P.E.R.C. No. 2000-83, Rutgers

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY, Respondent, -and- Docket No. CO-H-94-310 RUTGERS COUNCIL OF AAUP CHAPTERS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, John B. Wolf, Rutgers Employment and Labor Counsel ¶

For the Charging Party, Reinhardt & Schachter, attorneys ¶

(Denise Reinhardt, of counsel) ¶

DECISION ¶

On April 18, 1994, Rutgers Council of AAUP Chapters filed an unfair practice charge against Rutgers, the State University. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (5), 1/ by refusing to negotiate over its decision to create a non-tenure track clinical faculty series. The AAUP incorporated its allegations in an earlier ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative." ¶

unfair practice charge (CO-94-112) filed before the employer established the new title series, and later amended the instant charge to allege that the employer refused to negotiate over the eligibility of employees in the clinical position to receive tenure and to be promoted to the Professor II rank and salary. ¶

On September 8, 1994, a Complaint and Notice of Hearing issued. The employer filed an Answer denying that it had violated the Act. By way of affirmative defenses, the employer stated that the Complaint raises matters outside the scope of negotiations; alleges nothing more than a breach of contract; and is barred by Article 19 of the parties' contract. ¶

Hearing Examiner Arnold H. Zudick conducted eleven days of hearing between March 30, 1995 and February 23, 1996. The parties filed post-hearing briefs and replies, the last of which was received on October 17, 1997. ¶

On October 5, 1998, the Hearing Examiner issued a comprehensive report recommending that the Complaint be dismissed. He concluded that the employer did not violate the Act by: unilaterally creating a non-tenure clinical faculty position; not changing the qualifications and criteria for promotion to Professor II to include employees holding the clinical position; unilaterally submitting the proposal for the new position to the University Senate for advice; waiting until the advice process was completed before offering to negotiate over negotiable subjects; or any other means. ¶

On April 26, 1999, after extensions of time, the AAUP filed exceptions. It argues that certain findings of fact are not supported by substantial evidence and that the Hearing Examiner's conclusions are contrary to law. In particular, the AAUP argues that the Hearing Examiner erroneously held that eligibility for tenure and for promotion to Professor II are not negotiable subjects and erroneously held that the administration acted in good faith. 2/ ¶

On October 4, 1999, after extensions of time, the employer filed an answering brief urging adoption of the Hearing Examiner's report and recommendations. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's detailed findings of fact (H.E. at 10-67). ¶

The key question in this case is whether the employer had an obligation to negotiate over whether clinical faculty positions would be eligible for tenure or some other form of job security. That question is predominately one involving the scope of negotiations. If, and only if, the answer to that question is yes, then we must answer the questions of when that negotiations obligation attached and whether the employer intentionally evaded negotiations by submitting the clinical faculty proposal to the Senate. ¶

Note2/ The AAUP does not except to any of the Hearing Examiner's findings of fact. Its exceptions focus on the Analysis portion of his decision. We will address those concerns in our legal analysis. ¶

Tenure at Rutgers means that faculty members enjoy continued employment and are not subject to any kind of periodic review. Generally, the process leading to tenure at Rutgers takes six years. A faculty member is hired as an assistant professor with a three-year contract. Near the end of that contract, the individual is evaluated and either offered a second three-year contract as an assistant professor or asked to leave. Those who are renewed are evaluated near the end of the second three-year period and are either promoted to the tenured rank of associate professor or granted a terminal year to look for other employment. ¶

Tenure at Rutgers applies only to faculty whose positions are funded by the State. In addition to tenure track faculty, the AAUP also represents non-tenure track faculty in grant-funded positions, self-sustaining positions such as continuing education courses from which money is generated and used to pay salaries, and non-renewable assistant professorships. ¶

University regulations specify the criteria to be used in considering reappointments, promotions and tenure for different faculty categories. ¶

For general teaching/research faculty and extension specialists, the criteria are teaching, scholarship and service. The primary criterion is scholarship, including research accomplishment. ¶

For faculty in the creative and performing arts, the criteria are teaching, scholarship and/or artistic accomplishment, and service. The primary criterion is scholarship and/or artistic accomplishment. ¶

For library faculty, the criteria are librarianship, scholarship and service. The primary criteria is librarianship. ¶

For county agent faculty, the criteria are teaching, extension practice and service. The primary criterion is extension practice. ¶

For extension specialist faculty, the criteria are teaching, extension scholarship, and service. The primary criterion is extension scholarship. ¶

Individuals who make substantial progress and demonstrate distinction beyond an associate professor level may be considered for the rank of Professor. The rank of Professor II is reserved for those who have achieved scholarly eminence in their discipline and fields of inquiry. ¶

Rutgers College of Nursing offers Bachelor of Science, Master of Science and Ph.D. degrees in nursing. The Bachelor and Master programs require clinical instruction for graduation. When students perform their clinical intervention courses, they are accompanied and supervised by a clinical faculty member. Students and supervising faculty are at their clinical site six to eight hours per day, two days per week. ¶

The College of Nursing appoints about six assistant professors per year. Approximately 75% do not receive a second three-year appointment. At the hearing, the Dean of the College of Nursing explained her reasons for supporting a non-tenure clinical faculty position. ¶

1. Since the professors who were providing clinical instruction were not competing for tenure and, therefore, often leaving faculty positions after a three-year term, they had neither the time nor inclination to study and understand the curriculum, nor were they able to stay within the goals and mission of the curriculum. ¶

2. Due to the turnover of clinical instructors, the College has often been unsuccessful in finding new clinical faculty experienced or talented enough to be accepted by the institutions and agencies where the clinical instruction occurs. ¶

3. It is difficult to attract clinical faculty to tenurable positions because they know that they may not have the time to do the publication, research and scholarship necessary to obtain tenure. ¶

4. Having non-tenure clinical positions would give the College the ability to renew talented clinical instructors who maintain their skills, while still allowing it to remove those clinical instructors whose skills have waned. ¶

The College of Nursing is accredited by the New Jersey Board of Nursing and the National League for Nursing. Both agencies visited the College in the fall of 1992 and accredited the College in 1993. ¶

The College of Pharmacy offers Bachelor of Science, Doctor of Pharmacy (Pharm.D.), and Ph.D. degrees. Clinical instruction is required for the Bachelor and Pharm.D. programs. As of 1976, the College of Pharmacy had approximately 45 full-time faculty members. Fourteen of those positions are in the Pharmacy Practice Department, which is solely responsible for clinical instruction. Six of those 14 positions are fully funded by the State and tenure eligible. As of 1996, of the six, only one faculty member had tenure. ¶

The Dean of the College of Pharmacy also testified. He believes that the heavy involvement of the pharmacy practice faculty in clinical care activities is inconsistent with the research and scholarship requirements of tenure. Candidates for clinical tenure track positions are very concerned about whether they will have enough time and the proper facilities to conduct their research. ¶

The accrediting organization for pharmacy schools is the American Council on Pharmaceutical Education (ACPE). The College was accredited in the 1930s or 1940s and has been reaccredited since then. The process for reaccreditation began during the 1990-91 academic year with a self-study evaluation. The self-study report recommended the creation of a non-tenure clinical faculty track. It noted a danger in the low percentage of tenured faculty and anxiety among tenure-track faculty over whether teaching and service were really being counted in evaluating faculty for tenure. The ACPE accreditation team conducted a site visit in September 1991. Its report stated that: ¶

The establishment of a non-tenure accruing or clinical track series may assist in addressing this issue by balancing the utilization of non-tenure track appointments with tenure track and other faculty appointments. ¶

Its accreditation decision provided: ¶

the proposed non-tenure accruing or clinical-track faculty appointment series will be necessary to implement the College's comprehensive strategy for development of clinical faculty resources. ¶

The evaluators thought a non-tenure line for clinical faculty would improve morale. ¶

The issue of creating a non-tenure track clinical track title for Nursing and Pharmacy had existed for many years. For example, in 1991, the Associate Provost for Administration and Personnel wrote to the University's Vice President for Administration and Personnel recommending a non-tenure track position for the Pharmacy Department because of its problems in retaining faculty, competition from the pharmaceutical industry, and the research requirements for tenure. At about the same time, the Dean of Nursing drafted a proposal for a non-tenure track clinical faculty position. The advantages listed included greater stability in the clinical instruction program and increased opportunities for research and scholarship by tenure-track assistant professors relieved of clinical responsibilities. ¶

On April 7, 1995, the Rutgers Board of Governors adopted a new Appendix D to its Policy with Respect to Academic Appointment and Promotions. Clinical faculty was added as a faculty category; clinical practice was added as a criterion; and the criteria applicable to clinical faculty were established as teaching, clinical practice, and service, with the primary criterion being clinical practice. The definition of clinical practice in the criteria section anticipates that clinical faculty will concentrate their efforts and apply their knowledge to patient and client care; and apply research to the clinical setting. Clinical faculty was added to the faculty category as non-tenure track. ¶

The Hearing Examiner correctly found that the employer unilaterally established non-tenure track clinical faculty titles in nursing and pharmacy in response to the high rate of turnover of faculty performing clinical duties in both schools. In nursing, the turnover of tenure track faculty performing clinical practice was so high that students were denied knowledge and experience they needed to pass their licensing examination. Having only tenure track positions also hurt the department's ability to recruit the best clinical faculty which in turn threatened its ability to place students in health-related institutions for instruction, and limited its ability to renew talented clinical faculty who had neither the time nor the inclination for extensive scholarship and research. Pharmacy had high turnover because it could not offer clinical faculty a renewable position not requiring scholarship and research; and, health-related institutions preferred clinical instructors whose attention was not diverted from the clinical setting. ¶

Rutgers argues that it had a compelling educational policy need to establish the non-tenure track titles that outweighed any obligation to negotiate. The AAUP argues that there were alternative means to address the university's concerns and that those alternatives could have been addressed through the collective negotiations process. In particular, the AAUP argues that the employer could have de-emphasized the scholarship and research criteria for tenure as it has done for other tenure track titles in the university. ¶

Local 195 v. State, 88 N.J . 393 (1982), articulates the tests for resolving negotiability disputes: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions. [88 N.J. at 404-405.] ¶

Job security intimately and directly affects the work and welfare of these employees. See Wright v. City of E. Orange Bd. of Ed., 99 N.J . 112 (1985); State v. State Supervisory Employees Ass'n, 78 N.J . 54, 84 (1978); Plumbers & Steamfitters v. Woodbridge Bd. of Ed., 159 N.J. Super. 83 (App. Div. 1978); Rutgers, the State Univ ., P.E.R.C. No. 91-81, 17 NJPER 212, 214 (¶22091 1991). Academic tenure is one form of job security that provides review of adverse personnel actions. University faculty have an additional interest in job security in the form of tenure because it provides protection from university intrusions into faculty members' academic freedom. ¶

No statute or regulation preempts negotiations over tenure or job security for faculty at Rutgers. By contrast, N.J.S.A. 18A:28-5 et seq . establishes tenure rights after three consecutive calendar years for public school teaching staff members and N.J.S.A. 18A:60-6 et seq . establishes tenure rights after five consecutive calendar years for county and State college professors. See also N.J.S.A. 18A:64-20 et seq . (preserving tenure rights after reorganization of State college system). ¶

Under some circumstances, tenure or job security for professional employees at State colleges may significantly interfere with educational policy. For example, in Association of New Jersey State College Faculties v. Dungan, 64 N.J . 338, 355 (1974), having unduly high proportions of tenured faculty disserved sound educational interests. In that case, the State Board of Higher Education had the right to establish tenure guidelines without negotiations. In State of New Jersey (Stockton State College), P.E.R.C. No. 76-33, 2 NJPER 147 (1976), the college had a prerogative to implement a tenure plan setting a ratio of tenured to non-tenured faculty. In both cases, having too high a proportion of tenured faculty threatened the vitality of the educational institutions. Similarly, in UMDNJ v. AAUP, 223 N.J. Super. 323 (App. Div. 1988), aff'd 115 N.J . 29 (1989), the courts held that the university had a managerial prerogative to unilaterally adopt a mandatory retirement policy because "[n]othing could be more germane to the educational goals of an institution of higher education than the vitality of that institution as reflected in its ability to hire, retain and deploy its faculty." 223 N.J. Super. at 335-336. Compare Rutgers (Rutgers has prerogative to hire part-time lecturers, but once hired, those employees may be protected by a job security provision that affords Rutgers an opportunity to evaluate their performance before tenure is granted). Consistent with scope of negotiations case law in general, and tenure cases in particular, we must examine the facts of this case to determine whether the issue the AAUP sought to negotiate would significantly interfere with educational policy. ¶

We begin with the employer's action and the AAUP's response because they set the framework for this dispute. ¶

In May 1993, the University's Vice-President for Academic Affairs sent a letter to the Chair of the University Senate asking for the Senate's advice on a proposed non-tenure track faculty series. The Senate's Executive Committee referred the matter to the Academic Personnel Committee, whose membership included a member of the AAUP's leadership. ¶

Having been informed of the proposal, the AAUP made numerous demands to negotiate. Its first, in September 1993, demanded to negotiate over all aspects of the proposal that were mandatory subjects of negotiations. In particular, it asked that: ¶

all references to employment security -- the question of whether these new positions will carry the possibility of tenure rather than be limited to three-year contracts must be withdrawn from the Administration's Senate proposal. ¶

This request to negotiate over job security was intertwined with a request to negotiate over whether the new positions would be tenure-eligible. That makes sense because it does not appear that either party was contemplating any form of job security other than tenure. ¶

Later AAUP requests to negotiate also focused on whether the clinical faculty series could be a tenured position. After the University Senate adopted a resolution for the clinical faculty series, the University offered to resume "discussions." The AAUP responded that it was not interested in resuming "discussions." ¶

On April 12, 1994, University Vice President Norman notified the AAUP of the Board of Governors meeting scheduled for April 15 at which it would consider the clinical faculty series. He stated that: ¶

if there are specific mandatorily negotiable subjects that the AAUP wishes to negotiate that are different from the terms of the contract, please let me know. ¶

The AAUP responded by renewing its demand for "negotiations" on the issues of tenurability and eligibility for the rank of Professor II. The AAUP wrote: ¶

With regard to the Administration's position that tenurability is not a mandatory subject of negotiation, I call your attention to "Rutgers, the State University, P.E.R.C. No. 91-81 ... in which it was determined that tenurability of Visiting Part-Time Lecturers ... is a mandatory subject of negotiation. How can one in good faith hold that this subject is mandatorily negotiable for part-time faculty and not for full-time clinical faculty. ¶

Later correspondence from the AAUP again renewed its demand for negotiations over eligibility for appointment or promotion to Professor and Professor II and eligibility for tenure. ¶

Thus, we conclude that the AAUP's overall demand to negotiate over job security was intertwined with its demand to negotiate over tenure. Under these circumstances, we will limit our inquiry to whether the University violated the Act by refusing to negotiate over traditional academic tenure for clinical faculty. ¶

The employer argues that it needed to create the non-tenure clinical positions to maintain the vitality and integrity of its clinical education programs in nursing and pharmacy. Because of the scholarship and research demands of achieving tenure, the turnover rate for clinical faculty was unacceptably high. In addition, because the clinical faculty knew that they were not likely to attain tenure, they had neither the time nor the inclination to study and understand the curriculum. ¶

At first blush, it appears somewhat incongruous that the solution to high turnover is to deny tenure. But the record supports the conclusion that tenure was unattainable for most clinical faculty and that therefore tenure eligibility led to a high turnover rate. ¶

The question posed by the AAUP is whether the unilateral creation of the non-tenure clinical faculty series was the only solution to this educational policy concern. If not, it asserts that decision should have been subject to the statutory obligation to negotiate. The AAUP argues that, in fact, Rutgers changed the criteria for clinical faculty to de-emphasize scholarship and that change alone could have addressed the University's concerns without having to eliminate tenure eligibility for clinical faculty. The AAUP notes that the tenure-eligible titles of county agent and librarian do not have scholarship as the major criterion for hire or tenure. ¶

On this record, it is not clear that eliminating all forms of job security for clinical faculty was necessary to the achieving of the University's educational policy goals. But given the University's unfettered right to set criteria for academic tenure, it cannot be forced to negotiate over making academic tenure available to employees without the requisite scholarship. Snitow v. Rutgers Univ., 103 N.J . 116, 121-123 (1986). In other words, if Rutgers decides that academic tenure requires scholarship and that a particular faculty title should not emphasize scholarship, then an agreement to make that title tenure-eligible would significantly interfere with an educational policy determination. ¶

Thus, we conclude that the decision to create the non-tenure clinical faculty series for nursing and pharmacy was non-negotiable. Given our holding that eligibility for tenure for these clinical faculty titles was not mandatorily negotiable, and given our belief that the AAUP's demand to negotiate over job security was intertwined with its demand to negotiate over tenure, we decline to find that the University was refusing to negotiate in good faith when it refused the AAUP's negotiations demand. ¶

We recognize that this holding may appear unjust from the perspective of the AAUP because it may have construed its negotiations demand to encompass all forms of job security. However, the University cannot be expected to have focused on the distinction between tenure and job security that neither party was making clear at that time. We find it more appropriate to clarify the distinction in what we stated at the outset is essentially a scope of negotiations determination. Should the AAUP choose to pursue other forms of job security and make a specific negotiations demand that the employer believes is not mandatorily negotiable, the employer may file a scope of negotiations petition. ¶

As for the issue of promotion to Professor II, we adopt the Hearing Examiner's analysis and dismiss that aspect of the Complaint. We accept the distinction between negotiations over promotion to higher rank and negotiations over salary. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. Commissioners Buchanan and Madonna voted against this decision. ¶

DATED: April 27, 2000 ¶

Trenton, New Jersey ¶

ISSUED: April 28, 2000 ¶