P.E.R.C. No. 2018-52, Trenton B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TRENTON EDUCATION ASSOCIATION, Petitioner, -and- Docket No. TO-2018-001 TRENTON BOARD OF EDUCATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses a petition for contested transfer filed by the Trenton Education Association challenging the Trenton Board of Education’s transfer of a teacher between work sites for disciplinary reasons in violation of N.J.S.A. 34:13A-25. Finding that the teacher was temporarily transferred to an administrative building in order to protect the safety and welfare of its students while the District investigated allegations that the teacher directed a highly offensive derogatory term at a student, the Commission holds that the Board’s reasons for the transfer centered on its educational/policy concerns. ¶

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 TRENTON EDUCATION ASSOCIATION, Petitioner, -and- Docket No. TO-2018-001 TRENTON BOARD OF EDUCATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Mellk O’ Neill, attorneys (Edward A. Cridge, of counsel and on the brief) ¶

For the Respondent, Adams, Gutierrez & Lattiboudere, LLC, attorneys (Adam S. Herman, of counsel and on the brief) ¶

DECISION ¶

On October 26, 2017, the Trenton Education Association (Association) petitioned for a contested transfer determination. The Association alleges that the Trenton Board of Education (Board) transferred a teacher between work sites for disciplinary reasons in violation of N.J.S.A. 34:13A-25. The petition was supported by the November 1, 2017 affidavit of Ian Partridge (Partridge), the teacher who was transferred. ¶

On November 21, 2017, the Board filed an answer denying that Partridge was transferred for disciplinary reasons. The answer was supported by the certification of the Board’s Assistant Superintendent and Chief Talent Officer (Assistant Superintendent). ¶

On December 13, 2017, this matter was assigned to a staff agent to clarify the issues in dispute and explore the possibility of settlement. See N.J.A.C. 19:18-3.2. On February 12, 2018, after being notified that this matter would not settle, the Commission set a briefing schedule. See N.J.A.C. 19:18-3.9. ¶

On March 8, 2018, the Association filed a brief and exhibits. On March 9, the Board filed a brief and exhibits. On March 16, the Association and the Board filed reply briefs. ¶

Partridge is a certificated, tenured teaching staff member who was assigned to Trenton Central High School (STEM campus) for the 2017-2018 school year. Partridge certifies that on or about October 16, 2017, he filed a complaint against a student for threatening him. On October 17, a female student filed an incident report alleging that Partridge called her a “bitch” and/or a “bumboclaat” during class. The Assistant Superintendent certifies that the student is of Jamaican descent and that it was reported that Partridge spoke in a mock Jamaican accent when using these derogatory terms.1/ ¶

On October 18, 2017, the Assistant Superintendent sent Partridge a memorandum with the subject line “Reassignment” that provides: ¶

Pending the outcome of an investigation regarding an allegation made by a student against you, you are temporarily reassigned to Talent Acquisition and Development - Administration Building, 108 North Clinton Avenue. ¶

The assignment is effective immediately. During this assignment, you will observe your normal work hours. ¶

You are directed to refrain from discussing this case with anyone other than your union representative. Your failure to follow this directive may result in administrative action. ¶

According to the Assistant Superintendent, “[w]henever a District teaching staff member is alleged to have acted inappropriately with students, either by making improper comments or by engaging in physical contact, the District temporarily reassigns that teaching staff member from his/her classroom to the District’s administrative office pending the results of an investigation.” The Assistant Superintendent asserts that District Policy 32812/ makes “the District . . . responsible [for] protecting the safety and welfare of its students” including with respect to “inappropriate comments to students and . . . [the use of] inappropriate language or expression.” The Assistant Superintendent certifies that Partridge “has not been improperly transferred” or “disciplined” and that his “salary and benefits have remained the same” while temporarily assigned to the District’s administrative office. ¶

Partridge certifies that since he has been reassigned to the District’s administrative office, he is “required to sit in a room all day with no assigned duties.” According to Partridge, “[t]here is no legitimate reason for [his] transfer” other than “to discipline [him].” ¶

On January 23, 2018, the Board sent Partridge a letter with the subject line “Tenure Charges” that provides: ¶

In accordance with N.J.S.A. 18A:6-11, you are herewith advised that on January 22, 2018, the Trenton Board of Education voted to certify the Charges of Unbecoming Conduct, Corporal Punishment, and Other Just Cause, against you to the New Jersey Commissioner of Education. You are further advised that the Board, in accordance with N.J.S.A. 18A:6-14, also voted to suspend you without pay effective January 23, 2018. As such, you are hereby directed not to report to work effective January 23, 2018. ¶

N.J.S.A. 34:13A-25, entitled “Transfer of employees,” provides: ¶

Transfer of employees by employers between work sites shall not be mandatorily negotiable except that no employer shall transfer an employee for disciplinary reasons. ¶

N.J.S.A. 34:13A-27, entitled “Resolution of disputes,” provides in pertinent part: ¶

a. If there is a dispute as to whether a transfer of an employee between work sites . . . is disciplinary, the commission shall determine whether the basis for the transfer . . . is predominately disciplinary. ¶

b. If the commission determines that the basis for a transfer is predominately disciplinary, the commission shall have the authority to take reasonable action to effectuate the purposes of this act. ¶

The Commission has held that in a contested transfer petition, “[t]he 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). In West New York Bd. of Ed., P.E.R.C. No. 2001-41, 27 NJPER 96 (¶32037 2001), the Commission established the following legal framework for assessing whether a contested transfer is disciplinary: ¶

Our case law does not establish a bright line test for assessing whether a transfer is disciplinary and, therefore, legally arbitrable. . . .[O]ur decisions indicate that we have found transfers to be disciplinary where they were triggered by an incident for which the employee was also reprimanded or otherwise disciplined or were closely related in time to an alleged incident of misconduct. In all of these cases, we noted that the employer did not explain how the transfer furthered its educational or operational needs. ¶

By contrast, we have found transfers not to be disciplinary where they were effected predominantly to further an employer’s educational, operational, or staffing objectives. ¶

Other of our cases have found that transfers effected because of concern about an employee’s poor performance of core job duties - as opposed to concerns about absenteeism or violation of administrative procedures - were not disciplinary but instead implicated the employer’s right to assign and transfer employees based on their qualifications and abilities. ¶

This case law provides a framework for assessing whether a transfer is disciplinary under N.J.S.A. 34:13A-25, and is consistent with what appears to have been the Legislature’s understanding that a transfer is predominately disciplinary when it is punitive and/or is not made for educational or staffing reasons. Accordingly, 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 which prompted the transfer. ¶

[citations omitted.] ¶

The Association argues that “Partridge was subjected to an illegal, disciplinary transfer” in violation of N.J.S.A. 34:13A- 25. The Association maintains that there is no dispute that “Partridge’s work location was moved from one building . . . to another building” ; that he “was moved shortly after being accused of inappropriate conduct with a student” ; or that “[he] was required to simply sit in a room all day . . . with no assigned duties or responsibilities.” The Association contends that the Board “cannot articulate . . . any educational, staffing, operational, or other legitimate objective which was served by placing [Partridge] in the ‘Rubber Room.’” Further, the Association asserts that “Partridge’s transfer was not effectuated ‘pending the outcome’ of the Board’s investigation” given that “Partridge remained in the ‘Rubber Room’ long after the Board’s purported investigation was complete . . . and it had made the decision to pursue [tenure charges].” ¶

The Board argues that Partridge “was not transferred” and that his “temporary reassignment . . . was not disciplinary” given that Partridge did not suffer “[any] loss of salary or benefits” or “any increase in workload.” The Board asserts that it “followed its normal protocol by reassigning a teaching staff member accused of having an inappropriate interaction with a student from a classroom to the District’s administrative office pending an investigation” in order “to protect the health and safety of students.” The Board contends that its action “does not constitute discipline under N.J.S.A. 34:13A-24 and reflects the proper exercise of the District’s managerial prerogative . . . [to] assign[] or reassign[] personnel from one job assignment to another . . . .” The Board also maintains that the instant petition must be dismissed as moot because “Partridge is no longer assigned to the District’s administrative office” and “will not be returned to the District’s administrative office during the pendency . . . [or] at the conclusion of the tenure charge case.” Rather, the Board concedes that “if the District is successful on the tenure charges, Partridge will be terminated” ; “in the event that Partridge is successful on the tenure charges (either by way of outright dismissal of the tenure charges or by the assessment of a suspension by the arbitrator), he will be returned to his teaching assignment.” Finally, the Board argues that “the doctrines of res judicata and collateral estoppel operate to foreclose the [instant contested transfer petition]” given that a related unfair practice charge (CO-2015- 193) involving the same parties was dismissed in Trenton Bd. of Ed., D.U.P. No. 2018-1, 44 NJPER 93 (¶30 2017). ¶

In reply, the Association asserts that “[t]he fact that a transfer is temporary does not render it moot” because “[t]he relief available goes beyond [a] return to the original position and include[s] . . . a posting.” The Association maintains that “the Board’s position [on mootness] would render [a] disciplinary transfer capable of repetition, yet evading review.” The Association also argues that the instant petition is “separate and distinct” from the related unfair practice charge that was dismissed because “[t]he issue here is not whether Partridge’s ‘Rubber Room’ assignment was, per se, disciplinary” but rather, “whether the transfer was triggered by an incident for which the employee was also reprimanded or otherwise disciplined or [was] closely related in time to an alleged incident of misconduct.” ¶

In response, the Board reiterates that Partridge “was not reassigned to a new location indefinitely . . . [but] was temporarily removed from his classroom and temporarily assigned to the District’s administrative building while the District investigated the allegations made by a student” in order “to protect the safety and welfare of its students.” The Board maintains that “Partridge did not remain at the District’s administrative office for an unreasonable amount of time” given that the Board “prepared and served tenure charges” in accordance with N.J.S.A. 18A:6-11 upon the conclusion of its investigation (i.e., “Partridge was no longer assigned to the District’s administrative office” after the Board considered and certified tenure charges on January 22, 2018). ¶

The Supreme Court of New Jersey has held that “teacher transfers and reassignments are not mandatorily negotiable terms and conditions of employment” because they implicate a local board of education’s “managerial duty to deploy personnel in the manner which it considers most likely to promote the overall goal of providing all students with a thorough and efficient education.” Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 156 (1978). The Commission has consistently held that “the right to assign teachers non-teaching duties is a non-negotiable management prerogative.” Mahwah Bd. of Ed., P.E.R.C. No. 83-96, 9 NJPER 94 (¶14051 1983); accord Warren Cty. Coll., P.E.R.C. No. 2016-48, 42 NJPER 344 (¶98 2016); see also Guttenberg Bd. of Ed., P.E.R.C. No. 2003-71, 29 NJPER 178 (¶52 2003) (holding that “[c]lerical or other non-teaching duties that are incidental to a teacher’s primary responsibilities are not mandatorily negotiable . . . [n]or are non-classroom duties that are related to student safety, security and control” because “[i]n these contexts, a board’s educational policy concerns outweigh the teachers’ interests” ). ¶

In Trenton Bd. of Ed., D.U.P. No. 2018-1, 44 NJPER 93 (¶30 2017), a related unfair practice charge involving the same parties, the Association alleged that unilaterally removing five teachers – including Partridge – from the classroom and requiring them to report to the administrative office where they were directed to sit and given no further assignment was a violation of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The Acting Director found, in pertinent part: ¶

[R]emoving five teachers from their classroom assignments, pending investigations into allegations against them, is a matter of educational policy and not subject to negotiations. No facts indicate that the Board’s decision to remove the teachers from their classrooms and reassign them was anything other than an exercise of a managerial prerogative intended to ensure a safe learning environment for students. ¶

* * * ¶

It is undisputed that each employee received their full salary and benefits during the reassignment, and none of them was suspended, fined, or received disciplinary letters. Consequently, I find that the reassignments do not constitute discipline. ¶

[44 NJPER 93.] ¶

Moreover, in the context of increment withholdings, the Commission has consistently held that “withholdings based [up]on a teacher’s allegedly inappropriate conduct or remarks made in [the] class[room]” are predominately related to teaching performance rather than disciplinary in nature and “cannot be submitted to binding arbitration.” Willingboro Bd. of Ed., P.E.R.C. No. 2001-68, 27 NJPER 236 (¶32082 2001); accord Old Bridge Bd. of Ed., P.E.R.C. No. 2004-57, 30 NJPER 77 (¶28 2004) (noting that withholdings centering on “allegations of inappropriate in-class comments or conduct” implicate “the board’s evaluation of teaching performance includ[ing] its educational assessment of the appropriateness of a teacher’s interactions with students during classroom instruction” ). ¶

Initially, we note that tenure charges were certified against Partridge on January 22, 2018. Given that N.J.S.A. 34:13A – 223/ specifically excludes tenure charges from the definition of discipline and the fact that teaching staff members subject to tenure charges are protected by an alternate statutory appeal procedure under Title 18A,4/ our jurisdiction is limited to the period between Partridge’s reassignment on October 18, 2017 and the certification of tenure charges on January 22, 2018. See, e.g., Long Branch Bd. of Ed., P.E.R.C. No. 92-79, 18 NJPER 91 (¶23041 1992); see also N.J.S.A. 18A:6-14 ( “[u]pon certification of any charge to the commissioner, the board may suspend the person against whom such charge is made, with or without pay . . .” ). ¶

We find that the Association has failed to demonstrate by a preponderance of the evidence that Partridge’s reassignment from Trenton Central High School to the Administration Building constitutes a transfer for predominately disciplinary reasons. It is undisputed that a female student filed an incident report on October 17, 2017 alleging that Partridge made inappropriate in-class comments to/about her in violation of District Policy 3281. The Assistant Superintendent’s certification indicates that whenever such an allegation is made, the District temporarily reassigns the teaching staff member from his/her classroom to the administrative office pending the results of an investigation in order to protect the safety and welfare of its students. ¶

The Association has not provided any evidence to indicate that the Board’s asserted reasons for Partridge’s reassignment (i.e., educational/operational policy concerns centering on the safety and welfare of its students in the face of a teacher’s alleged inappropriate in-class comments) is pretextual. It is undisputed that Partridge received his full salary and benefits during the reassignment and was not suspended, fined, or reprimanded. Similarly, the Association has not provided any evidence in support of its claim that Partridge’s reassignment “was not effectuated pending the outcome of the Board’s investigation” nor has it demonstrated that the investigation or the filing of tenure charges were unreasonably delayed. ¶

OrderORDER ¶

The petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Jones and Voos voted in favor of this decision. None opposed. Commissioner Boudreau was not present. ¶

ISSUED: May 31, 2018 ¶

Trenton, New Jersey ¶

Note1/ According to the Assistant Superintendent, “bumboclaat” is a highly offensive Jamaican curse word that literally means “a rag or cloth used for menstrual blood” and that people of Jamaican descent “view the word as extremely vulgar and as one of the worst possible insults that could be said to someone of Jamaican descent.” ¶

2/ Trenton Board of Education District Policy 3281, entitled “Inappropriate Staff Conduct,” provides: ¶

The Board of Education recognizes its responsibility to protect the health, safety and welfare of all pupils within this school district. Furthermore, the Board recognizes there exists a professional responsibility for all school staff to protect a pupil’s health, safety and welfare. The Board strongly believes that school staff members have the public’s trust and confidence to protect the well-being of all pupils attending the school district. ¶

In support of this Board’s strong commitment to the public’s trust and confidence of school staff, the Board of Education holds all school staff to the highest level of professional responsibility in their conduct with all pupils. Inappropriate conduct and conduct unbecoming a school staff member will not be tolerated in this school district. ¶

The Board recognizes and appreciates the staff-pupil professional relationship that exists in a school district’s educational environment. This Policy has been developed and adopted by this Board to provide guidance and direction to avoid actual and/or the appearance of inappropriate staff conduct and conduct unbecoming a school staff member toward pupils. ¶

School staff’s conduct in completing their professional responsibilities shall be appropriate at all times. School staff shall not make inappropriate comments to pupils or about pupils and shall not engage in inappropriate language or expression in the presence of pupils. School staff shall not engage in inappropriate conduct toward or with pupils. School staff shall not engage or seek to be in the presence of a pupil beyond the staff member’s professional responsibilities. School staff shall not provide transportation to a pupil in their private vehicle or permit a pupil into their private vehicle unless there is an emergency or a special circumstance that has been approved in advance by the Building Principal/immediate supervisor and the parent/legal guardian. ¶

Inappropriate conduct by a school staff member outside their professional responsibilities may be considered conduct unbecoming a staff member. Therefore, school staff members are advised to be concerned with such conduct which may include, but is not limited to, communications and/or publications using e-mails, text-messaging, social networking sites, or any other medium that is directed and/or available to pupils or for public display. ¶

A school staff member is always expected to maintain a professional relationship with pupils and to protect the health, safety and welfare of school pupils. A staff member’s conduct will be held to the professional standards established by the New Jersey State Board of Education and the New Jersey Commissioner of Education. Inappropriate conduct or conduct unbecoming a staff member may also include conduct not specifically listed in this Policy, but conduct determined by the New Jersey State Board of Education, the New Jersey Commissioner of Education, an arbitration process, and/or appropriate courts to be inappropriate or conduct unbecoming a school staff member. ¶

School personnel, compensated and uncompensated (volunteers), are required to report to their immediate supervisor or Building Principal any possible violations of this Policy. In the event the report alleges conduct by the Building Principal or the immediate supervisor, the school staff member may report directly to the Assistant Superintendent for Student Services. In addition, school personnel having reasonable cause to believe a pupil has been subjected to child abuse or neglect or acts of child abuse or neglect as defined under N.J.S.A. 9:6-8.10 are required to immediately report to the New Jersey Department of Children and Families in accordance with N.J.A.C. 6A:16-11.1 and inform the Building Principal or immediate supervisor after making such report. However, notice to the Building Principal or designee need not be given when the school staff member believes such notice would likely endanger the referrer or child(ren) involved or when the staff member believes that such disclosure would likely result in retaliation against the child or in discrimination against the referrer with respect to his/her employment. ¶

Reports may be made in writing or with verbal notification. The immediate supervisor or Building Principal will notify the Superintendent of Schools of all reports, including anonymous reports. The Assistant Superintendent for Student Services will investigate all reports with a final report to the Superintendent of Schools. The Assistant Superintendent for Student Services or the Superintendent may, at any time after receiving a report, take such appropriate action as necessary and as provided for in the law. This may include, but is not limited to, notifying law enforcement, notifying the New Jersey Department of Children and Families in accordance with N.J.A.C. 6A:16-11.1, and/or any other measure provided for in the law. ¶

This Policy will be distributed to all school staff and provided to staff members at any time upon request. ¶

3/ N.J.S.A. 34:13A-22, entitled “Definitions,” provides in pertinent part: ¶

“Discipline” includes all forms of discipline, except tenure charges filed pursuant to the provisions of subsubarticle 2 of subarticle B of Article 2 of chapter 6 of Subtitle 3 of Title 18A of the New Jersey Statutes, N.J.S. 18A:6-10 et seq., or the withholding of increments pursuant to N.J.S. 18A:29-14. ¶

“Minor discipline” includes, but is not limited to, various forms of fines and suspensions, but does not include tenure charges filed pursuant to the provisions of subsubarticle 2 of subarticle B of Article 2 of chapter 6 of Subtitle 3 of Title 18A of the New Jersey Statutes, N.J.S. 18A:6-10 et seq., or the withholding of increments pursuant to N.J.S. 18A:29-14, letters of reprimand, or suspensions with pay pursuant to section 1 of P.L. 1971, c. 435 (C.18A:6-8.3) and N.J.S. 18A:25-6. ¶

4/ See N.J.S.A. 18A:6-10 et seq. ¶