P.E.R.C. No. 2023-17, Rutgers; The State University of NJ

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Petitioner, -and- Docket No. SN-2022-042 RUTGERS COUNCIL OF AAUP CHAPTERS, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS-AMERICAN FEDERATION OF TEACHERS, AFL-CIO Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies Rutgers’ request for restraint of binding arbitration of the AAUP’s grievance contesting the allegedly disciplinary reassignment of a music professor following his administrative leave with pay and unpaid suspension for alleged misconduct. The Commission finds that the record demonstrates a close temporal proximity between Rutgers’ reassignment of the grievant and its misconduct allegations, investigations, and suspension of the grievant. The Commission also finds that Rutgers offered no substantive non- disciplinary basis for its reassignment of the grievant. Accordingly, the Commission holds that the grievant’s reassignments were predominately disciplinary and arbitrable. ¶

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 RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Petitioner, -and- Docket No. SN-2022-042 RUTGERS COUNCIL OF AAUP CHAPTERS, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS-AMERICAN FEDERATION OF TEACHERS, AFL-CIO Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Associate Vice President and Deputy General Counsel, Farrah Gold Henry; Assistant General Counsel, Jessica Meller ¶

For the Respondent, Weissman & Mintz, LLC, attorneys (Ira W. Mintz, of counsel and on the brief) ¶

DECISION ¶

On May 2, 2022, Rutgers, the State University of New Jersey (Rutgers), filed a scope of negotiations petition seeking to restrain binding arbitration of a grievance filed by the Rutgers Council of AAUP Chapters, American Association of University Professors-American Federation of Teachers, AFL-CIO (AAUP). The grievance contests the allegedly disciplinary reassignment of a music professor following his administrative leave with pay and unpaid suspension for alleged misconduct. Rutgers filed briefs, exhibits, and the certifications of Paula Mercado Hak, Assistant Vice President for Academic Labor Relations in the Office of University Labor Relations (OULR), Judith Zenowich, Associate Dean for Finance and Administration for the Mason Gross School of the Arts (MGSA), and Jason Geary, Dean of the MGSA. The AAUP filed briefs, exhibits, and the certification of the grievant, a Professor at the MGSA. Based on the parties’ certified facts and exhibits, the following facts appear. ¶

The AAUP represents a unit of faculty members, graduate assistants, and teaching assistants employed by Rutgers. Rutgers and the AAUP are parties to a collective negotiations agreement (CNA) effective from July 1, 2018 through June 30, 2022. The grievance procedure ends in binding arbitration. ¶

Article 9 of the CNA provides that a Category One grievance includes “an allegation of unjust discipline” and that “[d]iscipline is the formal imposition of a penalty in response to alleged wrongdoing by a member of the negotiations unit (proceedings under Appendix H will handled as Category One grievances).” Appendix H sets forth the procedures for “faculty suspensions at less than full pay.” ¶

In 2003, Rutgers hired the grievant as an Assistant Professor of Music and assigned him to serve as Director of the Orchestra. In 2005, the grievant was assigned to be Director of Sinfonia in addition to his role as Director of Orchestras. Director of Orchestras entails coordinating auditions and other aspects of the orchestral program within the Music Department. In 2010, the grievant was tenured in his role as Director of Orchestras. In 2014, the grievant also became Director of Helix. In 2018, the grievant was promoted to Full Professor as Director of Orchestras, Helix, and Professor of Conducting. Like other MGSA professors, the grievant taught a number of different undergraduate and graduate courses that varied over the years. ¶

On or about September 6, 2019, Rutgers placed the grievant on paid administrative leave pending investigation of an incident of alleged intoxication on September 5, 2019. On September 26, 2019, Rutgers’ Office of Employment Equity (OEE) received information that the grievant may have violated the Policy Prohibiting Sexual Harassment and Sexual Misconduct (Policy) based on alleged incidents occurring between 2011-2015. On October 3, 2019, Rutgers assigned the complaint for investigation. On April 16, 2020, following its investigation, the OEE Director found that the grievant did not violate the Policy. The OEE Director concluded: ¶

For the foregoing reasons, I do not find that [the grievant] violated the Policy. That being said, socializing and drinking with students at bars and hugging students (even if welcome), are all ill-advised behaviors and may implicate codes of conduct outside of OEE’s purview. MGSA has the discretion to review and address these behaviors. ¶

On June 15, 2020, the Interim Dean of MGSA, Gerry Beegan, notified the grievant that he was considering suspending him without pay for the Fall 2020 semester in accordance with Appendix H of the CNA for his alleged intoxicated conduct on September 5, 2019. The letter also referenced the recently concluded investigation of the grievant’s alleged sexual misconduct, noting that although the OEE did not find a violation of the Policy, it “advised that Mason Gross School of the Arts has discretion to review and address your behavior.” ¶

On August 20, 2020, the committee of department chairs offered Dean Geary its non-binding advice that suspension of the grievant without pay is unwarranted. On September 9, 2020, Dean Geary dismissed the committee’s recommendation as factually flawed and recommended that the grievant be suspended without pay for one semester. Dean Geary found that the evidence supported a finding that the grievant violated the intoxication policy. Dean Geary found that the OEE investigation report into alleged harassment “documents a pattern of frequent drinking on your part that renders” the intoxication incident reports from September 5, 2019 “all the more credible.” Dean Geary concluded that the grievant’s violation of the intoxication policy made him “unfit to carry out [his] duties as a professor, which would have involved careful and attentive evaluation of students performing complex musical excerpts in consideration of placement within the Rutgers Symphony Orchestra and Rutgers Wind Ensemble.” ¶

On September 15, 2020, the grievant appealed his unpaid suspension, citing the lack of a breath test or blood test to prove intoxication, and the lack of an interview of him or other witnesses who could state that he was not intoxicated. The grievant stated that the committee of department chair’s decision that Rutgers’ burden of proof for an unpaid suspension had not been met was based on accurate information. The grievant claimed that Dean Geary improperly relied on information in the OEE investigation report about an occasional drink in his private life as supporting an allegation that he was intoxicated on campus. On October 12, 2020, Chancellor Christopher J. Molloy denied the grievant’s appeal and the grievant was then suspended without pay for the Spring 2021 semester. ¶

On or about June 29, 2021, the grievant received an email from Patty Mancuso, Senior Department Administrator, Department of Music, informing him of his Fall 2021 teaching assignments. They included Helix, Conducting 1, Graduate Conducting, and Professional Development. For the first time since his hiring in 2003, the grievant was not assigned as Director of Orchestras. The grievant was also not assigned as conductor of the Rutgers Symphony Orchestra or conductor of Sinfonia. On July 19, 2021, the grievant emailed Steven Kemper, Interim Director, Department of Music, to express his disappointment over the teaching assignments. The grievant stated, in pertinent part: ¶

I am extremely disappointed my current teaching assignments do not include the duties for which I was hired and have excelled at for almost twenty years with stellar evaluations and regular promotions - those duties being conductor of RSO, Sinfonia and my promotion many years back to Director of Orchestras. ¶

Director Kemper responded to the grievant with the following explanation for the assignments: ¶

Your teaching assignment was made by the department and the school and, like all such assignments, took into consideration existing circumstances and the needs of the department. ¶

The grievant’s compensation, benefits, and rank as a Tenured Professor did not change with his Fall 2021 assignments. ¶

On October 29, 2021, the AAUP filed a grievance challenging the grievant’s 2021 work assignments as additional unjust discipline for the September 5, 2019 intoxication allegation and the OEE investigation which found no misconduct.1/ The grievance alleges that his reassignment was punitive, made without his input, and intended to erode his career by assigning him work duties not commensurate with his rank, titles, and experience. The grievance requests: “An explanation of what ‘existing circumstances’ and ‘needs of the department’ warranted removing [the grievant] from the vast majority of his ordinary work responsibilities.” As a remedy, the grievance seeks that the grievant be assigned as Director of Orchestras, conductor of the RSO, conductor of Sinfonia, director of Helix, and professor of orchestral conducting for a minimum of five academic years (2022- 2023 through 2026-2027 academic years) and that he be assigned as conductor for the opera effective spring 2022. On January 27, 2022, Rutgers denied the grievance. On February 24, 2022, AAUP filed for binding arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978) states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer’s alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the contractual merits of the grievance or any contractual defenses the employer may have. ¶

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). ¶

Rutgers asserts that arbitration should be restrained because the assignment or non-assignment of teaching staff to particular classes and positions is a matter of non-negotiable educational policy. Rutgers argues that allowing arbitration over the grievant’s Fall 2021 assignments would significantly interfere with the determination of governmental policy. Rutgers contends that it did not impose any discipline on the grievant by assigning him to certain courses instead of the RSO and Sinfonia classes and Director of Orchestras duties he previously performed. Rutgers asserts that it exercised its managerial right to determine how to deploy faculty to provide students the best possible music education. ¶

The AAUP asserts that although Rutgers has a general managerial prerogative to assign courses, the Commission and Appellate Division have held that binding arbitration is permitted over a reassignment if it is disciplinary and the employee has no alternate statutory appeal procedure. The AAUP argues that the reassignment in this case was disciplinary because it occurred immediately after the grievant’s unpaid suspension for the Spring 2021 semester, which had followed accusations of misconduct and a misconduct investigation that placed the grievant on a one-year paid administrative leave. The AAUP contends that Rutgers has not asserted any particular education policy reason for why it removed the grievant from the orchestra directing assignments he had held since 2003. ¶

The substantive decision to transfer or reassign an employee is generally not arbitrable because public employers have a non- negotiable prerogative to assign employees to meet the governmental policy goal of matching the best qualified employees to particular jobs. See, e.g., Local 195; Ridgefield Park. In the abstract, this includes the prerogative to assign college professors to particular courses. Warren Cty. Comm. College, P.E.R.C. No. 2016-48, 42 NJPER 344 (¶98 2016). ¶

However, under N.J.S.A. 34:l3A-5.3, disciplinary review procedures are mandatorily negotiable and binding arbitration may be used as a means for resolving a dispute over a disciplinary determination. Thus, public employers may agree to arbitrate transfers and reassignments that can be categorized as disciplinary based on the facts and assertions in the record. See, e.g., City of Plainfield, P.E.R.C. No. 2021-32, 47 NJPER 379 (¶89 2021); Rutgers, the State University, P.E.R.C. No. 2012-14, 38 NJPER 156 (¶45 2011); and Bergen Cty. Voc. Schools Dist. Bd. of Ed., P.E.R.C. No. 2005-4, 30 NJPER 296 (¶104 2004). The Appellate Division has endorsed the Commission’s jurisprudence in such disputes, holding that the Commission “must make the determination whether a transfer is non-disciplinary and thus non-arbitrable or disciplinary and arbitrable.” Cape May Cty. Bridge Comm. and Local No. 196, IFPTE, NJPER Supp.2d 152 (¶135 App. Div. 1985), aff’ ing, P.E.R.C. No. 84-133, 10 NJPER 344 (¶15158 1984). ¶

The Commission has found a predominately disciplinary transfer or reassignment when it occurred in close temporal proximity to alleged incidents of misconduct or poor performance, and the transfer or reassignment was not based on a predominately operational reason. See City of Plainfield, supra (transfer was disciplinary where it occurred soon after an incident of alleged misconduct and employer’s asserted operational reason was not supported); Hudson Cty., P.E.R.C. No. 87-20, 12 NJPER 742 (¶17278 1986) (shift changes disciplinary based on timing following alleged misconduct and lack of operational justification). Arbitration was not restrained in those cases. ¶

Upon careful consideration of the record, the Commission finds that the grievant’s reassignments were predominately disciplinary in nature and, therefore, legally arbitrable. The record shows that Rutgers reassigned the grievant from orchestra directing positions he had held for many years dating back to 2003 and 2005. Those reassignments occurred immediately following the conclusion of the grievant’s unpaid disciplinary suspension in the Spring 2021 semester, which followed misconduct allegations and an investigation that placed him on administrative leave for the 2019-2020 academic year. Rutgers asserted no specific educational policy objective or operational reasons for its reassignment of the grievant following his suspension. Director Kemper only offered a generic explanation citing “existing circumstances and the needs of the department.” Although we cannot be sure whether “existing circumstances” was intended to encompass the fact that the grievant was returning from an unpaid disciplinary suspension following allegations of misconduct, Rutgers has offered no alternative substantive basis for its reassigning of the grievant from the positions in which he was most experienced. None of Rutgers’ exhibits or certifications substantiated any particularized educational or operational objective for the grievant’s reassignments. ¶

Furthermore, the April 16, 2020 report that concluded the grievant did not violate Rutgers’ Policy Prohibiting Sexual Harassment and Sexual Misconduct nonetheless advised that “MGSA has discretion to review and address your behavior.” This suggests that Rutgers contemplated MGSA potentially taking its own disciplinary action against the grievant despite no finding of misconduct. While Rutgers did not officially discipline the grievant for those misconduct allegations, it utilized them to support its determination that he violated the intoxication policy in a separate incident that led to his Spring 2021 unpaid suspension. Dean Beegan’s June 15, 2020 letter recommending the unpaid suspension specifically cited the April 16, 2020 report’s statement that MGSA still has discretion to review and address the grievant’s behavior. The subsequent letters from Dean Geary and Chancellor Molloy upholding the Spring 2021 suspension continued to rely on allegations from the April 16, 2020 report. These facts demonstrate a temporal proximity between the April 16, 2020 report, the disciplinary suspension for alleged intoxication ultimately served in Spring 2021, and Rutgers’ June 2021 reassignment of the grievant out of his Director of Orchestras and conductor of the RSO and Sinfonia positions for the Fall 2021 semester. Without any specific, supported non- disciplinary explanations for the Fall 2021 reassignments, the record supports a determination that the grievant’s reassignments were predominately disciplinary. Accordingly, the AAUP’s grievance is legally arbitrable. See, e.g., Cape May Cty. Bridge Comm.; Plainfield; and Hudson Cty. Although we find that the reassignments were disciplinary, the question of whether such disciplinary action violated the contract’s unjust discipline standard is an issue for determination by the arbitrator. ¶

Although the grievant’s compensation, benefits, and rank were not changed as a result of his reassignments, the Commission has held that even an involuntary transfer accompanied by a salary increase does not prove that the transfer was not overall meant to be punitive. See Plainfield (no reduction in compensation); Hudson Cty. (higher compensation after transfer due to shift differential). Here, the grievant’s reassignments resulted in him being removed from the Director of Orchestras position and several conducting posts that he had held for at least 15 years prior to his Spring 2021 disciplinary suspension. ¶

Finally, the decision in Rutgers University, P.E.R.C. No. 2020-21, 46 NJPER 188 (¶47 2019), rev’d, 47 NJPER 491 (¶116 App. Div. 2021) discussed by the parties is legally supportive of our holding but factually distinguishable. In that case, the Appellate Division found that the employee’s transfer from his University Hospital (UH) security post was not predominately disciplinary because there was no evidence that he engaged in any misconduct or that Rutgers asserted any misconduct. Rutgers, 47 NJPER at 493-494. Here, by contrast, the record clearly shows there were formal allegations of misconduct that Rutgers investigated and that ultimately resulted in the grievant being disciplined with an unpaid suspension in Spring 2021. Moreover, the court found that the employee was transferred for operational reasons because UH requested that he no longer be assigned there as a security officer and “Rutgers was contractually obligated to provide UH with the security services UH requested.” Id. at 494. Here there was no separate entity involved that requested the grievant’s reassignments; Rutgers imposed discipline on the grievant for his alleged misconduct and Rutgers subsequently reassigned him upon his return from the suspension. Unlike in Rutgers, in this case Rutgers has neither cited nor demonstrated any particularized operational or educational policy reason for its decision to reassign the grievant. Thus, the facts in this case meet the Commission’s “predominantly disciplinary standard” that the court in Rutgers recognized as “the appropriate benchmark for the weighing and balancing of the competing interests at play where it is alleged a transfer constitutes an act of discipline.” Rutgers, 47 NJPER at 493. ¶

OrderORDER ¶

The request of Rutgers, the State University of New Jersey, for a restraint of binding grievance arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Ford and Papero voted in favor of this decision. None opposed. Commissioner Voos recused herself. ¶

ISSUED: November 22, 2022 ¶

Trenton, New Jersey ¶

Note1/ On November 24, 2020, the AAUP filed a grievance contesting the grievant’s Spring 2021 unpaid suspension. Arbitration of that grievance has been held in abeyance pending a determination in this scope of negotiations matter and if the grievance underlying this matter is found to be arbitrable, the parties have agreed to consolidate the grievances for arbitration. ¶