On Feb. 4, the New Jersey Commissioner of Education issued a final decision involving a New Jersey school board, in which the union asserted that the board overstepped its authority when it docked the pay of several tenured employees for excessive tardiness.

In 2014, the board adopted an employee attendance policy that required punctuality in reporting to assigned duties and withheld a portion of an employee’s salary for non-compliance. However, at the time of the policy adoption, the district’s collective negotiations agreement did not address the imposition of minor discipline for tardiness.

While it is well known that the tenure protection statute, N.J.S.A. 18A:6-10, provides that no tenured employee may be reduced in compensation absent the filing of tenure charges, it is less well known that N.J.S.A. 34:13A-24(b) grants school boards the authority to negotiate forms of minor discipline and penalties for certain categories of conduct.

In addition, N.J.S.A. 34:13A-22 defines minor discipline to include various forms of fines and suspensions with the explicit exception of tenure charges, the withholding of increments, letters of reprimand, and suspensions with pay. In short, boards of education may define conduct for which minor discipline may be imposed and may establish fines and penalties for that infraction, so long as the discipline and penalties are first negotiated with the union.

It is worthwhile to note that the commissioner recently upheld a similar policy, where the board previously negotiated tardiness fines and penalties with the union and included that minor discipline in the collective negotiations agreement.

However, in the most recent case, the board did not negotiate minor discipline into the contract. During the initial hearing in the Office of Administrative Law, the board argued that the union waived any right to challenge the 2016 application of the policy because it had been adopted more than two years before without objection from the union. Generally, objections to board actions must be filed with the commissioner within 90 days. However, the administrative law judge determined that no waiver had taken place because the policy, while properly adopted and effective, had not been enforced in the intervening years and as such, the union had not waived its right to challenge the policy’s enforcement. Therefore, propriety of the adoption notwithstanding, the judge upheld the union’s enforcement challenge and the commissioner adopted the decision and ordered restitution to all teachers involved.

For more information on this matter, board members may wish to speak with the board attorney or with the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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