P.E.R.C. No. 2002-49, E Orange B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EAST ORANGE BOARD OF EDUCATION, Respondent, -and- Docket No. TO-H-2000-1 EAST ORANGE EDUCATION ASSOCIATION, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, Love & Randall, attorneys, ¶

(Melvin C. Randall, of counsel) ¶

For the Petitioner, Oxfeld Cohen, LLC, attorneys ¶

(Nancy I. Oxfeld, of counsel) ¶

DECISION ¶

On November 24, 1999, the East Orange Education Association petitioned for a contested transfer determination. The Association alleges that the East Orange Board of Education violated N.J.S.A . 34:13A-25 when, in September 1999, it transferred several middle school teachers for what the Association contends were disciplinary reasons. ¶

On January 11, 2000, the Board filed an Answer asserting that the transfers were made for educational reasons and were not disciplinary or punitive. ¶

On August 10, 2000, the Chair granted the Association's request for an evidentiary hearing. The Chair advised the parties that, absent objections, Hearing Examiner Susan E. Galante would conduct a hearing and prepare a report containing only findings of fact. The matter would then be transferred to the Commission for final disposition. ¶

On October 19, 2000, and February 14 and June 14, 2001, the Hearing Examiner conducted a hearing. The parties examined witnesses, introduced exhibits, and filed proposed findings of fact. ¶

On September 25, 2001, the Hearing Examiner issued a report containing her recommended findings of fact. H.E. No. 2002-2, 28 NJPER 29 (¶33010 2001). The parties stipulated that the teachers were informed that they were being transferred because of the high failure rates in their classes. The Hearing Examiner found that a Board member's memorandum expressing concern about high student failure rates triggered the decision-making process that resulted in the transfers. The Hearing Examiner also found that the assistant superintendent credibly explained why administrators proposed the transfers after the teachers' failure rates were identified and discussed. He testified that he and the superintendent recommended the transfers because they believed a change in schools, a different environment, and an opportunity to work with different administrators and students might result in improved teaching performance, which would in turn result in increased student achievement and better student preparation for high school. ¶

On October 31, 2001, the Association filed exceptions. It asserts that the facts are essentially undisputed, but that the reason for the transfers is at issue. It argues that the teachers were punished to make it look as though the superintendent was taking action in response to the Board member's memorandum. The Association asserts that the superintendent responded to the Board member with a 17-page memorandum setting forth methods to deal with the problem, but did not suggest transferring teachers. It further asserts that the Board did not review information relevant to failure rates, such as evaluations of the teachers' performance, the comparative achievement of the students in those classes with their prior achievement, or student attendance. The Association notes that nine of the twelve teachers transferred were rated satisfactory in all areas of their yearly evaluation or in all areas except attendance and lateness. None of the teachers had been told that they were required to pass a certain percentage of students, and teachers with higher failure rates were not transferred. According to the Association, the timing of the transfers on the second day of school, after the memorandum from the Board member but before the superintendent's response, shows that the transfers were not made for educational reasons. ¶

On January 2, 2002, the Board filed an answering brief. It argues that the assistant superintendent's testimony was unrefuted and unimpeached and that we should defer to the Hearing Examiner's decision to credit that testimony. The Board further argues that it did not transfer the teachers because of poor evaluations, but because of high student failure rates. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 2-29). Despite the Association's urging, we have no basis to reject her decision to credit the testimony of the assistant superintendent about the non-disciplinary motivation for the transfers. ¶

N.J.S.A . 34:13A-25 prohibits transfers of school employees between work sites for disciplinary reasons. Non-disciplinary transfers are not mandatorily negotiable. The petitioner has the burden of proving its allegations by a preponderance of the evidence. Irvington Bd. of Ed., P.E.R.C. No. 98-94, 24 NJPER 113 (¶29056 1998). ¶

Our case law does not provide a bright line test for assessing whether a transfer was disciplinary. In exercising our jurisdiction under N.J.S.A . 34:13A-27, we will consider such factors as whether the transfer was intended to accomplish educational, staffing or operational objectives; whether the Board has explained how the transfer was so linked; and whether the employee was reprimanded for any conduct or incident that prompted the transfer. West New York Bd. of Ed., P.E.R.C. No. 2001-41, 27 NJPER 96 (¶32037 2001). ¶

The Hearing Examiner has credited the assistant superintendent's testimony about the Board's educational objective for the transfers: it believed that a change in schools, a different environment, and an opportunity to work with different administrators and students might result in teachers' improved performance, which would result in increased student achievement. The teachers were not otherwise disciplined for failing too many students. ¶

The Hearing Examiner recognized that the transfers were not a proven district strategy for enhancing teaching performance. They were a cost-free, quick way of responding to the Board member's concerns and taking some action to address low achievement in the first year of high school. The transfers were not based on the teachers' evaluations, but instead on student failure rates. The Board's approach may have been mechanical, given that other factors may have contributed to a particular student's failing, and it may have been imprecise, given that teachers with higher failure rates were not transferred. But the assistant superintendent testified credibly about why administrators proposed the transfers. Their reason was not to punish teachers, but to enhance student achievement. Under these circumstances, the Association has not proven that the transfers were disciplinary and we dismiss the petition. ¶

OrderORDER ¶

The petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: February 28, 2002 ¶

Trenton, New Jersey ¶

ISSUED: March 1, 2002 ¶