P.E.R.C. No. 2015-18, NJ/State (Kean Univ)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY, KEAN UNIVERSITY, Petitioner, -and- Docket No. SN-2014-051 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, AFL-CIO, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part and denies in part the request of the State of New Jersey Kean University for a restraint of binding arbitration of a grievance filed by the Council of New Jersey State College Locals, AFT, AFL-CIO. The grievance asserts that the University violated the parties’ collective negotiations agreement (CNA) and internal policies when it abolished the Graphics Communications Program and laid off two faculty members without reassigning them to other courses. Finding that the part of the Council’s grievance alleging violation of internal policies is subject to advisory arbitration only, the Commission dismisses the University’s request to restrain advisory arbitration where there is no statutory preemption claim. Holding that the remainder of the grievance which is subject to binding arbitration infringes on the University’s managerial prerogative to reduce the number of employees regardless of asserted procedural safeguards in the CNA, the Commission restrains binding arbitration of the layoff. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY, KEAN UNIVERSITY, Petitioner, -and- Docket No. SN-2014-051 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, AFL-CIO, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, John J. Hoffman, Acting Attorney General (Arupa Barua, Deputy Attorney General, on the brief) ¶

For the Respondent, Bennett Muraskin, Staff Representative ¶

DECISION ¶

On January 9, 2014, the State of New Jersey, Kean University, filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Council of New Jersey State College Locals, AFT, AFL-CIO. The initial grievance was filed on August 7, 2013, and was amended on October 17. As amended, the grievance asserts that the University failed to follow it internal policies and procedures when it abolished the Graphics Communications Program and that it violated the parties’ collective negotiations agreement when it sent layoff notices to two tenured faculty members and did not reassign them to teach other courses. ¶

The State has filed briefs, exhibits, and the certification of Joy Moskovitz, Assistant Dean, attesting to the truth of the facts contained in the Statement of the Case. The Council has filed a brief and exhibits. These facts appear. ¶

The Council represents a negotiations unit of regular teaching and/or research faculty, administrative staff, librarians, and other professional and teaching staff employed by the University and the State’s other State Colleges and Universities. The University and Council are parties to a collective negotiations agreement with a term of July 1, 2011 through June 30, 2015. The grievance procedure ends in binding arbitration if the grievance involves an allegation that the Agreement has been violated and advisory arbitration if the grievance alleges that a policy or rule of the Board of Trustees has been violated. ¶

Article XLI of the CNA is entitled “Retrenchment, Retraining, and Reinstatement for Full-Time Employees.” Paragraph A.2. of Article XLI provides: ¶

When a tenured faculty member is to be retrenched for programmatic reasons exclusively, the College/University will provide the involved individual with a full academic year or two successive semesters’ written notice of such action. ¶

In June 2013, the University decided to eliminate the Program, and sent layoff notices to the Program’s two faculty members. On August 7, the Council filed a grievance on behalf of the faculty members which was amended on October 17.1/ As amended, the grievance alleges that the University failed to follow its internal policies and procedures when it abolished the Program and that it violated the parties’ collective negotiations agreement when it sent layoff notices to two tenured faculty members and did not reassign them to teach other courses. ¶

Our analysis of the Council’s grievance must be separated into two parts-- that part of the grievance which is subject to advisory arbitration and that part of the grievance which is subject to binding arbitration. The part of the grievance asserting that the University failed to follow it internal policies and procedures when it abolished the Graphics Communications Program is subject to advisory arbitration only. ¶

Our Supreme Court has found advisory arbitration to be beneficial to the final decision maker and a possible inducement to avoid further litigation. Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass’n, 79 N.J. 311, 325-326 (1979) . We will only consider a petition for a restraint of advisory arbitration based on preemption claims, because an employer cannot act contrary to a statute or regulation. Bergen Community College, P.E.R.C. No. 2011-29, 36 NJPER 365 (¶142 2010); Englewood Cliffs Bd. of Ed., P.E.R.C. No. 82-21, 7 NJPER 507 (¶12225 1981); see also Cinnaminson Bd. of Ed., P.E.R.C. No. 2003-44, 28 NJPER 593 (¶33186 2002); Eastampton Bd. of Ed., P.E.R.C. No. 2002-64, 28 NJPER 236 (¶33086 2002). The University has not raised a preemption claim. Accordingly, we dismiss the University’s request to restrain advisory arbitration of the part of the Council’s grievance involving allegations of the University violating internal policies and procedures in abolishing the Program. ¶

The part of the Council’s grievance subject to binding arbitration involves its assertion that the University violated the Agreement when it sent layoff notices to two tenured faculty members after it abolished the Program. Our scope of negotiations jurisdiction is narrow. We consider the negotiability of the dispute in the abstract and express no opinion about the contractual merits of the grievance or any contractual defenses the State may have. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[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. ¶

[Id. at 404-405]. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The University asserts that arbitration should be restrained because the grievance concerns layoff and substantive assignment decisions, which are not arbitrable. It argues that the Commission and Court have found that the decision to retain, transfer, dismiss, or layoff employees is a managerial prerogative involving fundamental governmental policy. It also asserts that the Council’s requested remedy of reassigning faculty into another department would substantially its managerial prerogative of placing faculty in the positions it sees fit. ¶

The Council agrees that the decision to layoff and/or reassign a public employee has been found to be non-negotiable, but it asserts that the CNA appropriately curtails the grievance arbitrator’s decision-making authority. It argues that Article VII D.2. of the CNA minimizes the possibility that the arbitrator’s award would infringe on a managerial prerogative because it states that “The arbitrator shall not substitute his or her judgment for academic judgments...” The Council asserts that Article VII E.1. allows the arbitrator, in this type of case, only to “remand the matter to the proper level of the involved College/University for reconsideration of the matter and elimination of defects in the procedural process or elimination of the impropriety in the decision-making process.” Therefore, it argues that an arbitrator could lawfully decide that the University lacked legitimate programmatic reasons to layoff the employees and not reassign them, and order reconsideration of the decision rather than the requested remedy. ¶

On balance, we find that the part of the Council’s grievance that is subject to binding arbitration infringes on the University’s managerial prerogative to reduce the number of employees and is therefore not mandatorily negotiable, regardless of the procedural safeguards that the Council asserts are found in the Agreement. Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J. 78 (1981); In re Maywood Bd. of Ed., 168 N.J. Super. 45 (App Div. 1979), certif. den. 81 N.J. 292 (1979); Union Cty. Reg. H.S. Bd. of Ed. V. Union Cty. Reg. H.S. Teachers Ass’n, 145 N.J. Super. 435 (App. Div. 1976), certif. den. 74 N.J. 248 (1977). To the extent that the Council is also arguing that the University failed to follow internal policies and procedures in eliminating the Program, that issue and any recommended remedy can be explored in advisory arbitration. ¶

OrderORDER ¶

To the extent the Council of New Jersey State College Locals, AFT, AFL-CIO’s grievance asserts that the University failed to follow internal policies and procedures in eliminating the Graphics Communications Program, the State of New Jersey, Kean University’s request for a restraint of advisory arbitration is denied. To the extent the Council’s grievance asserts that the University violated the Agreement when it laid off faculty members from the Program, the University’s request for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau and Wall voted in favor of this decision. Commissioners Jones and Voos voted against this decision. Commissioner Eskilson was not present. ¶

ISSUED: September 18, 2014 ¶

Trenton, New Jersey ¶

Note1/ One of the two faculty members suffered an untimely death. The remaining faculty member was due to be laid off on June 30, 2014. ¶