H.E. NO. 96-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PISCATAWAY TOWNSHIP

BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-94-290

PISCATAWAY TOWNSHIP

EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, David B. Rubin, Esq.

For the Charging Party, Klausner & Hunter, attorneys

(Stephen E. Klausner, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On March 28, 1994, the Piscataway Township Education Association/NJEA filed an unfair practice charge against the Piscataway Township Board of Education alleging that the Board violated subsections 5.3, and 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.1/ The

1/	Subsection 5.3 of the Act provides in pertinent part that:

Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the

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Association specifically alleged that the Board violated subsections 5.4(a)(1) and (5) of the Act by unilaterally, and arbitrarily, changing the school calendar, failing to comply with the policy and practice relating to make-up days and changing the calendar, and refusing to negotiate with the Association.

The Association also alleged the Board violated subsection 5.3 of the Act because it allegedly changed rules governing working conditions without negotiations.

The Association sought an order restoring Easter vacation, or allowing employees with non-refundable tickets to continue their plans, or, requiring the Board to make employees whole for any economic losses they suffered due to the calendar change.

A Complaint and Notice of Hearing issued on July 1, 1994. A hearing was held on October 12, 1995.2/ Both parties filed post-hearing briefs by January 19, 1996.

Based upon the entire record, I make the following:

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majority representative before they are established.

Subsections 5.4(a)(1) and (5) of the Act prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

2/	The transcript will be referred to as "T".

FINDINGS OF FACT

1. The Board and Association were parties to a 1992-95 collective agreement which contained the following School Calendar clause in Article 17 (J-1).

XVII. SCHOOL CALENDAR

A. 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.

B. 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.

C. 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.

2. The original 1993-94 school calendar (J-13) included 186 work days for teachers. There were 20 scheduled work days in January with January 17 scheduled off for 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.

3. After June 20, there were eight more weekdays remaining in June. A statement at the bottom of J-13 provided that:

If schools are closed for inclement weather, make-up sessions will begin on June 21st and continue as needed.3/

Three inclement weather work days had already been included in J-13 (T38).

4. The winter of 1993-94 was extremely harsh. The Piscataway schools were closed for a total of twelve days. There were eight snow days in January 1994: January 7, 13, 18, 19, 20, 21, 26 and 28; three snow days in February: February 9, 11 and 23; and one snow day in March: March 3 (J-15). Although three snow days had been built into the calendar, the Board still needed to make up 9 days.

5. 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

3/	The school calendars for 1991-92 (J-12); 1989-90 (J-11); 1988-89 (J-10); and 1987-88 (J-9), contained similar language regarding make-up sessions in June.

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, and February and 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 (T41-T42). The Superintendent also considered using some of the mid-winter, and spring recess days as make-up days.

6. By January 28, 1994, the Board had already lost eight days due to snow and ice. On that date Superintendent Geiger sent a letter (J-3) 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.

7. That same day Geiger sent a copy of J-3 to faculty and staff members as part of another document (J-4). In J-4, Geiger 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.

8. Association President Giovanne Musto received a copy of J-3 and J-4 on or about the time they issued (T32), but neither Superintendent Geiger, nor any Board member, contacted, discussed or negotiated with the Association over the scheduling of the make-up days (T18, T54-T55).

9. 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 (T34).

10. 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. In J-5, 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 (T24, T57).

11. Pursuant to Geiger's offer in J-5 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 (T46-T48). The Board did not negotiate with the Association over the decision to grant the special requests (T57).

12. On February 8, 1994, Geiger sent a letter to parents and guardians (J-6) 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.

13. In a February 14, 1994 letter to the Board (J-7), 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, it constituted a change in terms and conditions of employment, and the impact would cause financial loss to some

individuals.4/ The Board neither negotiated, nor met and confered with Musto regarding the changes (T20-T21).

14. On February 18, 1994, Geiger sent Musto a response to J-7 (J-8), informing him that the Board was not required to negotiate over the make-up day scheduling, but he offered to informally discuss the matter.5/

4/	J-7 provides: The Association has received many calls from its membership reporting hardships caused by the Board of Education's decision to alter the 1993-94 school calendar to accommodate the "extraordinary number" of inclement weather days.

Please be advised that the Association is issuing a "Demand to Negotiate" the impact of the calendar changes on the PTEA membership. The calendar adopted by the Board of Education stated that any days schools were closed due to inclement weather would be made up at the end of the year. Relying, on the Board's calendar many of our members made plans to leave the area on these "vacation days".

Members having plans with non-refundable costs have been informed that, if they do not attend school and do not have personal days to use, they will be docked pay for each day lost.

The change in the school calendar was done without consultation with the Association. The impact of the change will cause financial loss to some individuals we represent and also constitutes a change in terms and conditions of employment.

Please contact the Association immediately so the issue can be resolved fairly and quickly. We believe this issue can be easily resolved.

5/	J-8 provided: In response to your letter of February 14, please be advised that we have consulted with our attorney and have reviewed your "Demand to Negotiate" with the Board of Education.

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15. After the last snow day on March 3, 1994, the Board developed a revised 1993-94 calendar (J-14) for the remainder of that school year. Exhibit J-14 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 (T43, J-14). 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.

5/	Footnote Continued From Previous Page

The school calendar is addressed in Article VXII of the Board/PTEA Agreement. Subsection A requires the Superintendent to "meet and confer with the representative of the Association to discuss distribution of holidays" during preparation of the annual school calendar. That has been done. Subsection B provides for the teachers' work year not exceed 186 scheduled work days. In fact, because of the significant amount of snow, we have actually reduced the number of planned work days for this year to 183. This certainly reflects a significant adjustment to the work year of the teachers that was not planned when the calendar was developed.

Subsection C entitled "State Aid", provides: "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." In fact, with the revised calendar we will only conduct 180 student days of school, the minimum required by law.

As you certainly recognize, this has been the most unusual winter that this district has ever faced, and school closings could not be anticipated.

Therefore, I am informing you that the Board has determined that the "snow make-up days" do not require the Board to negotiate with the PTA on this matter.

However, as always, should you wish to discuss this matter informally with me, I would be more than happy to do so.

ANALYSIS

The issue in this case is whether the Board was obligated to negotiate with the Association over changing the school calendar to make up for lost school days, and/or whether the Board was obligated to negotiate over the impact of those changes on unit members. In support of its position, the Association argued in its post hearing brief that the Board violated the exclusivity doctrine, and the legal principals of equitable estoppel and detrimental reliance.

The Board, even without further negotiations with the Association, did not violate the Act by changing the calendar6/ to make-up for school days lost due to inclement weather. As recognized by Article 17 of J-1, the superintendent had the authority to prepare the school calendar.7/ The superintendent

6/	The school calendar fixes the length of the school year; when the school is open for class instruction and when it is closed. Establishment of the school calendar is a matter of educational policy and not mandatorily negotiable. Burlington Cty. College Faculty Assoc. v. Bd. of Trustees, 64 N.J. 10 (1973); Woodstown-Pilesgrove Reg. School Dist. Bd. of Ed., 81 N.J. 582 (1980).

7/	Article 17 provided the superintendent prepare the calendar consistent with N.J.S.A. 18A:25-3. The relevant portion of that statute provides that:

No teaching staff member shall be required to perform his duties on any day declared by law to be a public holiday....

There was no showing here that any of the make-up days were scheduled on a public holiday.

was expected to meet and confer--but not negotiate--with the Association to discuss distribution of holidays, but there was no allegation here that the superintendent failed to do that regarding J-13.

Article 17 also provided for 186 work days, and that as a result of emergencies, the Board could require teachers to work in order to meet the minimum requirements to receive state aid. That language gave the Board the right to reschedule work days lost to weather emergencies in order to meet the state's 180 day minimum requirement, but also allowed it to schedule up to 186 days of work. This Board choose, however, to reschedule up to only 183 days, well within the intent of Article 17.

Since the parties negotiated over and agreed to the language in Article 17, and since that language gave the superintendent/Board the right to schedule up to 186 work days, the Board was not obligated to further negotiate over scheduling the make-up days. Compare, Passaic County Reg. H.S. Dist. No. 1, P.E.R.C. No. 91-11, 16 NJPER 446 (¶21192 1990). A public employer meets its negotiations obligation if it acts pursuant to its collective agreement. Sussex-Wantage Reg. B/E, P.E.R.C. No. 86-57, 11 NJPER 711 (¶16247 1985); Randolph Twp. B/E, P.E.R.C. No. 83-41, 8 NJPER 600 (¶13282 1982); and Pascack Valley B/E, P.E.R.C. No. 81-61, 6 NJPER 554, 555 (¶11280 1980). That was the result here.

The result is the same regarding the Association's allegation that the Board violated subsection 5.3 of the Act. I do

not find that the calendar change here constituted a new "rule" within the meaning of subsection 5.3, but even if it did, pursuant to Article 17, the Association waived the right to negotiate over preparation of the calendar. Passaic County at 447.

Similarly, the Association's reliance on the last sentence in J-13 to prove its case, lacks merit. That sentence states the following:

If schools are closed for inclement weather, make-up sessions will begin on June 21st and continue as needed.

Neither that sentence, nor any other part of J-13, was part of the parties collective agreement (J-1), thus, the Board was not contractually obligated to impose make-up days in June. Since the superintendent/Board had the contractual authority to prepare the calendar which was J-13, and the authority to require teachers to work up to 186 days, the Board had the right to decide when to schedule make-up days as long as it was not inconsistent with other statutes. The last sentence of J-13 may have been the parties prior practice, but to the extent that practice is inconsistent with the Board's authority in Article 17, it is unenforceable. Randolph Twp. B/E, P.E.R.C. No. 81-73, 7 NJPER 23 (¶12009 1980).

Having found that the Board was not obligated to negotiate with the Association over scheduling make-up days, the Association's exclusivity argument must fall. The Association had noted in its brief that subsection 5.3 of the Act also made a majority representative the "exclusive" representative for collective

negotiations. The Association argued that by consulting and reaching agreement with the parent teacher organization (PTO) over the scheduling of make-up days, the Board was violating the exclusivity doctrine.

The exclusivity doctrine was intended to protect a majority representative from an employers attempt to circumvent the majority representative and negotiate directly with employees or some other labor organization. That did not happen here. Meeting with the PTO is not the kind of activity the exclusivity clause was intended to restrict. Furthermore, there is no evidence the Board "negotiated" over make-up days with any other individual or group, or otherwise acted inconsistent with its negotiations obligation to the Association. Since the Board was not obligated to negotiate with the Association over scheduling the make-up days, it could not have violated the exclusivity doctrine by consulting with the PTO over such days.

The heart of this case is really whether the Board was obligated to negotiate with the Association over the impact the calendar changes had on the employees. It was not.

In Edison Twp. B/E and Edison Tp. E.A., NJPER Supp.2d 66 (¶47 App. Div. 1979), certif. den. 82 N.J. 274 (1979), the Appellate Division, relying on its decision in Maywood B/E, 168 N.J.Super. 45 (App. Div. 1979), certif. den. 81 N.J. 292 (1979), clearly held that the impact of required calendar changes necessitated by weather related closings is non-negotiatiable. Recently, the Commission in

Middletown Twp. B/E, P.E.R.C. No. 96-30, 21 NJPER 392 (¶26241 1995), applied Edison and held the same.

The Association in its brief argued against applying Edison and Middletown because those decisions did not address equitable estoppel or detrimental reliance, and because it could not understand how the courts could hold that the economic impact of subcontracting was negotiable, but the economic impact of school calendar changes was not. Despite the Association's concerns, Edison and Middletown control here. Those cases leave no doubt that the impact of weather related school calendar changes is not negotiable.

Accordingly, based upon the above findings and analysis, I make the following:

Conclusion of Law

The Board did not violate the Act by changing the school calendar or by refusing to negotiate with the Association over the impact thereto.

Recommendation

I recommend the complaint be dismissed.

Stuart Reichman

Hearing Examiner

Dated: May 2, 1996

Trenton, New Jersey