P.E.R.C. No. 2002-37, UMDNJ

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, Respondent, -and- Docket No. CO-H-98-190 UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, COUNCIL OF AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS CHAPTERS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, John J. Farmer, Jr., Attorney General of New Jersey (Cindy K. Miller, Senior Deputy Attorney General, before the Hearing Examiner; Michael J. Gonnella, Deputy Attorney General, on the answering brief) ¶

For the Charging Party, Sterns & Weinroth, P.C. ¶

(Mark D. Schorr, of counsel) ¶

DECISION ¶

On November 26, 1997, the University of Medicine and Dentistry of New Jersey Council of American Association of University Professors Chapters (AAUP) filed an unfair practice charge against the University of Medicine and Dentistry of New Jersey. 1/ The charge alleges that the employer violated the New ¶

Note1/ The charge was filed on behalf of the AAUP, Anne Ugrovics and Patrice Case, but was litigated on behalf of the AAUP. ¶

Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3),2/ when it did not renew Anne Ugrovics' employment contract because of her protected activities and, in an attempt to conceal that unlawful action, did not renew Patrice Case's contract. ¶

On May 20, 1998, a Complaint and Notice of Hearing issued. On June 8, UMDNJ filed its Answer. The employer asserts that it had filled all positions within the School for which Ugrovics and Case were qualified On May 4 and 5, 1999, Hearing Examiner Charles A. Tadduni conducted a hearing. The parties examined witnesses and introduced exhibits. ¶

On October 11, 2001, the Hearing Examiner issued his report recommending that the Complaint be dismissed. H.E. No. 2002-3, 28 NJPER (¶2001). He found that the charging party did not establish that the two faculty members were laid off in retaliation for the exercise of protected rights. He further found that the employer established legitimate, non-discriminatory reasons for the layoff. ¶

Note2/ 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. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act." ¶

On October 26, 2001, AAUP filed exceptions. It argues that the issue is why Ugrovics and Case were singled out for layoff and that the two reasons asserted by UMDNJ are pretextual. The AAUP asserts that although Frances Quinless, Dean of the School of Nursing, testified that Ugrovics and Case failed to fulfill any of her three strategic goals (pursuing a doctoral degree, retooling to gain certification as a primary care nurse practitioner, and becoming engaged in the School Community Health Services Program), she allegedly repudiated that testimony when she admitted that three of the seven faculty members she did retain were indistinguishable in those respects. AAUP also argues that Quinless's explanation that other faculty were more versatile than Ugrovics and Case should be rejected because Quinless made those comparisons for the first time on redirect examination. AAUP also relies on its post-hearing submissions. ¶

On November 2, 2001, UMDNJ filed an answering brief. It asserts that except for its discussion concerning Quinless's allegedly repudiated testimony, AAUP does not specify any questions of procedure, fact, law or policy to which exception is taken, as required by N.J.A.C . 19:14-7.3. As for the allegedly repudiated testimony, UMDNJ argues that Quinless never testified that the three retained employees fulfilled her strategic goals. UMDNJ contends that many factors affected the Dean's retention decisions, but none involved hostility toward Ugrovics for her protected activity. Finally, UMDNJ questions the practice of incorporating post-hearing briefs by reference. Without waiving its objection, it also relies on its post-hearing submissions. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 3-29). ¶

We begin with a procedural issue. N.J.A.C. 19:14-7.3(b) requires that: ¶

Each exception shall specify each question of procedure, fact, law, or policy to which exception is taken; identify that part of the report and recommended decision to which objection is made; designate by precise page citation the portions of the record relied on; state the grounds for the exception; and include the citation of authorities unless set forth in a supporting brief. Any exception which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with these requirements may be disregarded. ¶

While we have permitted parties to incorporate post-hearing arguments, they are an adjunct to and not a substitute for exceptions and a brief in support of exceptions or an answering brief. We will not consider any argument not raised in the exceptions or answering brief. ¶

Under In re Tp. of Bridgewater, 95 N.J . 235 (1984), no violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity and the employer was hostile toward the exercise of the protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for us to resolve. ¶

Anne Ugrovics taught in the associate's degree program (ASN) of the School of Nursing and was a very active AAUP member. She was the only faculty member from the School active in contract negotiations; and she was active in grievance filing and processing. ¶

Enrollment in the ASN program declined. UMDNJ bylaws require that faculty with one year appointments must be notified of reappointment or non-reappointment three months before their contract expires. Faculty with two year appointments must be given six months notice. Faculty with three year or longer appointments must be given one year's notice. ¶

In December 1996, Quinless notified seven ASN faculty members whose contracts would expire in June 1997 that they were being reappointed. 3/ Quinless evaluated each faculty member's qualifications, but did not compare their qualifications to those of Ugrovics or Case. UMDNJ's Board of Trustees ratified Quinless's action in March 1997. Ugrovics and Case had three-year contracts which expired in June 1998. They were notified in late May or early June 1997 that they would not be reappointed. ¶

Quinless made her reappointment decisions upon reviewing the recommendation of the regional assistant dean. Ugrovics and Case were told that they were not being reappointed because of declining enrollment. Quinless would not discuss with them why less senior faculty had just been rehired. Quinless then suggested that Ugrovics and Case apply for positions at Englewood Medical Center. Because those positions are not funded by UMDNJ, they are not in the AAUP's negotiations unit. Ugrovics and Case applied for the positions, but were not hired. ¶

There is no direct evidence of anti-union animus. Thus, to prove a violation, AAUP must rely on circumstantial evidence. There is no dispute that Ugrovics engaged in protected activity ¶

Note3/ It is not clear to us exactly how many ASN faculty were reappointed during the 1996-1997 academic year. All of the documents and testimony do not appear to coincide, but resolution of that issue is not essential to this decision. ¶

and that the employer was aware of that fact. The remaining burden on AAUP is to prove, by a preponderance of the evidence, that UMDNJ was hostile to Ugrovics' protected activity. The Hearing Examiner found that AAUP did not meet that burden. We accept that recommendation. ¶

AAUP suggests that other employees were dismissed because they filed grievances, but the record does not bear out that allegation. AAUP suggests that seniority was used as a criterion for layoff in the past. At best, the record indicates that "junior" employees were laid off during the last round of layoffs. ¶

AAUP points to inconsistencies in how Quinless explained why Ugrovics and Case were not renewed. At the time of the non-renewals, Ugrovics and Case were not told that they were not being renewed because of their failure to meet one or more of goals Quinless outlined. The Hearing Examiner explained that telling Case and Ugrovics that other faculty members had been reappointed because they had achieved one or more of the three strategic objectives would seem to have served little purpose at that point. That may be so, but it would have lent support to a finding that those were, in fact, the criteria that Quinless applied at the time of the non-reappointment decision. ¶

On direct examination, Quinless testified that each of the faculty reappointed in March 1997 was meeting one or more of her three goals, and that Ugrovics and Case were not. On cross-examination, Quinless acknowledged that three of the reappointed faculty did not meet any of those goals. AAUP argues that this contradiction in testimony undermines UMDNJ's business reason and proves hostility to Ugrovics's protected activity. ¶

We agree with the AAUP that Quinless's rationale for choosing whom not to renew was undercut by her testimony on cross-examination. Three of the seven reappointed faculty do not appear to have met the criteria any more than Ugrovics and Case. The fact that Quinless was able to review the faculty's respective qualifications at hearing and indicate that Ugrovics and Case were the least qualified does not reflect her motivation at the time of the non-reappointment decisions where the testimony shows that Quinless did not make those comparisons at that time. ¶

Nevertheless, we will still adopt the Hearing Examiner's recommendation to dismiss the Complaint. Bridgewater requires that the charging party prove by a preponderance of the evidence that protected activity was a substantial or motivating factor in an adverse personnel action. The fact that the administration may not have had clearly articulated standards in its decisionmaking does not mean that it acted because of hostility to protected activity. There is simply not enough credible evidence of hostility to warrant a conclusion that UMDNJ acted for anti-union reasons. Accordingly, we dismiss the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: December 20, 2001 ¶

Trenton, New Jersey ¶

ISSUED: December 21, 2001 ¶