P.E.R.C. No. 2026-34, South Orange - Maplewood B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SOUTH ORANGE-MAPLEWOOD BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-002 SOUTH ORANGE-MAPLEWOOD EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Board's request for binding arbitration of the Association's grievance, alleging the Board violated the CNA when it declined to disclose the identities of student complainants to affected teachers prior to taking disciplinary action. The parties dispute whether the Board’s written reprimands resulting from the student complaints constituted discipline. The Commission finds that determination is reserved for the arbitrator. The Commission further finds that the lack of a factual record prevents a determination as to whether the disclosure of the complainants' identities is preempted by federal or state law. The Commission concludes that a full factual record will allow the arbitrator to determine whether the Board’s actions were disciplinary and whether those factual findings implicate the federal Family Educational Rights and Privacy Act, 20 U.S.C.S. § 1232g, and the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19, and its implementing regulations, N.J.A.C. 6A:32-7.1 et seq. ¶

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 SOUTH ORANGE-MAPLEWOOD BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2026-002 SOUTH ORANGE-MAPLEWOOD EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Lenox, Socey, Formidoni, Giordano, Carrigg, Lang & Casey, LLC, attorneys (Patrick F. Carrigg, of counsel) ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Keith Waldman, of counsel) ¶

DECISION ¶

On July 23, 2025, the South Orange-Maplewood Board of Education (Board or District) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the South Orange-Maplewood Education Association (Association). The grievance alleges that the Board violated Article XIX of the parties’ collective negotiations agreement (CNA) when it declined to disclose the identities of student complainants to affected teachers prior to taking disciplinary action. ¶

The Board filed briefs, exhibits, and the certification of its Superintendent. The Association filed a brief and the certification of the Chairperson for the Professional Rights and Responsibilities Committee (Chairperson). These facts appear. ¶

The Association is the exclusive representative for all employees listed in Article II of the parties’ CNA, which includes “teacher” and “supportive” employees. The parties’ CNA has a term of July 1, 2024 through June 30, 2027. The grievance procedure ends in binding arbitration. Article XIX of the parties’ CNA ( “Complaint Procedure” ) provides, in pertinent part: ¶

A. Any complaint regarding an employee made to or by any member of the Administration, by any parent, student, or other person shall be shared with that employee before any disciplinary action is taken. The complainant shall be advised that the complaint and its source will be shared with the employee. It shall also be understood that the complainant has the privilege of withdrawing their complaint. ¶

B. When any administrator receives a complaint regarding an employee the nature of which required the recording thereof in the employee's personnel record, then such administrator will share such complaint and its source with the employee and will, prior to any further administrative action in connection thereto, try to resolve such complaint with the employee informally. ¶

[Emphasis added.] ¶

The Superintendent certifies to the following facts. On February 12, 2025, the Association filed a grievance on behalf of a former Art Teacher regarding a non-disciplinary meeting held on January 30 with the Tuscan Elementary School Principal and Assistant Principal. During that meeting, the Principal provided a student email complaint with the student’s name redacted and discussed the complaint with the Art Teacher. The Superintendent certifies that the Art Teacher was not disciplined, but was apprised of the student’s concerns in order to improve the teacher’s effectiveness. The Superintendent’s Level III grievance response reiterated that the meeting was not disciplinary. The Board’s Level IV grievance denial stated that there was no contractual violation, but agreed to remove a letter that had been placed in the teacher’s personnel file. The teacher subsequently resigned effective June 30, 2025. ¶

On April 3, 2025, the Association filed a grievance alleging that on March 27, a Maplewood Middle School(MMS) teacher met with two Assistant Principals to discuss student and parent concerns. The MMS teacher was not provided the names of the complainants and was given a counseling memorandum. On April 7, the MMS Principal responded to the grievance, stating that the CNA requires complainant names be provided prior to disciplinary action and no disciplinary action was taken against the MMS Teacher. On June 10, 2025, the Board denied the Association’s grievance. ¶

In the 2023-2024 school year, the same MMS Teacher filed a similar grievance seeking names of student complainants. The Principal ultimately provided the students’ names although no disciplinary action was taken against the MMS Teacher. The MMS Teacher subsequently filed a police report concerning the students. The Board characterizes the report as retaliatory. The police report states, among other things, that the MMS Teacher was complaining about the students circulating a petition calling for the MMS Teacher to be fired, which he believed to be racially motivated. ¶

The Board settled the grievance (2024 Grievance Settlement) agreeing to provide complainant names “to Association members at the time of meeting with the subject of an investigation when disciplinary action is possible....” The Superintendent further certifies that Board Policy 8335, “Family Educational Rights and Privacy Act (FERPA)” prohibits the disclosure of student records “without consent [of the parent] if the disclosure is to school officials with legitimate educational interests.” The Superintendent asserts that the Association’s interest is not a legitimate educational issue, but rather, the personal employment interests of its members. ¶

In response, the Association’s Chairperson certifies that the CNA’s Article XIX and the 2024 Grievance Settlement is applicable when disciplinary action is possible and not only where discipline is actually imposed. The Chairperson further certifies that both grievants received letters of reprimand. Regarding the Art Teacher’s “voluntary resignation” , the Chairperson certifies that the Art Teacher resigned as an alternative to the non-renewal of her employment, which represents an adverse employment action resulting directly from the student complaints. The Chairperson also certifies that the MMS Teacher’s police report was not filed in retaliation for student complaints; but rather, due to two white students harassing him for being a Black man. The Chairperson certifies that the students were not harmed by the MMS Teacher’s police complaint because the police did pursue the matter against the students. Lastly, the Chairperson asserts that there are at least two legitimate educational purposes for disclosing complainant identities to Association members accused of misconduct: (1) maintenance of harmonious operation of classrooms; and (2) prompt resolution of complaints against members. ¶

On July 17, 2025, the Association filed a Request for Submission of a Panel of Arbitrators identifying the grievance to be arbitrated as: “District has refused to share the source of complaints prior to taking any disciplinary action with affected employees as required by the collective bargaining agreement.” 1/ 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. ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. ¶

[Id. at 404-405]. ¶

Where a statute or regulation is alleged to preempt an otherwise negotiable term or condition of employment, it must do so expressly, specifically and comprehensively. Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44-45 (1982). The legislative provision must “speak in the imperative and leave nothing to the discretion of the public employer.” State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The Board argues that the Association’s grievance is not legally arbitrable because it would interfere with the Board’s statutory duty to safeguard student confidentiality. The Board further argues that the Association’s grievance is statutorily preempted by FERPA, 20 U.S.C.S. § 1232g, the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its regulations, N.J.A.C. 6A:32-7.1 et seq. The Board contends that improper disclosure of protected student information could jeopardize its federal funding under FERPA. The Board argues that none of FERPA’s exceptions apply to the Association and that the Association is not an organization expressly permitted in the NJPRA’s regulations to access student records without parental consent or a court order. The Board confirms that had the subject employees been disciplined, the CNA would have required disclosure of the complainant’s identity. However, the Board maintains that the subject employees were not disciplined. ¶

The Association argues that its grievance is legally arbitrable because it is not preempted by the statutes cited by the Board and involves an issue of contractual interpretation. The Association argues that under both FERPA and the NJPRA, student complaints are not considered protected student records. The Association further asserts that even if these complaints were considered student records, they would still be disclosable to the teachers for legitimate educational purposes. The Association also asserts that both grievants were subjected to discipline in the form of written reprimands. Whether discipline was actually imposed on the grievants, thereby triggering Article XIX’s disclosure requirement, is a factual issue for an arbitrator to determine. Moreover, the Association claims that the contractual disclosure requirement does not require actual discipline, but only the possibility of discipline. ¶

We must determine whether the District’s refusal to provide the identities of student complainants to teachers prior to meetings where disciplinary action is possible is legally arbitrable. This determination hinges on analysis of the second and third prongs of the Local 195 negotiability test. ¶

At the outset, we note that whether the Board’s actions towards the grievants were disciplinary is a contested factual issue that goes to the underlying merits of the grievance.2/ The Board asserts that the meetings and related memoranda were non- disciplinary. The Association contends that written reprimands and adverse employment consequences resulted. The record includes conflicting certifications and references to documents not in the record before us. Determining whether these actions constitute discipline under the CNA requires interpretation of the agreement and evaluation of the underlying facts, which are questions for the arbitrator. ¶

We now turn to the second prong of the Local 195 negotiability test, namely whether the Association’s grievance is preempted by statute or regulation. The Board claims that the Association’s grievance is preempted by FERPA and NJPRA’s regulations. ¶

FERPA defines “educational records” at 20 U.S.C.1232g(a)(4)(A) and (B), in pertinent part: ¶

(A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which- ¶

(I) contain information directly related to a student; and ¶

(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. ¶

(B) The term "education records" does not include- ¶

* * * ¶

(iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and are not available for use for any other purpose; ¶

[Emphasis added.] ¶

Additionally, the Board cites FERPA, 20 U.S.C.S. § 1232g(b)(1)(A), as preemptive: ¶

(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following- ¶

(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required; ¶

[Emphasis added.]3/ ¶

Moreover, the following regulations are relevant to this dispute: ¶

N.J.A.C. 6A:32-2.1 ( “Definitions” ): ¶

The following words and terms shall have the following meanings when used in this chapter, unless the context clearly indicates otherwise: ¶

“Student record” means information related to an individual student gathered within or outside the school district and maintained within the school district, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information that is maintained for the purpose of second-party review is considered a student record. Therefore, information recorded by certified school personnel solely as a memory aid and not for the use of a second party is excluded from this definition. In the absence of any “information related to an individual student,” the document(s) no longer meets the definition of “student record.” ¶

[Emphasis added.] ¶

* * * ¶

N.J.A.C. 6A:32-7.5 ( “Access to student records” ): ¶

(a) Only authorized organizations, agencies, or persons, as defined in this section, shall have access to student records, including student health records. ¶

(e) Organizations, agencies, and persons authorized to access student records shall include only the following: ¶

4. Certified school district personnel who are assigned educational responsibility for the student shall have access to the general student record but not to the student health record except under conditions permitted in N.J.A.C. 6A:16-2.4 ¶

[Emphasis added.] ¶

N.J.A.C. 6A:32-7.1 (c) ( “General considerations” ): ¶

Student records shall contain only information that is relevant to the education of the student and is objectively based on the personal observations or knowledge of the certified school personnel who originate(s) the record. ¶

Both U.S.C.1232g(a)(4)(A) and (B) and N.J.A.C. 6A:32-2.1 contain broad definitions of education and student records. FERPA defines “education record” as “records, files, documents, and other materials which contain information directly related to a student, and are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C.1232g(a)(4)(A). N.J.A.C. 6A:32-2.1 defines “student records” as “information related to an individual student gathered within or outside the school district and maintained within the school district....” However, N.J.A.C. 6A:32-7.1(c) further clarifies that “student records shall contain only information that is...objectively based on the personal observations or knowledge of the certified school personnel who originate(s) the record.” Thus, there appears to be some tension between the broad definition of “student records” in N.J.A.C. 6A:32-2.1 and 6A:32-7.1(c)’s limitation that student records only contain information “based on the personal observations or knowledge of the certified school personnel who originate the record.” While written student complaints may “contain information related to an individual student” , such complaints are generated by the student rather than from the “the personal observations of the certified school personnel.” ¶

Whether a particular student complaint falls within those definitions depends on the context of the complaint and the circumstances under which it is maintained. The specific student complaints at issue have not been included in the record before us. Without those materials, we cannot determine whether they constitute “educational records” under FERPA or “student records” under NJPRA regulations. Where the applicability of a claimed statutory preemption depends upon facts not contained in the record, the Commission will not restrain arbitration and will leave the parties to their proofs before the arbitrator. ¶

Additionally, FERPA allows disclosure of student records to teachers with “legitimate educational interests” , and NJPRA’s regulations permit “certified school district personnel [e.g. teachers] who are assigned educational responsibility for the student [to] have access to the general student record.” Thus, even if the student complaints were deemed educational or student records, there could be a permissible basis for teachers to gain access to the records. We note that the record reflects that the Board provided student complainant names to the MMS Teacher for the incident from the 2023-2024 year that resulted in that teacher filing a police report against the student complainants. ¶

In Somerset Hills Bd. of Ed., P.E.R.C. No. 2024-52, 50 NJPER 437 (¶107 2024), a tenured Art Teacher was transferred from a teaching position to a non-teaching position. The Superintendent certified that the transfer was for business and educational policy reasons. Close in time to the transfer, a complaint was made to the Division of Child Permanency and Protective Services (DCPP) involving the teacher, and DCPP opened an investigation through its Institutional Abuse Investigative Unit (IAIU). The Board separately conducted its own investigation. A CNA provision required the identity of complainants when a disciplinary meeting occurred. The Association filed a grievance seeking the complaint and the names connected to it from the Board’s separate investigation. We found that both statutes and regulations related to the IAIU investigation required strict confidentially of those records. Thus, if the Board’s investigation was a parallel investigation to the IAIU investigation, the investigations would necessarily overlap and the information requested by the Association would not be authorized by law. We ultimately found that to the extent the Board’s investigation was parallel to the IAIU investigation, the grievance was not legally arbitrable due to the strict confidentiality requirements in statutes and regulations related to the IAIU investigation. However, to the extent the Board’s investigation was not connected to the IAIU investigation, we found the grievance to be legally arbitrable. We left the parties to their proofs at arbitration. Grievances involving the interpretation, application, or claimed violation of statutes and regulations may be resolved by binding arbitration as long as the award does not have the effect of establishing a provision of a negotiated agreement inconsistent with the law. See Old Bridge Bd. of Education v. Old Bridge Education Assoc., 98 N.J. 523, 527-528 (1985); West Windsor Twp. v. PERC, 78 N.J. 98, 115-117 (1978). Thus, an arbitrator may interpret statutes and regulations in resolving the grievance. ¶

Having determined that the grievance is not preempted, we next consider the third prong of the Local 195 test and whether arbitration over disclosure of student complainant identities would significantly interfere with the Board’s determination of governmental policy. This inquiry requires us to balance the respective interests of the Board and the Association. ¶

The Board asserts an interest in maintaining the confidentiality of student complainants, particularly in situations it characterizes as non-disciplinary, and in avoiding any potential chilling effect on student and parent reporting. The Association asserts that employees have an interest in knowing the identities of student complainants because such disclosure promotes harmonious classroom operations and the prompt resolution of complaints. ¶

The parties dispute whether the Board’s actions were disciplinary. As discussed above, that determination implicates the merits of the grievance and is reserved for the arbitrator. The balancing of the parties’ respective interests hinges on the determination of whether the Board’s actions were disciplinary. At this stage of this dispute, we are not prepared to find that arbitration would significantly interfere with the Board’s interests in maintaining student confidentiality. This matter shall proceed to arbitration where a full factual record will be developed to allow the arbitrator to determine whether the Board’s actions were disciplinary and the applicability of FERPA and the New Jersey Pupil Records Act and its implementing regulations to those facts. As the factual record develops, the Board may refile its scope petition before an award issues. Ocean Tp. Bd. of Ed., P.E,R.C. No 83-164 , 9 NJPER 397 (~14181 193).4/ After an award issues, if the arbitrator orders a remedy that the Board finds interferes with its obligations to maintain student confidentiality, the Board may avail itself of its appeal options. N.J.S.A. 2A:24-7 and 8. ¶

OrderORDER ¶

The South Orange-Maplewood Board of Education’s request for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: March 26, 2026 ¶

Trenton, New Jersey ¶

Note1/ In its brief, the Board asserts that PERC was misled during the arbitrator appointment process by the Association’s characterization of the grievance. The matter was administratively captioned AR-2026-028 (District – Disciplinary Action). However, that caption is merely a brief administrative summary prepared by clerical staff and is not reviewed or approved by the Director of Arbitration or the Commission. ¶

2/ The Board concedes that if the employees were disciplined, it was required under the CNA and Settlement Agreement to disclose the complainant’s identities. ¶

3/ We note that FERPA is a funding statute that conditions the receipt of federal funds on an education agency’s compliance with its provisions. It does not itself create a private right of action or independently prohibit disclosure outside those conditions. ¶

4/ Absent a court order, we will not entertain scope petitions filed after an award issues. Ocean Tp. Bd of Ed, supra. ¶