June 29, 2007
BERGENFIELD BOARD OF EDUCATION, APPELLANT,
BERGENFIELD EDUCATION ASSOCIATION, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 6, 2007
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 Board. In a letter dated July 29, 2005, the Board provided the following explanation:
The Board denied the grievance for the reasons set forth in evaluative documents that Anna Kovalcik received from Dr. Galish. These reasons included poor use of instructional techniques, lack of classroom discipline, poor communication with parents, excessive absenteeism, unexcused absences, sleeping in class[,] and failure to attend professional development activities.
The Association submitted an arbitration request to PERC, and the Board petitioned to restrain arbitration under N.J.S.A. 34:13A-27(d). Both parties filed briefs and exhibits, and on March 30, 2006, PERC denied the Board's request for a restraint of binding arbitration. After reviewing the evidence, PERC determined the basis for withholding Kovalcik's salary increment for the 2005-2006 school year had been predominantly disciplinary and, accordingly, found the dispute was arbitrable:
[W]e find that, overall, the Board's non-teaching performance concerns predominated in its withholding decision. Ten of the eleven documents listed in the superintendent's May 2005 letter addressed what we have found to be non-performance reasons. While the eleventh document, the 2005 evaluation, discusses several teaching performance allegations, the appraisal also addresses Kovalcik's alleged problems with adhering to her schedule and reporting for assignments. As noted earlier, the sleeping in class incidents figure prominently in the appraisal.
In terms of the weight given to the various reasons, the emphatic tone of the memoranda describing the events of December 22, 2004[,] makes clear that the administration viewed those circumstances with alarm, and we infer that the day's incidents were given significant weight in the withholding decision. Similarly, the strong tone of the October 2004 and March 2005 memoranda addressing Kovalcik's alleged failure to appear for scheduled assignments also reflects the [A]dministration's mounting concern with this issue, and we surmise that this non-teaching performance reason was also central to the withholding decision. All of these incidents occurred during the 2004-2005 school year, when the Board took action, and thus evidence the Board's heightened concern, vis-à-vis prior years, about whether Kovalcik should receive an increment. Indeed, the Board's brief emphasizes these alleged problems during the 2004-2005 school year, although it views them as related to the evaluation of teaching performance.
By contrast, the description of the teaching performance concerns in the 2005 evaluation acknowledges some improvement, albeit insufficient, in virtually all of the noted areas. While it is possible that the increment might have been withheld based on the teaching deficiencies alone, we conclude that, among the multiple and varied reasons for this withholding, the non-performance reasons predominate. The most strongly expressed concerns center on non-performance reasons and, by comparison, the instructional problems are more mildly described. We therefore hold that the withholding is not predominately based on an evaluation of teaching performance and must be reviewed by an arbitrator. We stress that the arbitrator must consider both the performance and non-performance reasons for the withholding.
Appeals concerning withholding of an increment from a teaching staff member for predominantly disciplinary reasons are subject to arbitration under N.J.S.A. 34:13A-27(c), but when PERC determines that "the reason for the increment withholding relates predominately to the evaluation of a teaching staff member's teaching performance," the appeal is to the Commissioner of Education. N.J.S.A. 34:13A-27(d). Disputes regarding whether an increment-withholding occurred for disciplinary reasons or for reasons of teaching performance are determined by PERC. N.J.S.A. 34:13A-27(a); Scotch Plains- Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 154-55 (1995).
Our scope of review is limited. We must determine "whether PERC's decision was arbitrary, capricious or unreasonable." Edison Bd. of Educ. v. Edison Twp. Principals & Supervisors Ass'n, 304 N.J. Super. 459, 468 (App. Div. 1997) (D'Annunzio concurring). Based on our review of the record, we are satisfied that PERC's findings are fully supported by the record, and its determination that non-teaching performance concerns predominated the withholding decision is neither arbitrary, capricious, nor unreasonable. Consequently, we affirm substantially for the reasons stated by PERC.
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