P.E.R.C. No. 2010-5, Marlboro Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MARLBORO TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2009-043 MARLBORO TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the Marlboro Township Board of Education for a restraint of binding arbitration of a grievance filed by the Marlboro Township Education Association. The grievance contests the withholding of a teaching staff member’s employment and adjustment increments. The Board based the withholding on a teacher’s reference to a student as “Squirrel Boy” . Because the withholding is based predominately on an evaluation of teaching performance, the Commission restrains binding arbitration. ¶

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 MARLBORO TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2009-043 MARLBORO TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Fogarty & Hara, attorneys (Rodney T. Hara, on the brief) ¶

For the Respondent, Detzky & Hunter, attorneys (Stephen B. Hunter, on the brief) ¶

DECISION ¶

On January 20, 2009, the Marlboro 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 Marlboro Township Education Association. The grievance contests the withholding of a teaching staff member’s employment and adjustment increments. We restrain arbitration because the withholding was based predominately on an evaluation of teaching performance. ¶

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

The Association represents the Board’s teaching staff members and certain other employees. The parties’ collective negotiations agreement is effective from July 1, 2005 through June 30, 2008. The grievance procedure ends in binding arbitration. ¶

On August 20, 2008, the Board notified a physical education/health teacher that it had voted to withhold his employment and adjustment increments for the 2008-2009 school year for the reasons set forth in the superintendent’s August 13 letter to the teacher. That letter informed the teacher that the superintendent was recommending that his increments be withheld due to: ¶

your inappropriate classroom verbal interactions with a fourth grade student, which not only caused him and his parents significant emotional distress, but also precipitated even greater turmoil for the student when other fourth grade students in the class repeatedly heard your disparaging comments to the student throughout the 2007- 2008 school year and laughed at him. Specifically, by your own admission, since September 2007, you repeatedly referenced one student in your classroom as “Squirrel Boy.” Additionally, you admitted further that, when there was a picture of a squirrel shown during a health class, you verbally compared the characteristics of that squirrel with the fourth grade student in front of the class. ¶

Not only does your reference to a student as an apparent cartoon character demonstrate a lack of professional judgment, it also serves to undermine the nurturing role of the teacher-student relationship. Indeed, your in-class characterization of a student as a fictional rodent is demeaning and completely contrary as the professional expectancies of teachers in the Marlboro Township School District. In sum, your in- class verbal interactions with this student demonstrate nothing less than an absolute lack of respect and dignity for him. ¶

The Association filed a demand for arbitration and this petition ensued. The Association agreed to stay the arbitration pending resolution of this proceeding. ¶

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 predominately disciplinary, as defined by N.J.S.A. 34:13A-22, or related predominately to the evaluation of teaching performance, we must make that determination. N.J.S.A. 34:13A- 27a. Our power is limited to determining the appropriate forum for resolving a withholding dispute. We do not and cannot consider whether a withholding was with or without just cause. ¶

In Scotch Plains-Fanwood Bd. of Ed., P.E.R.C. No. 91-67, 17 NJPER 144 (¶22057 1991), we articulated our approach to determining the appropriate forum. We stated: ¶

The fact that an increment withholding is disciplinary does not guarantee arbitral review. Nor does the fact that a teacher's action may affect students automatically preclude arbitral review. Most everything a teacher does has some effect, direct or indirect, on students. But according to the Sponsor's Statement and the Assembly Labor Committee's Statement to the amendments, only the "withholding of a teaching staff member's increment based on the actual teaching performance would still be appealable to the Commissioner of Education." As 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 will review the facts of each case. We will then balance the competing factors and determine if the withholding predominately involves an evaluation of teaching performance. If not, then the disciplinary aspects of the withholding predominate and we will not restrain binding arbitration. [17 NJPER at 146] ¶

Increment withholdings that are based on alleged inappropriate interactions with students in the classroom involve an evaluation of teaching performance. See, e.g., Knowlton Tp. Bd. of Ed., P.E.R.C. No. 2003-47, 29 NJPER 5 (¶19 2003) (alleged humiliation of students); Kinnelon Bd. of Ed., P.E.R.C. No. 99-64, 25 NJPER 90 (¶30039 1999) (alleged inappropriate comments to students in classroom). This case fits within that framework. ¶

The Association argues that we should reevaluate the case law in which we have concluded that allegedly inappropriate in- class remarks to students relate to the evaluation of teaching performance. It finds inexplicable our conclusion that allegations of corporal punishment can be submitted to binding arbitration, but not alleged verbal comments by teachers directed to students. ¶

Allegations of inappropriate comments to students in the classroom involve judgments about the appropriateness of the teacher’s comments and interactions with students. In this case, the Board asserts that the teacher’s comments were demeaning; the teacher asserts that he simply used a nickname that the student was comfortable with. The appropriateness of any particular comment involves educational judgments. By contrast, we have held that an increment withholding based solely on an allegation that a teacher used corporal punishment does not require any educational judgment about the appropriateness of a teacher’s conduct. We stated in Morris Hills Reg. Dist. Bd. of Ed., P.E.R.C. No. 92-69, 18 NJPER 59 (¶23025 1991), that no educational expertise is needed to decide that if a teacher hit a child, it would be improper conduct. N.J.S.A. 18A:6-1 prohibits corporal punishment of students except in very limited circumstances not applicable in that case. No corresponding statute exists concerning teacher comments in the classroom. ¶

The Association also asserts that the Board’s asserted reason for the withholding is pretextual. It asserts that this increment withholding was based on the teacher’s criticism that the school board was not complying with State requirements that all students be provided with a minimum of 150 minutes per week of health and physical education instruction. ¶

In selecting a forum under N.J.S.A. 34:13A-27, we accept the board’s reasons for a withholding and do not consider contentions that those reasons are pretextual or unsupported. Paramus Bd. of Ed., P.E.R.C. No. 2004-30, 29 NJPER 508 (¶161 2003); Saddle River Bd. of Ed., P.E.R.C. No. 96-61, 22 NJPER 105 (¶27054 1996). We assume the Board will be bound by its asserted reasons before the Commissioner of Education and that the Commissioner has the power to entertain allegations that the asserted reasons are pretextual. Mahwah Tp. Bd. of Ed., P.E.R.C. No. 2008-71, 34 NJPER 262 (¶93 2008); Fanella v. Washington Tp. Bd. of Ed., 1977 S.L.D. 383 (Comm’n of Ed. 4/11/77) (withholding set aside where recommendation to withhold for failure to complete task was made before deadline for task completion). ¶

Finally, the Association argues that arbitration should be permitted because the Board has alleged violations of school policies relating to interactions with students. However, the fact that a school district may have a policy governing appropriate interactions with students in the classroom does not negate the fact that an increment withholding based on a particular comment or interaction in the classroom is a withholding based predominately on an evaluation of teaching performance. ¶

OrderORDER ¶

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

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Colligan, Joanis and Watkins voted in favor of this decision. None opposed. Commissioner Fuller abstained. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶