P.E.R.C. No. 2014-5, Branchburg Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BRANCHBURG TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2012-057 BRANCHBURG TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, David B. Rubin, of counsel ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Keith Waldman, of counsel) ¶

DECISION ¶

On March 27, 2012, the Branchburg Township Board of Education filed a scope of negotiations petition. The Board seeks a partial restraint of binding arbitration of a grievance filed by the Branchburg Township Education Association. The grievance seeks the removal of two letters from a teacher’s personnel file, and the Board seeks to restrain arbitration over one of those letters. We grant in part the Board’s request for a restraint of binding arbitration. ¶

The Board has filed a brief and exhibits. The Association has filed a brief. Neither party submitted a certification. These facts appear. ¶

The Association represents a negotiations unit of non- supervisory certificated personnel and certain non-certificated staff. The Board and Association are parties to a collective negotiations agreement (CNA) effective from July 1, 2010 through June 30, 2013. The grievance procedure ends in binding arbitration. ¶

Article V of the CNA, is entitled “Evaluation Procedure and Personnel Files.” Paragraph B. states, in pertinent part: ¶

B. Personnel Files ¶

1. No material derogatory to an Employee’s conduct, service, character, or personality shall be placed in such individual’s personnel file unless the Employee has had an opportunity to review the material. ¶

The Employee shall acknowledge that he/she has had the opportunity to review such material by affixing his/her signature to the copy to be filed, with the express understanding that such a signature in no way indicates agreement with the contents thereof. ¶

The Employee shall have the right to submit a written answer to such material. ¶

On October 25, 2011, the grievant (a teacher at Branchburg Central Middle School), attended a meeting with Building Principal Matthew Barbosa. Believing that the meeting might be of a disciplinary nature, the grievant exercised his Weingarten rights and was accompanied by his Association representative. The Board states that the purpose of the meeting was to clarify certain expectations for preparation of lesson plans. ¶

On November 3, 2011, Barbosa sent the grievant two letters, and placed a copy of each in his personnel file. One letter, entitled “Professional Interactions” , addressed the grievant’s conduct and demeanor during the October 25 meeting.1/ The other letter, entitled “Lesson Plan Expectations” 2/ (Lesson Plan letter) states: ¶

On Tuesday, October 25, 2011, we met to discuss your lesson plans and your response to my request for clearer plans. Your union representative, Frank Richardson attended. ¶

My goal for the meeting was to help you better understand my expectations for lesson plans. I had prepared examples and references to assist you in meeting my requirement. However, your tone, attitude and constant disruptions (see other memo November 3, 2011) made it impossible for me to share this information with you. Instead, I am putting my expectations in writing and placing a copy in your personnel file. My lesson plans expectations are as follows: ¶

1. As stated in the faculty handbook, your study skills class plans should include: ¶

a. Name of the subject b. Primary objective of the lesson; an objective that answers the question “what will students know or be able to do as a result of this lesson?” ¶

c. Activities that are directly relevant to the instructional objective, assignments, pg. numbers... ¶

d. Evaluation to determine how well the lesson has been taught and how well the students learned and achieved the instructional objective e. Modification and accomodations. ¶

It is also expected that you will differentiate plans for individual students in this group based on their needs. This would be noted in the modification/accommodation section of your plans. ¶

2. You should also be working with your regular education teacher to make accommodations and modifications to their plans to meet the needs of students with IEPs in the class. The accommodation/modification should be noted on their plans or kept in a separate plan book that you keep.... ¶

3. Your plans should be handed in to me weekly so I may further monitor their development. ¶

The building administration, W. Oberwanowicz and K. Conant are available to assist you in reaching the above expectations. ¶

Your signature below indicates that you are in receipt of this letter. As per the guidelines of your negotiated agreement, you may include a response to this letter in your personnel file. ¶

On January 5, 2012, the Association filed a Level 3 grievance contesting both the Professional Interactions and Lesson Plan letters. It asserted that the Lesson Plan letter “disciplined [Grievant] in a disparate manner from colleagues regarding lesson planning.” 3/ The grievance states that “[Grievant] was instructed by the Special Services Supervisor that his plans were acceptable for his Study Skills class.” The grievance seeks a remedy of removal of both letters from the grievant’s personnel file. On January 26, after a January 25 grievance hearing, the Board denied the grievance. The Board’s grievance denial letter, which addressed both the Lesson Plan letter and the Professional Interactions letter (which is not at issue in this petition), stated, in pertinent part: ¶

Both letters will remain in [Grievant’s] file for the time being. However, they will be removed from his file at the conclusion of the 2011-2012 school year if Interim Superintendent Conger is able to certify to the Board that, between now and then, [Grievant] has consistently submitted lesson plans in the form requested by Mr. Barbosa, and has comported himself in a professional manner in his interactions with Mr. Barbosa and the rest of the building administration. If the Interim Superintendent is not able to make that representation to the Board, then the letters will remain on file thereafter. ¶

On February 15, the Association demanded binding arbitration. This petition ensued, seeking restraint of binding arbitration of the Lesson Plan letter only. ¶

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 the contractual merits of the grievance or any contractual defenses the Board may have. ¶

A school board has a managerial prerogative to observe and evaluate employees. Bethlehem Tp. Ed. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38 (1982). Disciplinary reprimands, however, may be contested through binding arbitration. N.J.S.A. 34:13A-29; N.J.S.A. 34:13A-5.3. 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 set forth the following approach: ¶

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 nonnegotiable. 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] ¶

Both parties agree that the Holland analysis applies to the instant case. The Board argues that the Lesson Plan letter constitutes nothing more than a “benign form of constructive criticism intended to improve teaching performance” , and not a disciplinary reprimand. It contends that the letter offered specific guidance for improving the grievant’s lesson plans. The Board asserts that the letter’s reference to the grievant’s disruptive behavior during their meeting does not alter the result that its overall purpose was to improve teaching performance. It argues that the language about the grievant’s attitude merely served to explain the context of why the lesson plan preparation guidance was being reduced to writing, and as in Holland, was a continuation of the evaluation process. ¶

The Association argues that the Lesson Plan letter, though evaluative, was written to punish the grievant for his allegedly disruptive behavior during the meeting to discuss his lesson plans. It asserts that the fact that the grievant was permitted to bring a union representative to the October 25, 2011 meeting shows that there was a possible disciplinary component. The Association contends that the memo is disciplinary because it was drafted due to the grievant’s alleged behavior, and it stated that it would be put in his personnel file. It argues that the disciplinary circumstances leading to the letter, not the lesson plan content, make the grievance legally arbitrable. ¶

The November 3 Lesson Plan letter contains expectations for lesson plan content and suggestions for working with the grievant’s regular education teacher on accommodations and expectations to meet the needs of certain students. Applying the Holland analysis, we find that these substantive comments are intended to improve teaching performance and are not disciplinary. ¶

Even the portion of the Lesson Plan letter directed towards non-instructional evaluation of the grievant’s demeanor during the October 25 meeting is, on balance, not disciplinary in nature. It does not threaten punitive action, but amounts to constructive criticism of the grievant’s attitude which prevented discussion about lesson plan expectations and necessitated the writing of the Lesson Plan letter. In Manalapan-Englishtown Bd. of Ed., P.E.R.C. No. 97-15, 22 NJPER 326 (¶27166 1996), we restrained arbitration of a grievance seeking removal of comments in a teacher’s evaluation that criticized her attitude as preventing collegial dialogue4/, finding that they related to an aspect of her teaching performance and were not punitive. In Holland, comments in a supervisor’s counter-rebuttal memorandum to a teacher’s evaluation were grieved. We found that the document accusing the teacher of unprofessional and confrontational behavior was a continuation of the original evaluation and therefore not arbitrable. ¶

However, this does not end the analysis. Within the Lesson Plan letter’s criticism of the grievant’s demeanor was the following parenthetical reference to the November 3 Professional Interactions letter: “(see other memo November 3, 2011).” The Board, in its brief, acknowledged that the November 3 Professional Interactions letter was a disciplinary reprimand. Repeating a reprimand’s accusations of misconduct in an evaluation does not shield them from being arbitrated. In both Burlington Tp. Bd. of Ed., P.E.R.C. No. 94-77, 20 NJPER 71 (¶25031 1994) and Washington Tp. Bd. of Ed., P.E.R.C. No. 90-109, 16 NJPER 326 (¶21134 1990), we found that the portions of evaluation forms that referred to reprimand letters were disciplinary and arbitrable. Here, the Board has not sought to restrain arbitration over the Professional Interactions letter because it conceded that it is a disciplinary reprimand. But the Board makes reference to that reprimand letter in its Lesson Plan letter of the same day. If the allegations are false, as the grievant contends, the reference to the reprimand letter may be deleted without compromising the Board’s ability to evaluate the grievant. ¶

Under these circumstances, we conclude that the Lesson Plans letter is predominantly evaluative, but that the parenthetical portion - “(see other memo November 3, 2011)” - referencing the reprimand letter is disciplinary in nature. In the event that the disciplinary Professional Interactions letter is found to have been issued without just cause, then the parenthetical reference to it in the Lesson Plan letter can be removed. Accordingly, we decline to restrain arbitration over only that portion of the letter. ¶

OrderORDER ¶

The request of the Branchburg Township Board of Education for a restraint of binding arbitration is granted except as to the parenthetical reference to the reprimand letter. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Eskilson and Wall voted in favor of this decision. Commissioner Voos voted against this decision. Commissioner Jones abstained from consideration. Commissioner Boudreau was not present. ¶

ISSUED: August 8, 2013 ¶

Trenton, New Jersey ¶

Note1/ The Board concedes that the “Professional Interactions” letter was a disciplinary reprimand, and does not seek restraint of arbitration for that part of the grievance. ¶

2/ This letter was originally mistitled “Proper Interactions with Students” but the title was later changed with the consent of the Association President. ¶

3/ Additionally, the grievance contends that the memo was retaliation by Principal Barbosa against the grievant for filing an Affirmative Action complaint against him. ¶

4/ The comments were: “...Mr. Daccurson and I find you to be difficult, at times, to work with. You exhibit an air of superiority and authority which prevents open and collegial dialogue. Of course you have the right to disagree and object, as we all do. However, we look for a more cooperative manner in doing so.” Id. at 327. ¶