52-20 | Omnilex

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New Jersey Commissioner of Education
Decision
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,
52-20

2
Mary Repousis,
Petitioner,
v.
Board of Education of the Borough of
Roselle, Union County,
Respondent.
Synopsis
Petitioners – tenured teachers in the respondent Board’s employ – challenged the Board’s decision to
reduce their salaries based on Policy 3151 “Assessment of Pay,” which among other things, requires the
punctual commencement of assigned teaching duties, and imposes a list of penalties to be imposed upon
staff who routinely fail to timely report for work each day. Petitioners contended that the collective
bargaining agreement (CBA) between the Board and the Roselle Education Association (REA) does not
authorize the Board to impose minor disciplinary action in the form of fines or reduction of
compensation, and further argued that they and the REA never accepted, negotiated, or agree to adhere to
Policy 3151, and the Board’s actions were in violation of petitioners’ tenure rights. The parties filed cross
motions for summary decision.
The ALJ found, inter alia, that: there are no material facts at issue here, and the matter is ripe for
summary decision; N.J.S.A. 18A:6-10 provides that no person shall be dismissed or reduced in
compensation except for inefficiency, incapacity, unbecoming conduct, or other just cause, and then only
after the filing of tenure charges and subsequent hearing; all petitioners herein are tenured teachers and
had a reduction in salary based on Policy 3151 without charges or a hearing as provided in
N.J.S.A. 18A:6-10; Policy 3151 was not negotiated between the REA and the Board, the previous CBA
did not address excessive tardiness, and there was no CBA in effect when the reductions in petitioners’
salaries were enforced; there is no evidence that Policy 3151 was applied prior to the petitioners’ salaries
being reduced; and petitioners did not waive their rights to challenge Policy 3151. Accordingly, the ALJ
concluded that the Board’s action in reducing petitioners’ salaries based on Policy 3151 must be reversed.
Upon comprehensive review of the record, the Initial Decision of the OAL, and the exceptions thereto,
the Commissioner determined that this matter must be remanded to the OAL to allow the parties to
submit reply briefs regarding the cross motions for summary decision. In so deciding, the Commissioner
noted that the parties and the ALJ had agreed to a briefing schedule that included due dates for reply
briefs; however, the ALJ issued the Initial Decision based solely on the motion papers, prior to the due
date for the filing of reply briefs. While the Commissioner acknowledged that the ALJ has discretion to
permit the filing of reply briefs, in the instant matter, the parties had agreed to a briefing schedule that
included the filing of reply briefs during a telephone conference with the ALJ – which was subsequently
memorialized in writing by the ALJ’s staff. The parties consequently expected to have the opportunity to
respond to each other’s arguments. Accordingly, the matter was remanded for further proceedings
consistent with the within decision.
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.
February 4, 2020

OAL Dkt. Nos. EDU 09004-19, 09007-19, 09009-19, 09096-19, and 09103-19 (consolidated)
Agency Dkt. Nos. 127-6/19, 126-6/19, 125-6/19, 129-6/19, and 130-6/19
New Jersey Commissioner of Education
Decision
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 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.
This matter concerns a challenge by petitioners, who are tenured teachers, to the
Board’s decision to reduce their salaries pursuant to the Board’s policy regarding tardiness. The
Administrative Law Judge (ALJ) found that the Board’s action in reducing petitioners’ salaries
must be reversed, and accordingly granted petitioners’ motion for summary decision and denied
the Board’s motion for summary decision.
In its exceptions, the Board argues, among other things, that the parties and the
ALJ agreed to a briefing schedule that included due dates for cross motions for summary

3
decision and reply briefs. 	However, the ALJ issued the Initial Decision based solely on the
motion papers, prior to the due date for the filing of reply briefs. In reply, the petitioners argue
that reply briefs are within the discretion of the ALJ and that it was appropriate to issue the
Initial Decision based on the motion submissions.
Upon review, the Commissioner determines that the matter should be remanded to
the OAL to allow the parties to submit reply briefs regarding the cross motions for summary
decision. While the Commissioner acknowledges that the ALJ has discretion to permit the filing
of reply briefs, here the parties agreed to a briefing schedule that including the filing of reply
briefs during a telephone conference with the ALJ, which was subsequently memorialized in
writing by the ALJ’s staff. The parties consequently expected to have the opportunity to respond
to each other’s arguments.
Accordingly, 	this 	matter 	is 	remanded 	to 	the OAL for 	further 	proceedings
consistent with this decision.
IT IS SO ORDERED.
COMMISSIONER OF EDUCATION
Date of Decision: 	February 4, 2020
Date of Mailing: 	February 4, 2020

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 09004-19
AGENCY DKT. NO. 127-06/19
LUIZ VAZQUEZ.,
Petitioner,
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY.,
Respondent.
____________________________________
AUDLEY BRIDGES 	OAL DKT. NO. EDU 09007-19
Petitioner, 	AGENCY DKT. NO. 126-06/19
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY.,
Respondent.
_____________________________________
REBECCA RICHARDSON, 	OAL DKT. NO. EDU 09009-19
Petitioner, 	AGENCY DKT. NO. 125-06/19
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY.,
Respondent.
_____________________________________

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
2
DANAAYAAL SALAAM, 	OAL DKT. NO. EDU 09096-19
Petitioner, 	AGENCY DKT. NO. 129-06/19
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY.,
Respondent.
_____________________________________
MARY REPOUSIS, 	OAL DKT. NO. EDU 09103-19
Petitioner, 	AGENCY DKT. NO. 130-06/19
v.
BOROUGH 	OF 	ROSELLE 	BOARD 	OF
EDUCATION, UNION COUNTY., 	(CONSOLIDATED)
Respondent.
_____________________________________
Nicholas Poberezhsky., Esq. on behalf of petitioners (Caruso Smith Picini,
attorneys)
Margaret A. Miller, Esq. on behalf of respondent Board of Education of the
Borough of Roselle
Record Closed: October 31, 2019 	Decided: November 25, 2019
BEFORE: KIMBERLY A. MOSS, ALJ:
Petitioners 	challenge 	the 	Board’s 	decision 	to 	reduce 	their 	salary 	due 	to
respondent’s policy regarding tardiness. Petitioners assert that the reduction in pay is a
violation of their tenure rights. 	These matters were filed at the Office of Administrative
Law (OAL) on July 8, 2019. 	A telephone prehearing was conducted on July 22, 2019,
before the undersigned, regarding OAL Docket number EDU 09004-19. 	During the
pendency of the prehearing the parties advised that there were similar cases that were
transmitted that should be consolidated with EDU 09004-19. 	A telephone status

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
3
conference was conducted August 27, 2019. 	An order consolidating the matters was
issued on August 28, 2019. Telephone status conferences were conducted September
11 and 17, 2019. 	On October 31, 2019 both parties filed a motion for summary
decision. 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
were parties to collective negotiation agreement from July 1, 2014 through June 30,
2017. 	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

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
4
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 salary
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 (CBA) 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 content 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
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:

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
5
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
v. Guardian Life Ins. Co., 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. 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 v. Guardian Life Ins. Co., 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
issues to the trier of fact.

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
6
Based upon documentation presented by 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 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.

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
7
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. Further, 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 CBA did not address excessive tardiness and
there was no collective bargaining agreement in effect when the reductions in the
petitioners’ salaries were 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 River, the
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.
In Middletown, the township unilaterally changed the practice of placing new
police officers with academy training and one-year police experience at step three of the

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
8
salary guide. In that case, it was alleged that 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 as follows:
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 to 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’ salaries being reduced. There presently is no CBA between the REA and
the Board. This matter analogous to the Middletown case since once Policy 3151 was
enforced against petitioners, they contested its application.
In both Middletown and Upper Saddle River, 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.
Accordingly, respondent’s action in reducing petitioners’ salaries due to respondent’s
policy regarding tardiness must be REVERSED.
Based on the foregoing, it is ODERED that petitioners’ motion for Summary
Decision is GRANTED and respondents’ Motion for Summary Decision is DENIED.

OAL DKT. Nos. EDU 09004-19, EDU 09006-19, EDU 09009-19, EDU 09096-19 and EDU
09103-19
9
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.
November 25, 2019
DATE 	KIMBERLY A. MOSS, ALJ
Date Mailed to Parties: 	November 25, 2019
ljb

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