P.E.R.C. No. 2020-58, Madison B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MADISON BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2020-024 MADISON EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the Madison Board of Education for a restraint of binding arbitration of a grievance filed by Madison Education Association, contesting the withholding of a teacher’s salary increment for the 2019-2020 school year. The Commission finds the Board’s stated reasons for the withholding, that during the 2018-2019 school year the teacher (1) left his class unsupervised to take personal calls, (2) conducted personal business online on a District device, and (3) left his class unsupervised to wrestle with a student, predominantly reflect disciplinary concerns. While the reasons given implicate poor classroom management in that students were left unsupervised during all three incidents, the Commission finds that predominantly was a result of the teacher’s non-performance of his teaching duties at those times. The Commission further notes that the Board’s concerns were not otherwise detailed in evaluations, memoranda, or observation reports. Finally, the Commission finds that the decision to wrestle a student is both inappropriate conduct subject to discipline and a strong indicator of poor teaching performance; but on balance, the reasons provided are predominantly disciplinary, and the dispute shall be resolved through the parties’ grievance procedure, as per N.J.S.A. 34:13A-27c. ¶

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 MADISON BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2020-024 MADISON EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner1/, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Matthew J. Giacobbe, of counsel and on the brief) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys (Samuel B. Wenocur, of counsel and on the brief) ¶

DECISION ¶

On November 12, 2019, the Madison Board of Education (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Madison Education Association (Association).2/ The grievance contests the withholding of a teacher’s salary increment for the 2019-2020 school year. ¶

The Board filed briefs, exhibits and the certification of its Superintendent, Mark Schwarz. The Association filed a brief, exhibits and the certification of the grievant. These facts appear. ¶

The Association represents a unit of all certificated personnel along with other employees employed by the Board with specific exclusions as defined in Article I of the parties collective negotiations agreement (CNA). The Board and Association were parties to a CNA in effect from 2016 through 2019. The parties are currently operating under an August 6, 2019 Memorandum of Agreement (MOA), effective from July 1, 2019 through June 30, 2022. The grievance procedure ends in binding arbitration. ¶

Schwarz certifies that the grievant is a certified teacher employed by the Board. Prior to and since 2017, the Board had received numerous reports from parents and students regarding concerns as to the grievant’s teaching performance and classroom management. During an investigation in 2017, the grievant admitted to have taken phone calls during class time; to inadvertently displaying a blueprint of his house on the Smartboard, and failing to update his lesson plans on L drive since early December 2016. ¶

On February 7, 2017, the grievant was placed on a corrective action plan (CAP) to address the following: conducting personal business during class time, failure to update lesson plans, concerns about absences, and constant requests by students and parents to be moved out of his class due to instructional practices and classroom environment. ¶

According to Schwarz, on May 22, 2017, as a result of improvements shown, the Board determined that the grievant had met the above goals, but that improving instructional practices and classroom environment remained an area of focus. During the 2017-2018 school year, parents and students continued to raise concerns regarding deficiencies in the grievant’s instructional practices, teaching skills and classroom management. ¶

Schwarz certifies that during the 2018-2019 school year, the same pattern of concerns regarding the grievant continued. During the 2018-2019 school year, a number of parents again requested that their children be transferred to a different class as the students were struggling, frustrated, and disconcerted by the grievant’s teaching. ¶

According to Schwarz, on October 22, 2018, the grievant attempted to access the real estate website remax.com during class instructional time in lieu of teaching the students in his class. Moreover, the Board continued to receive emails from parents regarding the grievant’s deficiencies in classroom management and teaching skills. In April 2019, it was again reported that the grievant had left the classroom multiple times during classroom instruction time when he was required to be teaching students in his class in order to take personal phone calls. ¶

Schwarz also certifies that on or about April 23, 2019, the grievant was placed on paid administrative leave pending an investigation into incidents involving poor classroom management and inappropriate in classroom conduct. During the investigation, the Board determined that the grievant’s conducting personal business and habitually leaving class during instructional time had continued. The Board was further made aware, and the grievant admitted, that he had engaged in a wrestling match involving physical contact with a minor student, during class instructional time. ¶

According to Schwarz, at the Board’s June 25, 2019 meeting, the Board voted to approve his recommendation to withhold the grievant’s increment for the 2019-2020 school year, in part due to the continuing nature of the concerns regarding the grievant’s failure to properly supervise his students during instructional time. ¶

Schwarz further certifies that the Board was able to confirm that on March 26, 2019, the grievant exited his classroom on multiple occasions in order to take a private phone call. While the grievant was out of the classroom, his students were not receiving any instruction and were not being supervised. Further, on April 5, in lieu of properly managing instructional time, the grievant accepted a wager and proceeded to wrestle a student. By engaging in inappropriate conduct involving physical contact with a student during class instructional time, the grievant demonstrated a pattern of failing to properly manage, supervise and educate students during class time. ¶

The grievant certifies that the 2017 CAP imposed by the Board was in fact not a CAP. The document created identified itself as an “Optional CAP.” It was implemented in the middle of the school year because of his alleged use of taking personal phone calls during class. He never received an overall summative rating lower than “effective.” ¶

According to the grievant, the first time he saw the emails from parents with their concerns was after reviewing the Board’s initial brief in this matter. He was not disciplined on account of those communications. Rather, at the end of the 2016-2017 school year, the K-12 Supervisor of Mathematics and Science, Kelly Bosworth, informed him that the calls and emails of parent complaints had ended. In addition, the grievant stated that he also first saw the emails from parents in 2019 included in the Board’s brief. According to the grievant, this was not brought to his attention during any observation or evaluation for the 2018-2019 school year. ¶

The grievant also certifies that between April 16 and June 25, 2019, he did not have any meetings, interviews or other communication with the Board concerning any allegations or investigation. On June 25, 2019, the Board voted to withhold his increment for the 2019-2020 school year. He received a notice of this action during a June 26 meeting with Human Resources Director, Joseph Vespignani. ¶

On June 27, Schwarz provided the grievant with a letter of reprimand which documented the April 23, 2019 - Paid Administrative Leave and Investigation, which provides as follows: ¶

I am writing to you today in regard to the investigation that was conducted concerning a number of incidents which were reported to have occurred in your classroom in March and April 2019. Specifically, after a through investigation into the allegations, the District has made the following determinations: ¶

C On March 26, 2019, you exited your classroom on multiple occasions in order to take a private phone call. This was confirmed by multiple students. It was reported that you left the classroom to conduct personal business. ¶

C On April 4, 2019, a review of your browser history confirmed that on at least one occasion during the school year 2018-2019, you conducted personal business on your district provided technology device. ¶

C On April 5, 2019, students in your class challenged you to wrestle one of your math students. Your class proposed that if the student was able to beat you, they would be offered a free period. During our investigation, you admitted to accepting the wager. ¶

C You further admitted that you, along with two other students, left the classroom during instructional time, so that you could wrestle said student in the wrestling room. ¶

C As a result of the incident, students in your classroom were left unattended for approximately five (5) minutes. ¶

Based upon the investigation conducted, as well as by your own admission, there is clear evidence that your conduct violated Board Policy 3281, Inappropriate Conduct for Teaching Staff Members. As outlined in the policy, “there exists a professional responsibility for all school staff to protect a pupil’s health, safety and welfare.” In this regard, “school staff members have the public’s trust and confidence to protect the well-being of all pupils attending the school district.” Specifically, 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.” ¶

Wrestling a student not only puts their physical health and safety in danger, it also calls into question your ability to properly manage a classroom. By choosing to engage in a wrestling match with a student during instructional hours, you have clearly failed to “maintain a professional relationship with pupils” and have likely raised doubts amongst your students as to whether they should interact with you as a peer or as a respected teaching staff member. ¶

Morever, pursuant to Board Policy 3211, Code of Ethics, you are vested by the public with a trust and responsibility requiring the highest ideals of professional service and are required to exert every effort to raise professional standards to promote a climate that encourages the exercise of professional judgment. By engaging in personal business during instructional time, you have broken the public trust of not only the parents who have entrusted you with their children, but also with taxpayers who assume that instructional time will be devoted to educating our students. Accordingly, you have been found to have violated Board Policy 3211. ¶

Further, it must be addressed that you were previously placed on a Corrective Action Plan regarding conducting personal business during instructional time. This plan outlined areas identified for improvement. Based upon your recent conduct, you have failed to meet these expectations. ¶

As a consequence, for violating Board Policy 3281 and Board Policy 3211, you are receiving this written letter of reprimand. Furthermore, you will be placed on a Professional Growth Plan to address the noted concerns. Your increment be [sic] withheld, including if applicable, conventional, adjustment and/or longevity increments. Please be advised, further inappropriate, unprofessional, unacceptable, or unbecoming comments or conduct, or violation of Board Policy 3281, Board Policy 3211 or other Board policies will subject you to additional disciplinary measures, including, not limited to tenure charges. ¶

As you continue to serve the Board of Education, it is imperative that you are mindful of the following guidance: ¶

1. You are not to leave students in your charge unattended and unsupervised. ¶

2. You are not to make physical contact with students in the matter in which you did during this incident. ¶

3. You are not to conduct personal business during instructional time. Conduct a careful review of Policy 7752 - School District Provided Technology Devices to Staff Members and ensure that your future conduct is consistent with the provisions of this policy at all times. ¶

The grievant further certifies that he has received summative evaluations for the 2018-2019 school year that reflects that he was commended for his learning culture and environment in the classroom, and also scoring a 3.0 in various areas of the Domain modules. ¶

On July 19, 2019, the Association filed a grievance on behalf of the grievant stating that his increment was withheld without just cause. On July 30, Schwarz denied the grievance, stating that “the basis for the increment withholding was in relation to concerns regarding [Grievant’s] performance as a teacher.” On August 9, the Association filed a Level Three grievance. On October 17, the Association filed a Request for Submission of a Panel of Arbitrators. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (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. ¶

As such, we do not consider the contractual merits of the grievance or whether there was just cause for this withholding. ¶

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. and Edison Tp. Principals and Supervisors Ass’n, P.E.R.C. No. 97-40, 22 NJPER 390 (¶27211 1996), aff’d, 304 N.J. Super. 459 (App. Div. 1997). Pursuant to 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. See N.J.S.A. 34:13A-27a. When doing so, we focus on “the statement of reasons issued to the teaching staff member at the time the increment was withheld.” N.J.A.C. 19:13-2.2(a)(3). In discharging our forum selection function under N.J.S.A. 34:13A-27, we accept that statement of reasons and do not consider contentions that those reasons are pretextual or unsupported. Northern Highlands Reg. Bd. of Ed., P.E.R.C. No. 2003-49, 29 NJPER 24 (¶7 2003). ¶

Where a board cites multiple reasons, but shows that it acted primarily for certain reasons, we will weigh those concerns more heavily in our analysis. Woodbridge Tp. Bd. of Ed., P.E.R.C. No. 2009-53, 35 NJPER 78 (¶31 2009). We are not persuaded in our increment withholding gatekeeping function by the labels given to the documents (e.g. “reprimand” or “evaluation” ) 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., supra. However, 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. Montgomery Tp. Bd. of Ed., P.E.R.C. No. 2015-73, 41 NJPER 493 (¶152 2015). ¶

We articulated the process for making an increment withholding determination in Scotch Plains-Fanwood Bd. of Ed., P.E.R.C. No. 91-67, 17 NJPER 144 (¶22057 1991): ¶

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 argues that the increment withholding is not subject to mandatory binding arbitration under N.J.S.A. 34:13A-26 because it is predominantly evaluative in nature. In support of that assertion, the Board states that the grievant repeatedly failed to perform his job duties as required, even after being placed on a CAP for engaging in non-educational and personal activities during instructional time, all while the District was inundated with requests from students and parents to be transferred to a different class due to his inappropriate teaching performance. The Board also asserts that the withholding is based on a series of ongoing incidents and deficiencies that have remained an issue for many years, and that the withholding decision flowed from the Board’s subjective educational judgment about what type of interaction should take place in a classroom. The Board asserts that, by engaging in a wrestling match with a student during class time and by conducting personal business during class time, the grievant failed his primary responsibility of teaching the students in his class during instruction time. ¶

The Association argues that N.J.A.C. 19:13-2.2(a)(3) requires us to consider only the reasons given in the Board’s notice of increment withholding, which do not concern teaching performance. The optional CAP is “just noise,” as are the parental complaints seen in the 2017 and 2019 parent emails. The notice did not mention any observation, evaluation, or description of teaching performance. The parental complaints were neither mentioned in the statement of reasons nor presented to the grievant to improve his performance. The Board never previously withheld the grievant’s increment based on those emails and, the Association contends, their allegations are now too stale to be relied upon three years after the fact. The Association adds that the grievant’s overall score of “effective” on his annual summative performance evaluation for the 2018-2019 school year further undercuts the Board’s assertion that the withholding was evaluative. Finally, the Association argues that the majority of the reasons given by the Board for the increment withholding were disciplinary rather than evaluative. ¶

We find that the Board’s stated reasons for the withholding predominantly reflect disciplinary concerns. We view Schwarz’s June 27, 2019 letter as the Board’s statement of reasons for the increment withholding. N.J.A.C. 19:13-2.2(a)(3). That letter, issued two days after the Board voted to withhold the grievant’s salary increment for the 2019-2020 school year, indicated that the Board did so because, on separate occasions in March and April of 2019 during instructional time, the grievant: (1) left his class unsupervised to take personal calls; (2) conducted personal business online on a District device; and (3) left his class unsupervised to wrestle with a student. ¶

If true, students were left unsupervised in all three incidents, which implicates poor classroom management. But leaving students unattended or unsupervised does not always predominantly implicate teaching performance. See, e.g., Bergenfield Bd. of Ed. and Bergenfield Ed. Ass’n, P.E.R.C. No. 2006-69, 32 NJPER 82 (¶42 2006)(withholding was predominantly disciplinary where teacher, among other things, was accused of poor classroom supervision by sleeping in class and repeatedly leaving building, resulting in students missing classes, finding “[s]uch allegations do not constitute an evaluation of teaching performance, because such performance did not occur” ), aff’d, 33 NJPER 186 (¶65 App. Div. 2007); Franklin Tp. Bd. of Ed., P.E.R.C. No. 2001-64, 27 NJPER 389 (¶32144 2001)(withholding for failure to follow directive not to leave students unattended was not based on evaluation of teaching performance). See also, Hunterdon Central Reg. H.S. Dist. Bd. of Ed., P.E.R.C. No. 92-72, 18 NJPER 64 (¶23028 1992) (declining to restrain arbitration of increment withholding for alleged failures to supervise students, majority of which were not “related to the way she taught any of her classes.” ) ¶

We also note that the concerns identified in the Board’s statement of reasons are not otherwise detailed in evaluations, memoranda, or observation reports. Cf., Elizabeth Bd. of Ed., P.E.R.C. No. 2020-3, 46 NJPER 99 (¶19 2019)(withholding predominately evaluative on record of multiple classroom observations noting deficiencies in managing student behavior); accord, Franklin Tp. Bd. of Ed., supra; Dennis Tp. Bd. of Ed., P.E.R.C. No. 98-50, 23 NJPER 605 (¶28297 1997) (finding two stated reasons for withholding, inability to control students and teacher’s consistent absence from classroom while school was in session, predominately related to teaching performance, where record included observation reports and evaluations about teacher’s classroom management); Upper Saddle River Bd. of Ed., P.E.R.C. No. 91-69, 17 NJPER 148 (¶22059 1991)(withholding not predominantly disciplinary where teaching deficiencies, including poor classroom management, were noted in evaluations and conferences). See also, Somerset Cty. Voc. and Tech. Schools Bd. of Ed., P.E.R.C. No. 95-55, 21 NJPER 112 (¶26068 1995) (withholding predominantly evaluative where based on ongoing concerns, noted in earlier annual evaluation and observation report, about classroom management and alleged failure to control students and ensure student safety during class). ¶

The Board’s statement of reasons states that the grievant, by his alleged conduct, failed to meet a previous CAP’s expectations for improvement “regarding conducting personal business during instructional time.” While that may be an appropriate subject for discipline, it also concerns the grievant’s non-performance of his teaching duties. Bergenfield Bd. of Ed., supra. The decision to wrestle a student presents as both an incident of inappropriate conduct subject to discipline and a strong indicator of poor teaching performance. On balance, the reasons provided are predominantly disciplinary. ¶

The classroom management and student supervision cases relied on by the Board are distinguishable from both this matter and the cases, discussed supra, in which we restrained arbitration of withholdings that involved, among other things, alleged classroom management deficiencies. Burlington County Institute of Technology, P.E.R.C. No. 2014-25, 40 NJPER 230 (¶88 2013), restrained arbitration of a shop teacher’s increment withholding that was based on alleged failures to supervise and properly monitor students (one student in particular), with fatal consequences. The record there included a lengthy history of documented incidents repeatedly flagging such concerns. Id. In Matawan-Aberdeen Reg. Bd. of Ed., P.E.R.C. No. 2018-34, 44 NJPER 327 (¶92 2018), we addressed a principal’s increment withholding, which is subject to a different standard not applicable to teachers, that was based in part on alleged failures to assure that a school-sponsored event was properly planned, staffed, and supervised. ¶

Based on the foregoing, we conclude that the basis for the withholding of the grievant’s salary increment for the 2019-2020 school year is predominately disciplinary, and the dispute shall be resolved through the parties’ grievance procedure. N.J.S.A. 34:13A-27c. The parties may present to an arbitrator their arguments about the merits of the withholding, including as to the evidence of parental complaints. ¶

OrderORDER ¶

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

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Jones, Papero and Voos voted in favor of this decision. None opposed. Commissioners Bonanni and Ford recused themselves. ¶

ISSUED: May 28, 2020 ¶

Trenton, New Jersey ¶

Note1/ On February 3, 2020, a Substitution of Counsel was filed by the Madison Board of Education. The Board was originally represented by attorneys Isabel Machado and Kyle Ulscht of Machado Law Group, LLC at the time the initial brief was filed. ¶

2/ On November 27, 2019, the Madison Board of Education filed an application for interim relief with the Commission. The Commission notified the Board by e-mail dated November 27, that the application would not be processed absent an arbitration hearing date. An arbitration hearing date was never provided. ¶