P.E.R.C. No. 2014-36, Vineland B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND COMMISSIONER OF EDUCATION In the Matter of FELICIA GONZALEZ AND BARBARA DEAN, OAL DKT. NOS. EDU-10085-13 EDU-10092-13 Petitioners, AGENCY DKT. NOS. 129/6/13 v. 130/6/13 VINELAND BOARD OF EDUCATION, Respondent. -and- FELICIA GONZALEZ AND BARBARA DEAN, Petitioners, v. PERC DKT. NOS. TI-2013-004 TI-2013-005 VINELAND BOARD OF EDUCATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Chair of the Public Employment Relations Commission and the Commissioner of Education issue a Joint Order consolidating and unfair practice case before PERC and a petition of appeal with the Commissioner of Education for hearing before an Administrative Law Judge. The agencies further determine that PERC has the predominant interest in the matter. ¶

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 AND COMMISSIONER OF EDUCATION In the Matter of FELICIA GONZALEZ AND BARBARA DEAN, OAL DKT. NOS. EDU-10085-13 EDU-10092-13 Petitioners, AGENCY DKT. NOS. 129/6/13 v. 130/6/13 VINELAND BOARD OF EDUCATION, Respondent. -and- FELICIA GONZALEZ AND BARBARA DEAN, Petitioners, v. PERC DKT. NOS. TI-2013-004 TI-2013-005 VINELAND BOARD OF EDUCATION, Respondent. ¶

AppearancesAppearances: ¶

For Respondent/Respondent, Gruccio, Pepper, De Santo & Ruth, attorneys (Robert A. DeSanto, of counsel) ¶

For Petitioner Felicia Gonzalez, Zeller & Wieliczko, attorneys (Matthew B. Wieliczko, of counsel) ¶

For Petitioner Barbara Dean, Law Office of Ned P. Rogovoy, attorneys (Ned P. Rogovoy, of counsel) ¶

DECISION ¶

On or about June 12, 2013, Petitioners Barbara Dean and Felicia Gonzalez filed petitions of appeal with the Commissioner of Education (Commissioner) contesting the determination of the Vineland Board of Education (Board) that they committed an act of bullying in violation of State law and were denied a due process hearing. ¶

On June 12, 2013, Gonzalez filed a contested transfer petition with the Public Employment Relations Commission (PERC). On June 20, Dean filed a contested transfer petition with PERC. Both petitions assert that petitioners were transferred from the elementary school to the high school for disciplinary reasons in violation of N.J.S.A. 34:13A-25.1/ ¶

The Board denies the allegations in all cases and has asserted affirmative defenses. In July 2013, petitioners’ Commissioner of Education petitions were transferred to the Office of Administrative Law (OAL) for hearings as contested cases. On October 10, Gonzalez filed a motion to consolidate both Commissioner of Education cases and the PERC cases and for a determination of predominant interest. Dean joined the request by letter of the same date. On October 24, the Board opposed the motion objecting to the request for consolidation and predominant interest. ¶

On November 26, 2013, Administrative Law Judge Todd W. Miller issued an Order For Consolidation and Determination of Predominant Interest finding the matters should be consolidated and that the Commissioner of Education has the predominant interest.2/ ¶

Having independently evaluated the record and considered the Administrative Law Judge’s Order, the Chair of the Public Employment Relations Commission on December 12, 2013, acting pursuant to authority delegated to her by the full Commission, and the Commissioner of Education on December 13, 2013, made the following determination in this matter. ¶

JOINT ORDER ¶

The matters should be consolidated for hearing before the Administrative Law Judge for the reasons set forth in his initial decision. That decision is modified to note that the ALJ will perform an analysis of whether the petitioners were transferred for predominately disciplinary reasons in the PERC matter and not an unfair practice analysis. The Commissioner of Education shall have the predominant interest. The Administrative Law Judge will first offer recommended findings of fact and conclusions of law to both the Public Employment Relations Commission and the Commissioner of Education, disposing of all issues in controversy through a single initial decision under N.J.A.C. 1:1-18.3 and consistent with N.J.A.C. 1:1-17.8(a). Upon transmittal of the initial decision to both agencies, the underlying record will be forwarded to the Commissioner of Education to determine whether the education laws were violated. The Commissioner’s decision and the complete record will then be sent to the Public Employment Relations Commission to render a decision on whether petitioners were transferred for predominately disciplinary reasons. ¶

DECISION RENDERED BY THE COMMISSIONER OF EDUCATION ON ¶

December 13, 2013, ¶

Christopher D. Cerf ¶

Commissioner of Education ¶

Trenton, New Jersey ¶

DECISION RENDERED BY THE CHAIR OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION ON ¶

December 12, 2013 ¶

P. Kelly Hatfield ¶

Chair ¶

Trenton, New Jersey ¶

Note1/ This provision of the New Jersey Employer-Employee Relations Act provides: “Transfers of employees by employers between work sites shall not be mandatorily negotiable except that no employer shall transfer an employee for disciplinary reasons.” ¶

2/ The Board of Education filed exceptions to the ALJ’s decision. The Commissioner does not consider exceptions to consolidation and predominant interest determinations as the Administrative Procedures Act does not provide for them. Regardless, the Board may present all evidence to the ALJ regarding the reasons for the employees’ transfer apart from the alleged bullying incident. Also, a hearing on the contested transfer case is appropriate per the Commission’s authority as there are material facts in dispute. N.J.A.C. 19:18-3.10. ¶