P.E.R.C. No. 2026-25, E Brunswick Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-010 EAST BRUNSWICK EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Commission grants the East Brunswick Township Board of Education’s scope of negotiations petition seeking restraint of binding arbitration of a grievance filed by the East Brunswick Education Association which contests the withholding of a health and physical education teacher’s salary increment for the 2025-2026 school year. The Commission finds the withholding predominately involves an evaluation of the grievant’s teaching performance in connection with his alleged failures to adequately supervise students during their dismissal from the classroom (a chair-throwing incident), and during their instructional activity (a basketball game), resulting in student injuries in each case. The Commission finds the withholding addresses the grievant’s judgment as an instructor in both cases, such that this classroom management/supervision issue must be addressed by the Commissioner of Education. ¶

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 EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-010 EAST BRUNSWICK EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Matthew J. Giacobbe, of counsel) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys (Randi Doner April, of counsel) ¶

DECISION ¶

On September 10, 2025, the East Brunswick Township Board of Education (Board) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the East Brunswick Education Association (Association). The grievance contests the withholding of a health and physical education teacher’s salary increment for the 2025-2026 school year. ¶

The Board filed briefs, exhibits and the certification of its Chief School Administrator, Dr. Victor Valeski. The Association filed a brief, exhibits and the certification of its President, Dana Zimbicki. These facts appear. ¶

The Association represents teaching staff members employed by the Board. The Board and Association are parties to a collective negotiations agreement (CNA) in effect from July 1, 2021 through June 30, 2026. The grievance procedure ends in binding arbitration. ¶

The Chief School Administrator certifies to the following facts. The grievant is a teaching staff member employed by the Board as a health and physical education teacher. During the 2024-2025 school year there were two incidents that resulted in injuries to his students. The first occurred on March 25, 2025 during dismissal of the grievant’s physical education class while students were exiting the gym. The second occurred on April 9, 2025 when a student was knocked to the hardwood floor by another student during a basketball game and was later diagnosed with a concussion. ¶

Following meetings after each occurrence with the grievant and Zimbicki (among others), the school Principal detailed the incidents in separate memoranda addressed to the grievant, respectively dated April 4 and 30, 2025. Regarding the March 25 chair-throwing incident, the April 4 memorandum stated among other things: ¶

Upon investigating this incident, it was determined that: A student that was exiting the gym area grasped a chair that was sitting on the gym floor, pulled the chair into the cubby area, spun the chair around, and released the chair which slid across the floor and struck another student in the lower leg. [The grievant] was stationed near the exit doors on the opposite side of the gym from where students were exiting when this occurred. The volume of students funneling into the confined space, and his physical distance from the area, enabled the incident to occur without [the grievant] being able to see it. Shortly after the incident, [the grievant] and the substitute teacher were informed by two separate students that it had occurred. Upon being informed of the incident, [the grievant] proceeded to store the gym equipment in a storage closet while the substitute teacher proceeded to check on the student. After storing the equipment [the grievant] approached the cubby area. At this time the substitute was still discussing the incident with the affected student. [The grievant] did not approach the substitute or the affected student. [The grievant] left the gym area shortly thereafter. On his way out of the building, [the grievant] stopped at the security vestibule in the front of the school and requested that the security officer in the vestibule “check the security camera in the gym because someone was hit by a chair.” The administration was made aware of the incident by school security after the footage was viewed by them which revealed the extent of the incident. ¶

In assessing the incident, it is found that [the grievant’s] failure to adequately supervise the dismissal of students allowed the unsafe situation to occur without the possibility of intervention. When made aware of the situation, [the grievant] failed to display the level of concern for the safety and well-being of a student that is expected of him as a professional educator. [The grievant] failed to make a proper notification to the administration regarding the information that he received. ¶

Zimbicki certifies that she reviewed a video of the gym on the day in question and from her perspective, it would have been impossible for the grievant to notice if any students were not acting appropriately. ¶

Regarding the injury during the basketball game on April 9, the Principal’s April 30 memorandum stated, in pertinent part: ¶

On April 10th school administration received notification from a parent that their student was injured in physical education class on April 9th. The email received included a doctor’s note indicating that the student was diagnosed with a concussion. ¶

* * * ¶

Upon investigating this incident, it was determined that: on several occasions during the basketball game students made physical contact with one another that on one occasion resulted in the student whose Parent made the injury claim being knocked to the floor. In another instance the students group together in a pattern that resembles a possible physical altercation. In a third instance the same student that was knocked to the floor earlier is involved in a physical interaction in which he is contacted on both sides of his body and about his head simultaneously. Immediately after this instance he raises his hands to his head, he disengages from the activity and seeks you out. While the game is being played your physical position is near the entry area to the gym nearest the cubby area. At the time of the instances detailed, you do not intervene with the students involved in the physical contact. ¶

In assessing the incident, it is found that [the grievant’s] failure to adequately supervise the instructional activity of students allowed an unsafe situation to perpetuate. The students in [the grievant’s] class were able to continue playing a basketball game that lacked basic structure, adherence to established rules, and safety protocols. [The grievant] did not follow his own standard of intervening during physical contact. Finally, [the grievant’s] instructional effectiveness is in question based on his supplied objective due to his failure to address basic violations of basketball rules such as fouls. ¶

Zimbicki certifies that she viewed a video of the gym on that day, and from her perspective it would have been impossible for the grievant to notice if any students were not acting appropriately or if anyone got hurt unless someone specifically told him. ¶

The school Principal’s April 4 and April 30 memoranda, quoted supra, each concluded with the following statement: “Based on the concerns documented in this and previous memos, a recommendation will be made to the Superintendent that your salary increment for the 2025-26’ school year be withheld.” ¶

The grievant filed rebuttals to the Principal’s memoranda. Regarding the first incident, the grievant stated among other things that after the chair was reportedly thrown he immediately asked if anyone had been injured before securing the equipment and exiting the gym to notify security and request a review of the video footage. The grievant denied “witness[ing] or hear[ing] any student in visible distress.” The grievant also stated that he had never previously had a supervisor or administrator question his ability to supervise students effectively, that “student safety has always been a top priority” throughout his 20+ years of service, and he remains “fully committed to making every effort to ensure that all students are safe, supported, and cared for at all times.” ¶

Regarding the second incident during the basketball game, the grievant’s rebuttal stated among other things that he followed the relevant lesson plan on that day, and that he actively monitored the class, addressed student concerns, and personally escorted an injured student to the exit doors to be evaluated by the nurse. While admitting that “another student fell while playing basketball,” the grievant contended that the student who later reported a concussion was the same one he sent to the nurse. The rebuttal further stated that under the circumstances it was “not always possible to have an unobstructed view of every student at every moment.” ¶

The in-class injuries were noted in the grievant’s 2024-2025 summative evaluation, in pertinent part as follows: ¶

In both incidents, [the grievant] failed to follow established safety protocols, raising serious concerns aligned with Domain 2 (Classroom Environment) and Domain 4 (Professional Responsibilities) [of the evaluation rubric used by the District]. As a result, he is now required to submit lesson plans for administrative review and complete a safety training course. ¶

On May 5, 2025, the grievant was issued a formal “Rice notice”1/1/Rice v. Union County Reg. High School Bd. of Ed., 155 N.J. Super. 64 (App. Div. 1977) (school employees are “entitled to reasonable notice of the intention of the board to consider personnel matters related to them”), cert. den., 76 N.J. 238 (1978). citing the “two instances of students getting injured while they were under your supervision” as the reason for the recommended increment withholding. At the May 7, 2025, Board meeting, the Board voted to withhold the grievant’s increment for the 2025-2026 school year. On September 4, the Association filed a Request for Submission for 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., 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. 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. 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 arbitration should be restrained because the grievant’s increment for 2025-2026 was withheld for reasons related to his substandard teaching performance and poor classroom management, which resulted in student injuries. ¶

The Association argues that the grievance must proceed to arbitration. It contends the Board acted arbitrarily when it withheld the grievant’s increment based upon two alleged missteps over his long career, without progressive discipline or an opportunity to correct alleged deficiencies through a performance improvement plan (PIP) or corrective action plan (CAP). The Association stresses that the grievant has never previously had his increment withheld nor been placed on a CAP. The Association further argues that the facts as presented by the Board do not even accurately represent what occurred. ¶

We have previously held that alleged negligence in the classroom supervision of students relates predominately to the evaluation of teaching performance and must be addressed by the Commissioner of Education. See, e.g., Somerset Cty. Vocational and Technical Schools Bd. of Ed., P.E.R.C. No. 95-55, 21 NJPER 112 (¶26068 1995) (withholding based on concern about teacher’s classroom management, specifically his alleged failure to control students and ensure student safety during class); Hamilton Bd. of Ed., P.E.R.C. No. 2002-35, 28 NJPER 76 (¶33026 2001) (withholding based on allegedly improper supervision of children in special education class “that resulted in peer-to-peer sexual/genital contact between students during class time”). ¶

Under all the circumstances of this case, we are persuaded that the increment withholding at issue and the Principal’s memoranda underlying it predominately involve an evaluation of the grievant’s teaching performance. The Principal respectively expressed concerns over the grievant’s alleged failures to adequately supervise students during their dismissal from the classroom (the chair-throwing incident), and during their instructional activity (the basketball game), thus allowing in each case “an unsafe situation” to occur. The withholding addresses the grievant’s judgment as an instructor in both cases. ¶

In selecting a forum under N.J.S.A. 34:13A-27, we accept the Board’s stated reasons for a withholding and do not consider contentions that those reasons are unsupported or pretextual. Marlboro Tp. Bd. of Ed., P.E.R.C. No. 2010-5, 35 NJPER 284 (¶98 2009). See also, Paramus Bd. of Ed., P.E.R.C. No. 2004-30, 29 NJPER 508 (¶161 2003) (citing, Saddle River Bd. of Ed., P.E.R.C. No. 96-61, 22 NJPER 105 (¶27054 1996); North Caldwell Bd. of Ed., P.E.R.C. No.2001-76, 27 NJPER 290 (¶32105 2001); Greater Egg Harbor Reg. Bd. of Ed., P.E.R.C. No. 2000-85, 26 NJPER 214 (¶31088 2000)). We assume the Board will be bound by its asserted reasons before the Commissioner of Education. Thus, the Commissioner has the power to entertain the Association’s allegations that the Board’s asserted reasons here are without just cause or are otherwise factually unsupported. Mahwah Tp. Bd. of Ed., P.E.R.C. No. 2008-71, 34 NJPER 262 (¶93 2008). ¶

Accordingly, this classroom management/supervision issue must be addressed by the Commissioner of Education. ¶

OrderORDER ¶

The request of the East Brunswick Township Board of Education for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Davey, Eaton, Higgins, Hines, and Papero voted in favor of this decision. None opposed. ¶

ISSUED: February 26, 2026 ¶

Trenton, New Jersey ¶