Luis Vazquez, et al. v. Board of Education of the Borough of Roselle, Union County, 5/8/2020, (#114-20)

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New Jersey Commissioner of Education
Final Decision on Remand
Luiz Vazquez,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Audley Bridges,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Rebecca Richardson,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Danaayaal Salaam,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
114-20

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Mary Repousis,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Synopsis
In this consolidated matter on remand, the petitioners – all tenured teachers – challenged salary reductions
imposed upon them by the respondent Board as a penalty pursuant to the Board’s policy regarding tardiness.
Petitioners asserted that the reduction in pay violated their tenure rights. The parties filed cross motions for
summary decision. An Initial Decision was issued by the Office of Administrative Law (OAL) in November
2019. Subsequent to a review of the case, the Commissioner remanded the matter to the OAL in February
2020 to allow the parties to submit reply briefs regarding their cross motions for summary decision.
On remand, the ALJ found, inter alia, that: there are no material facts at issue in this case, and the matter is
ripe for summary decision; 	all petitioners are tenured teachers and were reduced in salary without any
hearing based upon the Board’s Policy 3151 regarding tardiness; such action violated the requirements of
N.J.S.A. 34:13A-24, as Policy 3151 was not negotiated with the appropriate collective bargaining unit; and
the Board’s action in reducing petitioners’ salaries must be reversed. 	Accordingly, the ALJ granted the
petitioners’ motion for summary decision and denied respondent Board’s cross motion.
Upon review, the Commissioner rejected the Initial Decision of the OAL and granted summary decision to
the Board. 	In so doing, the Commissioner found, inter alia, that the docking of petitioners’ salaries was
consistent with the law, as N.J.S.A. 34:13A-24(c) provides that “[f]ines and suspensions for minor discipline
shall not constitute a reduction in compensation pursuant to the provisions of N.J.S.A.18A:6-10,” and this
provision is not limited to minor discipline defined by a negotiated collective bargaining agreement. 	The
Commissioner further found that, consistent with Ferreiro v. Bd. of Educ. of the City of Elizabeth, Union
Cty., Commissioner Decision No. 185-19 (July 22, 2019), the docking of petitioners’ pay is the type of minor
discipline contemplated by N.J.S.A. 34:13A-24; 	as such, the docking of petitioners’ pay for excessive
tardiness was not a violation of their tenure rights pursuant to N.J.S.A. 18A:6-10. 	The petition was
dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been neither
reviewed nor approved by the Commissioner.
May 11, 2020

OAL Dkt. No. EDU 01933-20
(EDU 09004-19, 09007-19, 09009-19, 09096-19, and 09103-19 on Remand)
Agency Dkt. Nos. 127-6/19, 126-6/19, 125-6/19, 129-6/19, and 130-6/19
New Jersey Commissioner of Education
Final Decision on Remand
Luiz Vazquez,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Audley Bridges,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Rebecca Richardson,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.

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Danaayaal Salaam,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Mary Repousis,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
The record of this matter, the March 26, 2020 Initial Decision of the Office of
Administrative Law (OAL), the exceptions filed by respondent pursuant to N.J.A.C. 1:1-18.4,
and the reply thereto by petitioners have been reviewed.1 	This matter concerns a challenge by
petitioners, who are tenured teachers, to the Board’s decision to reduce their salaries pursuant to
a Board policy regarding tardiness. The Administrative Law Judge (ALJ) found that the Board’s
action in reducing petitioners’ salaries must be reversed because there was no collective
1 	This case was remanded to the OAL in February 2020 following the Commissioner’s consideration of an
Initial Decision dated November 25, 2019. The Commissioner remanded the matter to allow the parties to submit
reply briefs regarding their cross motions for summary decision.

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bargaining agreement addressing excessive tardiness; 	accordingly, the ALJ granted petitioners’
motion for summary decision and denied the Board’s motion for summary decision.
In its exceptions, the Board argues that the relevant statute specifically provides
that fines for minor discipline do not constitute a reduction in compensation under the Tenure
Act and that such fines are permissible. 	The Board further contends that the statute’s plain
language allows these fines even in the absence of a negotiated collective bargaining agreement.
The Board cites to Ferreiro v. Bd. of Educ. of the City of Elizabeth, Union Cty., Commissioner
Decision No. 185-19 (July 22, 2019), which held that the docking of pay for excessive tardiness
is the type of minor discipline contemplated by the statute. According to the respondent, the ALJ
improperly relied on the fact that the petitioner in Ferreiro was subject to a negotiated collective
bargaining agreement that addressed excessive tardiness as a reason to distinguish that matter
from the one at issue here.
In reply, petitioners argue that fines for minor discipline are only permissible
when derived from a collectively negotiated agreement. According to petitioners, because there
is no agreement in place, the Board may only impose discipline that is not prohibited by law;
here, because reductions in compensation are prohibited by tenure law, the Board cannot impose
any fines.
Upon review, the Commissioner disagrees with the ALJ and concludes that the
Board’s action in docking the petitioners’ salaries was consistent with the law. N.J.S.A. 34:13A-
24(c) provides that “[f]ines and suspensions for minor discipline shall not constitute a reduction
in compensation pursuant to the provisions of N.J.S.A. 18A:6-10.” This provision is not limited
to minor discipline defined by a negotiated collective bargaining agreement. 	Furthermore,
N.J.S.A. 	34:13A-22 	defines 	minor 	discipline 	as 	including 	“various 	forms 	of 	fines 	and

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suspensions, but does not include tenure charges . . . or the withholding of increments . . . letters
of reprimand, or suspensions with pay[.]” 	Consistent with the Ferreiro decision, supra, the
Commissioner finds that the docking of the petitioners’ pay is the type of minor discipline
contemplated by N.J.S.A. 34:13A-24. As such, the docking of the petitioners’ pay for excessive
tardiness is not a violation of their tenure rights under N.J.S.A. 18A:6-10.2
Accordingly, the Initial Decision of the OAL is rejected; 	summary decision is
granted in favor of the Board and petitioners’ motion for summary decision is denied. The
petition of appeal is hereby dismissed.
IT IS SO ORDERED.3
COMMISSIONER OF EDUCATION
Date of Decision: 	May 8, 2020
Date of Mailing: 	May 8, 2020
2 Because the Commissioner bases this decision on the provisions of N.J.S.A. 34:13A-24, there is no need to reach
the question of whether petitioners waived their right to contest Board Policy 3151 regarding excessive tardiness.
3 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 01933-20
(ON REMAND EDU 09004-19, et al)
LUIZ 	VAZQUEZ, 	AUDLEY 	BRIDGES,
REBECCA 	RICHARDSON, 	DANAAYAAL
SALAM & MARY REPOUSIS,
Petitioners,
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY.,
Respondent.
____________________________________
Nicholas Poberezhsky., Esq. on behalf of petitioners (Caruso Smith Picini,
attornyes)
Margaret A. Miller, Esq. on behalf of respondent Board of Education of the
Borough of Roselle
Record Closed: March 13, 2020 	Decided: March 26, 2020
BEFORE: KIMBERLY A. MOSS, ALJ:
These 	matters 	were 	filed 	at 	the 	Office 	of 	Administrative 	Law 	(OAL) 	and
consolidated (under OAL Docket Number EDU 09004-19, et al) on August 28, 2019.
On October 31, 2019, both parties filed a motion for summary decision. 	I rendered a
Summary Decision on November 25, 2019.

OAL DKT. No. EDU 01933-20
2
By Order dated February 4, 2020, the Commissioner remanded the matter to the
back to the OAL “. . . . to allow the parties to submit reply briefs regarding cross motions
for summary decision”
On February 7, 2020, these matters were remanded to the OAL. By email dated
February 14, 2020, under my direction, my assistant contacted the parties, via email,
requesting the parties submit simultaneous replies in accordance with the remand.
Petitioners were reduced in salary due to respondent’s policy regarding tardiness. Both
parties state that there were no material questions of fact.
FACTUAL DISCUSSION
The following are uncontested facts:
Luis Vasquez (Vasquez)is a tenured member of the teaching staff that has been
employed by the Borough of Roselle Board of Education (Board) for twelve years.
Audley Bridges (Bridges) is a tenured member of the teaching staff that has been
employed by the Board for twenty years. 	Rebecca Richardson (Richardson) is a
tenured member of the teaching staff that has been employed by Board for sixteen
years. 	Danaayaal Salaam (Salaam)is a tenured member of the teaching staff that has
been employed by the Board for five years. 	Mary Repousis (Repousis) is a tenured
member of the teaching staff that has been employed by the Board for sixteen years.
On 	or 	About 	January 	6, 	2014, 	the 	Board 	adopted 	District 	Policy 	3151
“Assessment of Pay” (Policy 3151) which acknowledges the proper performance of a
teaching staff member’s professional duties, requires the punctual commencement of
his/her assigned duties to properly discharge his/her professional duties, imposes a list
of penalties to be imposed against a staff member who routinely fail to timely report for
work each day.
The 	Roselle 	Education 	Association 	(REA) 	is 	a 	duly 	organized 	employee
representative and the negotiation representative for all teachers. 	The Board and REA
are parties to collective negotiation agreement from July 1, 2014 through June 30, 2017.

OAL DKT. No. EDU 01933-20
3
The successor agreement which would extend from July 1, 2017 to June 30, 2021 has
not been finalized.
In accordance with Policy 3151, on March 15, 2019 and March 30, 2019,
Vasquez salary was reduced by $266.30 and $56.06 respectively because he was tardy
fourteen times during the 2018-2019 school year. 	In accordance with Policy 3151, on
March 29, 2019 and April 15, 2019, Bridges salary was reduced $1,243.09 for each pay
period because she was tardy eighty-five times during the 2018-2019 school year. 	In
accordance with Policy 3151, on March 29, 2019, Richardson’s salary was reduced by
$521.65 because she was tardy nineteen times during the 2018-2019 school year. 	In
accordance with Policy 3151, on March 29, 2019 and April 15, 2019 Salaam’s salaray
was reduced by $329.34 and $232.50 respectively because he was tardy twenty-four
times during the 2018-2019 school year. 	In accordance with Policy 3151 on March 15,
2019 Repousis salary was reduced by $151.18 because she was tardy twenty-four
times.
Petitioners contend that the collective bargaining agreement between the Board
and REA does not authorize the Board to impose minor disciplinary action in the form of
fines or reduction of compensation. 	Petitioners contend that they and REA did not
accept, negotiate for or agree to adhere to Policy 3151. 	Petitioners also contend that
they were not afforded a hearing or an opportunity to challenge or dispute the fines
imposed upon them. They were not brought up on tenure charges or subject to criminal
indictment.
LEGAL ANALYSIS AND CONCLUSION
The 	rules 	governing 	motions 	for 	summary 	decision 	in 	an 	OAL 	matter 	are
embodied N.J.A.C. 1:1-12.5. 	When there is no genuine dispute as to any material fact
and the moving party demonstrates that it is entitled to judgement as a matter of law, its
motion for summary judgment should be granted. Judson v. Peoples Bank & Trust Co.
of Westfield, 17 N.J. 67 (1954) Under N.J.A.C. 1:1-12.5(b), the determination to grant
summary judgment should be based on the papers presented as well as any affidavits,
which may have been filed with the application. 	In order for the adverse, i.e., the non-
moving party to prevail in such an application, responding affidavits must be submitted

OAL DKT. No. EDU 01933-20
4
showing that there is indeed a genuine issue of fact, which can only be determined in an
evidentiary proceeding. 	The Court in Brill v. Guardian Life Insurance Co. of American,
142 N.J. 520, 523 (1995), set the standard to be applied when deciding a motion for
summary judgment. Therein the Court stated:
The determination whether there exists a genuine issue with respect to a
material fact challenged requires the Motion Judge to consider whether
the competent evidential materials presented, when viewed in the light
most favorable to the non-moving party… are sufficient to permit a rational
fact finder to resolve the alleged disputed issue in favor of the non-moving
party.
To avoid entry of summary judgment, the non-moving party must come forward
with legally competent facts essential to proving an element of its cause of action. 	Brill
142 N.J. at 536-537. 	If non-movant fails to do so, the moving party is entitled to
summary judgment. 	Moreover, even if the non-movant comes forward with some
evidence, the Courts must grant summary judgment if the evidence is “so one-sided that
[movant] must prevail as a matter of law.” Brill 142 N.J. 536. 	If the non-moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment should
not be denied. 	See Bowles v. City of Camden, 993 F. Supp. 255, 261 (D.N.J. 1998).
The New Jersey Supreme Court’s standard for summary judgment is thus designed to
“liberalize the standards so as to permit summary judgment in a larger number of cases”
due to the perception that we live in “a time of great increase in litigation and one in
which many meritless cases are filed. 	Brill 142 N.J. 536, 539 (1995). 	Even where a
statute calls for a "hearing," where a motion for summary decision is made and
supported by documentary evidence and where the objector submits no evidence to
demonstrate a genuine issue of material fact, the motion procedure constitutes the
hearing and no trial-type hearing is necessary. Contini v. Newark Bd. of Educ., 286 N.J.
Super. 106, 120-21 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996); see also South
Brunswick Asphalt v. Dep't of Envtl. Prot., No. A-693-98T5 (App. Div. April 10, 2000),
certif. denied, 165 N.J. 487 (2000).
An issue of fact is genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, together with all legitimate
inferences therefrom favoring the non-moving party, would require submission of the

OAL DKT. No. EDU 01933-20
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issues to the trier of fact. 	The determination of domicile as well as family hardship
requires that I make credibility determinations regarding the critical facts.
Based 	upon 	documentation 	presented 	by 	the 	petitioners 	as 	well 	as 	the
respondent's, I CONCLUDE that there are no genuine issues of material fact in this
matter.
N.J.S.A. 18A:6-10 provides:
No person shall be dismissed or reduced in compensation,
(a) 	if he is or shall be under tenure of office, position or employment
during good behavior and efficiency in the public-school system of the
state, or
(b) if he is or shall be under tenure of office, position or employment during
good behavior and efficiency as a supervisor, teacher or in any other
teaching capacity in the Marie H. Katzenbach school for the deaf, or in any
other 	educational 	institution 	conducted 	under 	the 	supervision 	of 	the
commissioner; except for inefficiency, incapacity, unbecoming conduct, or
other just cause, and then only after a hearing held pursuant to this
subarticle, by the commissioner, or a person appointed by him to act in his
behalf, after a written charge or charges, of the cause or causes of
complaint, shall have been preferred against such person, signed by the
person or persons making the same, who may or may not be a member or
members of a board of education, and filed and proceeded upon as in this
subarticle provided.
Nothing in this section shall prevent the reduction of the number of any such persons
holding such offices, positions or employments under the conditions and with the effect
provided by law.
I CONCLUDE that all petitioners are tenured teachers and had a reduction in
salary based on Policy 3151 without a hearing being held.
N.J.S.A. 34:13A-24 provides:
a. Notwithstanding any other law to the contrary, and if negotiated with the
majority representative of the employees in the appropriate collective
bargaining unit, an employer shall have the authority to impose minor
discipline 	on 	employees. 	Nothing 	contained 	herein 	shall 	limit 	the

OAL DKT. No. EDU 01933-20
6
authority of the employer to impose, in the absence of a negotiated
agreement regarding minor discipline, any disciplinary sanction which is
authorized and not prohibited by law.
b. The scope of such negotiations shall include a schedule setting forth
the acts and omissions for which minor discipline may be imposed, and
also the penalty to be imposed for any act or omission warranting
imposition of minor discipline.
c. 	Fines 	and 	suspensions 	for 	minor 	discipline 	shall 	not 	constitute 	a
reduction in compensation pursuant to the provisions of N.J.S. 18A:6-
10.
Policy 3151 was not negotiated between the majority representative of the employees
REA <in the appropriate collective bargaining unit with the Board. 	The facts in this
matter can be distinguished from Guadalupe Ferreiro v. Board of Education of the City
of Elizabeth, EDU3865-19 Initial Decision (June 11, 2019) adopted Comm’r (July 22,
2019) < http://lawlibrary.rutgers.edu/oal/search.html>. 	In Ferreiro, the petitioner alleged
that the respondent Board violated her rights by docking her salary for excessive
tardiness. 	In 	Ferreiro 	there 	was 	a 	collective 	bargaining 	agreement 	(CBA) 	that
addressed 	excessive 	tardiness. 	There 	was 	no 	such 	provision in 	the agreement
between the Board and the REA.
I CONCLUDE that the previous collective bargaining agreement did not address
excessive tardiness and there was no collective bargaining agreement in effect when
the reductions in the petitioners salaried was enforced.
Respondent argues that petitioners’ rights to object to Policy 3151 were waived.
The CBA between REA and the Board did not address excessive tardiness. 	Policy
3151 became effective on or about January 6, 2014. 	This was prior to the CBA
between REA and the Board which ran from July 1, 2014 thru June 30, 2017. There is
presently no successor CBA agreement. 	Respondents rely on the cases of In the
Matter of Upper Saddle River Board of Education 2004 NJ PERC LEXIS 252 and In the
Matter of the Township of Middletown PERC NO 98-77. 	In Upper Saddle, the Upper
Saddle River Education association wanted mid-contract negotiations over the Board
unilaterally implementing a sick leave policy. 	The unilateral sick leave policy had been
applied seven times before the association demanded the renegotiation of the CBA.

OAL DKT. No. EDU 01933-20
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In the Middletown matter, the township unilaterally changed the practice of
placing new police officers with academy training and one-year police experience at
step three of the salary guide. In that case, it was alleged that the the township violated
the duty to negotiate in good faith. 	It lists three types of cases involving allegations of
employment conditions being changed, which are:
1. 	Cases 	where 	the 	majority 	representative 	claims 	an
express or implied contractual right to prevent a change
2. 	Cases where an existing working condition is changed
and 	neither 	party claims 	an 	express 	or 	implied 	right 	to
prevent ot impose the change
3. Cases where the employer alleges that the representative
has waived any rights to negotiate, usually expressly or
impliedly giving the employer the right to impose change.
In Middletown the township alleged that the Middletown PBA waived its right to
negotiate by its acquiescence. 	However, when the township previously deviated from
the practice of placing new officers with academy training and one year of experience at
step three, the PBA filed an unfair practice charge which was settled.
In this matter, there is no evidence that Policy 3151 was applied prior to the
petitioners’ salary being reduced. There presently is no CBA between the REA and the
Board. 	This matter analogous to the Township of Middleton case since once Policy
3151 was enforced against petitioners, they contested its application.
In both the Middletown and Upper Saddle matters, the organized employee
representative brought the charges. 	In this matter, the petitioners are teaching staff
members in Roselle.
I CONCLUDE that petitioners did not waive their rights to challenge Policy 3151.
Having reviewed respondents’ reply brief to petitioner’s cross motion for summary
decision and petitioner's brief dated March 13, 2020, my decision remains as it was on
November 25, 2019, for the reasons stated in that decision.

OAL DKT. No. EDU 01933-20
8
It is ODERED that petitioners’ motion for Summary Decision is GRANTED and
Respondents Motion for Summary Decision is DENIED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
March 26, 2020
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	March 26, 2020
Date Mailed to Parties: 	March 26, 2020
ljb