A4142

An Act concerning certain disciplinary procedures, collective bargaining, and binding arbitration, and amending P.L.1968, c.303 and P.L.1989, c.269.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1968, c.303 (C.34:13A-5.3) is amended to read as follows:

1. Except as hereinafter provided, public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity; provided, however, that this right shall not extend to elected officials, members of boards and commissions, managerial executives, or confidential employees, except in a school district the term managerial executive shall mean the superintendent of schools or his equivalent, nor, except where established practice, prior agreement or special circumstances dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership, and the fact that any organization has such supervisory employees as members shall not deny the right of that organization to represent the appropriate unit in collective negotiations; and provided further, that, except where established practice, prior agreement, or special circumstances dictate the contrary, no policeman shall have the right to join an employee organization that admits employees other than policemen to membership. The negotiating unit shall be defined with due regard for the community of interest among the employees concerned, but the commission shall not intervene in matters of recognition and unit definition except in the event of a dispute.

Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes, by the majority of the employees voting in an election conducted by the commission as authorized by this act or, at the option of the representative in a case in which the commission finds that only one representative is seeking to be the majority representative, by a majority of the employees in the unit signing authorization cards indicating their preference for that representative, shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit. An authorization card indicating preference shall not be valid unless it is printed in a language understood by the employees who signs it.

Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (b) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority representative; and (c) a minority organization shall not present or process grievances. Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations. When no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted.

A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership. Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment. Nothing herein shall be construed as permitting negotiation of the standards or criteria for employee performance.

When an agreement is reached on the terms and conditions of employment, it shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative. In all cases, the terms of a collectively negotiated agreement shall supersede the terms of any individual contract between a public employer and an individual public employee whose position is within the bargaining unit covered by the collective agreement. No term or provision in such an individual contract may be applied or interpreted in a manner which limits, restricts, or circumscribes, or has the effect of limiting, restricting, or circumscribing a provision or right contained within the collective agreement.

Public employers shall negotiate written policies setting forth grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions, including disciplinary determinations, affecting them, provided that such grievance and disciplinary review procedures shall be included in any agreement entered into between the public employer and the representative organization. Such grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes, except that binding arbitration shall be the statutorily required terminal step for all disciplinary review procedures in all collective agreements between employers and employees subject to the provisions of P.L.1989, c.269 (C.34:13A-22 et seq.). Except as otherwise provided herein, and except as provided in P.L.1989, c.269 (C.34:13A-22 et seq.), the procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the [discipline] termination or discharge of employees [with] who have achieved statutory tenure or who have statutory protection under [tenure or] the civil service laws[, except that]. Except as otherwise required by P.L.1989, c.269 (C.34:13A-22 et seq.), such procedures may provide for binding arbitration of disputes involving the minor discipline of any public employees protected under the provisions of section 7 of P.L.1968, c.303 (C.34:13A-5.3), other than public employees subject to discipline pursuant to R.S.53:1-10. Grievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement. [For the purposes of this section] Except as otherwise required by P.L.1989, c.269 (C.34:13A-22 et seq.), minor discipline shall mean a suspension or fine of less than five days unless the employee has been suspended or fined an aggregate of 15 or more days or received more than three suspensions or fines of five days or less in one calendar year.

Where the State of New Jersey and the majority representative have agreed to a disciplinary review procedure that provides for binding arbitration of disputes involving the major discipline of any public employee protected under the provisions of this section, other than public employees subject to discipline pursuant to R.S.53:1-10, the grievance and disciplinary review procedures established by agreement between the State of New Jersey and the majority representative shall be utilized for any dispute covered by the terms of such agreement. For the purposes of this section, major discipline shall mean a removal, disciplinary demotion, suspension or fine of more than five days, or less where the aggregate number of days suspended or fined in any one calendar year is 15 or more days or unless the employee received more than three suspensions or fines of five days or less in one calendar year.

In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause
shall be resolved in favor of requiring arbitration.

(cf: P.L.2005, c.380)

2. Section 1 of P.L.1989, c.269 (C.34:13A-22) is amended to read as follows:

1. As used in [this act] P.L.1989, c.269 (C.34:13A-22 et seq.):

"Commission" means the New Jersey Public Employment Relations Commission.

"Commissioner" means the Commissioner of Education.

"Discipline" includes all forms of discipline[,] including, but not limited to: all forms of discharge, termination and contract nonrenewal, whether effective during or at the end of an individual employment contract or under any other circumstances, affecting any and all employees who have not yet obtained statutory tenure or permanent civil service status, or who are in positions which are not eligible for statutory tenure or permanent civil service status; the withholding for any reason of salary increments pursuant to N.J.S.18A:29-14; and any and all forms of reprimands, fines and suspensions; except that “discipline” does not include: tenure charges filed pursuant to the provisions of subsubarticle 2 of subarticle B of Article 2 of chapter 6 of Subtitle 3 of Title 18A of the New Jersey Statutes, N.J.S.18A:6-10 et seq.[, or the withholding of increments pursuant to N.J.S.18A:29-14]; reductions in force implemented pursuant to N.J.S.18A:28-9; or suspensions with pay pursuant to section 1 of P.L.1971, c.435 (C.18A:6-8.3) or N.J.S.18A:25-6.

"Employees" means employees of an employer as defined by this act.

"Employer" means any county college, local or regional school district, educational services commission, jointure commission, county special services school district, county vocational school district, charter school or board or commission under the authority of the commissioner or the State Board of Education.

"Extracurricular activities" include those activities or assignments not specified as part of the teaching and duty assignments scheduled in the regular work day, work week, or work year.

["Minor discipline" includes, but is not limited to, various forms of fines and suspensions, but does not include tenure charges filed pursuant to the provisions of subsubarticle 2 of subarticle B of Article 2 of chapter 6 of Subtitle 3 of Title 18A of the New Jersey Statutes, N.J.S.18A:6-10 et seq., or the withholding of increments pursuant to N.J.S.18A:29-14, letters of reprimand, or suspensions with pay pursuant to section 1 of P.L. 1971, c. 435 (C.18A:6-8.3) and N.J.S. 18A:25-6.]

"Regular work day, work week, or work year" means that period of time that all members of the bargaining unit are required to be present and at work.

"Teaching staff member" means a member of the professional staff of any employer holding office, position or employment of such character that the qualifications, for the office, position or employment, require him to hold a valid and effective standard, provisional or emergency certificate, appropriate to that office, position or employment, issued by the State Board of Examiners. "Teaching staff member" includes a school nurse.

(cf: P.L.1989, c.269, s.1)

3. Section 3 of P.L.1989, c.269 (C.34:13A-24) is amended to read as follows:

3. 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. Any imposition of discipline upon an employee covered by P.L.1989, c.269 (C.34:13A-22 et seq.), shall be subject to review pursuant to the applicable collectively negotiated grievance procedure, including mandatory binding arbitration pursuant to section 8 of P.L.1989, c.269 (C.34:13A-29).

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 which are specified in a negotiated agreement or result from an arbitrator’s award shall not constitute a reduction in compensation pursuant to the provisions of N.J.S.18A:6-10.

(cf: P.L.1989, c.269, s.3)

4. Section 5 of P.L.1989, c.269 (C.34:13A-26) is amended to read as follows:

5. Disputes involving the withholding of an employee's increment by an employer [for predominately disciplinary reasons] for any reason shall be subject to the contractual grievance procedures established pursuant to law and shall be subject to binding arbitration as required by the provisions of section 8 of this act.

(cf: P.L.1989, c.269, s.5)

5. Section 6 of P.L.1989, c.269 (C.34:13A-27) is amended to read as follows:

6. a. If there is a dispute as to whether a transfer of an employee between work sites [or withholding of an increment of a teaching staff member] is disciplinary, the commission shall determine whether the basis for the transfer [or withholding] is predominately disciplinary.

b. If the commission determines that the basis for a transfer is predominately disciplinary, the commission shall have the authority to take reasonable action to effectuate the purposes of this act.

c. [If the commission determines that the basis for an increment withholding is predominately disciplinary, the dispute shall be resolved through the grievance procedures established pursuant to law and shall be subject to the provisions of section 8 of this act.] (Deleted by amendment, P.L. , c. )(now pending before the Legislature as this bill)

d. If a dispute involving [the reason for] the withholding of [a teaching staff member's increment is submitted to the commission pursuant to subsection a. of this section, and the commission determines that the reason for the increment withholding relates predominately to the evaluation of a teaching staff member's teaching performance, the teaching staff member] the salary increment of an employee who is not represented by a majority representative arises, the employee may file a petition of appeal with the Commissioner of Education pursuant to N.J.S.18A:6-9 and N.J.S.18A:29-14[, and the petition shall be deemed to be timely if filed within 90 days of notice of the commission's decision, or of the final judicial decision in any appeal from the decision of the commission, whichever date is later].

(cf: P.L.1989, c.269, s.6)

6. Section 7 of P.L.1989, c.269 (C.34:13A-28) is amended to read as follows:

7. Nothing in [this act] P.L.1989, c.269 (C.34:13A-22 et seq.) shall be deemed to restrict or limit any right established or provided by section 7 of P.L.1968, c.303 (C.34:13A-5.3); this act shall be construed as providing additional rights in addition to and supplementing the rights provided by that section.

(cf: P.L.1989, c.269, s.7).

7. Section 8 of P.L.1989 c.269 (C.34:13A-29) is amended to read as follows:

8. a. The grievance procedures that employers covered by [this act] P.L.1989, c.269 (C.34:13A-22 et seq.) are required to negotiate pursuant to section 7 of P.L.1968, c.303 (C.34:13A-5.3) shall be deemed to require, by operation of law, binding arbitration as the terminal step in all collective agreements with respect to disputes concerning imposition of [reprimands and] discipline as that term is defined in [this act] section 1 of P.L.1989, c.269 (C.34:13A-22).

b. In any grievance procedure negotiated pursuant to [this act] P.L.1989, c.269 (C.34:13A-22 et seq.), the burden of proof shall be on the employer covered by this act seeking to impose discipline as that term is defined in [this act] section 1 of P.L.1989, c.269 (C.34:13A-22). In any arbitration regarding the discharge, termination or contract nonrenewal of any employee covered by P.L.1989, c.269 (C.34:13A-22 et seq.), whether effective during or at the end of an individual employment contract or under any other circumstances, excluding the termination of employees who have achieved statutory tenure or permanent civil service status, the arbitrator shall have the discretion to order a remedy including, but not limited to, reinstatement of the grievant with back pay and benefits.

c. Notwithstanding any provision of Title 18A of the New Jersey Statutes, the “New Jersey Employer-Employee Relations Act,” P.L.1941, c.100 (C.34:13A-1 et seq.), or any other law or regulation to the contrary, the terms of a collectively negotiated agreement shall supersede the terms of an individual contract between a public employer and an individual public employee whose position is within the bargaining unit covered by the collective agreement. No term or provision in such an individual contract may be applied or interpreted in a manner which limits, restricts or circumscribes, or has the effect of limiting, restricting or circumscribing a provision or right contained within the collective agreement.

(cf: P.L.1989, c.269, s.8)

8. This act shall take effect immediately.

STATEMENT

This bill provides that the terms of a collectively negotiated agreement shall supersede the terms of any individual contract between any public employer and any individual public employee whose position is within the bargaining unit covered by the collective agreement. In addition to this provision, which applies to individual contracts of both educational and non-educational public employers and employees, the bill, with respect to only the educational sector:

1. Makes binding arbitration the terminal step for the review of any imposition of discipline under collective bargaining agreements, extending that requirement to major, as well as minor, discipline, and extends the scope of collective bargaining to cover procedures for major, as well as minor, discipline.

2. Provides that fines and suspensions for any discipline, major as well as minor, levied under a contract or an arbitrator’s award do not constitute a reduction in compensation for pension purposes;

3. Extends binding arbitration and contractual grievance procedures to cover disputes over the withholding of increments for any reason, instead of just for predominately disciplinary reasons;

4. Provides an arbitrator, in cases of discharge, termination or contract non-renewal, with the authority to order remedies which include reinstatement with back pay and benefits; and

5. Amends the definition of "employer" to include county colleges, county vocational school districts, and charter schools.