P.E.R.C. No. 2015-30, Elizabeth B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of ELIZABETH BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2014-069 ELIZABETH EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the Elizabeth Board of Education for a restraint of binding arbitration of a grievance filed by the Elizabeth Education Association. The grievance contests the withholding of a teacher’s salary increment. Finding that the reasons for the withholding predominately relate to teaching performance (poor classroom and student management, lack of preparation, lack of organized classroom environment, and problems engaging students in learning), the Commission restrains 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 ELIZABETH BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2014-069 ELIZABETH EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Schwartz Simon Edelstein & Celso, LLC, attorneys (Nicholas Celso, III, of counsel and on the brief; Joshua I. Savitz and Patricia C. Melia, on the brief) ¶

For the Respondent, Bucceri & Pincus, attorneys (Gregory T. Syrek, of counsel) ¶

DECISION ¶

On March 6, 2014, the Elizabeth Board of Education filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Elizabeth Education Association. The grievance contests the withholding of a teacher’s salary increment. Because the increment withholding is based predominately on an evaluation of teaching performance, we restrain arbitration. ¶

The Board filed briefs, exhibits, and the certifications of elementary school principal Yalitza Torres and Superintendent Olga Hugelmeyer. The Association filed a brief. These facts appear. ¶

The Association represents teachers and other certified and non-certified employees. The Board and Association are parties to a collective negotiations agreement (CNA) effective from July 1, 2009 through June 30, 2012. The grievance procedure ends in binding arbitration. ¶

During the 2012-13 school year, the grievant was a fifth grade teacher at Benjamin Franklin School No. 13. On September 20, 2012, Principal Torres completed a formal instructional observation of the grievant. The grievant’s performance was evaluated across five components. The performance level ranges are Unsatisfactory, Basic, Proficient, and Distinguished. Thegrievant was rated Proficient in one component and Basic in four components as follows: ¶

Component 2b.: Establishing Culture for Learning ¶

Level: Proficient ¶

Comments: “A group of students were involved in the activity. The others sat at their desk.” ¶

Component 2c.: Managing Classroom Procedures ¶

Level: Basic ¶

Comments: “Before beginning the lesson and activity all materials should be available to students e.g. rulers.” ¶

Component 2d.: Managing Student Behavior ¶

Level: Basic ¶

Comments: “Students must have rules set for science. Students were all over the classroom. Playing with their rulers, etc.” ¶

Component 3a.: Communication with Students ¶

Level: Basic ¶

Comments: “There was no objective on the board. Upon asking a student what the objective was or the lesson and activity, the student could not articulate the objective. At the end of class, the teacher summarized the lesson but there was no exit slip. For future lesson, please utilize the exit slip. All objectives must be posted visible to everyone.” ¶

Component 3c.: Engaging Students in Learning ¶

Level: Basic ¶

Comments: “There appeared to be very little organization in the groups. One student sat alone, two female students were off task not listening to the teacher and some students were at the board drawing.” ¶

On December 13, 2012, Principal Torres completed another formal instructional observation of the grievant. The grievant was rated Proficient in two components, and Basic in six components as follows: ¶

Component 2a.: Creating an Environment of Respect and Rapport ¶

Level: Proficient ¶

Component 2b.: Establishing a Culture for Learning ¶

Level: Basic ¶

Comments: “Students comply with the teacher’s expectations for learning, but don’t indicate commitment on their own initiative for the work. As discussed in our post conference, there must be a commitment to learning from the students. There is not down time...” ¶

Component 2c.: Managing Classroom Procedures ¶

Level: Basic ¶

Comments: “Procedures for transitions, materials, and non-instructional duties seem to have been established, but their operation is rough. Small groups are only partially engaged while not working directly with the teacher.” ¶

Component 2d.: Managing Student Behavior ¶

Level: Proficient ¶

Comments: “As discussed in our post conference, students were generally appropriate, however, there have been times where the noise level in the class affected teaching and learning. Continue to monitor student behavior using non-verbal cues and remind students of the student conduct.” ¶

Component 3a.: Communication with Students ¶

Level: Basic ¶

Comments: “As discussed in our post conference, communication with students is vital. Students must understand the importance of content and be able to articulate the objective and theme of your lesson.” ¶

Component 3b.: Using Questioning and Discussion Techniques ¶

Level: Basic ¶

Comments: “Teacher’s questions are a combination of low and high quality, posed in rapid succession. Only some invite a thoughtful response. As discussed in our post conference, there is a need for turn and talk that will lead to discussions in the class. In addition, assign roles in each group. All students must participate in the discussion. Preparing higher order thinking questions will lead to a higher level of cognitive thinking.” ¶

Component 3c.: Engaging Students in Learning ¶

Level: Basic ¶

Comments: “Activities and assignments are appropriate to some students and engage them mentally, but others are not engaged. How do you know students are engaged? What does engagement look like in your class?” ¶

Component 3d.: Using Assessment in Instruction ¶

Level: Basic ¶

Comments: “Students know some of the criteria and performance standards by which their work will be evaluated. [Grievant] monitors the progress of the class as a whole but elicits no diagnostic information. Students do not engage in self-assessment or monitoring of progress. For future lessons, check student work daily for understanding...” ¶

On January 11, 2013, Torres issued an “Official Reprimand” memorandum to the grievant, stating: ¶

On January 9, 2013, during a walk through, I came into your classroom. At this time, and intervention period is scheduled as part of your assigned teaching schedule. I observed that the students were not engaged in the required program nor were they involved in any form of instruction and direction. You ended the class prior to the scheduled 45 minutes assigned. In addition, you were not on task as detailed in your weekly lesson plans. ¶

[Grievant], you are required to instruct 360 minutes as part of the EEA contract. Due to this circumstance, you are officially reprimanded. A copy of this memorandum will be placed in your personnel file. In the future, I trust you will follow all district policies and perform all your professional responsibilities more attentively. Further action will be taken should this pattern continue. ¶

On January 24, 2013, Torres e-mailed the grievant to notify her that during a walkthrough of the school she noticed that the “starboard” in her classroom was off. Torres asked the grievant to inform her of how she incorporates the starboard in her lessons. On March 2, Torres e-mailed the grievant with the following comments regarding her classroom: ¶

I just did a walkthrough of your room. Please do the following: ¶

- On the windows: Writing Anchor Charts and vocabulary bold colors ¶

- Over the board four window panels: HIGHLIGHT ON EACH PANEL THE THEME (ELA AND SOCIAL STUDIES) PER MARKING PERIOD WITH ESSENTIAL QUESTIONS AND VOCABULARY. In addition, strategies that were introduced. ¶

- ON THE DOORS: ACADEMIC VOCABULARY FOR WRITING, RUBRIC FOR OPEN ENDED RESPONSES, ETC. ¶

- The room NEEDS LOVE and LIFE! ¶

You are responsible for the classroom environment - NO EXCUSES. ¶

On March 4, 2013, Torres sent the grievant an e-mail entitled “Planing and Preparing and Domain 2” which stated: ¶

During my walkthrough of the school, I noticed students were off task in your class (Math) because you were sitting at your desk typing a math problem on the starboard. As you know if you are not prepared for teaching and learning managing student behavior is a problem. Please ensure you are prepared with your questions, epresentation is on the starboard and students are on task at all times. ¶

Correct this immediately! ¶

The same day, Principal Torres followed up the e-mail with an “Official Reprimand” memorandum noting the same teaching preparation and student behavior management observations. The reprimand went on to state the following: ¶

[Grievant], in line with our district’s five priorities, it is your professional responsibility to ensure that they are adhered to, particularly creating excellence in academics, athletics, and the arts and not tolerating anything less than excellence, and to increase school safety and discipline. I recommend that you take professional development workshops to assist in your classroom management. Also, your peers may be available to discuss various techniques that have been successful to them. Additional resources are also available on the internet. ¶

Due to this circumstance, you are officially reprimanded for not implementing the district policies. A copy of this memorandum will be placed in your personnel file. In the future, I trust you will follow all district policies and perform all your professional responsibilities more attentively. Further action will be taken should this pattern continue. ¶

On March 13, 2013, Torres issued another “Official Reprimand” memorandum to the grievant, which stated: ¶

As a teacher of the Elizabeth Board of Education, you are expected to follow the curriculum and programs as implemented by the District’s Department of Elementary Education. The Read 180 Program was put into practice as part of an ELA intervention program for students. As of March 5, 2013, there were five students in your classroom who had no usage time online on the Read 180 Program. We are currently in the third marking period for this school year, and the students have had no online participation in the Read 180 Program. As the classroom teacher, it is your responsibility that these students are participating and engaged in this mandatory program. ¶

[Grievant], in line with our district’s five priorities, it is your professional responsibility to ensure that they are adhered to, particularly in creating excellence in academics. ¶

Due to this circumstance, you are hereby reprimanded for your lack of classroom management. A copy of this memorandum will be placed in your personnel file. In the future, I trust you will follow all district policies and perform all your professional responsibilities more attentively. Further action will be taken should this pattern continue. ¶

On March 19, 2013, Principal Torres recommended to the Board’s Director of Human Resources that the grievant’s 2013-14 increment be withheld. The attached “Non-Renewal/Increment Withholding Form” noted that there had been two Evaluations, one on September 20, 2012 rated “NI” and one on December 13, 2012 rated “NI (Informal)” . In the “Corrective Memos/Reprimands/ Warnings” section, the form provided: ¶

Date Comments Author ¶

3/13/2013 Accountability Yalitza Torres ¶

3/4/2013 Reprimand Yalitza Torres ¶

3/2/2013 Memo Yalitza Torres ¶

1/24/2013 Memo Yalitza Torres ¶

1/11/2013 Reprimand Yalitza Torres ¶

The “Other Reasons” section of the increment withholding form stated: ¶

In Charlotte Danielson’s A Framework for Teaching, Domain 2: The Classroom Environment, teachers are to create a learning environment through positive interpersonal interactions, efficient routines and procedures, clear and consistent standards of conduct and a safe physical environment that supports the learning purposes. The classroom has no evidence of an environment of respect and rapport, no established culture for learning, and no organized physical space. In addition, there is lack of managed student behavior and classroom procedures. [Grievant]’s poor classroom management and lack of planning and preparation has led to low student performance. We have met on many occasions and corresponded to discuss alternatives to address this matter. [Grievant] continues to have difficulty with classroom management, student performance and planning and preparation in order to comply with requirements as part of her contract. Professional development workshops and peer discussions/observations have been recommended to improve her techniques. To date, no improvements in these areas have been evident hence affecting student and classroom performance. ¶

At its May 9, 2013 meeting, the Board approved a resolution to withhold the grievant’s increment for the 2013-14 school year. On September 24, 2013, the Association filed a grievance on behalf of the teacher contesting her increment withholding. On October 29, the Association demanded binding arbitration. This petition ensued. ¶

The Board has provided no statement of reasons for the grievant’s increment withholding issued at the time to either the grievant or the Board other than the information provided on the March 19, 2013 “Non-Renewal/Increment Withholding Form.” ¶

The Board asserts that arbitration must be restrained because the grievant’s increment was withheld predominately based on evaluation of her teaching performance. It argues that the grievant’s ratings of “Basic” in the areas of teaching strategies, knowledge of content, class preparation, and classroom management indicate poor teaching performance. ¶

The Association asserts that the increment withholding was not based predominately on an evaluation of her teaching performance. It argues that the increment withholding recommendation form’s narrative of reasons for the decision “is long on education rhetoric and short on constructive improvement suggestions.” The Association contends that the reprimands and corrective memos referenced in the withholding form contain no real references to teaching performance. It asserts that the reprimand issues of lack of decorations/learning materials on the walls and lack of student participation in an online reading program are unrelated to subjective educational judgment and therefore no special expertise is needed to decide whether increment withholding was the appropriate punishment. ¶

The Board replies that Principal Torres’ March 19, 2013 increment withholding recommendation provided teaching performance reasons related to classroom management, classroom environment, teaching techniques, teaching planning/preparation, and lack of professional development which are corroborated by her September and December 2012 observation reports. ¶

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, 146 (¶22057 1991), 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. ¶

We first address a threshold procedural issue. Where, as here, the Board has not submitted the statement of reasons for the withholding that is required to be given to the teacher within ten days of the withholding pursuant to N.J.S.A. 18A:29-14 and is required to be filed with its scope of negotiations petition pursuant to N.J.A.C. 19:13-2.2(a)(3), the Commission will ordinarily require certifications from the principal actors attesting to the reasons for the withholding. See, e.g. Mahwah Tp. Bd. of Ed., P.E.R.C. No. 2008-71, 34 NJPER 262 (¶93 2008); Bridgeton Bd. of Ed., P.E.R.C. No. 2006-100, 32 NJPER 197 (¶86 2006); Woodbury Bd. of Ed., P.E.R.C. No. 2006-81, 32 NJPER 128 (¶59 2006); and Washington Tp. Bd. of Ed., P.E.R.C. No. 2005-81, 31 NJPER 179 (¶73 2005). However, if the record contains documents from the Board of Education that explain the basis for withholding and are more contemporaneous with the increment withholding action, we will accept and place greater reliance on those reasons rather than certifications prepared for litigation. See Summit Bd. of Ed., P.E.R.C. No. 2013-57, 39 NJPER 311, 313 (¶107 2013) (paragraph in annual evaluation linking prohibited computer use to increment withholding constituted statement of reasons rather than Human Resources Director’s certification); See also Bridgeton Bd. of Ed., supra (where Board did not supply statement of reasons, the Commission relied on a letter the superintendent wrote to the Board’s counsel explaining the withholding); and Washington Tp. Bd. of Ed., supra (where Board did not supply statement of reasons, the Commission relied on a letter the executive vice principal wrote to the superintendent recommending increment withholding). Therefore, Principal Torres’ March 19, 2013 internal increment withholding form is given greater weight in determining the reasons for the withholding than is her March 4, 2014 Certification which was prepared after the grievance and scope petition were filed. ¶

We are not persuaded in our increment withholding gatekeeping function by the labels, e.g. “reprimand” or “evaluation,” given to the documents underpinning a school board’s decision. Rather, as all increment withholdings are inherently disciplinary, we are concerned with whether the cited deficiencies are based on an evaluation of teaching performance. Edison Tp. Bd. of Ed., 304 N.J. Super. 459 (App. Div. 1997) . The increment withholding form we rely on here in lieu of a statement of reasons provides a narrative explaining the reasons for withholding and references the grievant’s two evaluations and five reprimands/warnings. The narrative addresses teaching performance-based concerns of “low student performance” due to allegedly “poor classroom management and lack of planning and preparation,” as well as lack of a culture for learning, no organized physical space, and a lack of managed student behavior and classroom procedures. ¶

Furthermore, the five reprimands/warnings cited by the internal increment withholding form are, taken together as a whole, predominately related to evaluations of the grievant’s teaching performance. Standing alone, the January 13, 2011 reprimand, which included a mix of teaching performance issues (lack of student engagement, involvement, and direction) and a non-teaching performance issue (ending class 45 minutes early), might not predominately relate to an evaluation of teaching performance because failure to instruct for the requisite number of minutes in the school day was the thrust behind the decision to reprimand ( “[Grievant], you are required to instruct 360 minutes as part of the EEA contract. Due to this circumstance, you are officially reprimanded.” ) However, the other reprimands/warnings concerned teaching performance issues of physical classroom environment, visual educational aids, lack of preparation for class and related difficulty managing student behavior, and failure to fully implement a mandatory reading program. Finally, the September and December 2012 evaluations cited teaching performance issues of managing the classroom environment, managing student behavior, communicating the lesson objective, and engaging students in learning. ¶

Some of the teaching performance concerns expressed by the Board in the documents discussed above are of the most straightforward variety, and we have regularly restrained arbitration in cases predominately involving allegations of problems with engaging students, following lesson plans, communicating content, or carrying out the curriculum. See, e.g., East Orange Bd. of Ed., P.E.R.C. No. 2014-49, 40 NJPER 343 (¶125 2014); Woodbury Bd. of Ed., P.E.R.C. No. 2006-81, 32 NJPER 128 (¶59 2006); Englewood Bd. of Ed., P.E.R.C. No. 2006-33, 31 NJPER 353 (¶140 2005); North Caldwell Bd. of Ed., P.E.R.C. No. 2001-76, 27 NJPER 290 (¶32105 2001); and Randolph Tp. Bd. of Ed., P.E.R.C. No. 99-94, 25 NJPER 238 (¶30100 1999). We have also found that allegations of poor classroom management of students and/or poor management or utilization of the physical classroom environment are components of teaching performance. See, e.g., Hainesport Township Bd. of Ed., P.E.R.C. No. 2014-15, 40 NJPER 189 (¶72 2013); Vernon Township Bd. of Ed., P.E.R.C. No. 98-44, 23 NJPER 569 (¶28,284 1997); Paramus Bd. of Ed., P.E.R.C. No. 2004-30, 29 NJPER 508 (¶161 2003) ; Parsippany-Troy Hills Bd. of Ed., P.E.R.C. No. 2000-28, 25 NJPER 442 (¶30194 1999); and New Providence Bd. of Ed., P.E.R.C. No. 98-91, 24 NJPER 108 (¶29053 1998). Accordingly, as the internal increment withholding form and supporting documents indicate that the increment withholding was predominately based on an evaluation of teaching performance, we restrain arbitration. ¶

OrderORDER ¶

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

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson and Jones voted in favor of this decision. None opposed. Commissioners Voos and Wall were not present. ¶

ISSUED: October 30, 2014 ¶

Trenton, New Jersey ¶