Piscataway Tp. Educ. Ass'n v. Piscataway Tp. Bd. of Educ.

• Decision Date: 14 January 1998
• Citation: 307 N.J.Super. 263,704 A.2d 981
• Parties: , 158 L.R.R.M. (BNA) 2170, 123 Ed. Law Rep. 764 PISCATAWAY TOWNSHIP EDUCATION ASSOCIATION, Appellant, v. PISCATAWAY TOWNSHIP BOARD OF EDUCATION, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 263

307 N.J.Super. 263

704 A.2d 981, 158 L.R.R.M. (BNA) 2170,

123 Ed. Law Rep. 764

PISCATAWAY TOWNSHIP EDUCATION ASSOCIATION, Appellant, v. PISCATAWAY TOWNSHIP BOARD OF EDUCATION, Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 18, 1997.

Decided Jan. 14, 1998.

Klausner & Hunter, Somerville, for appellant (Stephen E. Klausner, of counsel and on the brief)

David B. Rubin, Piscataway, for respondent.

Robert E. Anderson, General Counsel, Public Employment Relations Commission (Mr. Anderson, of counsel and on the brief).

Before Judges LONG, STERN and KLEINER.

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. 34:13A-1 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. 10, 311 A.2d 733 (1973). 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-5164-77 (9/21/79) 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, 81 N.J. 582, 410 A.2d 1131 (1980) 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.

I

The facts underlying the unfair practice charge are basically undisputed. ¹ The Board and Association were parties to a 1992-95 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. 18A-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 (186) 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 1993-94 school calendar included 186 work days for teachers. There were 20 scheduled work days in January with January 17 scheduled off for the Martin Luther King holiday; 18 scheduled work days in February with February 18 and 21 scheduled off for mid-winter recess; 19 scheduled work days in March with March 28, 29, 30 and 31 scheduled off for spring recess; 19 scheduled work days in April with April 1 and 4 scheduled off for spring recess; 21 scheduled work days in May with May 30 scheduled off for Memorial Day; and, 14 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 21st and continue as needed." Three inclement weather work days had already been included in the calendar.

The winter of 1993-94 was extremely harsh. The Piscataway schools were closed a total of twelve days. There were eight snow days in January 1994, 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 1994, 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, 1994, 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 18 and 21, 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, 1994, 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 18 and 21; 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, 1994. 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 17, 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, 1994, Geiger sent a letter to parents and guardians informing them of the Board's decision to conduct school on February 18 and 21, March 28, 29 and 30, and April 4 as make-up days.

In a February 14, 1994 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 18, 1994, 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, 1994, the Board developed a revised 1993-94 calendar for the remainder of that school year. It reflected the days that had been scheduled as make-up days which included February 18 and 21; March 28, 29 and 30; April 4; and, June 21, 22 and 23, 1994. The three snow days built into the original schedule were not made up, thus, the final number of teacher work days was 183, not 186.

On these facts, a...