P.E.R.C. No. 2025-38, 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 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, BIOMEDICAL AND HEALTH SCIENCES OF NEW JERSEY, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the AAUP’s request for review of the Director of Representation’s decision on its clarification of unit petition seeking to include certain Rutgers employees in a collective negotiations unit of biomedical health sciences faculty represented by the AAUP. The Commission grants the request for review because it raises a substantial question of law concerning application of the Act’s supervisory exemption. The Commission finds that the record does not support Rutgers’ assertion that the five remaining disputed employees are statutory supervisors because their level of involvement in the evaluation process does not rise to the level of effectively recommending personnel actions for other AAUP unit employees. The Commission modifies the Director’s decision to include the five remaining disputed employees in the AAUP unit. ¶

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 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 January 29, 2025, the American Association of University Professors, Biomedical and Health Sciences of New Jersey (AAUP) filed a request for review of the Director of Representation’s clarification of unit decision in D.R. No. 2025-3, 51 NJPER 203 (¶51 2024). That decision followed the Commission’s decision in Rutgers University, P.E.R.C. No. 2024-1, 50 NJPER 119 (¶30 2023), which had granted the AAUP’s request for review of the Director’s initial dismissal of the petition, and remanded the case to the Director to resume his investigation of the remaining disputed petitioned-for employees. On remand, following additional submissions by Rutgers, the State University of New Jersey (Rutgers) concerning the remaining disputed employees, as well as the parties’ mutual resolution of unit placement for several employees, 16 disputed petitioned-for employees remained by the time of the Director’s decision in D.R. No. 2025-3. In D.R. No. 2025-3, the Director clarified the AAUP’s unit to include four (4) and exclude twelve (12) of the remaining petitioned-for employees based on supervisory conflicts of interest asserted by Rutgers in its opposition to the AAUP’s petition. ¶

Facts and Procedural History ¶

A more detailed factual background and procedural history can be found in D.R. No. 2025-3 and P.E.R.C. No. 2024-1. We summarize the pertinent procedural history and facts as follows. ¶

The AAUP BHSNJ unit represents all full-time and part-time (50% or more) teaching and/or research legacy UMDNJ faculty and librarians employed by Rutgers in legacy UMDNJ positions. Rutgers and AAUP are parties to a collective negotiations agreement (CNA) extending from July 1, 2022 through June 30, 2026. On December 4, 2019, the AAUP filed a clarification of unit petition (CU petition) asserting that the petitioned-for employees perform unit work pursuant to the Workplace Democracy Enhancement Act (WDEA) and are not supervisors but that Rutgers improperly excluded them based on alleged supervisory status. ¶

The CU Petition listed 173 petitioned-for employees for unit inclusion. During the pendency of the clarification of unit investigation, the parties engaged in settlement discussions and successfully resolved the status of many employees, reducing the number of contested employees to 85. Following the Director’s March 15, 2023 procedural dismissal of the AAUP’s CU petition (D.R. No. 2023-13, 49 NJPER 424 (¶104 2023)), the AAUP filed a request for review with the Commission on March 28, 2023. On August 24, 2023, the Commission granted the request for review and remanded the petition for the Director to determine whether the remaining disputed employees should be included in the unit or excluded based on supervisory status. P.E.R.C. No. 2024-1. ¶

On August 31, 2023, as directed by the Commission in P.E.R.C. No. 2024-1, the Commission Staff Agent shared with the AAUP Rutgers’ June 6, 2022 submission concerning the disputed employees, which had previously not been provided to the AAUP. Rutgers supplemented that submission on October 2, 2023. The parties provided additional responses and submissions, which further reduced the number of disputed employees. By August 2, 2024, Rutgers indicated to the Staff Agent that the AAUP wanted a clarification of unit determination on the 17 remaining disputed employees. On August 9, Rutgers requested permission to submit additional information concerning the remaining disputed employees, which the AAUP opposed.1/ Rutgers was granted permission to make additional submissions, which it did by August 30. Rutgers’ submission included certifications and exhibits from different department chairs concerning the duties performed by the petitioned-for employees.2/ The AAUP’s September 13 response agreed to exclude one additional employee and continued to seek the inclusion of the remaining 16 disputed employees. ¶

On December 18, 2024, the Director issued D.R. No. 2025-3, in which he clarified the AAUP’s unit to include four (4) and exclude twelve (12) of the remaining disputed petitioned-for employees based on supervisory conflicts of interest.3/ On January 29, 2025, the AAUP filed a request for review of D.R. No. 2025-3 with the Commission. On February 21, Rutgers filed its opposition to the AAUP’s request for review. ¶

The AAUP’s request for review challenges five of the Director’s twelve exclusion determinations. Specifically, the AAUP asserts that the following petitioned-for employees/titles were improperly excluded from the unit: ¶

1. Dr. Laura Byham-Gray, Vice Chair of Research, Nutritional Sciences, School of Health Professions; ¶

2. Dr. Carla Falcon, Director of Pre-Doctoral Endodontics Program, Rutgers School of Dental Medicine (RSDM); ¶

3. Dr. Paul Falcon, Director of Advanced Specialty Education Program, RSDM; ¶

4. Dr. Salvatore Napoli, Director of Pre-Doctoral Program, RSDM; and ¶

5. Dr. Howard Drew, Director of Implantology and Vice Chair of the Department of Periodontics, RSDM. ¶

Dr. Byham-Gray is the Vice Chair of Research in the Department of Nutritional Sciences. She reports to Department Chair Jane Ziegler, who reports to the Dean of the School of Health Professions (SHP). Ziegler certifies that, during the 2023-24 academic year, Byham-Gray regularly provided her with “feedback” regarding faculty in the Nutritional Sciences Department, which Ziegler relied on in writing their performance evaluations. Ziegler certifies: “Although Dr. Byham-Gray did not sign the evaluations of these faculty, I could not have completed their evaluations without her review of their performance in each of the areas of the evaluation.” While conceding that nobody had been disciplined in the department in the past year, Ziegler certifies that she would, if needed, rely on Dr. Byham-Gray to effectively recommend discipline. Ziegler certifies that Dr. Byham-Gray is involved in departmental budgeting with her, which includes budgets for faculty salaries. ¶

Dr. Carla Falcon is the Director of the Pre-Doctoral Endodontics Program at RSDM. She reports to Chair Hirschberg. Chair Hirschberg certifies that, during the 2023-24 academic year, Falcon regularly provided him with “feedback” regarding faculty in the Pre-Doctoral Endodontics, which Hirschberg relied on in writing their performance evaluations. Hirschberg certifies: “Although Dr. Carla Falcon did not sign the evaluations of these faculty, I could not have completed their evaluations without her review of their performance in each of the areas of the evaluation.” While conceding that nobody had been disciplined in the department in the past year, Hirschberg certifies that he would, if needed, rely on Dr. Falcon to effectively recommend discipline. ¶

Dr. Paul Falcon is the Director of the Advanced Specialty Education Program at RSDM. He reports to Chair Hirschberg. Hirschberg certifies that, during the 2023-24 academic year, Falcon regularly provided him with “feedback” regarding post- graduate faculty, which Hirschberg relied on in writing their performance evaluations. Hirschberg certifies: “Although Dr. Paul Falcon did not sign the evaluations of these faculty, I could not have completed their evaluations without his review of their performance in each of the areas of the evaluation.” Although nobody had been disciplined in the department in the past year, Hirschberg certifies that he would, if needed, rely on Dr. Falcon to effectively recommend discipline. ¶

Dr. Salvatore Napoli is the Director of the Pre-Doctoral Program at RSDM. Dr. Napoli reports to Chair Ziccardi. Ziccardi certifies that, during the 2023-24 academic year, Dr. Napoli regularly provided him with “feedback” regarding the faculty in the Pre-Doctoral Program, which Ziccardi relied on in writing their performance evaluations. Ziccardi certifies: “Although Dr. Napoli did not sign the evaluations of these faculty, I could not have completed their evaluations without his review of their performance in each of the areas of the evaluation.” While conceding that nobody had been disciplined in the department in the past year, Ziccardi certifies that he would, if needed, rely on Dr. Napoli to effectively recommend discipline. ¶

Dr. Howard Drew is the Director of Implantology and Vice Chair of the Department of Periodontics at RSDM. Dr. Drew reports to Chair Sullivan. Sullivan certifies that Dr. Drew performs the evaluation for Dr. Pascuzzi, a non-unit faculty administrator who supervises other faculty. Exhibits A and A(1) of Dr. Sullivan’s January 29, 2024 certification assert that Dr. Drew performs supervisory duties, but they were not supported by a certification based solely upon personal knowledge.4/ Exhibit A asserts that Dr. Drew evaluates the Director of Undergraduate Periodontics (Dr. Pascuzzi), who the AAUP agreed to exclude from the unit. The “Goal Plan Assessments” submitted with Sullivan’s January 2024 and August 2024 certifications list Dr. Drew as Pascuzzi’s “Manager” and Dr. Sullivan as his “Next Level Manager” and indicate Dr. Drew’s approvals of multiple Goal Plans for Pascuzzi from 2020 to 2024. Dr. Sullivan certifies that the Goal Plans submitted with his certification are the evaluations for Dr. Pascuzzi. As for Implantology and Periodontics faculty, Exhibit A to Sullivan’s January 2024 certification states that Dr. Drew “provides input into the evaluations” and their evaluations are “reliant on” his input. ¶

Rutgers’ Vice Chancellor for Academic Affairs, Meredith Mullane, certifies that faculty performance evaluations directly impact certain salary adjustments. (Mullane Supp. Cert. ¶10). The CNA’s Compensation Article (Exhibit C to Mullane’s Supplemental Certification) indicates that merit salary increases are based on achieving certain ratings on overall performance evaluations. The Compensation Article indicates that the Chair completes performance evaluations after receiving evaluation materials from the faculty members. ¶

Arguments ¶

The AAUP asserts that review is warranted because the Director accurately reported the relevant case law but misapplied it to the record when he determined that the remaining disputed employees are statutory supervisors. The AAUP argues that the Director erroneously found that employees who merely provide input and feedback that their supervisors use in evaluations are themselves supervisors. The AAUP contends that the record does not support that Byham-Gray, Carla Falcon, Paul Falcon, Napoli, or Drew have the authority to hire, discharge, discipline or to effectively recommend the same. The AAUP asserts that Rutgers did not demonstrate how the Goal Plan that Dr. Drew approved of for one non-unit employee was connected to the evaluation process or terms and conditions of employment. ¶

Rutgers asserts that review should be denied because the Director properly excluded the five remaining disputed employees from the AAUP unit. Rutgers argues that employees are not automatically precluded from being considered statutory supervisors just because they are not the final authority on evaluations or decisions related to employment status. Rutgers contends that the department chairs rely on the petitioned-for employees’ feedback when making their employee evaluations. Rutgers contends that Dr. Byham-Gray’s involvement in departmental budget planning also makes her a statutory supervisor. Rutgers asserts that Dr. Drew is a supervisor as demonstrated by his completion of Dr. Pascuzzi’s annual evaluation, which for non-unit faculty is the Goal Plan. ¶

Standard of Review ¶

Pursuant to N.J.A.C. 19:11-8.2(a), “a request for review will be granted only for one or more of these compelling reasons:” ¶

1. A substantial question of law is raised concerning the interpretation or administration of the Act or these rules; ¶

2. The Director of Representation’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of the party seeking review; ¶

3. The conduct of the hearing or any ruling made in connection with the proceeding may have resulted in prejudicial error; and/or ¶

4. An important Commission rule or policy should be reconsidered. ¶

For the reasons discussed below, we grant the AAUP’s request for review because a substantial question of law has been raised concerning the interpretation or administration of the Act and the rules concerning statutory exclusions to representation. ¶

Analysis ¶

Clarification of Unit Proceedings and Standards ¶

The Commission determines the appropriate collective negotiations unit when questions concerning representation of public employees arise. N.J.S.A. 34:13A-6(d). Historically, “clarification of unit proceedings were generally limited to resolving questions regarding the inclusion or exclusion of employees from a unit based on the existing unit definition in a Certification of Representative or the fairly attributable mutual intent of the parties reflected in their conduct and understanding as set forth in a recognition provision of a CNA, and based on the applicability of statutory provisions of the Act that might warrant exclusion.” Union Cty. Vo. Tech. Sch. Bd. of Ed., D.R. No. 2023-5, 49 NJPER 505, 506 (¶122 2022); Newark State-Operated Sch. Dist., P.E.R.C. No. 2017-16, 43 NJPER 115 (¶34 2016). Clarification of unit procedures were not generally utilized to enlarge the scope of a unit to include previously unrepresented employees except in cases of changed circumstances such as changes in an employee’s job functions, creation of a new title, or creation of a new operation. City of Jersey City (App. Div. 2021), aff’ g P.E.R.C. No. 2020-24, 46 NJPER 232 (¶54 2019); and Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). ¶

However, the “Workplace Democracy Enhancement Act,” P.L. 2018, c. 15, (WDEA), enacted May 18, 2018, created a new basis for enlargement of the negotiations unit through a clarification of unit petition, separate from the language of a recognition provision. Under the WDEA, all regular full-time and part-time employees who perform “negotiations unit work” performed by any negotiations unit employee “shall be included in the negotiations unit” regardless of job title, job classification, or the number of work hours previously required under the CNA. N.J.S.A. 34:13A-5.15. Thus, unit placement is determined by what unit work is performed, not a contractual recognition clause the parties may have previously agreed to. Rutgers University, P.E.R.C. No. 2024-1, 50 NJPER 119 (¶30 2023). The WDEA maintained the Act’s statutory exclusions from representation for managerial executives, confidential employees, elected officials, members of boards/commissions, and excluded casual employees. N.J.S.A. 34:13A-5.15(b); N.J.S.A. 34:13A-3(d). ¶

Statutory Exclusions ¶

Consistent with the Supreme Court’s declaration that the Act’s public policy favors the organization of all employees desiring collective negotiations, the Commission strictly construes asserted exclusions to an employee’s eligibility for representation by a majority representative. State of N.J. and CWA, P.E.R.C. No. 86-18, 11 NJPER 507 (¶16179 1985); State v. Professional Assn. of New Jersey Dept. of Ed., 64 N.J. 231, 253 (l974); N.J. Const. Art. I, ¶19. Thus, the party asserting a statutory exclusion to an employee’s placement in a negotiations unit bears the burden of establishing such claim. See N.J. Transit, P.E.R.C. No. 2024-18, 50 NJPER 264 (¶59 2023); Rutgers and HPAE, D.R. No. 2024-4, 50 NJPER 329 (¶79 2024); and City of Burlington, H.O. No. 2002-1, 28 NJPER 1 (¶33000 2001). ¶

Supervisory Employee Exclusion from Non-Supervisory Unit ¶

The Act defines a supervisor as an employee who has the authority to hire, discharge, discipline or to effectively recommend the same. N.J.S.A. 34:13A-5.3; Cherry Hill Tp., Dept. of Public Works, P.E.R.C. No. 30, NJPER Supp. 114 (¶30 1970). Supervisors have representation rights under the Act, but may not be represented by an employee organization that includes non-supervisory personnel. N.J.S.A. 34:13A-5.3; N.J.S.A. 34:13A-6(d); New Jersey Turnpike Auth., P.E.R.C. No. 98-28, 23 NJPER 511 (¶28249 1997). If a supervisor’s inclusion in a unit “creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisor is not present.” West Orange Bd. of Educ. v. Wilton, 57 N.J. 404, 425 (1971). A determination of supervisory status requires more than a job description or bald assertion that an employee has the power to hire, discharge, discipline, or effectively recommend the same; evidence that the authority is exercised with some degree of regularity is required. State of N.J. (Montclair State University), P.E.R.C. No. 2018-42, 44 NJPER 398 (¶111 2018). ¶

“Acting in a lead capacity, or overseeing and directing the work of other employees, without more, does not render an employee a statutory supervisor.” State of N.J. (CNJSCL, AFT), P.E.R.C. No. 2025-25, 51 NJPER 235 (¶56 2025); City of Linden, D.R. No. 2011-12, 38 NJPER 159 (¶46 2011); Hackensack Bd. of Ed., P.E.R.C. No. 85-59, 11 NJPER 21 (¶16010 1985). Additionally, “authorizing payments and performing administrative functions; and submitting reports of work completed or evaluations of others without effective recommendations for personnel actions are not duties that establish supervisory status under the Act nor a substantial conflict of interest.” Union Tp., D.R. No. 2024-2, 50 NJPER 85 (¶22 2023); Jackson Tp., D.R. No. 2020-6, 46 NJPER 133 (¶30 2019); and Academy Urban Leadership Charter High School, D.R. No. 2018-16, 44 NJPER 253 (¶72 2018). ¶

The Commission may consider how an employee’s roles in evaluations or grievance processes result in the employee deciding or effectively recommending personnel actions of other unit members and thus creating a substantial conflict of interest. Westfield Bd. of Ed., P.E.R.C. No. 88-3, 13 NJPER 635 (¶18237 1987). “Evaluations alone, however, do not necessarily create a conflict of interest sufficient to exclude the evaluator from a unit of non-supervisors.” New Jersey Turnpike Auth., P.E.R.C. No. 98-28, 23 NJPER 511 (¶28249 1997). The Commission has “consistently held that supervisor’s evaluations must be closely tied to a personnel action or disciplinary decision in order to find a Wilton conflict.” State of New Jersey (Montclair State University), D.R. No. 2018-15, 44 NJPER 244, 250 (¶70 2018), adopted P.E.R.C. No. 2018-42, supra; Atlantic Cty. Welfare Div., D.R. No. 94-2, 19 NJPER 408 (¶24179 1993) (employee who conducts evaluations of subordinates that “impact on such significant personnel matters as salary increases, promotions, and non-retention” is statutory supervisor). ¶

Furthermore, an employee’s involvement in conducting performance evaluations or recommending discipline that is subject to independent judgment or review by a higher level employee may not reach the threshold for effectively recommending hire, discharge, or discipline. State of N.J. (CNJSCL, AFT), P.E.R.C. No. 2025-25, supra; N.J. Turnpike Auth., P.E.R.C. No. 94-23, 19 NJPER 459 (¶24217 1993) (conflict of interest de minimis where there was no independent disciplinary authority and evaluations did not amount to authority to fire). An “effective recommendation” occurs when the employee’s recommendation is adopted without independent review and analysis by a higher level of authority. See Avalon Bor., P.E.R.C. No. 84-108, 10 NJPER 207 (¶15102 1984); Linden, D.R. No. 2011-12, supra (recommendations for hiring and firing employees, even if adopted, did not implicate supervisory status where they were subject to independent review); State of New Jersey (MVC), D.R. No. 2007-14, 33 NJPER 177 (¶62 2007) (no supervisory conflict for employees who investigate unit members and produce reports with disciplinary recommendations subject to further review). ¶

Applying these legal standards to the factual record, we find that Rutgers has not met its burden of demonstrating that the five remaining disputed petitioned-for employees possess and exercise the authority to hire, discharge, discipline or effectively recommend the same; therefore, they are not properly excluded from the AAUP unit as statutory supervisors. ¶

First, we note that none of the official job descriptions of these petitioned-for titles include supervisory or evaluatory duties over unit employees. Furthermore, while Rutgers’ certifications asserted that the petitioned-for employees would be relied on to effectively recommend disciplinary action, if needed, no evidence was submitted demonstrating that they had ever exercised such authority, let alone regularly. State of N.J. (Montclair State University), P.E.R.C. No. 2018-42, supra (evidence that the authority is exercised with some degree of regularity is required). More significantly, nowhere in Rutgers’ submissions is it claimed or demonstrated that these employees draft, complete, or approve of evaluations of AAUP unit employees. The precedent relied upon by Rutgers is distinguishable because it involved employees who actually drafted the evaluations of unit members. State of N.J. and IBEW, H.O. No. 2011-1, 38 NJPER 8 (¶2 2011) (Assistant Section Chiefs, while not responsible for final approval of evaluations, were supervisors because they drafted the annual written evaluations). Here, by contrast, all of these petitioned-for employees have their own supervisors who are actually responsible for conducting and approving evaluations. The fact that the supervisors responsible for evaluations rely on the feedback of these petitioned-for employees when performing their evaluations does not make these employees statutory supervisors themselves. Hanover Tp., E.D. No. 41, NJPER Supp 516 (¶132 1971) (even “serious” consideration of an opinion which is subject to independent analysis does not meet the test of “effective recommendation” ); State of New Jersey (State Police), P.E.R.C. No. 2010-13, 35 NJPER 335 (¶114 2009) (finding, contrary to hearing officer, that executive officers who directed captains and participated in management sessions where performance was evaluated did not effectively recommend personnel actions). ¶

The Commission has found that even employees who conduct evaluations are not necessarily statutory supervisors if there are independent levels of judgment from higher level employees regarding the use of those evaluations for employment status decisions such as promotion, termination, or discipline. See, e.g., New Jersey Turnpike Auth., P.E.R.C. No. 98-28, supra ( “evaluations alone” do not necessarily create conflict of interest); City of Newark, D.R. No. 2024-3, 50 NJPER 153 (¶36 2023) (completion of annual evaluations did not demonstrate statutory supervisory status where evaluations were not shown to effectively recommend personnel actions); and Jackson Tp., D.R. No. 2020-6, supra (bare authority to evaluate employees, without evidence that evaluations effectively recommended personnel actions, does not establish supervisory status). ¶

In this case, the feedback provided by the employees that may be used in evaluations produced and approved by others, is too attenuated from the employment decisions of higher level employees to show that they effectively recommend those decisions. “Recommendations for another’s evaluations which might then serve as recommendations for another’s personnel decisions are too far removed from the personnel decisions to create a conflict of interest substantial enough to remove [a] title[] from the unit.” Westfield Bd. of Ed., P.E.R.C. No. 88-3, supra; see also State of N.J. (CNJSCL, AFT), D.R. No. 2024-6, 50 NJPER 445 (¶109 2024), adopted in relevant part, P.E.R.C. No. 2025-25, supra (Managing Assistant Director II who provides feedback and assists with writing formal evaluations was not a supervisor where his supervisor conducts further review and recommendations appealable to several levels of review). ¶

Moreover, in collaborative environments such as Rutgers, where peer review is the norm, the Commission has found that evaluations and personnel recommendations made collectively mean that none of the employees have made an effective recommendation. Rutgers University, H.O. No. 99-2, 25 NJPER 377 (¶30165 1999) (when employees act collectively and make a joint recommendation, no individual employee whose status was in dispute is responsible for the hiring recommendation), adopted P.E.R.C. No. 2000-31, 25 NJPER 446 (¶30197 1999); Union Tp., D.R. No. 2024-2, 50 NJPER 85 (¶22 2023) (foreman’s participation in disciplinary and hiring committee, in which his recommendations were “heavily relied upon,” did not establish supervisory conflict of interest because concurrent independent analysis from other committee members occurred and recommendations to council came from committee). ¶

In Union County College, D.R. No. 2019-9, 45 NJPER 184 (¶49 2018), adopted, P.E.R.C. No. 2019-35, 45 NJPER 319 (¶84 2019), the Director and Commission found that academic specialists who formally observe and evaluate their peers (both unit full-time faculty and non-unit adjunct faculty) are nonetheless appropriately included in the unit because they do not independently recommend or implement personnel actions that the Dean and Vice President are responsible for. In affirming the Commission, the Appellate Division recognized that the academic specialists “served on search committees, recommended hires, and evaluated their peers.” Union Cty. College, *5 (App. Div. 2020)5/ The Appellate Division found: ¶

Although the academic specialists’ stated job duties included “using data and analytics to interview, observe, and evaluate adjunct and full-time faculty,” the College presented no particularized evidence that academic specialists had played any role in the hiring, firing, or discipline of faculty. That authority rests with the division deans and the College’s board. ¶

[ at *6.] ¶

In the instant case, where the petitioned-for employees are even less directly responsible for evaluating other faculty than in Union Cty. College, we cannot find that their role of providing feedback in the collaborative evaluation process warrants their exclusion from the unit as statutory supervisors. ¶

Rutgers’ assertion that Dr. Byham-Gray’s involvement in departmental budget planning may render her a statutory supervisor is based on an expanded application of a single Director’s case from 1987 that was not adopted by the Commission and has not once been cited by subsequent Directors or the Commission. Lawrence Tp. Bd. of Ed., D.R. No. 87-27, 13 NJPER 408 (¶18158 1987). The finding in Lawrence of supervisory status was primarily based on the changing duties of department heads such that they had become responsible for conducting observations and written evaluations of unit faculty members.6/ Dr. Byham- Gray, by contrast, is not responsible for conducting evaluations of AAUP faculty members, but only provides feedback to her department chair who writes and approves of the evaluations. Although a department’s ability to hire and promote faculty may always be constrained by its budget, involvement in budget planning does not directly implicate or convey the authority to hire, discharge, or discipline unit employees. Therefore, we do not find that Dr. Byham-Gray’s involvement in departmental budget planning makes her a statutory supervisor. ¶

Finally, we consider the unique record concerning Dr. Drew’s evaluation duties. The documentary evidence demonstrates that Dr. Drew has been responsible for conducting and approving the annual “Goal Plan” evaluations of Dr. Pascuzzi. However, Dr. Pascuzzi is not in the AAUP unit.7/ Although the AAUP disputes that it conceded that Dr. Pascuzzi is himself a statutory supervisor, the AAUP did agree to exclude him from the unit. As Dr. Pascuzzi is not in the AAUP unit, there would be no “actual or potential substantial conflict between the interests of a particular supervisor and the other included employees” if Dr. Drew were included in the AAUP unit and continued to perform the Goal Plan evaluations for non-unit faculty such as Dr. Pascuzzi. Wilton, 57 N.J. at 425. Rutgers did not provide certified facts or documentary evidence of Dr. Drew’s job duties demonstrating his authority to hire, discharge, discipline or to effectively recommend the same with regards to the AAUP unit. Similar to the other disputed employees discussed above, the assertion that Dr. Drew “provides input” into evaluations of unit employees that are prepared and approved by other higher level employees does not demonstrate that he effectively recommends personnel actions and should be excluded from the AAUP unit as a statutory supervisor. ¶

Accordingly, the factual record provided by Rutgers does not demonstrate that the five remaining disputed petitioned-for employees (Drs. Byham-Gray, Carla Falcon, Paul Falcon, Napoli, and Drew) are statutory supervisors who should be excluded from the AAUP unit. The AAUP’s unit is clarified to include them. The Director’s clarification of unit determinations in D.R. No. 2025-3 are modified to reflect the inclusion of these titles. ¶

OrderORDER ¶

The AAUP’s unit is clarified to include: ¶

1) Director, Translational Research, NJMS ¶

2) Medical Director, Division of Adolescent & Young Medicine, NJMS ¶

3) Division Chief, Critical Care, NJMS ¶

4) Assistant Dean for Pre-Dental Programs, RSDM ¶

5) Vice Chair of Research, Nutritional Sciences, School of Health Professionals ¶

6) Director of Implantology and Vice Chair of the Department of Periodontics, RSDM ¶

7) Director of the Pre-Doctoral Endodontic Program, RSDM ¶

8) Director of Advanced Specialty Program, RSDM ¶

9) Director of Pre-Doctoral Program, RSDM ¶

The AAUP’s unit is clarified to exclude: ¶

1) Assistant Dean, Pre-Clerkship Education, NJMS ¶

2) Director, Ophthalmology Residency Program and Chief of Glaucoma Division, NJMS ¶

3) Vice Chair, Pediatrics and Division Chief, Gastroenterology, NJMS ¶

4) Director, Primary Care Services at NBMC, NJMS ¶

5) Chief Medical Officer, NBMC, NJMS ¶

6) Division Chief of Spine and Clinical Vice Chair of Orthopaedics, NJMS ¶

7) Director, Nurse Anesthesia, School of Nursing ¶

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: April 24, 2025 ¶

Trenton, New Jersey ¶

Note1/ On August 9, 2024, amended on August 19, the AAUP filed a request for special permission to appeal the Director’s failure to issue a decision on this CU petition, the Director’s decision to allow Rutgers to supplement the record, and failure to issue a Complaint on a related unfair practice charge filed against Rutgers. On October 24, the Commission denied the AAUP’s request and referred the matter back to the Director for further processing. P.E.R.C. No. 2025-14, 51 NJPER 149 (¶37 2024). ¶

2/ Chairs Andrew Sullivan, Craig Hirschberg, Vincent Ziccardi, and Jane Ziegler provided certifications. Executive Vice Deans Maria Soto-Greene and Susan Salmond and Associate Dean Rhonda Smith provided updated certifications. ¶

3/ We note, and the parties agree, that the Director’s Order erroneously listed the “Assistant Dean for Pre-Dental Programs, RSDM” in the excluded employee list, as his analysis found that employee included. (D.R. at 57-59). ¶

4/ While Sullivan certifies that “Exhibit A is true and correct information related to Howard Drew,” his certification states: “The information provided herein is not based solely on my personal knowledge, but reflects the knowledge and information of Rutgers, its agents, and representatives.” Dr. Andrea West, Chief Operating Officer at RSDM, submitted a similar document not solely based on personal knowledge. ¶

5/ This decision is published in the New Jersey Public Employee Reporter at Union County College, 47 NJPER 70 (¶19 App. Div. 2020). ¶

6/ “Since 1978, the department chairpersons’ roles in observations and evaluations have grown considerably. This evolution has been marked by their increased authorship of narrative observation of teachers, participation in the screening process for hiring teachers, budget formation and decisions regarding renewal and non-renewal of teachers.” ¶

7/ Rutgers notes that the “Goal Plan” Dr. Drew completed for Dr. Pascuzzi is the annual evaluation for “non-aligned faculty” , i.e., non-unit faculty (Rutgers Brief at 18). ¶