Scope of Negotiations in Public Employment

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1 Scope of Negotiations in Public Employment The Employer-Employee Relations Act of 1968 (the "Act") originally defined the scope of negotiations for public employment in New Jersey. Since its enactment, the Act has been the source of continuous frustration for the Legislature, the Public Employment Relations Commission ("PERC") and the courts, as they struggle to distinguish which public employer decisions fall within its scope. Recently, the New Jersey Appellate Division interpreted the Act, and expanded it so that the impact of decisions that have traditionally been within the sole managerial prerogative of the boards of education may now have to be negotiated. Brief History of the Act In its original form, the Act defined negotiations broadly, including grievance procedures and other "terms and conditions" of public employment as proper subjects of bargaining when they directly and intimately affect the work and welfare of public employees. N.J.S.A. 34:13A-5.3. In an attempt to further delineate which actions taken by public employers fall within the scope of negotiations, the Act has been amended several times. In 1980, the Act was amended to permit negotiations over agency shops, and in 1982, it was amended to authorize negotiations over disciplinary review procedures. Finally, in 1990, the Act was amended to authorize school district negotiations over assignments to extracurricular activities, as well as the authority of a board of education to impose new forms of minor discipline. These amendments modified the initial Act, but failed to narrow the meaning of "terms and conditions" as originally articulated by the Legislature. In the absence of clear legislative intent, PERC and lower courts have turned to the New Jersey Supreme Court for interpretive guidance in resolving disputed issues of negotiability. The Supreme Court has recognized that, in its capacity as the employer of the public sector, the government has special responsibilities to the public.1 As a result, the Supreme Court held that the scope of negotiations in the public sector must be more limited than that in the private sector. Citizens must be afforded participation in deciding matters of public policy and, therefore, these matters should be left to the political process and not that of collective negotiations.

2 In Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144 (1978), the collective agreement between the Board of Education and teachers association contained a provision requiring the submission of grievances involving teacher transfer and reassignments to binding arbitration. The Board contended that the grievances pertained to matters outside the scope of negotiations and, as such, were not arbitrable. The Supreme Court rejected the notion that the Legislature intended to create a permissive category of negotiations, and reaffirmed that there are only two categories of public employment negotiation: mandatory negotiable terms and conditions of employment and nonnegotiable matters of governmental policy. The Court decided that negotiations on the subject of teacher transfers would significantly interfere with a public employer's discharge of inherent managerial responsibilities and, as a result, held that the subject falls outside the scope of mandatory negotiability. Accordingly, the Court struck as invalid a provision in the collective agreement that limited the Board's right to transfer teachers. In Local 195 IFPTE, AFL-CIO v. State of N.J., 88 N.J. 393 (1982), the Supreme Court expanded upon the Ridgefield Park decision by recognizing that both public and private employees have an interest in collective negotiations. The issue presented to the Court was whether provisions regarding: (1) limitations on contracting and subcontracting; (2) the establishment of a work week; and (3) transfer and reassignment, could be included in a collective bargaining agreement. The Supreme Court established a three-part test for scope of negotiations determinations. It determined that a subject is negotiable between public employers and employees 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 (the statute or regulation must speak in the imperative and leave nothing to the discretion of the public employer); and 3. A negotiated agreement would not significantly interfere with the determination of governmental policy. It is necessary to balance the interests of public employees and the public employer. If 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.

3 Applying this three-part test, the Court held that: (1) the proposed provisions in the public collective bargaining agreements requiring the employer to negotiate or discuss all incidents of contracting or subcontracting whenever it became apparent that a layoff or job displacement might result were nonnegotiable matters of managerial prerogative; (2) the provision concerning the employees' work week was negotiable as a term and condition of employment; and (3) the transfer and reassignment provisions relating to procedure were negotiable, while others relating to certain substantive criteria were not. The test outlined by the Supreme Court in Local 195 is now used by most courts and PERC in making scope of negotiations determinations. Local 195, however, does not always clearly categorize an item as negotiable or nonnegotiable. For example, disputed subjects may contain elements which implicate both managerial and employee interests. In these instances, the nonnegotiable and negotiable components may be separated, and a "split" decision reached whereby managerial rights will be insulated from negotiations while the related terms and conditions of employment will be subject to negotiations. Split Decisions: Negotiating the Impact Issue The Appellate Division was recently confronted with this situation in Piscataway Twp. Educ. Ass'n v. Piscataway Twp. Bd. of Educ., No. A T2, (App. Div. 1998). In Piscataway, the Board of Education unilaterally altered the school calendar due to weather-related closings, without submitting the proposed changes to collective negotiations. The Piscataway Township Education Association ("Association") initiated an action challenging the Board' s failure to negotiate with the Association over the calendar changes and over the impact of those changes on Board employees. The Court held that the decision to change the school calendar was not negotiable, but that the impact of that decision may be negotiable. In an effort to clarify the law in this area, the Piscataway Court was forced to revisit two prior conflicting decisions. Specifically, the Court considered the holdings of Edison Twp. Bd. of Educ. v. Edison Twp. Educ. Ass'n, Dkt. No. A (App. Div. Sept. 21, 1979) and Board of Educ. of Woodstown-Pilesgrove v. Woodstown-Pilesgrove Educ. Ass'n, 81 N.J. 582 (1980). In Edison Twp., the teachers' representative filed an unfair practice charge against the Board of Education for unilaterally canceling a holiday and part of spring break to make up for snow days. PERC dismissed the charge, concluding that the Board enjoyed the prerogative to reschedule workdays to ensure 180 days of instruction were provided to students. The opinion, however, also drew a distinction between the nonnegotiability of the decision and the negotiability of the impact of the decision upon Board employees (the "decision/impact dichotomy"). For example, as a result of the decision, many employees were forced to cancel trips and lose non-refundable deposits or use personal days to complete pre-scheduled trips. PERC ordered the Board to negotiate these detrimental

4 effects, or "impact," of the decision on the employees. The Board appealed and the Appellate Division reversed, holding that issues need not be negotiated where the negotiations would frustrate the employer's prerogative. The Edison Twp. decision has since been relied upon as a broad declaration that impact issues related to managerial prerogative are nonnegotiable. In Woodstown-Pilesgrove, the school employer exercised its prerogative to change the school calendar by adding two hours of instruction on the day before Thanksgiving. The teachers sought payment for these additional hours, and the Appellate Division held that the compensation issue was mandatorily negotiable. The Supreme Court affirmed, but noted that further analysis may be required when the impact of the exercise of a prerogative is involved. In so ruling, the Supreme Court rejected the proposition that all impact issues related to a prerogative are necessarily nonnegotiable. The Supreme Court also rejected PERC's decision/impact dichotomy in favor of a balancing test which requires consideration of the nature of the terms and conditions of employment in relation to the extent of their interference with managerial prerogatives. For example, the decision to fix the number of school days and the hours of instruction clearly falls within a fundamental managerial prerogative of the board of education. It is also clear that this decision impacts upon the teachers' terms and conditions of employment. The Court determined, however, that only when the result of bargaining may significantly or substantially encroach upon the board's prerogative, shall the duty to bargain give way to the more pervasive need of education policy decisions. In Woodstown-Pilesgrove, the dominant issue concerned the school budget and not educational policy. Thus, negotiation of the issue would not " significantly or substantially trench upon the managerial prerogative of the board of education." In essence, the Woodstown-Pilesgrove Court declared that terms and conditions of employment arising as impact issues are mandatorily negotiable unless negotiations would significantly interfere with the educational prerogative of the board of education. This principle appears as the third criterion in the test enunciated above in Local 195. Despite the Supreme Court decision in Woodstown-Pilesgrove, courts before Piscataway continued to rely on the Edison Twp. decision/impact test. In Piscataway, the original school calendar included 186 workdays for teachers and accounted for three extra open school days for inclement weather. The calendar also included a statement reading, "If school is closed for inclement weather, make-up sessions will begin on June 21st and continue as needed." The winter of brought extremely harsh weather conditions and the schools were closed for a total of 12 days during the months of January, February and March. Although three extra days had already been built into the calendar, nine make-up snow days remained. In January 1994, the Board conferred and realized that adding days in late June meant subjecting students, staff and faculty to warm weather in non-air conditioned facilities. In addition, there were only eight days left in June for make-ups and this would not be enough time if the poor weather persisted into February and March (as it did). Therefore, the Board decided to utilize previously scheduled vacation days in February, March

5 and April as make-up snow days. The Board made these changes to the school calendar without consulting the Association. The Association challenged the Board's failure to negotiate the decision to alter the calendar, as well as the failure to negotiate the impact of that decision. The Appellate Division readily dismissed the first issue, holding that changes in the school calendar are clearly within the managerial prerogative of the school administration which cannot be bargained away or negotiated. The Court then held, however, that if negotiating the impact of calendar changes necessitated by weather closings would "significantly or substantially" encroach upon the management prerogative of the Board, the duty to bargain must give way. Accordingly, the Appellate Division remanded for further fact-finding on that issue. The Appellate Division's decision in Piscataway clarified the law with respect to the negotiability of the impact from decisions made within the managerial prerogative of the Board. The Court rejected continued reliance upon Edison Twp. for the proposition that impact issues related to the exercise of a prerogative are nonnegotiable, and that the decision precludes negotiation over the impact of calendar changes. Instead, the Court followed Woodstown- Pilesgrove and held that PERC was wrong insofar as it deemed the impact of required calendar changes necessitated by weather closings nonnegotiable as a matter of law. Rather, a determination is needed whether negotiating the impact issue would "significantly or substantially" encroach upon the board's managerial prerogative. If the answer is yes, the Board need not negotiate. If the answer is no, the Board must consult and negotiate with its Association. What constitutes "significant or substantial" encroachment on managerial prerogative is a fact-intensive determination. The courts seem to focus upon the extent to which students and teachers are "congruently involved." The more the issue in dispute concerns the involvement between teacher and student, the greater the interference with the board's constitutional responsibility to ensure that all children receive a thorough and efficient education. For example, where the issue involves hiring, teacher evaluations or teacher transfers, the Supreme Court has held the impact matters nonnegotiable as involving a significant educational purpose. Wright v. Bd. of Educ. of City of East Orange, 99 N.J. 112, 121 (1985) (citations omitted). Therefore, where a matter greatly involves students and teachers alike, it may be considered one of educational policy, bearing too substantially upon important non-teacher interests to be subject to negotiation. Conclusion The only certainty in scope of negotiations determinations is that they are influenced by many factors and the law is in constant flux. Nevertheless, the lists2 of negotiable and nonnegotiable topics on the following pages demonstrate that courts have clearly determined that certain issues are negotiable, while others remain within the Board's managerial prerogative. Boards of education, however, should keep abreast of legal trends and recent decisions, and should consult with their school board attorney, professional negotiator, or the New Jersey School Boards

6 Association Labor Relations Department. ******** 1 The Supreme Court reached this determination in three landmark decisions: In the Matter of Local 195, IFPTE, AFL-CIO v. State of N.J., 88 N.J. 393 (1982); Paterson Police P.B.A. Local No. 1 v. Paterson, 87 N.J. 78 (1981); and Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144 (1978). 2 Scope of Negotiations, The Negotiations Advisor (N.J. School Bd. Ass'n), 1997 at 3-4. TOPICS SUBJECT TO NEGOTIATIONS MANDATORY TOPICS OF NEGOTIATION Advisory arbitration for the application of management prerogatives to individual employees After school, teacher-only workshops Agency Shop Commencement date of negotiations, if earlier than date set by PERC Committees on nonnegotiable topics that have merely advisory authority Compensation Discipline of school employees not authorized or prohibited by law Duty-free lunch Employee Discipline procedures consistent with statutes Evaluation criteria for merit pay and procedures that do not contravene statute or administrative code Extracurricular assignments of individuals meeting district qualifications Fair dismissal procedures that do not interfere with the nonrenewal of nontenured teachers

7 Fringe benefits, including benefits for RIFed teachers if incorporated into the contract Grievance procedures Hiring procedures Holidays Holdback of salary Hours of work Insurance, including disability income Job security (for those not covered by tenure) Leaves of absences, in excess of statutory guarantees Length of the collective bargaining agreement Management rights clause Merit pay (including evaluation) No-strike provision P ayment for unused accumulated sick leave Past practice Personal leave Personnel file, access to Physical facilities and working conditions Posting procedures Preparation periods

8 Promotion procedures Reduction in force (RIF), notice provision and compensation for remaining staff if there is a significant increase in workload Release time Representation for teacher conferences, other meetings Rules, change of Sabbatical leave Safety issues Salary guide Shifting unit work from unit employees to employees outside the unit (specifically distinguishable from the nonnegotiable topic of subcontracting) Sick leave, above the statutory minimum Sick leave, payment for verification Summer session, procedures for filling positions Teacher-pupil contact time Teacher rights clause Teaching periods, number of Transfer and assignment procedures Union business, time off for, use of prep period for Vacations Work load

9 Workday, length of Work year, length of Zipper clause NONNEGOTIABLE TOPICS DUE TO EDUCATIONAL POLICIES OR INHERENT MANAGEMENT PREROGATIVES Absenteeism and tardiness policies Academic calendar Affirmative action plans Application of evaluation criteria Assignment (other then extracurricular) Audio-visual equipment, use of Budget formulation Class size Curriculum Decision to assign bus, cafeteria, corridor and playground supervision Decision to reschedule snow day in teacher vacation period Decision to go to split session Design of students' school day Dress code, adoption of Evaluation, selection of evaluator; advance notice of observation Facilities relating to the education process

10 Impact of nonnegotiable decisions Instructional materials Lesson plans, format of and scheduling of submission Number of employees and deployment of personnel Parent-teacher conference, decision to schedule and changes in number of evening conferences for policy reasons Productivity studies Qualifications for employment Qualifications for increment Qualifications for promotion Sick leave, verification of Staffing, number of employees Student-related issues: discipline, grading, grievance procedure, safety, testing Subcontract, decision to Supervision of employees by department chairperson Transfer, decision and criteria (other than disciplinary transfers of school employees) Use of teacher aides NONNEGOTIABLE TOPICS DUE TO CONTRAVENING STATUTES OR REGULATIONS Composition of the bargaining team Decision to RIF Discipline procedures ending in binding arbitration for non-school employees with other statutory appeals procedures

11 Early retirement incentives Evaluation criteria Extended sick leave "If/Then" clause Impact of RIF on remaining teachers, and RIFed teachers when there is no significant increase in work load Maintenance of membership clauses Nonrenewal of nontenured teachers, decision to Parity Pensions RIF procedures (such as seniority, recall, and bumping rights) covered in statutes Religious leave (paid), if not charged to general personal leave or vacation Seniority provisions inconsistent with Title 18A Sick leave, unlimited blanket Sick leave, use of for other than statutory purposes Smoking in school building Student grievance procedures Sunshine bargaining as a precondition to negotiations Withhold increments, decision to Practice: School Law Headquarters Plaza, One Speedwell Avenue, Morristown, New Jersey t: f: West State Street, Suite 1010, Trenton, New Jersey t: f: Fifth Avenue, New York, New York t: f: Knollwood Road, Suite 201, White Plains, NY t: f: Summer Street, Suite 201C, Stamford, CT t: f: