P.E.R.C. No. 2020-5, 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-2019-031 ELIZABETH EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Board’s request for a restraint of binding arbitration of a grievance filed by the Association contending that the Board withheld a teacher’s salary increment for the 2018-19 school year without just cause. The Commission finds that, of the three documents upon which the withholding is based, only one, addressing an alleged failure in 2015-16 to input grades in a timely manner, relates predominately to teaching performance. On this sparse record, the Commission lacks confidence that a memorandum addressing allegedly inappropriate speech or opinions voiced by the grievant in 2015-16 predominately concerned an evaluation of her teaching performance. As to a document addressing a single in-class incident in 2017-18 of the grievant allegedly grabbing a student by the ear, the Commission finds no educational expertise is needed to determine whether such indisputably improper conduct occurred. The Commission finds that, on balance, binding arbitration is the appropriate forum for this dispute. ¶

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-2019-031 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 (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Elizabeth Education Association (Association). The grievance asserts that the Board violated the parties’ collective negotiations agreement (CNA) by withholding a teacher’s salary increment for the 2018-19 school year without just cause. ¶

The Board filed briefs, exhibits, and the certification of Frank Cuesta, Chief of Operations for the Elizabeth School District. The Association filed a brief and the certification of the grievant. 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 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 physical education and health teacher. ¶

A March 4, 2016 memorandum to the grievant from the school principal, regarding “Domain 4 Professional Responsibilities,” states, in pertinent part: ¶

[I]t is imperative that student grading and progress reporting in the Power School system is inputted in a timely fashion as required with [sic] district policy. In line with Charlotte Danielson’s, A Framework for Teaching, Domain 4-Professional Responsibilities, you have shown a lack of professionalism in the following elements: ¶

< Accurate instructional recording ¶

< Compliance with school and district regulations ¶

Moving forward, you are expected to: ¶

< Ensure that grading/progress reporting is inputted on [sic] a timely manner. ¶

< Comply with school and district regulations ¶

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. ¶

A June 3, 2016 memorandum to the grievant from the principal, also regarding “Domain 4 Professional Responsibilities,” states, in pertinent part: ¶

[I]t is imperative that we speak appropriately around students, parents, and team members and that we keep our opinions professional and appropriate. In line with Charlotte Danielson’s, A Framework for Teaching, Domain 4-Professional Responsibilities, you have shown a lack of professionalism in the following elements: ¶

< Information about individual students ¶

< Service to students/Service to school ¶

< Integrity and ethical conduct ¶

< Decision making ¶

Moving forward, you are expected to: ¶

< Ensure that opinions about students or classes are kept to yourself. ¶

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. ¶

A document, dated January 31, 2018, authored by a vice principal and addressed to Assistant Superintendent Jennifer Cedeno, states in pertinent part: ¶

At approximately 1:45 today, it was reported to me that [the grievant] allegedly grabbed [an] Eighth grade special education student, [name redacted] by the ear and dragged him around a table. ¶

[The grievant] was questioned and denied the allegation. The cameras were reviewed to determine if the incident was recorded. It was not. Scholars in the class were questioned one by one. Each student in the class was questioned. Of the 14 students, 5 confirmed that they did see [the grievant] grab the student by the ear. The classroom assistant was also interviewed and she admitted seeing [the grievant] grab the student by the ear. ¶

After consulting with . . . Human Resources, [the grievant] has been notified that she is to report to Human Resources tomorrow morning. ¶

A call was made to DCP&P along with the Elizabeth Police Department. The[y] have documented the incident and [it] will [be] recorded in the office of licensing. They did not feel it rose to the level of investigation at this point.1/ ¶

Cuesta certifies that the Board withheld the grievant’s 2018-19 increment “as a result of her poor teaching performance.” Cuesta refers to an exhibit containing a March 29, 2018 letter to him from the principal,2/ recommending that the grievant’s increment be withheld, and a “Recommendation for Increment Withholding” form, signed by the principal on March 28, 2018. The form details that the grievant was rated “Proficient” in three separate evaluations in the 2017-18 school year. The form also lists three “Corrective Memos/ Reprimands/ Warnings,” including the two above-quoted memoranda from 2016, as well as the January 31, 2018 document. Under “Other Reasons” on the increment withholding form, the principal stated: ¶

The concern is the manner in which [the grievant] speaks to the students. Conversations with [the grievant] are ongoing regarding classroom control. Currently [the grievant] is house[d] at Human Resources, due to the incident with the student dated on January 31, 2018. ¶

Cuesta adds in his certification that the January 31 incident “resulted in [the Grievant] being stripped of her teaching responsibilities and transferred to Human Resources.” ¶

The grievant certifies that she was never presented with any of the above-quoted documents and that she first viewed them with her attorney on February 1, 2019 when preparing for this matter. The grievant further certifies that she was never informed by anyone affiliated with the Board as to the reason for her increment withholding and that she was thus not given an opportunity to improve her teaching performance. ¶

On June 27, 2018, the Association filed a grievance contesting the increment withholding. The grievance alleged that the Board violated Article IV, Section A of the CNA. That provision states, “No employee shall be disciplined or reduced in compensation in any manner or form or discharged without just cause.” 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 based on concerns predominately relating to an evaluation of teaching performance, as evidenced by the 2016 memoranda and the 2018 classroom incident in which the grievant reportedly dragged a special education student by his ear around a table. The Board argues in its brief that the 2016 memoranda expressed concern over the grievant’s lack of professionalism , and that “professionalism and classroom management issues resurfaced in January of 2018” when the grievant was disciplined regarding “the manner in which [she] speaks to the students” and her “classroom control.” It argues that these concerns constitute teaching performance-related reasons for withholding the increment at issue. ¶

The Association asserts that arbitration should not be restrained because the increment withholding was predominately disciplinary. It contends that the grievant was never told the reasons for the withholding prior to its adoption by the Board, and she denied the Board’s allegations regarding the January 31, 2018 incident. The Association argues that the two memoranda issued in 2016 reprimanded the grievant and as such were “disciplinary incidents that became part of her file,” regardless of whether the Board may consider, in an assessment, the actions underlying the two “reprimanding memoranda” from 2016 and the alleged 2018 incident. ¶

We are tasked with reviewing the facts of each case, Scotch Plains-Fanwood Bd. of Ed., supra, but the factual record here is sparse. Each memorandum from 2016 invokes “Charlotte Danielson’s, A Framework for Teaching, Domain 4-Professional Responsibilities,” in alleging the grievant of showing a “lack of professionalism,” resulting in admonishments to timely input student grades and progress reports; and to “speak appropriately around students, parents, and team members and . . . keep our opinions professional.” However, neither memorandum explains precisely what facts or allegations gave rise to those admonishments. No further factual context could be gleaned from the certification of Cuesta or that of the grievant.3/ ¶

The 2016 memoranda indicate general areas of concern. The grievant’s allegedly deficient grade reporting is said to have implicated concerns about “Accurate instructional recording,” “Compliance with school and district regulations,” and timeliness. We are not, however, told when the alleged failure(s) to input grades occurred, whether it was an isolated incident or an ongoing issue, or to what extent, if any, it impacted students or the administration’s ability to provide them with a thorough and efficient education. The grievant’s allegedly inappropriate speech and unprofessional manner of voicing her opinion is said to have implicated concerns over “Information about individual students,” “Service to students/Service to school,” “Integrity and ethical conduct,” and “Decision making.” However, we are not told what it is that the grievant allegedly said, or when, where or to whom she said it. We do not know, for example, if it happened inside or outside the classroom, or on or off school grounds, during scheduled teaching time or during an extracurricular activity. With that said, in this scope proceeding we may neither look behind the cited reasons for the withholding, nor consider their validity. Saddle River Bd. of Ed., P.E.R.C. No. 96-61, 22 NJPER 105 (¶27054 1992). ¶

Thus , we find that the grievant’s alleged failure to input students’ grades in a timely manner, notwithstanding the lack of specific details, sufficiently implicates concerns with her teaching performance, as this responsibility is a part of her regular teaching duties. See, e.g., Elizabeth Bd. of Ed., P.E.R.C. No. 2015-55, 41 NJPER 401 (¶125 2015) ( “corrective memoranda for alleged untimely submission of grades . . . sufficiently relate[d] to an evaluation of teaching performance” ); Elizabeth Bd. of Ed., P.E.R.C. No. 2015-48, 41 NJPER 344 (¶109 2015) ( “inadequate recording of grades, grade book deficiencies, failure to timely return graded work, and late submission of reports . . . are sufficiently related to an evaluation of teaching performance” ). The slender record before us offers no indication that the grievant’s alleged deficient grade reporting stemmed from any conduct that would not require the Commissioner of Education’s review. Cf., Monroe Tp. Bd. of Ed., P.E.R.C. No. 2018-48, 44 NJPER 453 (¶126 2018) (declining to restrain arbitration of increment withholding that was based on teacher’s alleged intentional fabrication of student’s grades, as such conduct was “beyond the realm of regular teaching duties, . . . [and] not a matter . . . requir[ing] the educational expertise of the Commissioner of Education.” ) ¶

However, while we have often held that withholdings based on a teacher’s allegedly inappropriate conduct or remarks made in class cannot be submitted to binding arbitration, we have not always reached the same result in cases where the inappropriate conduct arose outside the classroom. See Willingboro Bd. of Ed., P.E.R.C. No. 2001-68, 27 NJPER 236, 238 (¶32082 2001). Nor does every in-class event involve teaching performance. See, e.g., Morris Hills Reg. Dist. Bd. of Ed., P.E.R.C. No. 92-69, 18 NJPER 59 (¶23025 1991) (declining to restrain arbitration of increment withholding that was based on single in-class incident of teacher striking a student, finding no educational expertise was needed to decide that if a teacher hit a child, it would be improper conduct); Demarest Bd. of Ed., P.E.R.C. No. 99-36, 24 NJPER 514, 517 (¶29239 1998), aff’d 26 NJPER 113 (¶31046 App. Div. 2000) (teacher’s allegedly misinformed response to student query about why class had been moved was not curriculum-based and did not involve teaching). Here, as this limited record affords us no basis to make such pertinent distinctions , we cannot say with confidence that the memorandum addressing the grievant’s alleged inappropriate speech or opinions voiced during the 2015-2016 school year predominately concerned an evaluation of her teaching performance. ¶

Turning to the January 31, 2018 incident, the sole document in the record specifies that the grievant “allegedly grabbed [an] Eighth grade special education student . . . by the ear and dragged him around a table.” The same document relates that the grievant denied the allegation, and further that five of the 14 students in the class, as well as the classroom assistant, confirmed that they saw the grievant grab the student by the ear. ¶

The letter provides no other factual context about the incident itself, and makes no mention of other inappropriate classroom techniques or any assertion by the teacher that the contact was necessary to prevent harm to students or property, a review of which would require educational expertise. Thus there are no facts here that would support a result similar to that of our decision in Old Bridge Bd. of Ed., P.E.R.C. No. 2004-57, 30 NJPER 77 (¶28 2004). There, we restrained arbitration of an increment withholding that was based on substantiated allegations of student complaints that a teacher had engaged in “repeated inappropriate physical touching and sexist and racist commentary directed toward students” during class, lunch and in the hallways. Id. at 78. The teacher “acknowledged . . . that he made one comment, but asserted that it was not meant to be demeaning[,] . . . [and he] also admitted to pinching a student’s cheeks in a friendly way after she pinched his cheeks first.” Id. Subsequently the board withheld the teacher’s salary increment based upon the “gross misconduct” that had given rise to the student complaints, and ordered the teacher to undergo a psychological examination to determine his fitness for duty. Id. In restraining arbitration, we found that “[u]nlike the single corporal punishment case, the question here is not simply whether or not the teacher engaged in illegal conduct. . . . [It also] includes educational judgments about where to draw the line between appropriate and inappropriate comments and conduct toward his students in the classroom.” 30 NJPER at 79, citing Upper Saddle River Bd. of Ed., P.E.R.C. No. 98-81, 24 NJPER 54 (¶29034 1997), Tenafly Bd. of Ed., P.E.R.C. No. 91-68, 17 NJPER 147 (¶22058 1991). ¶

Here, unlike Old Bridge Bd. of Ed., supra, we cannot conclude, based on the limited facts presented, that the January 31 incident concerned anything more than a single in-class incident of the grievant allegedly grabbing a student by the ear, which the grievant denies. Therefore the sole issue, as to this incident, is the truth of the allegation, as opposed to an educational line-drawing judgment about what comments and conduct by a teacher toward students are appropriate, or the propriety of the use of a disciplinary technique. Id., see also Essex Cty. Voc. Schools Bd. of Ed., P.E.R.C. No. 2000-23, 25 NJPER 427 (¶30188 1999). As such, we find that “an arbitrator can properly make an objective determination whether or not [the teacher] engaged in what is indisputably improper conduct.” Morris Hills, supra, 18 NJPER at 60. ¶

In sum, as the increment withholding at issue is based on three separate incidents, only one of which we have found to relate predominately to the grievant’s teaching performance, we conclude that on balance binding arbitration is the appropriate forum for resolving this dispute. ¶

OrderORDER ¶

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

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/ A copy of the January 31 document was referenced as an exhibit to the grievant’s certification, but was missing from the Association’s submissions. On June 21, 2019, a Commission staff member telephoned the Association’s counsel regarding the omission. Counsel promptly emailed a copy to the staff member, and also notified the Board’s counsel of said communication and correspondence. We note that the January 31 letter, although variously described by the parties as a “reprimand” or “letter of reprimand,” was not addressed to the grievant, and the document lists neither the grievant nor her personnel file as having been copied on it. ¶

2/ The Association’s brief erroneously refers to Cuesta as having authored the March 29 document. ¶

3/ Absent an official statement of reasons, 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. Elizabeth Bd. of Ed., P.E.R.C. No. 2016-19, 42 NJPER 188 (¶50 2015). ¶