WEST MORRIS REGIONAL HIGH SCHOOL BOARD OF EDUCATION VS. WEST MORRIS REGIONAL EDUCATION ASSOCIATION (NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2173-16T4
WEST MORRIS REGIONAL HIGH
SCHOOL BOARD OF EDUCATION,
Petitioner-Respondent,
v.
MORRIS REGIONAL EDUCATION
ASSOCIATION,
Respondent-Appellant.
_______________________________
Argued May 23, 2018 – Decided August 28, 2018
Before Judges Koblitz and Suter.
On appeal from the New Jersey Public
Employment Relations Commission, P.E.R.C. No.
2017-29.
Samuel B. Wenocur argued the cause for
appellant (Oxfeld Cohen, PC, attorneys; Samuel
B. Wenocur, on the brief).
Matthew J. Giacobbe argued the cause for
respondent West Morris Regional High School
Board of Education (Cleary, Giacobbe, Alfieri
& Jacobs, LLC, attorneys; Matthew J. Giacobbe,
Gregory J. Franklin and Jessica V. Henry, of
counsel and on the brief).
Christine R. Lucarelli, Deputy General
Counsel, argued the cause for respondent New
Jersey Public Employment Relations Commission
(Robin T. McMahon, General Counsel, attorney;
Christine R. Lucarelli, on the statement in
lieu of brief).
PER CURIAM
The West Morris Education Association (Association) appeals
from a determination by the Public Employment Relations Commission
(PERC) on December 22, 2016, that the start and end date of the
school calendar was a non-negotiable managerial prerogative. We
affirm PERC's decision.
The West Morris Regional High School Board of Education
(Board) and the Association negotiated a collective bargaining
agreement (contract) for the period from July 1, 2013 to June 30,
2016. On June 20, 2016, during its negotiation of a successor
contract with the Association, the Board filed a scope of
negotiation petition with PERC that requested PERC's determination
about a claimed managerial prerogative. In the parties' earlier
contract, Article VII, Section A entitled "Work Year/Work Day/Work
Load" provided that:
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).]
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The Board contended the phrase "shall be employed from September
1 through June 30" must be "removed from the [a]greement because
it unlawfully interferes with the Board's managerial prerogative
to establish the school calendar." The Board argued it could
exercise 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 Association opposed the petition, contending that its
members would be negatively impacted if the Association could not
negotiate the school calendar. However, it stated the "precise
impacts of any future action cannot be fully ascertained at this
time." If the Board had a different start date for any one school,
the Association argued there would be a lack of cohesiveness.
Also, starting school in the summer months could cause health
concerns because some schools did not have air conditioning. The
Association admitted that the "actual impact of changing the
calendar may currently be unknown, [but] it will be significant."
The Association also argued the number of teaching days could not
be changed and any change should not apply to the contract that
was in effect.
PERC's December 22, 2016 decision held that "the contested
clause[,] ["shall be employed from September 1 through June 30,"]
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is 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 Cty.
Coll. Faculty Ass'n v. Burlington Cty. Coll. Bd. of Trs., 64 N.J.
10, 15-16 (1973). PERC 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 . . . ."
It rejected the Association's argument that Piscataway Twp. Educ.
Ass'n v. Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 267-
68 (App. Div. 1998), required a decision in its favor, concluding
that "[t]he facts of this case do not resemble the unusual
circumstances confronted by the court in Piscataway, and any
potential impact to Association members from a possible future
calendar change is speculative only." PERC decided the contested
clause was a managerial prerogative, even though it was part of
the parties' earlier contract.
On appeal, the Association argues that although the Board has
the managerial prerogative to establish a school calendar for
students, the Board must negotiate with the Association about the
teachers' calendar for the days when students are not present,
including the date that teachers are to start. It claims that
N.J.S.A. 18A:36-2 only applies to student calendars. It disagrees
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with PERC's interpretation of Burlington County, and argues that
requiring teachers to report before September 1 is contrary to the
concept of a ten-month employee, citing various statutes and
regulations.
"The Legislature has vested PERC with 'the power and duty,
upon the request of any public employer or majority representative,
to make a determination as to whether a matter in dispute is within
the scope of collective negotiations.'" In re Belleville Educ.
Ass'n, __ N.J. Super. __, __ (App. Div. 2018) (slip op. at 16)
(quoting N.J.S.A. 34:13A-5.4(d)). "The standard of review of a
PERC decision concerning the scope of negotiations is thoroughly
settled. The administrative determination will stand unless it
is clearly demonstrated to be arbitrary or capricious." Ibid.(quoting City of Jersey City v. Jersey City Police Officers
Benevolent Ass'n, 154 N.J. 555, 568 (1998)).
"Questions concerning whether subjects are mandatorily
negotiable should be made on a case-by-case basis." Troy v.
Rutgers, 168 N.J. 354, 383 (2001) (citing City of Jersey City, 154
N.J. at 574). A three-part test applies to scope of negotiations
determinations. In re Local 195, IFPTE, 88 N.J. 393, 403 (1982).
An issue is negotiable when:
(1) the item intimately and directly affects
the work and welfare of public employees; (2)
the subject has not been fully or partially
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preempted by statute or regulation; and (3) 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.
[Id. at 404-05.]
The Association acknowledges that the Board has the
managerial prerogative to determine the school calendar for
students, but argues the calendar for teachers on work days when
students are not present must be negotiated. PERC did not have
the opportunity to address this argument because the Association
did not raise it before PERC. We address the argument to resolve
it although "[g]enerally, an appellate court will not consider
issues . . . which were not raised below." State v. Galicia, 210
N.J. 364, 383 (2012).
There was nothing arbitrary, capricious or unreasonable about
PERC's decision that the contract language at issue implicated the
Board's managerial prerogative. It is well established that
setting the school calendar is a managerial prerogative.
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In Bd. of Educ. v. Woodstown-Pilesgrove Reg'l Educ. Assoc.,
81 N.J. 582, 592 (1980), an arbitrator awarded teachers'
compensation when they were required to work two additional hours
on the day before Thanksgiving. The Board filed a complaint
seeking to set aside the award. In affirming the award, the Court
stated that "[e]stablishing the school calendar in terms of when
school commences and terminates is a non-negotiable managerial
decision." Ibid. However, because the two hours at issue did not
"significantly or substantially trench[] upon the management
prerogative," the Court agreed that the issue was negotiable. Id.
at 594.
In Burlington County, the issue was whether the College Board
of Trustees was required to negotiate the format of the college
calendar with the faculty members' representative. The calendar
fixed the days the college was "open with courses available to
students" but did not "fix the days and hours of work by individual
facility members or their workloads or their compensation." 64
N.J. at 12. The Court held that the calendar "was not a subject
of mandatory negotiation," even though it "undoubtedly has some
practical effect on the facility's employment arrangements." Id.
at 13. The Board
negotiated on the matters directly and
intimately affecting the faculty's working
terms and conditions, such as compensation,
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hours, workloads, sick leaves, personal and
sabbatical leaves, physical accommodations,
grievance procedures, etc. It declined to
negotiate the major educational policy of the
calendar though it did make provision in its
governance structure for a calendar committee
with student, facility and administration
representatives.
[Id. at 14.]
Burlington County did not distinguish between the calendar
for students and the calendar for teachers. It made reference to
out-of-state cases that took conflicting positions on the issue
of whether the calendar was negotiable, noting that the cases had
"little pertinence here" because they "turn on the particular
provisions of their own statutes, which differ from ours." Id.
at 14. Comments quoted by the parties from those cases were simply
illustrative of that conflict.
The Association argues that N.J.S.A. 18A:36-2 should be read
in pari materia with the New Jersey Employer-Employee Relations
Act (the Act), N.J.S.A. 34:13A-1 to -43, to limit its applicability
to the student calendar and not the teachers' calendar. N.J.S.A.
18A:36-2 provides that "[t]he board of education shall determine
annually the dates, between which the schools for the district
shall be open, in accordance with the law." The statute is not
limited in the manner suggested by the Association; the Association
cites no supporting authority for its argument. In fact, the Act
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provides to the contrary stating, "nor shall any provision here
annul or modify any . . . statutes of this State." N.J.S.A. 34-
13A-8.1.
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 could only be set within the boundaries negotiated for
the teachers' calendar.
We agree with PERC that Piscataway Twp. Educ. Ass'n v.
Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 265 (App. Div.
1998), does not require a different outcome. In Piscataway, the
superintendent changed the school calendar during the school year
because of unexpected snow days by cancelling certain school
holidays and adding school days to the end of the school year.
The Piscataway Township Education Association filed an unfair
practice charge that later was dismissed by PERC. In Piscataway,
we said that a change in the school's calendar "is a managerial
prerogative of the school administration which cannot be bargained
away. As such, it need not be negotiated." Id. at 265. However,
Piscataway also said that whether the "impact" of the calendar
change on the "work and welfare of public employees" needs to be
negotiated depends on "whether negotiating the impact issue would
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significantly or substantially encroach upon the management
prerogative. If yes, the duty to bargain must give way. If
. . . no, bargaining should be ordered." Id. at 265; 276.
We agree with PERC that the facts in Piscataway are dissimilar
from this case. Here, the issue does not involve a mid-year change
in the calendar; it involves the negotiation of a new contract.
PERC found "any potential impact to Association members from a
possible future calendar change [was] speculative only."
On appeal, the Association raises other alleged "potential
significant harms" that were not presented to PERC when the issue
was before them.1 When the Association was before PERC, it said
the impact could not be "fully ascertained at this time" and that
the impact was "unknown," mentioning only the need for
"cohesiveness" in schedules and health concerns due to lack of air
conditioning. PERC's decision was not arbitrary, capricious or
unreasonable by not speculating about the impacts that the
Association presented as unknown.
Finally, the Association contends PERC's decision "throws
[previous] decisions and regulations into chaos," citing to
statutes, regulations, and cases referencing ten-month calendar
1
These include child care costs, teachers performing outside
second jobs, and the need for some teachers to take their own
children to college.
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employees and others referencing the school year commencing on
September 1. These arguments also were not made to PERC and thus,
we decline to address them. See Neider v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973). We do not know whether the parties
negotiated a new contract nor what that said about the issues the
Association claims may be affected. We will not speculate about
the application of statutes and regulations that were not raised
before PERC or their impact without an appropriate record.
Affirmed.
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