SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7215-95T2
PISCATAWAY TOWNSHIP EDUCATION
ASSOCIATION,
Appellant,
-v-
PISCATAWAY TOWNSHIP BOARD OF EDUCATION,
Respondent.
_______________________________________________
Submitted November l8, l997 - Decided January
14, 1998
Before Judges Long, Stern and Kleiner.
On appeal from the Public Employment Relations
Commission.
Klausner & Hunter, attorneys for appellant
(Stephen E. Klausner, of counsel and on the
brief).
David B. Rubin, attorney for respondent.
Robert E. Anderson, General Counsel, Public
Employment Relations Commission (Mr. Anderson,
of counsel and on the brief).
The opinion of the court was delivered by
LONG, P.J.A.D.
On this appeal, the Piscataway Township Education Association
(Association) challenges a determination of the Public Employment
Relations Commission (PERC) dismissing the unfair practice charge
the Association filed against the Piscataway Township Board of
Education (Board). In its charge, the Association alleged that the
Board violated the Employer-Employee Relations Act, N.J.S.A.
34:l3A-l et seq., when it did not negotiate with the Association
over changes in the school calendar and over the impact of those
changes on Board employees.
The law governing the question of the need to negotiate a
change in the school calendar is clear. Such a change is a
managerial prerogative of the school administration which cannot be
bargained away. As such, it need not be negotiated. Burlington
Cty College Faculty Ass'n v. Bd. of Trustees, 64 N.J. l0 (l973).
The law governing the question of whether the impact of such a
calendar change on the work and welfare of public employees needs
to be negotiated is equally clear, although widely misunderstood.
In this opinion, we will endeavor to resolve this misunderstanding
which has arisen out of misplaced reliance on our unreported
opinion in Edison Tp. Bd. of Ed. v. Edison Tp. Ed. Ass'n, App. Div.
Dkt. No. A-5l64-77 (9/2l/79) which held that impact issues related
to a managerial prerogative are non-negotiable. In fact, in Bd. of
Ed. of Woodstown-Pilesgrove v. Woodstown-Pilesgrove Ed. Ass'n, 8l
N.J. 582 (l980) the Supreme Court rejected this rule and declared
that terms and conditions of employment arising as impact issues
are indeed mandatorily negotiable unless negotiations would
significantly interfere with the exercise of the related
prerogative. We reiterate that holding here and conclude that in
light of Woodstown-Pilesgrove our opinion in Edison Tp. should not
be followed.
The facts underlying the unfair practice charge are basically undisputed.See footnote 1 The Board and Association were parties to a l992-95 collective agreement which contained the following School Calendar clause in Article 17:
SCHOOL CALENDAR
The Superintendent shall prepare the annual school calendar consistent with N.J.S.A. l8A-25.3 and other pertinent regulations of the State Board of Education. The Superintendent shall meet and confer with the representative of the Association to discuss distribution of holidays.
Work Year
The total in-school work year for teachers
shall not exceed one hundred eighty-six (l86)
scheduled work days which shall be reduced by
emergency closing except that teachers may be
required to report for work during unscheduled
emergency closing resulting from student
disruptions or situations which require the
participation of teachers in the solution,
problems or planning of procedures dealing
with the emergency.
State Aid
In the event of any emergency, or unusual
reason notwithstanding anything contained in
the Article to the contrary, the Board may
require a teacher to work in order to meet the
minimum requirements of the law to receive
state aid.
The original l993-94 school calendar included l86 work days for teachers. There were 20 scheduled work days in January with January l7 scheduled off for the Martin Luther King holiday; l8 scheduled work days in February with February l8 and 2l scheduled
off for mid-winter recess; l9 scheduled work days in March with
March 28, 29, 30 and 3l scheduled off for spring recess; l9
scheduled work days in April with April 1 and 4 scheduled off for
spring recess; 2l scheduled work days in May with May 30 scheduled
off for Memorial Day; and, l4 scheduled work days in June with the
last work day scheduled for Monday, June 20. After June 20, there
were eight more weekdays remaining in June. A statement at the
bottom of the calendar provided that: "If schools are closed for
inclement weather, make-up sessions will begin on June 2lst and
continue as needed." Three inclement weather work days had already
been included in the calendar.
The winter of l993-94 was extremely harsh. The Piscataway
schools were closed a total of twelve days. There were eight snow
days in January l994, three snow days in February, and one snow day
in March. Although three snow days had been built into the
calendar, the Board still needed to make up 9 days.
During January l994, as more and more school days were being
lost to weather emergencies, Superintendent Philip Geiger, Director
of Personnel Gordon Moore, and others, were discussing how to make
up the lost school days. They considered extending school beyond
the June 20th closing date but there were several problems with
that option. First, there were only eight days available in June
and it might not be enough time if more snow days were taken in
late January, February, or March. Second, graduation had to be
scheduled in June well in advance to allow for adequate planning.
Third, many parents and other citizens opposed extending school to
the end of June. Fourth, the schools were not air-conditioned and
there could be many hot days in late June. The Superintendent also
considered using some of the mid-winter and spring recess days as
make-up days.
By January 28, l994, the Board had already lost eight days due
to snow and ice. On that date, Superintendent Geiger sent a letter
to parents and guardians indicating that the last five days had to
be made up. He indicated he would recommend the Board eliminate
school holidays scheduled for February l8 and 2l, and April 4, and
use those days as make-up days, with additional make-up days to be
added to the end of the school year. He noted that his
recommendation had been developed in consultation with the leaders
of the Districts' parent organizations, but he invited additional
input be provided to the Board.
That same day, Geiger sent a copy of this letter to the
faculty and staff members. He advised the employees of his
recommendation but asked for their thoughts. He was interested in
knowing whether his recommendation would cause anyone "irreparable
harm." He noted that if the three holiday days were used, the two
remaining days (of the original five days that needed to be made
up) would be added at the end of the year.
Association President Giovanne Musto received this information
about the time it issued, but neither Superintendent Geiger, nor
any Board member, contacted, discussed or negotiated with the
Association over the scheduling of the make-up days.
A Board meeting was held on Wednesday, February 2, l994, at
which the make-up days and school calendar changes were discussed
and decided. Association President Musto was aware that Geiger's
recommendation on make-up days would be considered at that meeting,
but Musto did not make a demand to negotiate over the make-up days
prior to that meeting.
At the meeting, the Board broadened Geiger's recommendation
and decided to open school on February l8 and 2l; March 28, 29 and
30; and April 4 as make-up days. Geiger informed all the employees
of the Board's decision by letter of February 4, l994. Geiger also
advised the employees that those who would suffer "severe
consequences" would be given special consideration to use personal
or unpaid leave. Office, custodial and maintenance employees were
told that in place of April 4, they would be given another floating
holiday. Finally, Geiger advised the employees that if no other
school days were lost, school could end on June l7, instead of June
20, because of the three snow days built into the schedule. The
Board did not negotiate with the Association over the calendar
changes, or over the impact of the changes on unit members.
Pursuant to Geiger's offer to consider special personal leave
circumstances during the previously scheduled mid-winter or spring
recesses, several requests were approved for vacations and use of
personal leave. They included situations where tickets could not
be refunded, and where leave without pay was granted. The Board
did not negotiate with the Association over the decision to grant
the special requests.
On February 8, l994, Geiger sent a letter to parents and
guardians informing them of the Board's decision to conduct school
on February l8 and 2l, March 28, 29 and 30, and April 4 as make-up
days.
In a February l4, l994 letter to the Board, Musto, on behalf
of the Association, made a demand to negotiate the impact of the
calendar changes on Association membership. Musto noted that the
calendar changes were made without consultation with the
Association; constituted a change in terms and conditions of
employment; and would cause financial loss to some individuals.
The Board neither negotiated, met, nor conferred with Musto
regarding the changes.
On February l8, l994, Geiger wrote Musto informing him that
the Board was not required to negotiate over the make-up day
scheduling, but he offered to informally discuss the matter.
After the last snow day on March 3, l994, the Board developed
a revised l993-94 calendar for the remainder of that school year.
It reflected the days that had been scheduled as make-up days which
included February l8 and 2l; March 28, 29 and 30; April 4; and,
June 2l, 22 and 23, l994. The three snow days built into the
original schedule were not made up, thus, the final number of
teacher work days was l83, not l86.
On these facts, a hearing examiner recommended that the
complaint be dismissed. He concluded that the Board had a
contractual right to reschedule the school days. Relying on our
unpublished opinion in Edison Tp. Bd. of Ed. v. Edison Tp. Ed.
Ass'n, App. Div. Dkt. No. A-5l64-77 (9/2l/79), NJPER Supp.2d 66
(¶47 App. Div. l979), certif. denied,
82 N.J. 274 (l979) and on
Middletown Tp. Bd. of Ed., P.E.R.C. No. 96-30, 2l NJPER 392 (¶2624l
l995), he also concluded that the Board did not have a duty to
negotiate over any impact issues. The Association did not file
exceptions and PERC chose not to review the case. Thus, the
hearing examiner's report became final under N.J.A.C. l9:l4-8.2.
The Association appeals, contending that the Board had no right to
amend the school calendar without negotiation and that, in any
event, the Board erred in refusing to negotiate the impact of the
change in the calendar.
The resolution of the first issue is relatively straightforward. N.J.S.A. 34:l3A-5.3 entitles public employees in an appropriate negotiations unit to select a majority representative to negotiate over their "terms and conditions of employment." See D'Arrigo v. New Jersey State Bd. of Mediation, ll 9 N.J. 74, 78 (l990); Lullo v. IAFF, 55 N.J. 409, 426 (l970). However, it is well-established that the establishment of a school calendar is not a "term and condition of employment" but a "major educational determination which traditionally has been the exclusive responsibility" of school administrations. Burlington Cty. College Faculty Ass'n v. Bd. of Trustees, 64 N.J. l0 (l973). The Board thus did not have to negotiate with the Association
before decidingSee footnote 2 to open schools on days previously scheduled as
recess days.
As we have indicated, the impact issue is more complicated, procedurally as well as substantively. It is a procedural oddity
in that the position advanced by PERC in its appellate brief, written at our request after initial submission, is contrary to the position the agency has taken in similar cases in the past, and to the result reached in this case. Presumably the brief was filed with PERC's approval and we accept the argument set forth therein as the position of that agency. The anomaly is that our adoption of the legal position in PERC's brief will result in a reversal of its order on appeal.
Substantively, some background is in order. The l968 Act required negotiations over "terms and conditions of employment." N.J.S.A. 34:l3A-5.3. This phrase was not defined, but the l973 Dunellen trilogy supplied this negotiability test: mandatorily negotiable subjects intimately and directly affect the employees' work and welfare, but do not significantly interfere with the employer's educational responsibilities. Englewood Bd. of Ed. v. Englewood Teachers Ass'n, 64 N.J. l, 7 (l973); Burlington Cty. College Faculty Ass'n v. Bd. of Trustees, 64 N.J. l0, l4 (l973);
Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n, 64 N.J. l7, 25 (l973).
Such subjects as compensation, work hours, work loads, and personal
and other leaves of absence are considered to be "terms and
conditions of employment" under that test. Englewood at 8-9;
Burlington at l4.
In l974, the Legislature empowered PERC to make scope of
negotiations determinations. N.J.S.A. 34:l3A-5.4(d). The
amendment did not affect the continuing viability of Dunellen's
negotiability test. Ridgefield Park Ed. Ass'n v. Ridgefield Park
Bd. of Ed., 78 N.J. l44, l56 (l978); In re Byram Tp. Bd. of Ed.,
l52 N.J. Super. l2, 22 (App. Div. l977). In exercising its new
jurisdiction, PERC distinguished between non-negotiable decisions
and negotiable impact issues involving terms and conditions of
employment. In Rutgers, The State Univ., P.E.R.C. No. 76-l3, 2
NJPER l3, l5-l6 (l976), PERC stated:
In this regard a distinction must be
drawn between a public employer's activities
concerning terms and conditions of employment,
and ... a public employer's activities
concerning matters other than terms and
conditions of employment, but having an effect
or impact on terms and conditions of
employment. In the first instance, the
employer's activities deal with terms and
conditions of employment and thus are subject
to the negotiations obligations indicated
above. An obvious example would be an
employer's proposal to increase or decrease
salaries. As the proposal concerns a term and
condition of employment, it may not be
effectuated unilaterally.
In the second instance, the employer's activities deal with matters other than terms and conditions of employment and may therefore be undertaken unilaterally, except that the resultant impact on terms and conditions of
employment is subject to the negotiations
obligations. An example would be a private
employer's decision to manufacture an
additional product line, creating a need to
purchase new manufacturing equipment and to
hire new unit employees. The managerial
decision may be undertaken unilaterally, but
the wages, hours, fringe benefits, etc. of the
new unit employees -- terms and conditions of
employment -- may not be effectuated
unilaterally. [Footnote omitted]
Similarly, in Maywood Bd. of Ed., H.E. No. 78-l,
3 NJPER 244
(l977), a PERC Hearing Examiner applied the decision/impact
dichotomy. He held that negotiations were not required over a
decision to reduce the work force, but were required over the
effect of that reduction on a librarian who had been laid off and
on retained teachers whose workload and pupil contact time had been
increased. PERC adopted these rulings. P.E.R.C. No. 78-23,
3 NJPER 377 (l977).
On appeal, the employer contested the impact rulings and we
reversed. In re Maywood Bd. of Ed., l
68 N.J. Super. 45 (App. Div.)
certif. denied, 8l N.J. 292 (l979). With respect to both the
librarian who had been laid off and the impact of the reduction in
force on the retained teachers whose workload and pupil contact
time had been increased because of the layoffs, we ruled that there
could not be negotiations given the employer's prerogative to lay
off employees. Id. at 55.
These basic rulings in Maywood fully conformed with PERC's
previously expressed views in Rutgers. The essence of Maywood was
that no issues were raised that could be negotiated without
frustrating the employer's prerogative to reduce its work force.
Inexplicably, the Maywood panel went a step further and appeared to
reject the negotiability of impact issues altogether in the absence
of a legislatively established permissive negotiations category.
Id. at 56-58. See Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd.
of Ed., 78 N.J. l44 (l978). However, PERC had never premised its
previous impact rulings on the existence of a permissive category
but had directly held that the impact of changes in the terms and
conditions of employment such as compensation, workload, work
hours, and leaves is a mandatorily negotiable term or condition of
employment. See e.g., Rutgers, supra. See also Burke v. Bowen,
49 A.D.2d 904,
373 N.Y.S.2d 387 (N.Y.A.D. l975), aff'd
40 N.Y.2d 264,
386 N.Y.S.2d 654,
353 N.E.2d 567 (l976) cited in Maywood
(the impact of an employer's decision to lay off firefighters is
mandatorily negotiable).
This brings us to Edison Tp. Bd. of Ed. v. Edison Tp. Ed.
Ass'n, supra. In that case, the teachers' representative filed an
unfair practice charge against the Board for canceling, without
negotiations, a holiday and part of spring break to make up for
snow days. PERC dismissed this charge, concluding that the board
had a prerogative to reschedule work days to ensure l80 days of
instruction. Edison Tp. Bd. of Ed., P.E.R.C. No. 78-53, 4 NJPER
l5l (¶4070 l978). However, the last paragraph of its opinion
distinguished the non-negotiability of that decision from the
negotiability of the detrimental effects (impact) upon employees:
[T]he Association set forth several
examples of the detrimental effects on the
teachers' personal and financial welfare.
These effects, such as lost employment
opportunities, trip deposits, and altered
family holiday plans were all alleged to be
the result of the rescheduling of school days
into what had previously been scheduled to be
non-school days. While it is our under
standing that this impact was not alleged as a
separate unfair practice and thus does not
alter our decision to dismiss the unfair
practice charge which sought negotiation of
the days themselves, we point out that these
effects do constitute an impact on the
employees which would require the Board to
negotiate with the Association prior to the
implementation of the alteration in the school
calendar. Such negotiations need not, as
stated above, involve the actual change in the
days but rather would be limited to ways to
ameliorate the effects of these changes on the
employees. [Footnote omitted]
When the representative sought to negotiate over such issues,
the board refused. The representative filed a second charge and
asserted that teachers had been forced to cancel trips and lose
non-refundable deposits or to use personal days to complete trips.
PERC ordered the board to negotiate over these detrimental effects.
Edison Tp. Bd. of Ed., P.E.R.C. No. 79-l,
4 NJPER 302 (¶4l52 l978).
The school board appealed. In a per curiam opinion, we reversed
the order to negotiate stating that:
In essence respondents' theory is that
even if the school calendar is nonnegotiable
..., any "impact" upon the terms and
conditions of the employment produced by a
required rearrangement of that calendar must
nonetheless be negotiated. We disagree. We
are satisfied that the matter is controlled by
the principles recently recognized in In re
Maywood Board of Education, l
68 N.J. Super. 45
(App. Div. 1979), certif. den. 8l N.J. 292
(l979), with which principles this Part is in
accord.
[Edison Tp. Bd. of Ed. v. Edison Tp. Ed. Ass'n, App. Div.
Dkt. No. A-5l64-77 (9/2l/79), NJPER Supp.2d 66 (¶47 App.
Div. l979).]
Certification was denied and since l979, Edison Tp. has been cited
for the proposition that impact issues related to the exercise of
a prerogative are non-negotiable. More particularly, Edison Tp.
has been cited as precluding negotiation of the impact of calendar
changes. Middletown Tp. Bd. of Ed. v. Middletown Ed. Ass'n.,
P.E.R.C. No. 96-30, 2l NJPER 392 (¶2624l l995).
In l980, however, the Supreme Court decided Bd. of Ed. of
Woodstown-Pilesgrove v. Woodstown-Pilesgrove Ed. Ass'n, 8l N.J. 582
(l980). There an employer exercised its prerogative to change the
school calendar by adding two hours of instruction on the day
before Thanksgiving. The teachers in turn sought payment for those
additional work hours. We held that this compensation issue was
mandatorily negotiable. Bd. of Ed. of Woodstown-Pilesgrove v.
Woodstown-Pilesgrove Ed. Ass'n, l64 N.J. Super. l06 (App. Div.
l978). The Supreme Court agreed. Rather than ending all further
inquiry if an employer has acted pursuant to a prerogative, the
Court stated that further analysis may be required when the impact
of the exercise of a prerogative is involved. Id. at 588-89. The
Court thus rejected the suggestion that all impact issues related
to a prerogative are necessarily non-negotiable. However, the
Court also rejected the Commission's decision/impact dichotomy to
the extent it had attempted "always" to reconcile managerial
prerogatives and terms and conditions of employment by "isolating
and focusing solely upon the impact or effect of a managerial
decision...." Believing that this approach would "frustrate
prerogatives," the Court adopted a balancing test requiring that
the "nature of the terms and conditions of employment must be
considered in relation to the extent of their interference with
managerial prerogatives." Id. at 589-9l. Under that test, "[w]hen
the dominant issue is an educational goal, there is no obligation
to negotiate and subject the matter, including its impact, to
binding arbitration." Id. at 591. But "[i]t is only when the
result of bargaining may significantly or substantially encroach
upon the management prerogative that the duty to bargain must give
way to the more pervasive need of education policy decisions." Id.
at 593. Terms and conditions of employment arising as impact
issues are thus mandatorily negotiable unless negotiations would
significantly interfere with the related prerogative. In so
holding, the Supreme Court essentially rejected the contrary
approach articulated in Maywood and its progeny, namely, Edison Tp.
We recognized the import of Woodstown-Pilesgrove in City of
Elizabeth v. Elizabeth Fire Off., l
98 N.J. Super. 382 (App. Div.
l985). There, we agreed with PERC that an employer could require
employees on sick leave to submit doctors' notes verifying their
illness, and also that the impact issue of who pays for health
examinations was severable and mandatorily negotiable:
It is clear that the finding of a
connection between a managerial prerogative
and an issue sought to be negotiated does not
automatically bar negotiability. Indeed
nearly every determination by management in
the public sector will, in some measure,
implicate the governmental policy making
function. It is for this reason that in Local
l95 the Supreme Court required the showing of
a "significant" interference with managerial
prerogative in order to preclude negotiation.
88 N.J. at 404. The Court went on to
explicate the significant interference concept
this way:
To decide whether a negotiated
agreement would significantly
interfere with the determination of
governmental policy, it is necessary
to balance the interests of the
public employees and the public
employer. When the dominant concern
is the government's managerial
prerogative to determine policy, a
subject may not be included in
collective negotiations even though
it may intimately affect employees'
working conditions. [88 N.J. at
404-405]
We think that the commission struck the
proper balance in this case. By holding that
the city had a managerial prerogative to
require sick leave verification at any time,
the commission protected the governing body's
interest in identifying and dealing with sick
leave abuse. By severing the question of who
pays for the required doctors' reports, the
commission protected the legitimate economic
interests of employees in avoiding unnecessary
financial obligations and in negotiating a
full package of health care benefits.
Together, these holdings accommodate the
legitimate interests of management and labor
without unduly interfering with managerial
prerogative.
We view the situation in this case as falling rather clearly within the reasoning expressed in Woodstown-Pilesgrove. The kinds of facts justifying a bar against negotiability as established in Local l95 simply are not present here. Since we find no significant interference with the determination of governmental policy, there is no reason for us to interfere with a decision of the commission which we view as entirely correct.
[Id. at 386-388.]
Woodstown-Pilesgrove is equally applicable here. As such, the
hearing examiner's decision, which ultimately became the decision
of PERC, was wrong insofar as it determined as a matter of law that
"the impact of required calendar changes necessitated by weather
related closings is non-negotiable" under Edison Tp. In other
words, the mere connection between the exercise of a managerial
prerogative and the impact of that exercise on employees does not
render the impact issue non-negotiable. In each case, a
determination should be made under Woodstown-Pilesgrove whether
negotiating the impact issue would significantly or substantially
encroach upon the management prerogative. If the answer is yes,
the duty to bargain must give way. If the answer is no, bargaining
should be ordered.
Accordingly, we reverse and remand the case to PERC for
reconsideration of the issues presented here in light of the legal
standard to which we have adverted.
Footnote: 1 These are the facts as found by the hearing examiner. Footnote: 2 Burlington also holds that the days of work of individual teachers are mandatorily negotiable, provided the negotiations are conducted in light of the school calendar. Id. at l2. Given that boards must offer at least l80 days of instruction each year, the Commission has limited negotiations over teacher work year to those days exceeding that minimum. Edison Tp. Bd. of Ed., P.E.R.C. No. 78-53, 4 NJPER l5l (¶4070 l978).