P.E.R.C. No. 2002-53, 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-97-389 UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY COUNCIL OF AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS CHAPTERS, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, David Samson, Attorney General of ¶

New Jersey (Anne Marie Kelly, Deputy Attorney General) ¶

For the Charging Party, Sterns & Weinroth, attorneys ¶

(Mark D. Schorr, of counsel) ¶

DECISION ¶

On May 19 and October 20, 1997, the University of Medicine and Dentistry of New Jersey Council of American Association of University Professors Chapters (AAUP) filed an unfair practice charge and amended charge against the University of Medicine and Dentistry of New Jersey. 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), (3) and ¶

(5), 1/ when it unilaterally reduced the patient service component of Dr. Stanley Weiss's salary. ¶

On December 15, 1997, a Complaint and Notice of Hearing issued. On December 29, UMDNJ filed its Answer. The employer asserts that it has a longstanding practice of discussing salary supplements with individual faculty members when they are appointed, and then modifying or terminating such salary supplements as needed; and that the AAUP waived its right to negotiate supplemental salaries. ¶

On February 3, 1998, Hearing Examiner Regina A. Muccifori denied the AAUP's motion for summary judgment. When she later took a leave of absence, the case was reassigned to Hearing Examiner Susan Wood Osborn. N.J.A.C. 19:14-6.4. ¶

On July 29 and September 14 and 16, 1998, Hearing Examiner Osborn conducted a hearing. At the first day of hearing, the AAUP withdrew the 5.4a(3) allegation. The parties then examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

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. (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. (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...." ¶

On June 23, 2000, the Hearing Eaminer recommended dismissing the Complaint. H.E. No. 2000-13, 26 NJPER 377 (¶31151 2000). She found that UMDNJ had followed its practice of at least 15 years of unilaterally increasing, decreasing or eliminating faculty stipends. She further found that although the union was routinely informed of these stipend modifications, it never sought to negotiate over them so the employer had a reasonable expectation that it did not have to negotiate before changing Weiss's salary. She concluded that it would be unfair, under all the circumstances of the case, to find that UMDNJ had an obligation to negotiate in good faith before it reduced Weiss's patient service component. She also found that AAUP had waived its right to negotiate changes in non-contractual stipends by its long-time acquiescence to a system where patient care stipends were established and changed outside the sphere of collective negotiations. ¶

On August 14, 2000, the AAUP filed exceptions. It does not contest the Hearing Examiner's factual findings. Asserting that patient service components are mandatorily negotiable, it argues that it did not waive its right to negotiate over those components of compensation. It further argues that the Hearing Examiner erred in concluding that UMDNJ did not illegally modify an established term and condition of employment. ¶

On August 18, 2000, UMDNJ filed an answering brief. It does not concede that patient service components are a mandatorily negotiable term and condition of employment. In any event, it argues that there is a longstanding practice at UMDNJ not to negotiate patient service components or any modifications of those components with the AAUP, and that the AAUP has acquiesced to that practice. ¶

This case was held in abeyance because we were informed that the parties were engaged in settlement discussions. On January 24, 2002, we were notified that the matter was not going to settle and resumed processing the case. ¶

While the case was held in abeyance, we decided a scope of negotiations case in which we declined to restrain binding arbitration over a grievance contesting reductions in supplemental salaries at UMDNJ. UMDNJ, P.E.R.C. No. 2001-31, 27 NJPER 38 (¶32015 2000). We held that the compensation issues presented were mandatorily negotiable and thus UMDNJ did not have a managerial prerogative to reduce salaries unilaterally. That decision was not appealed. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's undisputed findings of fact (H.E. at 3-24) with one minor modification. Joyce Orenstein is the AAUP's Executive Director (1T47). ¶

The employer had a longstanding practice of supplementing many faculty members' academic base salaries with patient and/or faculty service components. Those components varied widely from one unit member to another. The AAUP was aware of these components and it never sought to negotiate over the initial setting of these components of total salary. ¶

The employer also periodically changed the faculty service components. As reflected in sheets summarizing personnel actions, patient service components were increased on at least 99 occasions between 1974 and 1993. UMDNJ also identified 13 instances over the years where a faculty member's patient service component was reduced or eliminated. ¶

Joyce Orenstein, AAUP's Executive Director, first became familiar with patient service components in 1988 when certain unit members complained that negotiated increases were not applied to those components. As a result of those complaints, during negotiations for a 1989-1991 agreement, AAUP proposed that across-the-board increases be applied to the components. UMDNJ did not agree and the demand was dropped. The parties agreed that employees would be notified that across-the-board increases did not apply to the supplements. ¶

Before 1997, Orenstein believed that patient service components were established upon appointment and that, once fixed, they remained relatively constant over a faulty member's career. The Hearing Examiner credited Orenstein's testimony in part because Robert D'Augustine, UMDNJ's Associate Vice President for Academic Administration, testified that he told another member of the AAUP's negotiations team that patient service components were infrequently changed. ¶

Personnel summary sheets have been sent to the AAUP office since at least 1981. Orenstein's assistant reviews the sheets to determine who has been added to the unit and who has left, and to ascertain changes in base salary. Orenstein does not routinely review the sheets and she has never asked her assistant to track changes in patient service components because it was Orenstein's understanding that the components did not change. ¶

In January 1997, UMDNJ cut Weiss's $15,000 patient service component by half to $7500. The AAUP filed this charge in May 1997. ¶

The Hearing Examiner concluded that it would be unfair, under all the circumstances of this case, to find that UMDNJ had an obligation to seek negotiations with the AAUP before it reduced Weiss's patient service component. We agree. As we said in Monmouth Cty. Sheriff, P.E.R.C No. 93-16, 18 NJPER 447, 449 (¶23201 1992), it would be unfair to find that an employer violated the Act where it had every reason to believe, based on a representative's response to past actions of which it was notified, that it would not object to similar actions. Although the AAUP may not have actually known that patient service components had been unilaterally reduced in the past, we nevertheless are convinced that UMDNJ acted in accordance with the way it had acted in the past. Under these circumstances, including the fact that the AAUP did not offer any evidence that it sought negotiations once it was notified of the reduction in ¶

Weiss's salary, we conclude that the AAUP failed to meet its burden of proving that the employer acted in bad faith. Accordingly, we dismiss the Complaint. ¶

We need not reach whether or not the AAUP knowingly waived its right to negotiate over the reduction in Weiss's salary. Ruling on that issue does not influence our ultimate decision that this Complaint should be dismissed. The AAUP is now in a position to seek prospective negotiations over Weiss's salary and future reductions in patient service components. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: March 27, 2002 ¶

Trenton, New Jersey ¶

ISSUED: March 28, 2002 ¶