OLD BRIDGE TOWNSHIP EDUCATION ASSOCIATION v. OLD BRIDGE TOWNSHIP BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5245-04T55245-04T5

OLD BRIDGE TOWNSHIP

EDUCATION ASSOCIATION,

Petitioner-Appellant,

v.

OLD BRIDGE TOWNSHIP

BOARD OF EDUCATION,

Respondent-Respondent.

________________________________________________________________

 

Argued March 22, 2006 - Decided June 30, 2006

Before Judges Stern and Parker.

On appeal from the Public Employment Relations

Commission, TO-2005-002.

Arnold M. Mellk argued the cause for appellant

(Wills, O'Neill & Mellk, attorneys; Mr. Mellk,

of counsel; Mr. Mellk and Gidian R. Mellk, on

the brief).

Philip E. Stern argued the cause for respondent

Old Bridge Township Board of Education (Sills,

Cummis, Epstein & Gross, attorneys; Mr. Stern, of

counsel and on the brief).

Don Horowitz argued the cause for respondent

Public Employment Relations Commission

(Robert E. Anderson, General Counsel and on

the brief).

PER CURIAM

In this administrative appeal, petitioner Old Bridge Township Education Association (Association) appeals from an order entered on April 28, 2005 by the Public Employment Relations Commission (PERC), dismissing the Association's petition for a Contested Transfer Determination on behalf of Old Bridge physical education teacher Guy J. Campagna. PERC dismissed the petition on the grounds that the Old Bridge Township Board of Education's (Board) decision to transfer Campagna from a middle school position to an elementary school position was based on operational and staffing concerns and was not disciplinary in nature. We affirm.

The facts relevant to this appeal are as follows. Campagna is a physical education teacher in the Old Bridge school system. During the 2003-04 school year, Campagna split his time between the Jonas Salk Middle School and the Carol Sandburg Middle School. In a letter dated June 3, 2004, however, Campagna was informed by Dr. Simon M. Bosco, the assistant to the superintendent for personnel/professional development, that he would be transferred to the elementary schools as a "physical education floater" for the 2004-05 school year.

Upon receipt of the letter, Campagna asked Bosco, Dr. Gannon, the Sandberg Middle School principal, and Frank Notaro, the physical education supervisor, why he was being transferred. Based upon his conversations with those three supervisors, Campagna concluded that his transfer was disciplinary in nature, largely due to his refusal to assist with after-school "bus duty." Campagna considered bus duty a violation of the Collective Bargaining Agreement between the Association and the Board because he worked at more than one school. Campagna then sought to have the Association contest the transfer.

On August 30, 2004, the Association filed a petition for a Contested Transfer Determination on Campagna's behalf pursuant to N.J.S.A. 34:13A-25 and -27. The petition alleged that the Board transferred Campagna for disciplinary reasons and attached a statement of factual allegations by Campagna in which he described his conversations with Bosco, Gannon and Notaro.

On September 7, 2004, the Association filed an affidavit by Campagna in support of its petition. The affidavit reiterated Campagna's conversations with the three administrators. On September 9, 2004, PERC acknowledged receipt of the completed petition and informed the Board that it had twenty days to file an answer under N.J.A.C. 19:18-3.4. PERC warned that if a timely answer was not filed, "[a]ll allegations in the petition . . . shall be deemed to be admitted to be true and shall be so found by the Commission, unless good cause to the contrary is shown." The Board failed to file a timely answer.

On November 29, 2004, the Association moved for summary judgment based upon the Board's failure to answer and on the merits of Campagna's claim. On January 6, 2005, the Board responded to the motion by filing an answer to the petition, a letter in response to the summary judgment motion, a supporting affidavit by Bosco and other documentation, including evaluations, memoranda, and letters relating to Campagna's performance from 2000 through 2004. The Board's attorneys assumed responsibility for the failure to file a timely answer and requested that PERC accept the answer and consider the merits of the claim in the interests of justice pursuant to N.J.A.C. 19:10-3.1(b).

In a letter dated January 27, 2005, PERC declined to accept the Board's untimely answer. PERC determined that pursuant to N.J.A.C. 19:18-3.4 and, in light of "all the circumstances of this case, there is no good cause for not filing a timely Answer or timely response to the motion for summary judgment." Accordingly, the Board's submissions were not considered and the allegations in the petition were deemed admitted as true. Notwithstanding its refusal to accept the Board's untimely answer and its acceptance of all Campagna's allegations as true, PERC "den[ied] summary judgment on the merits because neither party has had the opportunity to argue why, given the facts alleged in the petition and now deemed to be admitted as true, this transfer was or was not disciplinary within the meaning of N.J.S.A. 34:13A-25." PERC then set a briefing schedule pursuant to N.J.A.C. 19:18-3.9 and the parties were asked to address the standards set forth in West New York Bd. of Educ. v. Amara, P.E.R.C. No. 2001-41, 27 NJPER 96 ( 32,037 2001).

The Association and Board filed their respective briefs on February 15, 2005. The Association's brief reiterated its position that Campagna was transferred primarily due to his refusal to do bus duty, which constituted a prohibited disciplinary transfer. The Board argued that it was not punishing Campagna but was attempting to find a position for him in which he could continue teaching without conflict with his fellow employees. The Board also requested reconsideration of PERC's refusal to accept its untimely answer and other submissions.

On April 28, 2005, PERC rendered a final decision on the summary judgment motion. It denied the Board's request for reconsideration of its rejection of the Board's untimely filing, stating: "The respondent has not shown that it had good cause for not filing a timely Answer or a timely response to the motion for summary judgment. Accordingly, this case will be decided based on the allegations in the petition that have been deemed to be admitted as true."

PERC then addressed whether, based only on the petition and affidavit submitted by Campagna, the transfer was primarily for disciplinary reasons. After setting forth the legal standard for determining whether a school employee was transferred for disciplinary reasons, PERC made the following factual findings:

According to the petition, the teacher was told by the superintendent that he was transferred because he could not get along with the entire physical education staff; told by a principal that he was transferred because he had problems communicating with other people; and told by a supervisor that everybody complained about him, that he cannot work with other people, and that he runs into problems because he constantly goes by the book.

PERC "assume[d] for [the] purposes of this decision that 'going by the book' referred to the teacher's informing the principal that he should not have bus duty because of his traveling physical education position. Such a reason is punitive and disciplinary." Nevertheless, PERC found that "this punitive reason is just part of the overall picture of a teaching staff member who was transferred to a position where he would not have to work with other staff members because he did not get along with other staff members." As such, "[t]he transfer appears to have been more about operational and staffing concerns than punishment." PERC concluded:

The petitioner argues that the transfer was in retaliation for the teacher's refusal to perform bus duty, among other things. Given the statements of three administrators about the teacher's difficulty in getting along with others, we conclude that those "other things" were the dominant reason for the transfer and we conclude that they are not disciplinary. The respondent appears to be looking for a position in which to place the teacher where he can continue to perform well as a teacher without having conflicts with his fellow employees. Under these circumstances, the petitioner has not proven that the transfers were disciplinary. We dismiss the petition.

The Association appeals, arguing that PERC's decision was arbitrary, capricious, unreasonable and unsupported by substantial credible evidence in the record.

We have carefully considered the record in light of the Association's arguments and the applicable law. We are satisfied that the Association's arguments lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(D), and we affirm substantially for the reasons set forth in PERC's final decision rendered on April 28, 2005. Nevertheless, we add the following comments respecting our standard of review.

When error in the fact finding of an administrative agency is alleged, we will only decide whether the agency's findings could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole. In re Taylor, 158 N.J. 644, 656 (1999). We give "due regard" to the agency's expertise in its field. Ibid. It is "well-established . . . that PERC's decisions are entitled to substantial deference. PERC has a special expertise with regard to the terms of public employment and review of its factual determinations is limited." Dept. of Corrections v. Communications Workers, 240 N.J. Super. 26, 33 (App. Div.) (citations omitted), certif. denied, 122 N.J. 395 (1990).

 
Affirmed.

(continued)

(continued)

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A-5245-04T5

June 30, 2006