On appeal from the Final Administrative Action of the Public Employment Relations Commission, AR 2006-69.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Payne and Graves.
Petitioner Bergenfield Board of Education (Board) appeals from a decision by the New Jersey Public Employment Relations Commission (PERC) denying the Board's request to restrain binding arbitration of a grievance filed by the Bergenfield Education Association (Association). After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
On appeal, the Board presents the following arguments:
SINCE P.E.R.C. ERRED IN REACHING A CONCLUSION THAT COULD NOT HAVE BEEN REASONABLY MADE BASED ON A REVIEW OF THE EVIDENCE IN THE RECORD AND CONSIDERATION OF A BOARD OF EDUCATION'S INHERENT MANAGERIAL PREROGATIVE AND RESPONSIBILITY TO EVALUATE TEACHER PERFORMANCE AND THEN MAKE ADMINISTRATIVE DECISIONS RELATED TO THAT PERFORMANCE, APPLICATION OF THE STANDARDS OF APPELLATE REVIEW OF A STATE AGENCY DECISION REQUIRES THAT THE APPELLATE DIVISION REVERSE P.E.R.C.'S DECISION.
P.E.R.C. IMPROPERLY DENIED THE BOARD'S REQUEST FOR A RESTRAINT OF BINDING ARBITRATION WHEN IT HELD THAT THE BOARD'S DECISION TO WITHHOLD A TEACHER'S SALARY INCREMENTS BASED ON INCREASINGLY DEFICIENT INSTRUCTIONAL TECHNIQUES, CONTINUALLY INADEQUATE AND POTENTIALLY INJURIOUS CLASSROOM MANAGEMENT SKILLS, AND OTHER UNPROFESSIONAL ACTS RELATED TO THE INSTRUCTIONAL PROCESS IS NOT PREDOMINANTLY BASED ON AN EVALUATION OF TEACHING PERFORMANCE AND, AS A RESULT, ERRED IN ITS DETERMINATION THAT THE INSTANT MATTER MUST PROCEED TO ARBITRATION.
IN BALANCING PERFORMANCE VERSUS NONPERFORMANCE BASED REASONS FOR KOVALCIK'S INCREMENT WITHHOLDING, P.E.R.C. UNJUSTLY CONVERTED PERFORMANCE[-]BASED REASONS INTO NONPERFORMANCE[-]BASED REASONS, WHICH RESULTED IN ITS INCORRECT CONCLUSION THAT THE INSTANT CASE IS ARBITRABLE.
On May 3, 2005, Bergenfield Public School Superintendent, Dr. John F. Galish, notified Anna Kovalcik, a teacher in the school district, that he intended to recommend to the Board that her "employment and adjustment increments be withheld for the 2005-2006 school year" based on performance deficiencies set forth in eleven documents: an annual evaluation dated April 2005; three reports concerning a December 22, 2004, incident when Kovalcik was "observed sleeping while covering a class"; and seven memoranda issued between 2001 and 2005 detailing administrators' concerns about Kovalcik's absences from her assigned classes or adherence to her schedule. Galish also advised Kovalcik she had a right to appear before the Board, with an attorney or representative of her choosing, and to present evidence and witnesses.
After the Board adopted Galish's recommendation and opted to withhold Kovalcik's salary increment, the Association filed a grievance with the Superintendent's Office alleging the Board's action was "punitive" and "without just cause." The grievance was denied initially by Superintendent Galish and subsequently by the ...