P.E.R.C. No. 2025-29, 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-2025-009 INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 97, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies Rutgers’ request for a restraint of binding arbitration of Local 97's grievance contesting the termination of a unit employee after she allegedly failed to comply with Rutgers’ seasonal flu vaccination requirement. The Commission finds that, while Rutgers has a managerial prerogative to implement a mandatory vaccine policy that includes disciplinary sanctions for non-compliance, any discipline imposed under such policy remains arbitrable through Local 97's contractual disciplinary procedures ¶

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-2025-009 INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 97, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Rutgers, The State University of New Jersey, Associate General Counsel, David Alberts1/ ¶

For the Respondent, Mets Schiro Manetta & Milewski, LLP, attorneys (James M. Mets, of counsel) ¶

DECISION ¶

On October 29, 2024, Rutgers, the State University of New Jersey (Rutgers) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the International Brotherhood of Teamsters Local 97 (Local 97). The grievance challenges the termination of a unit employee after she allegedly failed to comply with Rutgers’ seasonal flu vaccination requirement that is applicable to certain employees. ¶

Rutgers filed a brief, exhibits, and the certifications of the Director of its Occupational Health Department, Dr. Milind Shah, its Assistant Dean for Extramural Clinics, Dr. Jill York, and its counsel, David Alberts. Local 97 filed a brief, exhibits, and the certification of its counsel, James M. Mets. These facts appear. ¶

Local 97 represents a unit of healthcare workers employed by Rutgers, including practical nurses, clerical staff, healthcare services staff, and operations, maintenance and service staff. Rutgers and Local 97 are parties to a collective negotiations agreement (CNA) in effect from July 1, 2018 through June 30, 2022. The grievance procedure ends in binding arbitration. ¶

The grievant was employed as a secretary in Rutgers’ John H. Cronin Dental Center. Dr. Shah certifies that all employees who work at the Cronin Dental Center are considered “covered individuals” under Rutgers’ Immunization Policy for Covered Individuals (Vaccine Policy). Dr. Shah certifies that Rutgers’ Vaccine Policy requires that certain employees obtain vaccinations against particularized diseases. He certifies that the Vaccine Policy is designed to enhance the safety of Rutgers’ healthcare patients, visitors, students, clinical faculty, and clinical staff, and to promote the public health by protecting these individuals from exposure to certain communicable diseases. Dr. Shah is a member of the Rutgers Immunization Group and Immunization Exemption Review Committee, which administers the Vaccine Policy and makes decisions on exemption requests. ¶

The Vaccine Policy provides, among other things, that all covered individuals must receive a Seasonal Influenza vaccine unless they receive a medical or religious exemption. The Policy provides the following regarding religious exemptions: ¶

1. Covered Individuals may be eligible for a religious exemption in accordance with applicable law and on a case-by-case basis. Any Covered Individual requesting a religious exemption must complete and submit an online Request for Religious Exemption From Vaccination Form, located in the Rutgers Vaccination Portal. The completed request must be submitted online via the Rutgers Vaccination Portal by November 1 of the current Flu Season and/or by the date(s) specified by the Executive Vice President for Health Affairs for other Communicable Infectious Diseases. If the Executive Vice President for Health Affairs specifies additional Communicable Infectious Diseases for which Covered Individuals must be immunized, the Executive Vice President for Health Affairs will specify how exemption requests can be submitted. ¶

On January 18, 2023, Rutgers issued a counseling notice to the grievant reminding her that she is a covered individual under the Vaccine Policy and that she is noncompliant because she had not yet submitted documentation of either her influenza vaccination or of Rutgers-approved exemptions.2/ The notice advised the grievant that noncompliance with the Vaccine Policy would result in discipline, up to and including termination. In response to the notice, the grievant applied for a religious exemption to the vaccine requirement. On March 31, 2023, Rutgers notified the grievant that because the flu season had already ended before it could review her exemption request, she was no longer required to receive her influenza vaccine. However, Rutgers stated that, for the next flu season, she would be required to get the vaccine or an approved exemption. ¶

On October 18, 2023, the grievant applied for a religious exemption from the Vaccine Policy’s requirements based on her assertion that her Catholic faith leads her to decline certain vaccines. On December 13, the Rutgers Immunization Group notified the grievant that it had declined her request for a religious exemption from the influenza vaccine. The letter stated that the grievant would have seven days to get vaccinated and submit documentation thereof. The letter advised that failure to vaccinate within seven days “may result in disciplinary action, up to and including termination.” The grievant responded on December 13 inquiring about how Rutgers made its exemption denial decision and who made the decision. The Rutgers Immunization Group responded that her request was reviewed “by a committee comprised of professionals and subject matter experts from Rutgers” and that it would not provide the names of its members. It advised that her exemption request was found to be insufficient and that all decisions are final. ¶

On January 2, 2024, Rutgers issued a counseling notice to the grievant reminding her that she is noncompliant with the Vaccine Policy because she had not provided documentation of influenza vaccination or received a Rutgers-approved exemption. The notice advised that failure to comply with the Policy would result in “disciplinary action, up to and including termination.” On January 25, Rutgers issued the grievant a pre-termination notice advising that it was “considering the termination” of her employment. The notice scheduled a pre-termination conference for January 31 to provide the grievant an opportunity to respond. ¶

Dr. York certifies that she attended the grievant’s January 31, 2024 pre-termination conference during which Rutgers sought to terminate the grievant for noncompliance with the Vaccine Policy. She certifies that the grievant questioned why her request for a religious exemption was denied and provided documentation to support her assertion that the flu vaccine requirement did not apply to her position prior to hiring. ¶

On March 1, 2024, Rutgers issued the grievant a termination notice, effective that day, for her failure to comply with the Vaccine Policy by not getting her influenza vaccination or obtaining an approved exemption. On March 1, Local 97 filed a grievance contesting the grievant’s termination. On May 1, Local 97 submitted a request for binding arbitration of the disciplinary grievance. This petition ensued.3/ ¶

The Commission’s inquiry on a scope of negotiations petition is quite narrow. We are addressing a single issue in the abstract: whether the subject matter in dispute is within the scope of collective negotiations. The merits of the union's claimed violation of the agreement, as well as the employer's contractual defenses, are not in issue, because those are matters for the arbitrator to decide if the Commission determines that the question is one that may be arbitrated. 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). ¶

Rutgers asserts that arbitration must be restrained because it has a managerial prerogative to implement vaccine mandate policies for the health and safety of employees and the public. Citing City of Newark, 469 N.J. Super. 366 (App. Div. 2021), Rutgers argues that requiring it to arbitrate over discipline imposed against employees who fail to comply with its Vaccine Policy would undercut the effectiveness of the policy. Rutgers contends that the Commission has found that unions cannot arbitrate over denials of religious exemptions to vaccine mandates. Rutgers asserts that Local 97 therefore may not arbitrate over the grievant’s termination that resulted from violating the Vaccine Policy. ¶

Local 97 asserts that arbitration should not be restrained because the grievance does not challenge Rutgers’ Vaccine Policy but is limited to contesting the grievant’s termination as without “just cause” pursuant to the parties’ negotiated disciplinary and grievance procedures. Local 97 therefore contends that the City of Newark decision and the related Commission decisions cited by Rutgers are irrelevant and distinguishable. Local 97 asserts that none of those cases involved the appeal of discipline under contractual disciplinary procedures, but that they did acknowledge the right to appeal discipline for noncompliance with vaccine policies under the alternate statutory appeal processes applicable to the police officers and firefighters involved in those cases. Local 97 argues that, as with any other employer policy, Rutgers’ managerial prerogative to implement the policy is separate from an employee’s right to challenge the discipline resulting from alleged violation of the policy. ¶

Pursuant to N.J.S.A. 34:l3A-5.3 of the New Jersey Employer- Employee Relations Act (Act), disciplinary review procedures are mandatorily negotiable and binding arbitration may be used as a means for resolving a dispute over a disciplinary determination. New Jersey Turnpike Authority v. New Jersey Turnpike Supervisors’ Association, 143 N.J. 185 (1986) (employer’s statutory obligation to adopt and implement policies prohibiting sexual harassment does not preempt employee’s right to appeal discipline for violating such policies via grievance arbitration); Monmouth Cty. v. CWA, 300 N.J. Super. 272 (App. Div. 1997). ¶

Here, Local 97 does not seek to challenge Rutgers’ managerial prerogative to implement a vaccination mandate. See City of Newark, 469 N.J. Super. 366, supra (negotiations over the implementation and enforcement of the City’s COVID-19 vaccination mandate would significantly interfere with its policymaking powers aimed at protecting the health and safety of its employees and the public). Rather, Local 97's grievance seeks arbitral review to determine whether Rutgers had just cause for terminating the grievant based on her alleged noncompliance with its Vaccine Policy, specifically its influenza requirement. ¶

Rutgers relies on Newark for its contention that its managerial prerogative to implement a vaccination policy overrides the grievant’s statutory right under the Act to challenge a disciplinary sanction through the parties’ negotiated grievance procedure. The circumstances in Newark were unique to the COVID-19 pandemic, which presented an urgent and emergent need for the City to swiftly impose a COVID-19 vaccination policy without negotiating over enforcement procedures. In Newark, the Appellate Division held that “[i]n the context of a public health emergency, negotiating procedures for the implementation of a COVID-19 vaccination mandate, or the enforcement or timing of the mandate, would interfere with the managerial prerogative” to implement the vaccine mandate. 469 N.J. Super. at 385. The Appellate Division emphasized: ¶

COVID-19 has created an immediate and ongoing public health emergency that requires swift action to protect not only the City's employees, but the public they are hired to serve. Tens of thousands of people are sickened each day in our country. Hundreds are dying each day. Delaying, even on a temporary basis, the timelines for implementing the vaccination mandate undercuts the effectiveness of the mandate. ¶

[Newark at 385.] ¶

The flu vaccine requirement at issue here is not analogous to the unprecedented COVID-19 public health emergency in Newark that prompted the court to allow the City wide latitude to swiftly implement a COVID-19 vaccination mandate. ¶

Furthermore, even under the extreme circumstances in Newark, the court did not at any point state that employees who are disciplined pursuant to the City’s COVID-19 vaccination mandate are bereft of their ordinary statutory and contractual disciplinary review procedures. Regarding negotiations over the policy’s inclusion of a disciplinary penalty, the court stated: ¶

Similarly, requiring the City to negotiate over disciplining City employees who fail to comply with the mandate would undercut the effectiveness of the mandate. The City, as a public employer, has the prerogative to determine the basis for discipline. In re Newark, P.E.R.C. No. 2019-21, 45 N.J.P.E.R. ¶55, 2018 WL 7106593. ¶

[Newark at 386.] ¶

Here, the court was addressing the employer’s ability to create a vaccination policy that includes discipline for violation thereof; not whether the employer could prevent employees from exercising their rights to appeal such discipline via their contractual grievance procedures. ¶

Indeed, the court reiterated Commission precedent stating that a public employer “has the prerogative to determine the basis for discipline.” Newark at 386, citing City of Newark, P.E.R.C. No. 2019-21, 45 NJPER 211 (¶55 2018). In that case, the Commission found that, although a public employer generally “has a prerogative to determine the basis for discipline, i.e. what transgressions by employees warrant the imposition of discipline[,]” the City violated the Act by unilaterally adding a new reimbursement obligation for damage to police cars. 45 NJPER at 212. Moreover, the Commission specifically noted: “Sanctions can be challenged through the negotiated grievance procedure or statutory disciplinary procedures. The ability to contest disciplinary penalties is not at issue here.” Id. at 213. The Newark court’s discussion of P.E.R.C. No. 2019-21 therefore clearly indicates its understanding that, while the City had the prerogative to decide that violation of the COVID-19 vaccine mandate would be a basis for discipline, such discipline, once imposed, would still be subject to challenge through the regular statutory or contractual disciplinary procedures. ¶

Rutgers’ reliance on Maplewood Tp., P.E.R.C. No. 2023-12, 49 NJPER 241 (¶54 2022), is also misplaced. In Maplewood, the Commission found that the grievant, who was placed on unpaid leave for violating the COVID-19 vaccination policy, could not arbitrate over the denial of his religious exemption request because such claims based on alleged invidious discrimination must be adjudicated in the proper forum such as the U.S. Equal Employment Opportunity Commission (EEOC), the New Jersey Division on Civil Rights (DCR), or the courts. See Teaneck Bd. of Ed. v. Teaneck Teachers Ass’n, 94 N.J. 9, 14-18 (1983); Jersey City Educ. Assn v. Jersey City Bd. of Educ., 218 N.J. Super. 177, 187- 188 (1987); and Monroe Tp., P.E.R.C. No. 2021-24, 47 NJPER 321 (¶75 2021) (promotional decision based on religious discrimination not arbitrable).4/ ¶

More significantly, the Maplewood decision specifically found that, to the extent the unpaid leave imposed for noncompliance with the vaccine mandate was disciplinary, the grievant maintained his regular statutory disciplinary appeal procedures. 49 NJPER at 244. As a police officer, the grievant in Maplewood could not arbitrate over major discipline, but could utilize his alternate statutory appeal as a non-Civil Service police officer “to challenge the imposition of major discipline pursuant to N.J.S.A. 40A:14-147 through -151 (internal hearing process followed by Superior Court review) or N.J.S.A. 40A:14-209 through -210 (special disciplinary arbitration).” Ibid. The Commission held: “Accordingly, if the PBA sought to challenge the imposition of the unpaid leave of absence as an alleged major disciplinary suspension, it would have needed to pursue its claim through one of its statutory review procedures.” Ibid.; see also Maplewood Tp., P.E.R.C. No. 2023-8, 49 NJPER 183 (¶43 2022) (non- Civil Service firefighter could challenge disciplinary suspension for violating COVID-19 vaccine mandate through applicable statutory appeal procedures). ¶

Here, unlike in Maplewood, the grievant is not a police officer or firefighter and is not subject to alternate statutory appeal procedures; therefore, the parties’ negotiated grievance and disciplinary review procedures are applicable to this disciplinary grievance. See N.J.S.A. 34:l3A-5.3; New Jersey Turnpike Authority, 143 N.J. 185, supra. Consistent with City of Newark and Maplewood, Rutgers’ managerial prerogative to implement a Vaccine Policy and require certain vaccinations, as well as to determine that noncompliance may result in discipline, does not abrogate the grievant’s rights, pursuant to the Act and the parties’ CNA, to seek review of her disciplinary termination before a neutral arbitrator. Based on the foregoing, we find that Local 97's grievance is legally arbitrable. ¶

OrderORDER ¶

The request of Rutgers University for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: February 27, 2025 ¶

Trenton, New Jersey ¶

Note1/ At the time the Petitioner drafted its initial brief on November 27, 2024, Mr. Alberts was with the law firm of McElroy Deutsch Mulvaney & Carpenter, LLP. ¶

2/ We note that the January 18, 2023 counseling notice was submitted by Rutgers as Exhibit D but was also included as Exhibit I. Although Rutgers’ counsel certified that Exhibit I “is a true and correct copy of a January 18, 2024 counseling notice issued to [the grievant],” the document date is January 18, 2023 and it is identical to the 2023 counseling notice submitted as Exhibit D. Rutgers’ Exhibit B, the March 1, 2024 termination letter, confirms that in 2024 there were counseling notices of January 2 (Exhibit H) and January 25 (Exhibit J), but not January 18. ¶

3/ The assigned arbitrator adjourned the arbitration hearing pending resolution of this scope of negotiations petition. ¶

4/ In Rockaway Valley Regional Sewerage Authority, P.E.R.C. No. 2023-11, 49 NJPER 236 (¶53 2022), raised by Rutgers, the Commission likewise held that the denial of the grievant’s religious exemption request from the COVID-19 vaccine was a discrimination claim for another forum. ¶