This appeal implicates a dispute between plaintiff Board of Education (Board) and defendant Education Association (Association) over a decision by the Board on February 16, 1976, in adopting the school calendar for the 1976-1977 schоol year, to schedule November 24, 1976, the day before Thanksgiving, as a regular school day. As this meant the staff would work a full day, the Board’s action constituted a change of the practice of previous years for that day pursuant to which thе schools would be closed at 1 p.m. and both pupils and educational staff would be relieved of attendance fоr the remainder of the day.
At the time of the mentioned action by the Board there was in existence a collective bargaining agreement between the Board and the Association covering the period July 1, 1975 through June 30, 1978. Under Article XXI of that аgreement it was provided that unless otherwise provided in the agreement nothing contained therein should be interpreted or applied so as to eliminate, reduce or otherwise detract from any teacher benefit existing prior tо its effective date.
The Association objected to the change thus adopted for the day prior to Thanksgiving, relying uрon Article XXI, and it instituted a grievance procedure. The superintendent of schools conducted a hearing on Dеcember 21, 1976 and denied the grievance on December 28, 1976. The Association
Thereafter the Board filed a сomplaint in the Superior Court seeking vacation of the award and the Association answered and counterclaimed for confirmation. A trial judge, after hearing, entered an order vacating the award. The court held that regardless of the correctness of the arbitrator’s decision concerning the lateness of the superintendent’s ruling on the grievance, the arbitrator had no jurisdiction in the matter because the dispute concerned a subject of exclusive manаgerial discretion Tather than a tercn and condition of employment and that therefore the determination of thе Board on the dispute was conclusive against the Association.
We observe, preliminarily, that whenever issues of negоtiability of disputes arise hereafter litigants will be expected to abide by the recent direction of the Supreme Court in State v. State Supervisory Employees Ass‘n, 78 N. J. 54 (1978) that the Public Employment Relations Commission (PERC) “is the forum for the initial determination of whether a matter in dispute is within the scope of collective negotiations. PERC’s jurisdiction in this area is primary * * * no court of this State is empowered to make this initial dеtermination.” (At 83). Despite that
As an initial considеration, we have no doubt that the previous procedure of terminating the school day on the day before Thanksgiving at 1 p.m. was comprehended by Article XXI, cited above, as a preserved prior practice. While the decision by the Board that the day before Thanksgiving should be a regular school day was undoubtedly one relating to calendar and thеrefore within the exclusive managerial prerogative of the Board, nevertheless the effect of that determination in increasing the working hours of the teachers for that day by two hours over what the working hours had been previously renderеd the decision also one affecting terms and conditions of employment. The distinction is very clearly made in the leading ease on the point, Burlington Cty. College Fac. Ass’n v. Bd. of Trustees, 64 N. J. 10 (1973). The Court stated:
While the calendar undoubtedly fixes when the college is open with courses available to students, it does not in itself fix the days and hours of work by individual faculty members or their work loads or their compensation. These mattеrs, the defendant readily acknowledges, are mandatorily negotiable under the Act though the negotiations are to bе conducted in the light of the calendar, [at 12]
It thus appears not only that the subject here in dispute, in its aspect of affecting the hours of work of the teachers, concerns a matter of terms and conditions of employment, and therеfore subject to mandatory negotia
Judgment reversed; no costs.