                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION
 This opinion shall not "constitute precedent or be binding upon any court."
  Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.


                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2173-16T4
WEST MORRIS REGIONAL HIGH
SCHOOL BOARD OF EDUCATION,

     Petitioner-Respondent,

v.

MORRIS REGIONAL EDUCATION
ASSOCIATION,

     Respondent-Appellant.
_______________________________

           Argued May 23, 2018 – Decided August 28, 2018

           Before Judges Koblitz and Suter.

           On appeal from the New Jersey Public
           Employment Relations Commission, P.E.R.C. No.
           2017-29.

           Samuel B. Wenocur argued the cause for
           appellant (Oxfeld Cohen, PC, attorneys; Samuel
           B. Wenocur, on the brief).

           Matthew J. Giacobbe argued the cause for
           respondent West Morris Regional High School
           Board of Education (Cleary, Giacobbe, Alfieri
           & Jacobs, LLC, attorneys; Matthew J. Giacobbe,
           Gregory J. Franklin and Jessica V. Henry, of
           counsel and on the brief).

           Christine   R.   Lucarelli,  Deputy   General
           Counsel, argued the cause for respondent New
           Jersey Public Employment Relations Commission
           (Robin T. McMahon, General Counsel, attorney;
           Christine R. Lucarelli, on the statement in
           lieu of brief).

PER CURIAM

     The West Morris Education Association (Association) appeals

from a determination by the Public Employment Relations Commission

(PERC) on December 22, 2016, that the start and end date of the

school calendar was a non-negotiable managerial prerogative.              We

affirm PERC's decision.

     The West Morris Regional High School Board of Education

(Board) and the Association negotiated a collective bargaining

agreement (contract) for the period from July 1, 2013 to June 30,

2016.   On June 20, 2016, during its negotiation of a successor

contract   with   the   Association,   the   Board   filed   a   scope    of

negotiation petition with PERC that requested PERC's determination

about a claimed managerial prerogative.        In the parties' earlier

contract, Article VII, Section A entitled "Work Year/Work Day/Work

Load" provided that:

           Effective July 1, 2004, teachers employed on
           a [ten] month basis shall be employed from
           September 1 through June 30 and shall report
           to work in accordance with the calendar
           adopted by the Board not to exceed 184 days
           of work for teachers, and not to exceed 181
           days of instruction for students.

           [(emphasis added).]



                                   2                               A-2173-16T4
The Board contended the phrase "shall be employed from September

1 through June 30" must be "removed from the [a]greement because

it unlawfully interferes with the Board's managerial prerogative

to establish the school calendar."        The Board argued it could

exercise its managerial prerogative to change the start date of

the school year without affecting employees' salaries and that the

school calendar was an educational policy goal that did not require

mandatory negotiation.

     The Association opposed the petition, contending that its

members would be negatively impacted if the Association could not

negotiate the school calendar.       However, it stated the "precise

impacts of any future action cannot be fully ascertained at this

time." If the Board had a different start date for any one school,

the Association argued there would be a lack of cohesiveness.

Also, starting school in the summer months could cause health

concerns because some schools did not have air conditioning.      The

Association admitted that the "actual impact of changing the

calendar may currently be unknown, [but] it will be significant."

The Association also argued the number of teaching days could not

be changed and any change should not apply to the contract that

was in effect.

     PERC's December 22, 2016 decision held that "the contested

clause[,] ["shall be employed from September 1 through June 30,"]

                                 3                           A-2173-16T4
is not enforceable as it relates to a non-negotiable managerial

prerogative."    PERC stated "[i]t is well settled that the setting

of a school calendar in terms of when school begins and ends is a

non-negotiable managerial prerogative," citing to Burlington Cty.

Coll. Faculty Ass'n v. Burlington Cty. Coll. Bd. of Trs., 64 N.J.

10, 15-16 (1973). PERC relied on N.J.S.A. 18A:36-2, which provides

that "the board of education shall determine annually the dates,

between which the schools of the district shall be open . . . ."

It rejected the Association's argument that Piscataway Twp. Educ.

Ass'n v. Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 267-

68 (App. Div. 1998), required a decision in its favor, concluding

that   "[t]he   facts   of   this   case   do   not   resemble   the   unusual

circumstances confronted by the court in Piscataway, and any

potential impact to Association members from a possible future

calendar change is speculative only."           PERC decided the contested

clause was a managerial prerogative, even though it was part of

the parties' earlier contract.

       On appeal, the Association argues that although the Board has

the managerial prerogative to establish a school calendar for

students, the Board must negotiate with the Association about the

teachers' calendar for the days when students are not present,

including the date that teachers are to start.              It claims that

N.J.S.A. 18A:36-2 only applies to student calendars.             It disagrees

                                      4                                A-2173-16T4
with PERC's interpretation of Burlington County, and argues that

requiring teachers to report before September 1 is contrary to the

concept of a ten-month employee, citing various statutes and

regulations.

     "The Legislature has vested PERC with 'the power and duty,

upon the request of any public employer or majority representative,

to make a determination as to whether a matter in dispute is within

the scope of collective negotiations.'"     In re Belleville Educ.

Ass'n, __ N.J. Super. __, __ (App. Div. 2018) (slip op. at 16)

(quoting N.J.S.A. 34:13A-5.4(d)).    "The standard of review of a

PERC decision concerning the scope of negotiations is thoroughly

settled.   The administrative determination will stand unless it

is clearly demonstrated to be arbitrary or capricious."         Ibid.

(quoting City of Jersey City v. Jersey City Police Officers

Benevolent Ass'n, 154 N.J. 555, 568 (1998)).

     "Questions   concerning   whether   subjects   are   mandatorily

negotiable should be made on a case-by-case basis."          Troy v.

Rutgers, 168 N.J. 354, 383 (2001) (citing City of Jersey City, 154

N.J. at 574).   A three-part test applies to scope of negotiations

determinations.   In re Local 195, IFPTE, 88 N.J. 393, 403 (1982).

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

                                 5                            A-2173-16T4
           preempted by statute or regulation; and (3) a
           negotiated agreement would not significantly
           interfere    with   the    determination    of
           governmental policy. To decide whether a
           negotiated   agreement   would   significantly
           interfere    with   the    determination    of
           governmental policy, it is necessary to
           balance the interests of the public employees
           and the public employer. When the dominant
           concern   is   the   government's   managerial
           prerogative to determine policy, a subject may
           not be included in collective negotiations
           even   though   it   may   intimately   affect
           employees' working conditions.

           [Id. at 404-05.]

     The     Association    acknowledges      that   the    Board   has   the

managerial    prerogative    to   determine    the   school    calendar   for

students, but argues the calendar for teachers on work days when

students are not present must be negotiated.               PERC did not have

the opportunity to address this argument because the Association

did not raise it before PERC.       We address the argument to resolve

it although "[g]enerally, an appellate court will not consider

issues . . . which were not raised below."           State v. Galicia, 210

N.J. 364, 383 (2012).

     There was nothing arbitrary, capricious or unreasonable about

PERC's decision that the contract language at issue implicated the

Board's managerial prerogative.          It is well established that

setting the school calendar is a managerial prerogative.




                                     6                               A-2173-16T4
     In Bd. of Educ. v. Woodstown-Pilesgrove Reg'l Educ. Assoc.,

81   N.J.    582,   592    (1980),   an   arbitrator   awarded     teachers'

compensation when they were required to work two additional hours

on the day before Thanksgiving.            The Board filed a complaint

seeking to set aside the award.       In affirming the award, the Court

stated that "[e]stablishing the school calendar in terms of when

school commences and terminates is a non-negotiable managerial

decision."    Ibid.      However, because the two hours at issue did not

"significantly      or    substantially   trench[]   upon   the   management

prerogative," the Court agreed that the issue was negotiable.             Id.

at 594.

     In Burlington County, the issue was whether the College Board

of Trustees was required to negotiate the format of the college

calendar with the faculty members' representative.            The calendar

fixed the days the college was "open with courses available to

students" but did not "fix the days and hours of work by individual

facility members or their workloads or their compensation."                 64

N.J. at 12.     The Court held that the calendar "was not a subject

of mandatory negotiation," even though it "undoubtedly has some

practical effect on the facility's employment arrangements."              Id.

at 13.    The Board

            negotiated on the matters directly and
            intimately affecting the faculty's working
            terms and conditions, such as compensation,

                                      7                              A-2173-16T4
          hours, workloads, sick leaves, personal and
          sabbatical leaves, physical accommodations,
          grievance procedures, etc.    It declined to
          negotiate the major educational policy of the
          calendar though it did make provision in its
          governance structure for a calendar committee
          with student, facility and administration
          representatives.

          [Id. at 14.]

     Burlington County did not distinguish between the calendar

for students and the calendar for teachers.   It made reference to

out-of-state cases that took conflicting positions on the issue

of whether the calendar was negotiable, noting that the cases had

"little pertinence here" because they "turn on the particular

provisions of their own statutes, which differ from ours."      Id.

at 14. Comments quoted by the parties from those cases were simply

illustrative of that conflict.

     The Association argues that N.J.S.A. 18A:36-2 should be read

in pari materia with the New Jersey Employer-Employee Relations

Act (the Act), N.J.S.A. 34:13A-1 to -43, to limit its applicability

to the student calendar and not the teachers' calendar.   N.J.S.A.

18A:36-2 provides that "[t]he board of education shall determine

annually the dates, between which the schools for the district

shall be open, in accordance with the law."    The statute is not

limited in the manner suggested by the Association; the Association

cites no supporting authority for its argument.   In fact, the Act


                                 8                         A-2173-16T4
provides to the contrary stating, "nor shall any provision here

annul or modify any . . . statutes of this State."        N.J.S.A. 34-

13A-8.1.

     The   Association's   distinction   between   the   two   calendars

undercuts the managerial prerogative that it acknowledges.        If the

teachers' calendar were negotiable as the Association suggests,

the student calendar would be controlled by it because that

calendar could only be set within the boundaries negotiated for

the teachers' calendar.

     We agree with PERC that      Piscataway Twp. Educ. Ass'n v.

Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263, 265 (App. Div.

1998), does not require a different outcome.       In Piscataway, the

superintendent changed the school calendar during the school year

because of unexpected snow days by cancelling certain school

holidays and adding school days to the end of the school year.

The Piscataway Township Education Association filed an unfair

practice charge that later was dismissed by PERC.        In Piscataway,

we said that a change in the school's calendar "is a managerial

prerogative of the school administration which cannot be bargained

away.   As such, it need not be negotiated."   Id. at 265.      However,

Piscataway also said that whether the "impact" of the calendar

change on the "work and welfare of public employees" needs to be

negotiated depends on "whether negotiating the impact issue would

                                  9                              A-2173-16T4
significantly     or    substantially      encroach    upon    the    management

prerogative.     If yes, the duty to bargain must give way.                     If

. . . no, bargaining should be ordered."              Id. at 265; 276.

      We agree with PERC that the facts in Piscataway are dissimilar

from this case. Here, the issue does not involve a mid-year change

in the calendar; it involves the negotiation of a new contract.

PERC found "any potential impact to Association members from a

possible future calendar change [was] speculative only."

        On appeal, the Association raises other alleged "potential

significant harms" that were not presented to PERC when the issue

was before them.1       When the Association was before PERC, it said

the impact could not be "fully ascertained at this time" and that

the   impact    was     "unknown,"    mentioning       only    the    need     for

"cohesiveness" in schedules and health concerns due to lack of air

conditioning.     PERC's decision was not arbitrary, capricious or

unreasonable     by    not   speculating    about     the   impacts    that    the

Association presented as unknown.

      Finally, the Association contends PERC's decision "throws

[previous]     decisions     and   regulations   into       chaos,"   citing    to

statutes, regulations, and cases referencing ten-month calendar



1
  These include child care costs, teachers performing outside
second jobs, and the need for some teachers to take their own
children to college.

                                      10                                 A-2173-16T4
employees and others referencing the school year commencing on

September 1.   These arguments also were not made to PERC and thus,

we decline to address them.   See Neider v. Royal Indem. Ins. Co.,

62 N.J. 229, 234 (1973).      We do not know whether the parties

negotiated a new contract nor what that said about the issues the

Association claims may be affected.    We will not speculate about

the application of statutes and regulations that were not raised

before PERC or their impact without an appropriate record.

     Affirmed.




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