P.E.R.C. No. 2025-14, 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, Public Employer, -and- Docket No. CU-2020-005 and CO-2021-132 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, BIOMEDICAL AND HEALTH SCIENCES OF NEW JERSEY, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Association’s request for special permission to appeal the Director of Unfair Practices not issuing a decision on a clarification of unit petition and not issuing a complaint on an unfair practice charge. The Commission finds that the Association’s request does not comply with the rule regarding special permission to appeal, N.J.A.C. 19:14-4.6(b), because the Director’s alleged failure to issue a decision does not constitute a written ruling or statement of oral ruling subject to a special permission to appeal. The Commission further finds that the Director’s decision to reopen the record in the clarification of unit petition, after having previously closed it, falls within the Director’s discretion. Lastly, the Commission finds there has not been an unwarranted delay in the issuance of a decision on the clarification of unit petition as the representational status for the majority of disputed employees has been resolved. ¶

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, Public Employer, -and- Docket No. CU-2020-005 and CO-2021-132 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, BIOMEDICAL AND HEALTH SCIENCES OF NEW JERSEY, Petitioner. ¶

AppearancesAppearances: ¶

For the Public Employer, Farrah Gold Henry, Associate Vice President and Deputy General Counsel ¶

For the Petitioner, Weissman & Mintz LLC, attorneys (Ira W. Mintz, of counsel) ¶

DECISION ¶

On August 9, 2024, the American Association of University Professors, Biomedical and Health Sciences of New Jersey (Association) filed a request for special permission to appeal, pursuant to N.J.A.C. 19:14-4.6, which it later amended on August 19, 2024. The Association seeks permission to appeal the Director of Unfair Practices and Representation’s (Director) failure to issue a decision on a clarification of unit petition (CU Petition), Docket No. CU-2020-005, and to issue a Complaint on an unfair practice charge (UPC), Docket No. CO-2021-132, filed against Rutgers, the State University of New Jersey (Rutgers). The Association filed letter briefs, and Rutgers filed a responsive letter briefs with exhibits.1/ The following facts are pertinent to our analysis. ¶

On December 4, 2019, the Association filed a clarification of unit petition (CU-2020-005) seeking to include into the Association’s negotiations unit 173 employees that it claimed had been wrongly excluded from the unit. On December 29, 2020, the Association filed a UPC (CO-2021-132) that addressed issues overlapping with the CU petition. ¶

On August 3, 2020, a Commission staff agent sent the parties a letter containing a series of questions about the petitioned- for titles. The letter also stated, “all facts must be presented in certification(s) or sworn affidavit(s) from individuals with personal knowledge of the facts attested to, and include attached exhibits and sample work performed, where applicable.” The letter further stated that failure to provide competent evidence in support of a claim may result in dismissal of the petition or rejection of a position taken in opposition to the petition. Responses were originally due on October 1, but after two extension requests from Rutgers, the final due date was December 10. ¶

On December 10, 2020, Rutgers submitted a letter and an affidavit from its Vice Chancellor for Academic Affairs. Rutgers asserted that many of the petitioned-for titles were supervisory and/or confidential, and that they are specifically excluded pursuant to the Recognition clause of the parties’ collective negotiations agreement (CNA). Also on December 10, counsel for the Association submitted a letter, unaccompanied by any certifications or affidavits, that did not respond to any question in the August 3 letter. The Association asserted it was unaware of what duties the petitioned-for employees were performing, and did not have access to such information. ¶

On December 11, 2020, the Staff Agent informed the parties that the submissions did not provide enough information for the Director to make a determination regarding the petitioned-for titles, and instructed both parties to meet and confer about each title to narrow down the list of titles in dispute. Over the following year, the parties continued discussions and further narrowed down the list of petitioned-for employees, which resulted in resolving the representational status of 88 members involved in the CU petition. On December 15, 2021, the Association e-mailed the Staff Agent to request that the agency resolve the dispute over supervisory exclusions and that Rutgers provide evidence of supervisory status. On January 18, 2022, the Staff Agent scheduled a February 10 telephone conference with the parties. ¶

On February 14, 2022, the Staff Agent sent the parties an updated clarification of unit investigation letter. The letter again requested that facts be presented in certification or sworn affidavit and that they “include attached exhibits and sample work performed, where applicable.” Following several extension requests by Rutgers, the parties’ responses to the Staff Agent’s February 14 investigatory letter were due by June 6. On June 6, Rutgers responded to the February 14 letter, along with a certification and exhibits. Rutgers’ certifications provided a detailed explanation of the job duties performed by the petitioned-for employees. Rutgers’ response also asserted that several of the petitioned-for employees are confidential or managerial executives under the Act and should therefore be excluded from the unit. The Association did not respond to the February 14 letter. The February 14 letter did not require the parties to serve each other with their responses. As such, Rutgers did not serve a copy of its June 6 response on the Association. ¶

On September 30, 2022, the Staff Agent e-mailed the parties regarding possible settlement of the CU petition. On December 8, the Association e-mailed the Staff Agent and Rutgers informing them that it did not accept the settlement proposal and requesting that a clarification of unit decision be issued. On March 15, 2023, the Director issued his decision in D.R. No. 2023-13 dismissing the CU petition. On March 22, the Association filed a request for reconsideration with the Director, which he denied on March 24. On March 28, the Association filed a request for review with the Commission. On August 24, the Commission granted the Association’s request for review, directing Rutgers provide the Association with its June 6 submission and remanding the CU petition to Director for further proceedings. On August 31, the Staff Agent shared Rutgers’ June 6 submission and gave Rutgers until October 2 to supplement its submission, which it did. On November 3, the Association filed its response. As a result of those submissions, the representational status of additional employees were resolved. On November 22, Rutgers requested until January 15, 2024 to respond to the Association’s prior submission, which the Staff Agent granted. That same day, the Association requested that the record be closed and that a decision issue on the CU petition. ¶

On January 29, 2024, Rutgers responded to the Association’s November 3, 2023 submission. On March 8, 2024, the Association filed its response to Rutgers’ submission, requesting that the remaining 22 employees at issue be included in the negotiations unit and that a Complaint issue in the UPC. As a result of those submissions, the representational status of additional employees were resolved. On March 11, the Staff Agent indicated that the record was closed on the CU petition and that there would be no more submissions. On March 27, the Director indicated that a determination needed to be made on the CU petition before determining whether a Complaint would issue in the UPC. That same day, the Association objected to the Director’s statement, asserting that the UPC covers more issues than the CU petition. On May 21, the Association wrote to the Commission Chair, objecting to the Director’s position that the a determination needed to be made on the CU petition before determining whether a Complaint would issue on the UPC. The Chair referred the Association’s letter to the Director for resolution. ¶

On August 9, 2024, Rutgers requested that it be allowed to submit additional information regarding the 17 remaining employees at issue in the CU petition because the information was not available at the time of its January 2024 submission. The Association objected to this request on August 12. On August 16, the Director granted Rutgers’ request to submit the new information regarding the 17 disputed employees by August 30. The Association filed the instant special permission to appeal on August 9, and amended it on August 19. ¶

The Association asserts that CU petition was filed more than four years ago and the Staff Agent closed the record on March 11, 2024, approximately five months ago. As such, the Association argues a decision should have been issued regarding the 17 disputed employees remaining in the CU Petition and a Complaint should have issued in the UPC, as it contains issues not addressed by the CU petition. The Association requests that its special permission to appeal be granted and that the Director issue a decision in the CU petition and a Complaint be issued in the UPC. ¶

Rutgers responds that the non-adversarial investigation of the CU petition has resolved the representational status of the majority of the petitioned-for employees, leaving only 17 disputed employees remaining in the CU petition. Rutgers submitted additional information to resolve the representational status of those remaining 17 employees. Rutgers argues that the Union continues to press for a decision in these matters while ignoring the extensive periods of time spent successfully resolving the representational status of the majority of employees in the dispute, as well as the Association’s own culpability in not providing supporting documentation for its positions. ¶

We deny the Association’s request for special permission to appeal. N.J.A.C. 19:14-4.6(b) provides, “A request for special permission to appeal shall be filed in writing within five days from the service of written rulings or statement of oral rulings, and shall briefly state the grounds relied on.” The Association’s request for special permission to appeal identifies the issue to be considered by the Chair as “the failure of the Director of Unfair Practices and Representation to issue a decision on a clarification of unit petition and to issue a Complaint based on an unfair practice charge.” This alleged failure does not constitute a written ruling or statement of oral ruling as contemplated by our rules, but rather, it is a non- action. ¶

To the extent the Association is requesting special permission to appeal the Director’s August 16, 2024 ruling allowing Rutgers to supplement the previously closed record with additional information to resolve the representational status of the remaining 17 employees, we find that decision falls within the Director’s discretion. Our rules provide the Director broad discretion in investigating and resolving CU petitions. N.J.A.C. 19:11-2.6(d)(7)( “Take other measures the Director of Representation deems appropriate.” ) In his August 16 letter to the parties, the Director stated, “The Commission’s goal with respect to the remaining titles in dispute is to ensure that they are properly included in, or excluded from the negotiations unit. In that regard, it is imperative that the Commission has the most relevant and up-to-date information prior to issuing a decision in order to meet such goal.” This decision is reasonable in light of the Director’s mandate to fully investigate the facts of a CU petition and to avoid further CU petitions by Rutgers to exclude employees from the negotiations unit based on the changed circumstances and the additional information. ¶

Lastly, the main crux of the Association’s special permission to appeal is that there has been unwarranted delay in the issuance of a decision on the CU petition and a Complaint in the UPC. Here, the record shows a decision on the CU petition has not been issued because the representational status of the majority of disputed employees has been resolved. The representational status of only 17 employees remain. The Association has not shown that it has been prejudiced by the parties’ continuing efforts to resolve this dispute nor by the Director’s decision to accept additional information from Rutgers. The Commission has described clarification of unit proceedings as “non-adversarial.” See, e.g., State of N.J. (OER) and CNJSCL NJSFT-AFT, AFL-CIO, P.E.R.C. No. 90-22, 15 NJPER 596 (¶20244 1989), aff’d (App. Div. 1991). As such, the continuing efforts to resolve this dispute furthers the Commission’s objective to promote labor peace and the voluntary resolution of disputes. See Irvington Bd. of Ed., H.E. No. 2002-13, 28 NJPER 210 (¶33072 2002)( “One of the fundamental objectives of the Act is to achieve labor peace, and the Commission has historically encouraged the voluntary resolution of disputes as one of the most effective ways to achieve such peace.” ) ¶

OrderORDER ¶

The Association’s request for special permission to appeal is denied and we refer the matter to the Director for further processing. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Higgins and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Kushnir recused themselves. ¶

ISSUED: October 24, 2024 ¶

Trenton, New Jersey ¶

Note1/ Neither party filed certifications in support of their briefs. Many of the facts set forth in prior related decisions in these matters are incorporated herein. See Rutgers, the State University of New Jersey, D.R. No. 2023- 13, 49 NJPER 424 (¶104 2023) and Rutgers, the State University of New Jersey, P.E.R.C. No. 2024-1, 50 NJPER 119 (¶30 2023). ¶