2d at 853 n.12. “Recurring” is defined in Merriam-Webster’s online

dictionary as “occurring repeatedly : happening or appearing multiple times[.]” www.merriam-

webster.com/dictionary/recurring (last visited Oct. 6, 2022); see also Whitfield v. Workers’

Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018).

Notably, Hearing Examiner Marino has previously held that “[o]ne occurrence . . . does not

constitute a ‘normal reaction to a recurring type of situation’ and therefore the ‘accepted course of

conduct characteristically repeated,’ as required by the Supreme Court.” New Cumberland Police

Emps., 43 PPER ¶ 28 (quoting Allegheny Cnty., 381 A.2d at 852 n.12 (emphasis omitted)); see

also Whitehall Twp., 18 PPER ¶ 18024 (1986) (a single prior mistaken/inadvertent action does not

establish past practice). This Court agrees.

Here, Detective Pierluisse was not an eligible employee when she requested leave related

to the birth of her first child in 2016, since she had not worked the prerequisite 1,250 hours.

Because the FMLA did not apply, the Township was prohibited, as a matter of federal law, from

designating and counting Detective Pierluisse’s 2016 leave as FMLA leave. Under the

circumstances, the Township’s single instance of temporarily and mistakenly characterizing

Detective Pierluisse’s 2016 leave as FMLA leave, when it was not, did not create a policy that

required the Township to calculate Detective Pierluisse’s FMLA leave for a serious health

condition and/or birth and care of her second child from the date that child was born. Notably,

before the Township discovered that Detective Pierluisse was ineligible for FMLA leave in 2016,

it notified her (just like it did on December 5, 2017), that her “FMLA leave will run concurrently

with the receipt of any disability benefits, as permitted by the FMLA[.]” R.R. at 67a.

60

that the Township would designate and count such leave as FMLA leave as of when

such leave began, and that the Township expected her to take vacation and other

paid leave concurrently with the FMLA leave. See 29 U.S.C. § 2612(d)(2); see also

29 C.F.R. §§ 825.207, 825.300. As directed by the FMLA and DOL’s Regulations,

the Township calculated Detective Pierluisse’s 12 weeks of FMLA leave related to

the pregnancy and birth of her second child as of November 27, 2017, the date she

became unable to perform her job duties. See 29 C.F.R. § 825.300(d)(1). The FMLA

and DOL’s Regulations authorized Detective Pierluisse to receive “a total of 12

workweeks of leave during any 12-month period for any one, or more, of the

[qualifying] reasons[.]” 29 C.F.R. § 825.200(a) (emphasis added). Detective

Pierluisse used approximately 6 of her allotted 12 FMLA leave weeks for her

prenatal- and pregnancy-related serious health conditions before the birth of her

second child, and she used the remaining 6 weeks for the birth and care of her second

child. Once those 12 weeks were exhausted, Detective Pierluisse was no longer

eligible for the FMLA’s protection.66 See id.; see also 29 U.S.C. § 2612; WHD Op.

Letter, FMLA 2005-3-A. The only discretion the Township could and did exercise

was its election to have Detective Pierluisse substitute accrued vacation and other

paid leave for FMLA leave, see 29 U.S.C. § 2612(d)(2); see also 29 C.F.R. §

825.207, which is a managerial prerogative and not subject to bargaining.67 See

66

“[S]ome states, such as California, have separate pregnancy/bonding leaves with separate

criteria and separate entitlements.” Fam. & Med. Leave Handbook ¶ 130, FREQUENTLY ASKED

LEAVE QUESTIONS, 2003 WL 25316974. Pennsylvania is not currently among them.

67

Although, as previously discussed herein, there was no past practice upon which the

Board could rely in this case, a past practice cannot abridge a managerial prerogative. See Town

of McCandless; see also S. Park Twp. Police Ass’n v. Pa. Lab. Rels. Bd., 789 A.2d 874 (Pa.

Cmwlth. 2002). “[A] past practice is not binding on a public employer unless that practice is

subject to mandatory bargaining under a [CBA].” State Sys. of Higher Educ. v. Ass’n of Pa. State

Coll. & Univ. Facs., 834 A.2d 1235, 1242 (Pa. Cmwlth. 2003).

To conclude that an employer must bargain collectively with a

bargaining unit over something that may constitute a past practice

but is not a mandatory subject of collective bargaining would bind

61

Town of McCandless; see also City of Jeannette; City of Scranton; New Cumberland

Police Emps. Accordingly, when the Township designated and calculated Detective

Pierluisse’s FMLA leave beginning on the day she became incapacitated by a serious

health condition related to her second pregnancy, the Township did not implement

a new, discretionary policy that was a mandatory subject of bargaining.

Notwithstanding, the Board in this case concluded that “the Township

was not at liberty to unilaterally implement a change in its policy to now mandate

that Detective Pierluisse take her FMLA leave for her own serious medical

condition.” Final Order at 9. However, because the Board was not authorized to

interpret the FMLA, the Board’s interpretation of the FMLA is not entitled to

deference.68 See 29 C.F.R. § 825.701(a); see also Marcellus Shale Coal.; Nw. Youth

Servs., Inc.; Twp. of Bordentown N.J.; MCI Telecomm. Corp.

Conclusion

Based on this Court’s review of the applicable law and relevant record

evidence, it is clear that the Union failed to meet its burden of proving that the

Township unilaterally changed a policy that was a mandatory subject of bargaining.

an employer to virtually all practices including matters of

managerial prerogative extant at the time of negotiating a [CBA] and

arbitrarily expand the parameters of []Act 111.

S. Park Twp. Police Ass’n, 789 A.2d at 879-80.

68

This Court agrees with the Township, see Township Reply Br. at 9-11, that, although the

Board claims that its decision is limited to concurrent use of paid sick leave benefits and FMLA

leave when an employee experiences a serious medical condition due to pregnancy prior to the

birth of a child, see Board Br. at 18, the Board did not similarly limit its remedy to such situations.

See Final Order at 13. Moreover, by creating a distinction between FMLA leave for serious health

conditions related to pregnancy and those that are not, the Board may allow for male and female

employees to be burdened differently, which the FMLA was intended to prevent. See 29 U.S.C. §

2601(b)(4)-(5); 29 C.F.R. § 825.112(b). Finally, the Board’s statement that an employer has the

right to designate FMLA leave to run concurrently with sick leave benefits in situations other than

pregnancy and childbirth suggests that the employer has the right to make such determinations in

some cases but not others, thereby suggesting a managerial prerogative.

62

In reaching a decision to the contrary, the Board misapplied the FMLA and

erroneously concluded that the Township violated its statutory duty to bargain under

Section 6(1)(a) and (e) of the PLRA as read in pari materia with Act 111.

Accordingly, this Court reverses the Board’s Final Order.

_________________________________

ANNE E. COVEY, Judge

63

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Towamencin Township, :

Petitioner :

:

v. :

:

Pennsylvania Labor Relations Board, : No. 789 C.D. 2020

Respondent :

ORDER

AND NOW, this 7th day of October, 2022, the Pennsylvania Labor

Relations Board’s July 24, 2020 Final Order is reversed.

_________________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Towamencin Township, :

Petitioner :

:

v. :

:

Pennsylvania Labor Relations Board, : No. 789 C.D. 2020

Respondent : Argued: June 10, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE FIZZANO CANNON FILED: October 7, 2022

I respectfully dissent from the majority’s reversal of the Final Order of

the Pennsylvania Labor Relations Board (Board). For the reasons explained below,

I would affirm.

I. Scope of the Issues Raised in the Charge

As the majority correctly observes, the Board’s brief asserted it was

“not saying that [Towamencin Township (Township)] cannot require an employe[e]

to run [Family and Medical Leave Act of 19931 (FMLA)] leave entitlement

concurrent[ly] with paid sick leave benefits when experiencing a serious medical

1

29 U.S.C. §§ 2601, 2611-2620, 2631-2636 & 2651-2654.

condition, other than a pregnancy prior to the birth of a child.”2 Accordingly, the

majority reasons that “the Union’s Charge [of Unfair Labor Practices (Charge)] and

the Board’s argument . . . are expressly limited to . . . the Township’s calculation of

FMLA leave for an employee who experiences a prenatal- or pregnancy-related

serious health condition and also seeks FMLA leave for the birth and/or care for a

newborn child . . . .” Towamencin Twp. v. Pa. Lab. Rels. Bd., ___ A.3d ___, ___

(Pa. Cmwlth., No. 789 C.D. 2020, filed Oct. 7, 2022), slip op. (Maj. Op.) at 16 n.23.

On that basis, the majority concludes that, in considering the Township’s policy and

past practice regarding FMLA leave, “the Board erred by relying on the Township’s

actions relative to leave taken by a male police officer for knee and hip surgery.” Id.

(citing Reproduced Record (R.R.) at 44a-45a (six-month leave for knee surgery in

2014 and three-month leave for hip surgery in 2016, with no concurrent running of

FMLA leave in either instance)).

The applicable regulation requires that a charge filed with the Board

must include a “clear and concise statement of the facts constituting the alleged

unfair practice, including the names of the individuals involved in the alleged unfair

practice, the time, place of occurrence and nature of each particular act alleged, and

reference to the specific provisions of the act alleged to have been violated.” 34 Pa.

Code § 95.31. Here, the Charge alleged, in pertinent part:

2

I note that here, Detective Jamie Pierluisse’s physical disability was related to her

pregnancy and the caesarian delivery of her second child, and it lasted for several weeks after the

birth, Proposed Decision & Order at 6, as had also been the case after the birth of her first child.

However, the bargaining unit, consisting of the Officers of the Towamencin Township Police

Department (Union), is not challenging the Township’s right to commence FMLA parental leave

as of the date of birth, in accordance with the Township’s stated policy at the time Pierluisse’s first

child was born, even though the FMLA parental leave ran concurrently with available sick leave

for the first few weeks.

CFC-2

12. Policy concerning implementation of FMLA leave is

a mandatory subject of bargaining.

13. [The Township’s] change in the commencement of

FMLA for the birth of a child on December 5, 2017, was

a unilateral change in working conditions without

bargaining with the [Union].

14. In unilaterally changing the FMLA policy on

December 5, 2017, the [] Township violated an established

past practice regarding the implementation of FMLA leave

with regard to childbirth coverage.

R.R. at 5a. At the time the Township changed its policy3 on December 5, 2017,

Pierluisse was off work at her doctor’s recommendation. Bd.’s Final Order at 3. In

other words, she was off because of pregnancy-related sickness or disability, not for

parental leave following the birth of her child, which did not occur until January 10,

2018. See id. Therefore, the Township’s placement of Pierluisse on FMLA leave

as of December 5, 2017 necessarily constituted a change to the sick leave policy.

Thus, the effects of the Township’s policy change on sick leave and parental leave

under the FMLA were not merely related, but inextricably intertwined.4 Therefore,

3

As found by the hearing examiner, the Township’s witness “admitted that he changed the

Township’s FMLA policy with respect to designating the commencement of leave as soon as an

officer is out of work instead of permitting the officer to defer FMLA leave and utilize short-term

disability at full pay under the [collective bargaining agreement (CBA)].” Proposed Decision &

Order at 16; see also Bd.’s Final Order at 13 (making absolute and final the hearing examiner’s

Proposed Decision & Order).

4

By contrast, in Teamsters Local Union 77, Turnpike Commission and Public Service

Employees v. Pennsylvania Labor Relations Board, 492 A.2d 782, 784-85 (Pa. Cmwlth. 1985), an

unfair practice charge alleged improper electioneering outside a polling area. This Court upheld

the Board’s refusal to consider unrelated allegations of maintaining an illegal check-off list to

determine who had voted and illegally promising voting employees a party after the election. Id.

at 784-85. Likewise, in Teamsters Local Union No. 384 v. Kennett Consolidated School District,

37 PPER ¶ 89 (2006), cited by the majority, the Board noted “a clear distinction between a claim

of unfair practices for discriminatorily subcontracting to avoid a union organizing campaign,”

which was alleged in the union’s charge, and an unrelated “claim of unlawful surveillance and

interrogation of employe[e]s,” which was not within the scope of the union’s charge. Id.

CFC-3

the Township’s past practice of allowing police officers to use paid sick leave

without concurrently exhausting their FMLA leave was relevant in adjudicating the

Township’s treatment of Pierluisse’s leave. For that reason, I would hold that the

issue of the Township’s unilateral change to its sick leave policy was fairly

subsumed in the Union’s Charge regarding the Township’s application of the FMLA

to Pierluisse. Accordingly, I differ from the majority view and would hold that the

Union’s Charge in this case was sufficient to allow consideration of past practice

regarding sick leave other than pregnancy.

In this regard, I also disagree with the majority’s suggestion that the

hearing examiner and the Board improperly broadened the issues raised in the

Charge. The hearing officer described the issue raised by the Charge as

whether the Township violated Section 6(1)(a) and (e) of

the [Pennsylvania Labor Relations Act (PLRA)5] as read

with Act 111[6] when it designated the commencement of

FMLA leave for . . . Pierluisse when she left work for an

FMLA[-]qualifying event resulting from her incapacity to

perform police officer duties due to her second pregnancy

and when she desired to use negotiated paid leave benefits

instead of FMLA[-]designated leave, as the Township

permitted during her first pregnancy.

Proposed Decision & Order at 8. The Board described the issue as

whether an employer is required to collectively bargain

over the discretionary aspects of the FMLA before

implementing a leave policy prohibiting the “stacking” of

leave benefits where two FMLA-qualifying absences

occur back-to-back, such as here, where the employe[e]

suffered her own serious health condition w

This text is long and has been trimmed here. Open the source document for the complete record.