IN THE MATTER OF BETHLEHEM TOWNSHIP BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF BETHLEHEM

TOWNSHIP BOARD OF EDUCATION

_____________________________

August 13, 2015

 

Argued January 14, 2015 Decided

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from the Public Employment Relations Commission, Docket No. CO-2011-458.

William P. Hannan argued the cause for appellant Bethlehem Township Education Association (Oxfeld Cohen, P.C., attorneys; Sanford R. Oxfeld, of counsel; Mr. Hannan, of counsel and on the brief).

Brenda C. Liss argued the cause for respondent Bethlehem Township Board of Education (Riker Danzig Scherer Hyland & Perretti L.L.P., attorneys; Ms. Liss, of counsel and on the brief; John C. Atkin, on the brief).

Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mr. Horowitz, on the brief).

PER CURIAM

The Bethlehem Township Education Association (Association) is the collective bargaining agent representing "various employees" of the Bethlehem Township Board of Education (Board), a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39, (Act). The Association filed an unfair labor practice charge before the Public Employment Relations Commission (PERC) against the Board in June 2011, claiming the Board violated the Act by deciding to start the 2011-2012 school year before September 1, 2011. Acting on the parties' cross-motions for summary judgement, PERC concluded the change in start date was not subject to the Act's negotiation obligation because the establishment of the school calendar is a managerial prerogative of the Board.

In this appeal, the Association argues PERC erred as a matter of law in deciding the Board had the prerogative to change the start of the school year unilaterally without negotiating with the Association and taking into account how this change would impact its members. The Board argues PERC correctly decided the question before it as a matter of law. Alternatively, the Board urges us to dismiss the Association's appeal because the argument the Association advanced before PERC was not predicated upon the impact the change in the start of the school year would have on its members.

After considering the arguments of the parties and applying our standard of review, we affirm substantially for the reasons expressed by PERC. The following undisputed facts will inform our legal analysis.

The Board oversees a school district providing kindergarten to eighth grade education to students who reside in Bethlehem Township. Bethlehem students in the ninth to twelfth grades attend North Hunterdon High School, which is part of the North Hunterdon-Voorhees Regional High School District. The Board and the Association were parties to a collective bargaining agreement (CBA) in effect from July 1, 2008 to June 30, 2011. Article 8 of the CBA was titled, "Work Year, Work Day and Assignment." Subsection A-1a, denoted "In-School Work Year", provided

The school calendar shall be established by the Board of Education upon the recommendation of the Superintendent after his/her consultation with representatives of the Association. However, the Board and Association recognize that the established calendar may be altered due to inclement weather, or other cause, which necessitates the cancellation and rescheduling of school sessions.

In 2010, several families who had children who attended both in-district elementary school and out-of-district high school at North Hunterdon requested the Board examine the possibility of aligning the two school districts' calendars to eliminate or minimize the hardship associated with having different starting dates. In response, the Board included the issue of aligning the two districts' calendars as an item for discussion on its agenda for the September 21, 2010 meeting. After discussing the matter, the Board members voted "to align the first day of school with the North Hunterdon Regional High School schedule." At a meeting held on February 17, 2011, five months after the issue was first formally discussed, the Board voted to approve the calendar change.

Dr. Nancy Lubarsky, the Superintendent of Schools of the Bethlehem Township School District, submitted a certification chronicling the steps the Board took to solicit input from, and otherwise include, all of the various parties who may have been affected by the change in the school calendar. Dr. Lubarsky specifically noted

In addition, even though the Board adopted a resolution to align its 2011-2012 calendar with that of North Hunterdon, the Board directed me, as Superintendent, to issue a survey to the community to gauge the true level of interest in following North Hunterdon's calendar.

. . . .

In accordance with my responsibility under the CBA to discuss the prospective calendar with Association representatives, I also posted the survey on the District's website and requested that the staff members, including teachers, responded [sic] with their input on the calendar.

I received 108 responses on the survey, the majority of which agreed with the Board's decision to align its calendar with North Hunterdon's.

Zero (0) staff members responded to the survey.

At no time during the development of the 2011-2012 school year calendar, including at the time of the Board's adoption of the resolution to align the calendar with North Hunterdon's, did any staff members express concern to me regarding the proposed first day of school for the 2011-2012 school year.

. . . .

In my capacity as Superintendent and in accordance with both the Board's express wishes . . . I developed the 2011-2012 school calendar to match as closely as possible with that of North Hunterdon's. In so doing, I recommended to the Board that the first day of school for teachers be August 24, 2011, and the first day for students be August 25, [2011], the same as for students attending North Hunterdon High School.

[(Emphasis added).]

The Association filed its unfair labor practice charge with PERC on June 3, 2011.1 The Association also sought interim relief from PERC in the form of a preliminary restraining order preventing the Board from implementing the calendar change pending the outcome of the charge. PERC denied the Association's interim relief application, finding it had not shown a likelihood of success on the merits. The record shows the Association's argument for the relief it sought from PERC was entirely predicated on the Board's decision to change unilaterally a term and condition of employment. The impact that change would have on the staff the Association represented was not identified as a basis for the charge of unfair labor practice.

While this matter was pending, the Board and the Association began negotiations on a successor CBA. In November 2011, the parties reached a final agreement on a three-year CBA covering 2011 to 2014. In a certification submitted as part of this appeal, John Logar, the President of the Board, averred: "During the negotiations, the [Association] made no proposal pertaining to the school calendar, nor did it request additional compensation or any other measure to address any alleged impact of the August 22, [2011] start date. No such impact has ever been mentioned."

The matter remained dormant until January 24, 2013, when PERC's Director of Unfair Practices issued a formal Complaint and Notice of Pre-Hearing, directing the parties to appear before a Hearing Examiner on February 27, 2013, "for the purpose of clarifying issues and exploring the possibility of voluntary resolution of this case." After failing to reach a mediated resolution, the parties filed cross-motions for summary judgment.

PERC noted the Association's unfair practice charge alleged that the Board violated N.J.S.A. 34:13A-5.4a(1)2 and (5)3 of the Act when it established the 2011-2012 school year "to start for students on August 25, 2011, and for teachers on August 24, [2011.]" PERC noted the Board made this change to accommodate the Bethlehem Township students who attended North Hunterdon High School. The Association's charge alleged "the Board acted without prior negotiations with the Association over the schedule change or the impact of the change on employees represented by the Association." In response, the Board noted the Association did not claim the decision to start the school year before September 1, 2011 increased its members work days, hours, or compensation, or otherwise negatively affected the terms and conditions of employment.

In holding in favor of the Board, PERC distinguished our decision in Piscataway Township Education Ass'n v. Piscataway Township Board of Education, 307 N.J. Super. 263 (App. Div.), certif. denied, 156 N.J. 385 (1998), in which extreme weather conditions forced the Piscataway School District to close for nine days in January and February 1994. Id. at 267-68. The Piscataway Board unilaterally decided to make up for these days by utilizing three long-scheduled holiday days in February and April 1994 and add an additional three days to the end of the school year. Id. at 269. The bargaining agent sought to negotiate compensation to its members due to the impact this unanticipated schedule change had on its members. Ibid.

The bargaining agent's representative noted "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." Ibid. The Board in Piscataway "neither negotiated, met, nor conferred with [the bargaining agent's representative] regarding the changes." Ibid. A hearing officer recommended the bargaining agent's complaint be dismissed, concluding this was a non-negotiable managerial prerogative, and thereafter "PERC chose not to review the case." Ibid.

Under the highly unusual facts we confronted in Piscataway, we reversed PERC's decision to adopt the hearing officer's ruling. Writing for the panel, then Judge Long4 reaffirmed that "the establishment of a school calendar is not a 'term and condition of employment' but a 'major educational determination which traditionally has been the exclusive responsibility' of school administrations." Id. at 270 (quoting Burlington Cnty. Coll. Faculty Ass'n v. Bd. of Trs., 64 N.J. 10, 16 (1973)).

The error PERC committed in Piscataway, which compelled us to reverse, was predicated on its failure to appreciate how the extraordinary measures the Piscataway Board was forced to adopt in the middle of the school year impacted the staff of the school district. As Judge Long explained, PERC should have applied the following approach the Supreme Court established in Board of Education of Woodstown-Pilesgrove v. Woodstown-Pilesgrove Education Ass'n, 81 N.J. 582 (1980)

The nature of the terms and conditions of employment must be considered in relation to the extent of their interference with managerial prerogatives. A weighing or balancing must be made. When the dominant issue is an educational goal, there is no obligation to negotiate and subject the matter, including its impact, to binding arbitration.

. . . .

On the other hand, a viable bargaining process in the public sector has also been recognized by the Legislature in order to produce stability and further the public interest in efficiency in public employment. When this policy is preeminent, then bargaining is appropriate. Where the condition of employment is significantly tied to the relationship of the annual rate of pay to the number of days worked, then negotiation would be proper even though the cost may have a significant effect on a managerial decision to keep the schools open more than 180 days.

[Id. at 591 (emphasis added) (citations omitted).]

The undisputed record before us clearly shows the Board's dominant reason for changing the start of the school year was to achieve the educational goal of mitigating the hardship endured by families who have children in two separate school districts. Equally clear is the fact the Association did not present any evidence to satisfy this standard. Changing the start date of the school year is not significantly tied to the relationship of the annual rate of pay to the number of days worked. Under these circumstances, the Board has the exclusive managerial prerogative to determine unilaterally "the dates, between which the schools of the district shall be open, in accordance with law." N.J.S.A. 18A:36-2.

Our scope of review of a decision reached by a state administrative agency is narrow and deferential. See Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). It is well-established that when the Legislature has delegated power to an agency, "[t]he grant of authority . . . should be liberally construed to enable the agency to accomplish the Legislature's goals." Van Dalen v. Washington Twp., 120 N.J. 234, 245 (1990). When an agency acts in accordance with its delegated power, its actions are "accorded a strong presumption of validity and reasonableness." Id. at 244-45.

As a matter of public policy, the Legislature has vested PERC with the authority and responsibility to facilitate the prompt resolution of labor disputes in the public sector. N.J.S.A. 34:13A-2. PERC was expressly created by the Legislature to carry out this public policy. N.J.S.A. 34:13A-5.2. PERC's decision under these circumstances is supported by the approach the Court endorsed in Woodstown-Pilesgrove. We thus affirm the denial of the Association's unfair labor practice charge substantially for the reasons expressed by PERC in its decision dated January 30, 2014.
 

Affirmed.

1 Simultaneously, the Association filed a petition with the State Commissioner of Education requesting a preliminary injunction restraining the Board from implementing the calendar change pending the outcome of the charge. After winding its way through the Office of Administrative Law, the Commissioner ultimately denied the Association's petition for this interim relief and dismissed the petition.

2 N.J.S.A. 34:13A-5.4a(1) prohibits public employers or their representatives or agents from "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act."

3 N.J.S.A. 34:13A-5.4a(5) prohibits public employers or their representatives or agents from "[r]efusing 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."

4 Judge Virginia Long was appointed to the New Jersey Supreme Court by Governor Christine Todd Whitman in 1999 and served as an Associate Justice until her retirement in 2012.