On August 28, 2018, the Appellate Division affirmed a Public Employment Relations Commission (“PERC”) decision holding that setting a school calendar, for both students and teachers, is a non-negotiable managerial prerogative. West Morris Regional High School Board of Education v. Morris Regional Education Association, App. Div. Dkt. No. A-2174-16T4. The West Morris Regional High School District (“District”) filed a scope of negotiations petition with PERC as they anticipated changing the school calendar. The previously negotiated contract included the following language:
Effective July 1, 2004, teachers employed on a [ten] month basis shall be employed from September 1 through June 30 and shall report to work in accordance with the calendar adopted by the Board not to exceed 184 days of work for teachers, and not to exceed 181 days of instruction for students. (emphasis added).
The Board contended that the above language should be removed from the contract as it impeded its managerial prerogative to change the start date of the school year without affecting employees’ salaries and that the school calendar was an educational policy goal that did not require mandatory negotiation. The Morris Regional Education Association (“MREA”) argued that its members would be negatively impacted if the MREA could not negotiate the school calendar, although they acknowledged that “the precise impact of any future action cannot be fully ascertained at this time.”
PERC found that the contract language was not enforceable as it relates to a non-negotiable managerial prerogative. PERC stated "[i]t is well settled that the setting of a school calendar in terms of when school begins and ends is a non-negotiable managerial prerogative," citing to Burlington Ctv. Coll. Faculty Ass'n v. Burlington Ctv. Coll. Bd. of Trs., 64 N.J. 10, 15-16 (1973). PERC also relied on N.J.S.A. 18A:36-2, which provides that "the board of education shall determine annually the dates, between which the schools of the district shall be open.”
On appeal, the MREA argued that N.J.S.A. 18A:36-2 only applies to setting the students’ calendar. Although this argument had not been raised at PERC and the
Appellate Division generally will not address those issues not raised below, it chose to address this issue, stating:
The Association’s distinction between the two calendars undercuts the managerial prerogative that it acknowledges. If the teachers’ calendar were negotiable as the Association suggests, the student calendar would be controlled by it because that calendar would only be set within the teachers’ calendar.
The Court cited the three part test PERC applies to the scope of negotiations determinations, as set forth in In re Local 195, IFPTE, 88 N.J. 393, 403 (1982). An issue is negotiable when:
the item intimately and directly affects the work and welfare of public employees;
the subject has not been fully or partially preempted by statute or regulation; and
a negotiated agreement would not significantly interfere with the determination of governmental policy. 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.
The Court held that setting the calendar was a non-negotiable managerial prerogative. The Court also distinguished setting the calendar from the issue raised in Piscataway Twp. Educ. Ass'n v. Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 265 (App. Div. 1998) wherein the Court required the District to negotiate the impact of a calendar change with the Association.
The apparent dichotomy between the West Morris decision (setting the calendar in advance) and the Piscataway decision (changing a calendar that was previously set) is best explained by reviewing the facts in each of the cases. In Piscataway the Superintendent changed the school calendar during the school year because of unexpected snow days. Certain school holidays were cancelled and days were added to the end of the school year. The Association filed an Unfair Practice charge against the District. PERC dismissed the charge citing Edison Tp. Bd of Ed. V. Edison Tp. Ed. Ass’n, App. Div. Dkt. No. A-5164-77 (9/21/79) for the proposition that “impact issues” related to a managerial prerogative are non-negotiable. The Court disagreed with PERC’s reliance on Edison and sought to clarify the “misunderstanding” which arose as a result of Edison. The Court in Piscataway explained the difference between when a school calendar is non-negotiable and when there is a duty to negotiate the impact of that change by citing to Local 195, IFPTE, 88 N.J. at 404-405, stating:
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 would significantly or substantially encroach upon the managerial prerogative. If the answer is yes, the duty to bargain must give way. If the answer is no, bargaining should be ordered.
The issue is fact specific. West Morris the Board was looking to take the future action of setting a school calendar and the Association could not point to any specific impact this would have on employees. In Piscataway, the changing of a school calendar to make up days because of snow did have a present impact on employees as some of those had already made plans based upon the school calendar in place for that year. Therefore, Boards should be cognizant of the distinction. If the Board is setting a calendar and providing advance notice to the Association, that is a non-negotiable managerial prerogative. However, if the Board has adopted a calendar and then seeks to change it due to unforeseen circumstances, it is likely that the impact of that change must be negotiated with the Association.
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