P.E.R.C. No. 2006-5, Readington Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of READINGTON TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2005-081 READINGTON TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the Readington Township Board of Education for a restraint of binding arbitration of a grievance filed by the Readington Township Education Association. The grievance alleges that the Board violated the parties’ collective negotiations agreement when it withheld the increment of a teaching staff member. The Commission concludes that this withholding was based on an evaluation of teaching performance and must be reviewed by the Commissioner of Education. The Commission further concludes that whether or not the Board violated alleged contractual obligations to use progressive discipline goes to the merits of whether the withholding should be sustained and is outside the Commission’s forum selection function. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of READINGTON TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2005-081 READINGTON TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Fogarty & Hara, attorneys ¶

(Stephen R. Fogarty, of counsel and on the brief; ¶

Janet L. Parmelee, on the brief) ¶

For the Respondent, Wills, O’ Neill & Mellk, attorneys ¶

(Arnold M. Mellk, on the brief) ¶

DECISION ¶

On May 23, 2005, the Readington Township Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Readington Township Education Association. The grievance alleges that the Board violated the parties’ collective negotiations agreement when it withheld the increment of a teaching staff member. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

The Association represents all regular classroom teachers and certain other employees. The parties’ collective negotiations agreement is effective from July 1, 2003 through June 30, 2006. The grievance procedure ends in binding arbitration. Article IV, Employee Rights, provides, in part: ¶

B. No employee shall be disciplined arbitrarily or without a reason. ¶

1. Disciplinary action may include, but not be limited to: ¶

a. verbal reprimand b. written reprimand c. fine d. suspension ¶

2. The Board agrees to use concepts of progressive discipline consistent with the circumstances surrounding the infraction and the disciplinary history of the employee. ¶

Reed Petak is a special education teacher who has been employed by the Board since 1998. The Board states that over the past several years Petak’s classroom demeanor has become increasingly more volatile, characterized by yelling and using inappropriate language at students, imposing physical force to ensure student compliance, and demonstrating an unstable disposition that frightens students and staff. On June 20, 2000, the principal wrote to Petak advising him that reasonable force may only be used to quell a disturbance and that any unnecessary physical contact with a student can be misconstrued. The memorandum was apparently triggered when Petak allegedly threatened to use force to move a student out of a doorway and get him into a seat and then later pushed another student. ¶

During the 2002-2003 school year, one of the District’s special education aides who worked with Petak informed the administration that Petak periodically yelled and screamed at the students. She added that his behavior intimidated her. The Principal and the Director of Special Services met with Petak to inform him that this behavior was unacceptable and would not be tolerated. However, they were sensitive to the fact that Petak had lost his wife following a long illness, and a procedure was implemented to permit Petak to request class coverage if he felt he would lose his temper with his students or become emotionally distraught and would require time out to regain control. ¶

On April 23, 2004, an incident occurred in Petak’s special education class when some students were unprepared for class and some were chewing gum. According to the Board, Petak removed two students from class and announced to the other students that he was giving a test immediately and hoped that they all would fail. The Board also maintains that he yelled at the students, threw his plan book on the floor, threw a pencil that hit a child, and violated the personal space of a number of students by getting too close to their faces. One student ran out of the class to seek assistance from another teacher. When questioned by the assistant principal, Ann DeRosa, Petak allegedly became agitated, defensive and defiant. DeRosa sent Petak home for the rest of the day. ¶

Petak was asked to give his version of the events. He wrote a response with the following assertions. Some of the students were unprepared and not paying attention; as he was speaking, he gestured and the pencil flew out of his hand and landed in front of a student’s desk. He sent one student who was chewing gum and ignoring him to the office for a time out. Another student was sent to guidance for insubordinate behavior. He then administered the quiz and the students quietly took the exam. Five minutes later, DeRosa came to the class and asked him to follow her to the office. When she spoke with him, he felt he was being attacked and was upset. He reacted harshly to DeRosa and regretted that the meeting took that tone. His response concluded: ¶

I sincerely apologize for overreacting to some student missteps. I overreacted because I was disappointed. I had just passed a milestone on April 21st (Emily’s birthday) I will try to remember the strategies that were put in place, in regard to my extra stressors, this year; and will self ‘time out’ if I sense anger that may be inappropriate or caustic to my students. I was not aware that I did anything harmful and I’ll do whatever I need to correct it. Thank you for your actions in trying to make sure all Readington students and employees were safe. ¶

Petak’s Summative Assessment Report for the 2003-2004 school year contained a section labeled Administrator’s Comments. That section stated: ¶

As outlined in our district’s supervision model, teachers are evaluated in the following four domains: planning & preparation, classroom environment, instruction, and professional responsibilities. Some of Mr. Petak’s words and actions have raised serious concerns for administration with regard to his performance, particularly in the areas of classroom environment and professional responsibilities. ¶

In past years, Mr. Petak has established himself as an individual who does not always exercise good judgment. In April of this year, another episode occurred giving administration further reason to substantiate the above claim. Despite previous warnings about professionalism from other administrators, including Dr. James Gillock, Mr. Petak had such an angry outburst in class that several people, including many of his students, were scared and Ms. DeRosa was called to intervene. During Ms. DeRosa’s interaction with Mr. Petak, she became highly concerned with his inappropriate responses. He was disrespectful, belligerent, and insubordinate with her. As a result of the unprofessional manner in which he chose to conduct himself, she sent him home. ¶

At the present time, the administration has received no indication that Mr. Petak understands the seriousness of his behavior and how it negatively impacted the special education students in his care. Mr. Petak must learn how to better manage his anger. He must be clear that the behaviors that he displayed during the incident were reprehensible, have no place in a school, and will not be tolerated. ¶

In light of the foregoing concerns, the administration is forwarding this evaluation to the Superintendent with the recommendation that Mr. Petak’s salary increments be withheld for the 2004-2005 school year. ¶

On July 29, 2004, the superintendent wrote to Petak advising him that he would be recommending to the Board that Petak’s employment and adjustment increments be withheld for the 2004- 2005 school year. He stated the following six specific reasons for the recommendation: ¶

1. Uncooperative and belligerent attitude with administrators. ¶

2. Yelling at and using inappropriate language toward students. ¶

3. Throwing or losing control of a pencil such that it was directed toward a student. ¶

4. Using physical force and prompting to ensure student compliance. ¶

5. Threatening the use of force against students. ¶

6. Erratic and unstable demeanor to students and staff in the classroom. ¶

The superintendent also advised Petak of his right to appear before the Board, either by himself or with a representative or counsel. He did not do so. ¶

On August 25, 2004, the school administrator advised Petak that the Board had voted to withhold his employment and adjustment increments for the 2004-2005 school year for the reasons set forth in the superintendent’s July 29 letter. The letter also stated that any reoccurrence of the violations would result in further disciplinary action. ¶

On September 20, 2004, the Association filed a grievance alleging that the withholding violated the grievance procedure and employee rights portions of the parties’ agreement. The grievance stated: ¶

That the Board did violate the terms of the contract dealing with progressive discipline, consistent with the circumstances surrounding the infraction and the disciplinary history of the employee and any/or any other articles, policies, or procedures. ¶

As a remedy, the grievance sought restoration of the increment. ¶

On October 5, 2004, the superintendent denied the grievance, stating that withholding was warranted in light of Petak’s disciplinary record, including the above-noted incidents in 2000, 2002-2003, and 2004. In addition, he stated that the grievance procedure did not apply because the withholding involved Petak’s classroom performance. ¶

On February 15, 2005, the Board denied the grievance. On March 2, the Association demanded arbitration. This petition ensued. Arbitration has been postponed pending the outcome of the scope petition. ¶

The Board argues that we have consistently held that increment withholdings based on a teacher’s alleged inability to interact appropriately with students predominantly involve teaching performance and therefore, under N.J.S.A . 34:13A-27d, are not arbitrable. It also states that it has applied progressive discipline and has accommodated Petak’s difficulties by offering him the opportunity to have class coverage when he feels that he is going to lose his temper. ¶

The Association does not dispute that the withholding was based predominately on the evaluation of Petak’s teaching performance. However, it contends that the Board did not apply progressive discipline and has provided no “concrete indication” of Petak’s disciplinary history or any actions that warrant discipline. In addition, it maintains that the grievance procedure applies to matters involving classroom performance. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144 (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. [ Id. at 154] ¶

Thus, we do not consider whether the Board had cause to withhold the teacher’s increment. ¶

Under N.J.S.A. 34:13A-26 et seq ., all increment withholdings of teaching staff members may be submitted to binding arbitration except those based predominately on the evaluation of teaching performance. Edison Tp. Bd. of Ed. v. Edison Tp. Principals and Supervisors Ass’n, 304 N.J. Super . 459 (App. Div. 1997), aff’g P.E.R.C. No. 97-40, 22 NJPER 390 (¶27211 1996). Under N.J.S.A . 34:13A-27d, if the reason for a withholding is related predominately to the evaluation of teaching performance, any appeal shall be filed with the Commissioner of Education. If there is a dispute over whether the reason for a withholding is predominantly based on the evaluation of teaching performance, we must make that determination. N.J.S.A. 34:13A-27a. ¶

Here, there is no dispute that the withholding was based predominately on the evaluation of teaching performance. Accordingly, the merits of the withholding must be reviewed by the Commissioner of Education. The Association’s claims that the Board has not substantiated its allegations may be raised before the Commissioner. ¶

Whether the Board violated the alleged contractual obligation to use progressive discipline goes to the merits of whether the withholding should be sustained and is outside our forum selection function. Ibid.; see also Scotch Plains-Fanwood Bd. of Ed. v. Scotch Plains-Fanwood Ed. Ass’n, 139 N.J . 141, 155 (1995) (statutory standard in N.J.S.A . 18A:29-14 pertains to withholdings based predominately on an evaluation of teaching performance). ¶

For the foregoing reasons, we grant the Board’s request for a restraint of binding arbitration. ¶

OrderORDER ¶

The request of the Readington Township Board of Education for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Fuller and Watkins voted in favor of this decision. None opposed. Commissioners Katz and Mastriani were not present. ¶

DATED: July 28, 2005 ¶

Trenton, New Jersey ¶

ISSUED: July 28, 2005 ¶