H.E. NO. 78-10

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SAYREVILLE BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-77-21-135

SAYREVILLE EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Sayreville Board of Education

Casper P. Boehm, Jr., Esq.

For the Sayreville Education Association

Rothbard, Harris & Oxfeld, Esqs.

(Nancy I. Oxfeld, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on July 30, 1976, by the Sayreville Education Association (hereinafter the "Charging Party" or the "Association"), alleging that the Sayreville Board of Education (hereinafter the "Respondent" or the "Board") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Board unilaterally promulgated a change in the school calendar for the 1976-77 school year to the extent that all teachers were to report on the Thursday and Friday prior to Labor Day rather than after Labor Day, such change having been made by the Board without negotiations with the Association over the impact of the change. The foregoing was alleged to be violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 22, 1977.

Pursuant to the Complaint and Notice of Hearing, a hearing was held on July 26, 1977, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs were submitted by the Charging Party and Respondent, respectively, on September 6 and September 28, 1977.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing and after the filing and consideration of briefs by the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The Sayreville Board of Education is a public employer

within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Sayreville Education Association is public employee

representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Board and the Association have been parties to a

series of collective negotiations agreements covering many years. The most recent collective bargaining agreement provides in Article VI, School Calendar, as follows:

"A. The School calendar shall be prepared by the Superintendent who shall elicit the participation of the Association prior to the final adoption of said calendar by the Board.

B.	School calendar shall be as set forth in Schedule B, except in cases of emergency, but in any event shall include 183 teacher pupil contact days."

4.	Essentially, from the 1963-64 school year through the

1975-76 school year, with the exception of the 1971-72 and 1972-
73 school years, the school calendars provided that all teachers should report after Labor Day.

5.	The school calendars for 1971-72 and the 1972-73 school

years specifically provided that new teachers only would report before Labor Day and all teachers would report after Labor Day.

6.	The school calendars for the 1976-77 and the 1977-78

school years provide that all teachers are to report on the Thursday and Friday before Labor Day. The number of pupil contact days remained unchanged, as provided specifically in the collective negotiations agreement, supra.

7.	The Superintendent typically has submitted as many as

six or seven proposed school calendars to the Board and to the Association for consideration prior to the adoption by the Superintendent of the final calendar and its approval by the Board.

8.	Beginning with the 1976-77 school year the Board and

the Superintendent, in changing the day on which all teachers report to the Thursday and Friday before Labor Day, determined as a matter of major educational policy that it was desirable to commence classes two days earlier in the school year so that classes could end earlier in June of the following year.

9.	The Board did not offer to negotiate with the

Association over the impact, if any, upon teachers in the negotiating unit as a result of the aforesaid changes in the 1976-77 and 1977-78 school calendars.

10.	The Association did not make a demand upon the Board to

negotiate the impact, if any, upon teachers in the negotiating unit2/ but instead filed the instant charge on July 30, 1976.

THE ISSUE

Did the Board commit an unfair practice within the meaning of the Act when it unilaterally adopted a school calendar for the 1976-77 and 1977-78 school years, which changed the day for all teachers to report from a day after Labor Day to the Thursday before Labor Day, without negotiating with the Association the impact, if any, upon the teachers in the negotiating unit?

DISCUSSION AND ANALYSIS

The Position of the Parties

It is the position of the Charging Party that the Respondent has violated §§(a)(1) and (5) of the Act by unilaterally changing the school calendar for the years in questions without entering into collective negotiations over the impact of the change in school calendars upon the teachers in the negotiating unit.

It is the position of the Respondent that it has not violated the Act, as alleged, for the reason that the Board may unilaterally institute a major educational policy decision without negotiations with the Association. It is the Board's position that the changes that it made in the 1976-77 and 1977-78 school calendars fell within the purview of a major educational policy decision.

The Controlling Authorities and Decision

There is ample authority to support the position of the Board in this case that the decision to adopt a school calendar is a major educational policy decision which does not have to be negotiated with the employee representative prior to adoption. See, for example, Burlington County College Faculty Association v. Board of Trustees of Burlington County College, 64 N.J. 10 (1973); Rutgers, the State University, P.E.R.C. No. 76-13, 2 NJPER 13 (1976); Board of Education of the Borough of Ridgefield, P.E.R.C. No. 77-9, 2 NJPER 284 (1976); and Green Brook Township Board of Education, P.E.R.C. No. 77-11, 2 NJPER 288 (1976).

Under the P.E.R.C. decisions above cited, the adoption of a school calendar is not a mandatory subject of negotiations but is, rather, a permissive subject of negotiations, as to which the Board is free to negotiate with the Association if it so desires. It is well settled under P.E.R.C. decisions that, as to a permissive subject of negotiations, the impact of the permissive decision is mandatorily negotiable. See, for example, Board of Education of Tenafly, P.E.R.C. No. 76-24, 2 NJPER 75, 76 (1976); Council of New Jersey College Locals, etc. and State of New Jersey (Stockton State College), P.E.R.C. No. 76-33, 2 NJPER 147, 148 (1976); City of Jersey City, P.E.R.C. No. 77-33 3 NJPER 66, 68 (1976).

Although no specific evidence of impact was adduced at the hearing, the Hearing Examiner takes notice of the fact that the teachers in the negotiating unit in prior years had the expectation of not returning until after Labor Day. The unilateral change in 1976-77 and 1977-78 may have had an "impact" upon teachers who had summer employment terminating on the Labor Day weekend. In such cases the argument of an economic loss might be justified, and the Board might be persuaded in negotiations to compensate affected teachers for such loss.

However, the Hearing Examiner has found that the Association did not make a demand for negotiations on impact, but instead filed charges of unfair practices prior to the implementation of the calendar. Although there are no P.E.R.C. decisions on the specific issue of whether or not a demand need be made before an obligation to negotiate arises, there is ample precedent from the private sector that a demand for negotiations is a condition precedent to an obligation to negotiate and that there can be no violation of the duty to negotiate without such a demand.

See for example, PBM Industries, Inc., 217 NLRB No. 28, 88 LRRM 1549, 1550 (1975); Motion Picture and Television Producers, Inc., 204 NLRB No. 134, 83 LRRM 1464-1466 (1973); and Taylor Instrument Cos., 169 NLRB 162, 67 LRRM 1145, 1147 (1968).

Thus, notwithstanding that the Board was under an obligation under P.E.R.C. decisions to negotiate the impact of its decision to change the school calendars for the years 1976-77 and 1977-78, the failure of the Association to have made a demand for negotiations precludes a finding and conclusion that the Board violated its obligation and duty to negotiate within the meaning of §(a)(5) of the Act.

Upon the foregoing, and the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondent did not have an obligation to negotiate

with the Charging Party concerning the impact, if any, of its decision to promulgate a school calendar changing the day on which teachers report from after Labor Day to the Thursday before Labor Day for the school years 1976-77 and 1977-78, by reason of the failure of the Charging Party to have made a demand for negotiations, and its action in refusing to do so does not constitute a violation of N.J.S.A. 34:13A-5.4(a)(5).

2.	The Respondent's conduct above does not constitute a

violation of N.J.S.A. 34:13A-5.4(a)(1).

RECOMMENDED ORDER

Respondent, Sayreville Board of Education not having violated the Act, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.3/

Alan R. Howe

Hearing Examiner

DATED:	October 24, 1977

Trenton, New Jersey