The Appellate Division of the Superior Court handed boards of education a small victory concerning the establishment of the annual calendar, even if that calendar conflicts with the language of the collective negotiations agreement.

In West Morris Regional High School Bd. of Educ. v. Morris Regional Ed. Assn., the board and the teachers union disagreed about the meaning of a term in the collective negotiations agreement that said teachers were to be employed from September 1 through June 30.

During the dispute, the board filed a scope of negotiations petition with the Public Employment Relations Commission (PERC), arguing that the clause must be removed from the agreement because it interfered with the board’s managerial prerogative to establish the school calendar.

PERC ultimately sided with the Board, even though the clause existed in the parties’ earlier contract. Following this determination, the union took its case to the Appellate Division.

On appeal, the union argued that although the board possessed managerial prerogative to establish a school calendar, it also had an obligation to negotiate the days when students would not be present because, according to the union, N.J.S.A. 18A:36-2 only applied to student calendars.

In its unpublished decision on Aug. 28, the Appellate Division reiterated the rule that an issue is negotiable when 1) the item intimately and directly affects the work and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 preempted by statute or regulation; and 3) a negotiated agreement would not significantly interfere with the determination of governmental policy. The court also noted that it is necessary to balance the interests of public employees against those of the government.

Noting that the calendar had some practical effect on faculty employment arrangements, the court nonetheless determined that the calendar was not subject to negotiation.

The court distinguished earlier decisions requiring negotiation by noting that those decisions dealt with mid-year changes or additions to the calendar once established. The court also found no support in the law for treating the establishment of a student calendar as distinct from establishing a calendar for teaching staff.

In assessing the reasoning offered by the union, the court concluded that if the teachers’ calendar was negotiable, the student calendar would be controlled by it because student days could only be established within dates set forth in the teachers’ calendar.

The court concluded by holding that where negotiating the impact of a change to the school calendar would significantly or substantially encroach on the managerial prerogative, the duty to bargain must give way.

For more information on this decision, board members may contact their board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.