P.E.R.C. No. 2020-3, 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-2019-027 ELIZABETH EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Board’s request for a restraint of binding arbitration of a grievance filed by the Association. The grievance contests the withholding of a teacher’s salary increment. The evaluations and memoranda underlying the withholding alleged the teacher had deficiencies in engaging students, communicating content effectively, and managing student behavior. Finding that the reasons for the withholding predominately relate to an evaluation of teaching performance, 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-2019-027 ELIZABETH EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, DeCotiis, FitzPatrick, Cole & Giblin LLP, attorneys (Andres Acebo, of counsel and on the brief; Jason M. Hyndman, on the brief) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys (Jesse Humphries, on the brief) ¶

DECISION ¶

On October 23, 2018, 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 asserts that the Board disciplined a teacher without just cause by withholding his salary increment for the 2018-19 school year. ¶

The Board filed briefs, exhibits, and the certification of Frank Cuesta, Chief of Operations for the Elizabeth School District. The Association filed a brief. These facts appear. ¶

The Association represents a broad-based negotiations unit of teachers and other certificated personnel, as well as non- certificated personnel. The Board and Association are parties to a collective negotiations agreement (CNA) effective from July 1, 2012 through June 30, 2015, followed by a memorandum of agreement (MOA) covering the period of July 1, 2015 through June 30, 2016, and an MOA effective from July 1, 2016 through June 30, 2019. The grievance procedure ends in binding arbitration. ¶

During the 2017-18 school year, the Grievant was employed by the Board as a sixth, seventh, and eighth grade social studies teacher at the Winfield Scott School No. 2. ¶

A December 9, 2017 observation report by Vice Principal Shante Rorie rated the Grievant on one component - Engaging Students in Learning. The Grievant was rated Unsatisfactory.1/ Rorie’s observation comments included the following: ¶

The hand out was given with approximately 6 minutes left in the period. The students did not have an opportunity to complete the assignment. I could not see how the handout related to the discussion. ¶

This lesson was very confusing to me as an adult. This class had 10 English Language learners and I am confident that they struggled to understand as well. I could not follow the objective. ¶

A January 22, 2018 observation report by Principal Samuel Etienne rated the Grievant on one component - Managing Student Behavior. The Grievant was rated Unsatisfactory. Etienne’s observation comments included the following: ¶

[Grievant], while walking by your class during period 7, I entered your class and observed several students where[sic] seating[sic] together while taking a benchmark. I also noticed many of the students were talking and looking at each other’s computers/assessments. A large majority of students were seated in the back of the classroom. I spoke to you regarding making sure students are seated in a test taking fashion/rows in order to stay consistent with state assessment protocol. In addition, several students were moving around inside the class which made the class look chaotic and unorganized. ¶

During the last period of the school day, while walking by your class a second time, I noticed another classroom with students taking their benchmarks seating[sic] in the same manner after you were advised to seat students into rows and maintain a high expectation for students when it comes to test taking. The directive received was not followed. ¶

On February 7, 2018, Etienne sent the following e-mail to the Grievant: ¶

After walking near your classroom, I noticed several students out of their seats walking around the classroom and off task. I would like to meet with you during your prep to discuss next steps. Let me know if you are available tomorrow. ¶

A March 18, 2018 observation report by Etienne included notes from observations of the Grievant’s teaching on March 14 and March 18. Out of nine components evaluated, the Grievant was rated Unsatisfactory in one, Basic in six, and Proficient in two as follows: ¶

Unsatisfactory ¶

• Establishing a Culture for Learning ¶

Basic ¶

• Designing Coherent Instruction ¶

C Creating an Environment of Respect and Rapport ¶

C Managing Student Behavior ¶

• Using Questioning and Discussion Techniques ¶

• Engaging Students in Learning ¶

• Using Assessment in Instruction ¶

Proficient ¶

C Communication with Students ¶

C Reflecting on Teaching ¶

Etienne’s observation comments included the following: ¶

The teacher explained the reason for completing the work is because it was suggested by the district supervisor. [Grievant], in order to show students the importance of completing a task or enjoying the content, there must be a genuine enthusiasm from the adult in the room. . . . ¶

Students exhibit disrespect for the teacher. Student interactions with each other are characterized by conflict or put-downs. . . . ¶

[Grievant] I have a deep concern regarding the culture inside your classroom. Teacher or students convey a negative attitude toward the content, suggesting that it is not important or has been mandated by others/district. Teacher explains that the reason for students’ misbehavior is due to outside influence versus what is taking place inside the classroom. . . . ¶

Teacher attempts to respond to student misbehavior but with uneven results. . . . ¶

Activities and assignments are appropriate to some students and engage them mentally, but others are not engaged. ¶

On March 19, 2018, Rorie sent an e-mail to the Grievant including the following: ¶

On March 14, 2018 a student came to my office to report that she is very concerned about taking social studies in high school. Her words were “I am afraid to go to high school and take social studies because [Grievant] doesn’t teach us anything.” Her words concern me greatly because I too have some similar concerns. I have come into your classroom on more than one occasion and questioned what the students are supposed to be doing. For example, on March 9, 2018 at approximately 2:00 or so I entered your classroom because students were clapping loudly and I wanted to investigate why they were being so disruptive. I entered the class and most of the children were sitting and talking with each other. I asked what the assignment was and you told me it was displayed on the smart board. I read the smart board to find the students had a list of assignments that they could select to work on the tasks were: write a response to a political cartoon, work on a particular report or continue to work on a mosaic. The mosaic is attached. Most of the students were off task. I did observe a few students coloring the mosaic. Coloring is not an eighth grade skill. As we attempt to prepare our 8th graders for high school we can omit just about any activity that requires them to spend valuable class time coloring. . . . Please let’s meet to discuss a plan for creating meaningful tasks that will prepare our students for the next level of social studies. ¶

On March 22, 2018, Rorie e-mailed the Grievant a recap of a December 15, 2017 meeting regarding a letter the Grievant had written and distributed to students that allegedly “looked as if it was written by the superintendent.” The e-mail stated: “We explained that you should not send out any communications to students using school or district letterhead.” ¶

On March 28, 2018, Etienne wrote a letter to Cuesta recommending that the Grievant’s increment be withheld for the 2018-19 school year. Enclosed with that recommendation was an internal Increment Withholding form. In the “Evaluations” section, the form listed the December 9, 2017, January 22, 2018, and March 18, 2018 evaluations summarized above. In the “Corrective Memos/Reprimands/Warnings” section the form listed the February 7, 2018, March 19, 2018, and March 22, 2018 e-mails from Etienne and Rorie summarized above.2/ In the “Other Reasons” section of the form, Etienne wrote: “The teacher has great difficulty managing his classroom. The teacher has written up more than 100 students between September and now, teacher has also entered 292 or 300 Log entries into PowerSchool regarding classroom management and engagement concerns.” ¶

Cuesta certifies that the Board withheld the Grievant’s 2018-19 increment “as a result of his poor teaching performance,” and references the March 28, 2018 Increment Withholding form. On June 27, the Association filed a grievance contesting the increment withholding. On August 3, the Association demanded binding arbitration. This petition ensued. ¶

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. ¶

The Board asserts that arbitration must be restrained because it withheld the Grievant’s increment for predominately evaluative reasons, as evidenced by the multiple evaluations that rated aspects of his teaching performance Basic or Unsatisfactory. It argues that these evaluations are supported by multiple e-mails issued to the Grievant concerning his alleged poor teaching performance and inability to manage his classroom effectively. ¶

The Association asserts that arbitration should not be restrained because the increment withholding was predominately disciplinary. It argues that the timing and substantive content of the March 22, 2018 e-mail from Rorie to the Grievant demonstrate that his increment was not withheld for the purpose of improving his teaching performance, as that incident did not involve his classroom performance or interactions with students. ¶

The March 28, 2018 Increment Withholding form relied on by the Board includes six items (three observations reports and three e-mails) as well as Etienne’s commentary that the Grievant has difficulty managing his classroom. The March 22, 2018 e-mail describing an incident in which the Grievant used district letterhead in a way that allegedly made his letter appear to be from the superintendent does not concern an evaluation of his teaching performance. However, the remaining five documents cited in support of the increment withholding all primarily concern evaluations of his teaching performance. ¶

As noted earlier, the December 9, 2017 observation rated the Grievant Unsatisfactory in Engaging Students in Learning, and the January 22, 2018 observation rated the Grievant Unsatisfactory in Managing Student Behavior. The more comprehensive March 18, 2018 observation rated the grievant Unsatisfactory or Basic seven different categories concerning culture for learning, engaging students in learning, coherent instruction, respectful environment, managing student behavior, and using questioning, discussion, and assessment techniques. The February 7, 2018 e- mail noted issues with students walking around the classroom and being off task, and the March 19 e-mail noted a student’s concerns about the Grievant not teaching anything as well as students being disruptive, off task, and being assigned a coloring activity. ¶

The Commission has regularly restrained arbitration in cases predominately involving allegations of problems with engaging students, communicating content, or carrying out the curriculum. See, e.g., Elizabeth Bd. of Ed., P.E.R.C. No. 2015-66, 41 NJPER 452 (¶140 2015) ; East Orange Bd. of Ed., P.E.R.C. No. 2014-49, 40 NJPER 343 (¶125 2014); 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 (e.g., control, discipline, or supervision of students) is a component of teaching performance. See, e.g., Elizabeth; Parsippany-Troy Hills Bd. of Ed., P.E.R.C. No. 2000-28, 25 NJPER 442 (¶30194 1999); Morris Bd. of Ed., P.E.R.C. No. 99-84, 25 NJPER 162 (¶30074 1999); New Providence Bd. of Ed., P.E.R.C. No. 98-91, 24 NJPER 108 (¶29053 1998); Wood-Ridge Bd. of Ed., P.E.R.C. No. 98-41, 23 NJPER 564 (¶28281 1997) ; and Hillside Bd. of Ed., P.E.R.C. NO. 97-39, 22 NJPER 389 (¶27210 1996). Accordingly, as five of the six supporting evaluations and e- mails cited on the Increment Withholding form concern teaching performance, we find that the increment withholding was predominately based on an evaluation of teaching performance and 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 Weisblatt, Commissioners Bonanni, Jones, Papero and Voos voted in favor of this decision. None opposed. ¶

ISSUED: August 15, 2019 ¶

Trenton, New Jersey ¶

Note1/ The performance level ranges are Unsatisfactory, Basic, Proficient, and Distinguished. ¶

2/ The Increment Withholding form listed March 29, 2018 as the date of the e-mail regarding “Letter distributed to Students.” The record shows that that e-mail was sent to the Grievant on March 22, but was subsequently forwarded from Rorie to Etienne along with an attachment of the Grievant’s letter on District letterhead on March 29. ¶