P.E.R.C. No. 2000-7, Wanaque Boro B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WANAQUE BOROUGH BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-99-65 WANAQUE BOROUGH EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Schwartz, Simon, Edelstein, Celso & Kessler, LLP, attorneys (Jacob Green, of counsel; Jacob Green and Daniel S. Goodman, on the brief) ¶

For the Respondent, Balk, Oxfeld, Mandell & Cohen, P.C., attorneys (Nancy Iris Oxfeld, on the brief) ¶

DECISION ¶

On March 3, 1999, the Wanaque Borough Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Wanaque Borough Education Association. The grievance alleges that teachers were reprimanded without just cause. ¶

The parties have filed briefs and exhibits. The Board has submitted a certification. These facts appear. ¶

The Association represents a unit of certificated employees including teachers. The Board and the Association are parties to a collective negotiations agreement effective from July 1, 1997 through June 30, 2000. The contract provides for binding arbitration of grievances, and, by operation of N.J.S.A. 34:13A-29a, of disputes involving the imposition of reprimands. ¶

On June 4, 1998, shortly before the 3:00 p.m. dismissal at Wanaque Elementary School, the principal noticed that several seventh and eighth grade students had left their classrooms and were in the hall. Shortly after the dismissal bell sounded, Michael Yuhas, a seventh grade teacher, brought two students into the principal's office and reported that they had been fighting. The principal asked Yuhas whether the students had been outside prior to the dismissal bell. Yuhas acknowledged that they had been. ¶

The next morning the principal spoke again with Yuhas concerning the fight. The teacher mentioned that it was common practice for teachers to release their students before the 3:00 dismissal bell, but assured the principal that he would not allow the situation to recur. The principal told Yuhas that he would issue a memo to Yuhas and the other teachers whose students were in the hall prematurely, concerning their obligation to supervise students. ¶

On June 5, 1998, the principal sent a memorandum to Yuhas and eighth grade teachers Carol Buyck, John Murrin and Lynn Schoenfeld. A copy was placed in each teacher's personnel file. The memorandum states: ¶

It was brought to my attention that students were involved in a fight after school on Thursday, June 4th. I was informed that many students were in the hall trying to get out of the door before 3:00 p.m. Some of these students were in your homeroom. Please keep in mind that the school day does not end until 3 o'clock; therefore, they are your responsibility until 3 o'clock. (Please refer to page 11 of the Student/Parent Handbook). ¶

On June 17, 1998, the Association filed a grievance on behalf of the three eighth grade teachers asserting that the Board lacked just cause to place the documents into their personnel files. 1/ The principal denied the grievance, stating that the teachers' rights had not been violated. On July 7, and October 13, respectively, the superintendent and the Board denied the grievance. On November 16, the Association demanded arbitration. This petition ensued. ¶

The Board argues that the memoranda are not disciplinary, but rather remind the teachers of their student supervision and classroom control responsibilities. ¶

The Association asserts that the principal's message does not contain "substantive comments designed to improve teaching performance, but rather criticism by the principal without regard to what took place or whether teaching performance was at all at issue." The Association maintains that the memorandum is disciplinary since the Board could rely on it in the future if there is another allegation that teachers failed to follow the principal's instructions. ¶

Note1/ The grievance does not assert that the Board violated contract procedures pertaining to the inspection and insertion of documents into employee personnel files. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144, 154 (1978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider whether the principal had cause to issue and place the memoranda in teacher personnel files. ¶

In Holland Tp. Bd. of Ed., P.E.R.C. No. 87-43, 12 NJPER 824 (¶17316 1986), aff'd NJPER Supp .2d 183 (¶161 App. Div. 1987), we distinguished between evaluations of teaching performance and disciplinary reprimands. We found that by allowing disciplinary actions to be reviewed through binding arbitration, the Legislature had not meant to make an evaluation, as opposed to a reprimand, a form of discipline. We then stated: ¶

We realize that there may not always be a precise demarcation between that which predominantly involves a reprimand and is therefore disciplinary within the amendments to N.J.S.A . 34:13A-5.3 and that which pertains to the Board's managerial prerogative to observe and evaluate teachers and is therefore non-negotiable. We cannot be blind to the reality that a "reprimand" may involve combinations of an evaluation of teaching performance and a disciplinary sanction; and we recognize that under the circumstances of a particular case what appears on its face to be a reprimand may predominantly be an evaluation and vice-versa. Our task is to give meaning to both legitimate interests. Where there is a dispute we will review the facts of each case to determine, on balance, whether a disciplinary reprimand is at issue or whether the case merely involves an evaluation, observation or other benign form of constructive criticism intended to improve teaching performance. While we will not be bound by the label placed on the action taken, the context is relevant. Therefore, we will presume the substantive comments of an evaluation relating to teaching performance are not disciplinary, but that statements or actions which are not designed to enhance teaching performance are disciplinary. ¶

[ Id. at 826] ¶

In this case, the memorandum reminded teachers that students should not be released from classrooms until 3:00 p.m. The memoranda were not punitive and did not threaten future discipline. The Association does not contend that the memorandum is factually inaccurate. Under all these circumstances, we hold that these memoranda simply clarify the teachers' responsibility to supervise students and cannot be contested through binding arbitration. Compare Somerdale Bd. of Ed., P.E.R.C. No. 98-40, 23 NJPER 562 (¶28280 1997)(restraining arbitration of grievance challenging memorandum from principal to teacher that was not punitive and did not state that discipline would be forthcoming). Cf. Perth Amboy Bd. of Ed., P.E.R.C. No. 98-137, 24 NJPER 271 (¶29129 1998)(directive that administrator must remain in building until all students dismissed could not be challenged in arbitration). The Association's concern that the memorandum will be viewed as prior discipline in any future disciplinary proceeding is unwarranted given the Board's statement that it is not disciplinary. West Windsor-Plainsboro Reg. Bd. of Ed., P.E.R.C. No. 97-99, 23 NJPER 168 (¶28084 1997). ¶

OrderORDER ¶

The request of the Wanaque Borough Board of Education for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶