P.E.R.C. No. 2025-45, 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-2025-014 HEALTH PROFESSIONALS AND ALLIED EMPLOYEES, AFT, AFL/CIO, LOCAL 5094, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies Rutgers’ request for a restraint of binding arbitration of HPAE’s grievance contesting the termination of a pharmacist for being unable to perform her job duties after Rutgers ordered a return from remote to on-site work. The Commission finds that, pursuant to N.J.S.A. 34:13A-5.3, disciplinary review procedures are subject to collective negotiations and may included binding arbitration. Therefore, as the grievance challenges the disciplinary termination, and not the reassignment to on-site work, the Commission holds that it is subject to the parties’ negotiated grievance procedures, which include binding arbitration with a “just cause” standard for review of terminations. The Commission further finds that, in the event a violation is found, Rutgers retains the managerial prerogative to determine whether to offer any remote work or other placements compatible with the grievant’s disability. ¶

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-2025-014 HEALTH PROFESSIONALS AND ALLIED EMPLOYEES, AFT, AFL/CIO, LOCAL 5094, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Rutgers, The State University of New Jersey, David A. Cohen, of counsel; Julianne M. Apostolopoulos, Assistant Deputy General Counsel, on the brief; Fabian N. Marriott, Assistant General Counsel, on the brief ¶

For the Respondent, Crivelli, Barbati, & DeRose, LLC, attorneys (Lauren Sandy, of counsel) ¶

DECISION ¶

On January 14, 2025, 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 Health Professionals and Allied Employees, AFT, AFL/CIO, Local 5094 (HPAE). The grievance challenges the termination of the employment of a former pharmacist because she was unable to perform her assigned job duties. ¶

Rutgers filed briefs, exhibits, and the certifications of its Executive Director of Oncology Pharmacy Services and Research Pharmacy for Rutgers Cancer Institute of New Jersey (CINJ), Michael P. Kane; Associate Director for Accommodations, Laurel Peltzman; and Director of Rutgers Biomedical and Health Sciences Labor Relations, Abdel Kanan. HPAE filed a brief, exhibits, and the certification of its Staff Representative, Victoria Fleck. These facts appear. ¶

HPAE represents a unit of non-supervisory, full and part- time professional staff employees. Rutgers and HPAE are parties to a collective negotiations agreement (CNA) with a term of July 1, 2018 through June 30, 2022 and a Memorandum of Agreement (MOA) with a term of July 1, 2022 through June 30, 2026. The grievance procedure ends in binding arbitration. ¶

Article 14 of the CNA is entitled “Discipline.” Article 14.01, “Definition,” provides, in pertinent part: ¶

Discipline shall mean official written warning, suspension without pay, disciplinary demotion or discharge from employment at the University. . . . The University shall have the right to discipline negotiations unit employees for just cause. Just cause for discipline including discharge from employment shall include those causes set forth in the University Rules and Regulations. This list of causes is not exclusive and discipline up to and including discharge from employment may be made for any other combination of circumstances amounting to just cause. . . . [D]ischarge from employment shall be subject to arbitration as specified in the grievance procedure set forth in Article 14.02. ¶

Article 14.02 of the CNA is entitled “Grievance Procedure.” Article 14.02.E. provides that “Discharge” is a disciplinary action for which “a request for arbitration may be brought” and, as amended by the MOA, provides: “The request for arbitration shall be submitted in writing to the Public Employment Relations Commission, with a copy sent to the Vice President for University Labor Relations and Special Counsel for Labor Affairs.” ¶

The grievant was employed as a staff pharmacist by Rutgers from 2001 until the termination of her employment on April 18, 2024. The grievant’s job functions at the Rutgers Cancer Institute of New Jersey (CINJ) involved providing pharmaceutical services for patients receiving care at CINJ’s main facility, which is located at 195 Little Albany Street, New Brunswick, New Jersey 08903. Robert Wood Johnson University Hospital New Brunswick (RWJUH) (which is owned and operated by RWJ Barnabas Health (RWJBH) - an entity separate from Rutgers) is the holder of the pharmaceutical services license utilized for patient care and research conducted at the CINJ facility. ¶

Rutgers, through its healthcare affiliation agreement with RWJBH, provides staffing for, among other things, the pharmacists working at the pharmacy located within the CINJ facility. The pharmacists working at the CINJ facility are Rutgers employees who operate under the pharmaceutical licence held by RWJUH. The “pharmacist-in-charge” for the CINJ facility is a RWJUH employee, and not a Rutgers employee. ¶

Beginning in or around 2017, pharmacists working at the CINJ facility were allowed to work from home on a fully remote basis. At that time, applicable state law did not address this issue. Kane certifies that following the enactment of N.J.A.C. 13:39- 4A.21/, entitled “Remote Processing of Prescriptions by a New Jersey Pharmacy” on May 1, 2023, he asked RWJUH - the holder of the pharmaceutical services license - whether it would undertake the compliance responsibilities required by N.J.A.C. 13:39-4A.2 to permit the pharmacists working at the CINJ facility to continue to work remotely. RWJUH declined to do so. Kane notified all CINJ pharmacists that they were required to report to work on-site immediately. At the time Rutgers directed the CINJ pharmacists working remotely to return to work in-person, the grievant was on a leave of absence pursuant to a combination of Family and Medical Leave Act (FMLA) and New Jersey Family Leave Act (NJFLA) and was expected to return to work on January 22, 2024. The grievant was notified that upon her return from leave, she was to report to work on-site at the CINJ facility. ¶

On January 22, 2024, the grievant submitted a request to the Rutgers Office of Employment Equity (OEE) for a disability- related accommodation and provided it with additional medical information on January 30 and February 19. As part of Rutgers’ efforts to accommodate the grievant, OEE inquired with the grievant’s supervisor (Kane), whether RWJUH - as holder of the pharmaceutical services license utilized for patient care and research conducted at the CINJ facility - would undertake the compliance obligations necessary to permit the grievant to work remotely for disability-related reasons. RWJUH declined to consider such request. On March 4, 2024, after being unable to identify any vacant remote-only positions with Rutgers for which the grievant was qualified, the OEE denied the grievant’s request to work remotely, stating: “we are unable to grant a fully remote accommodation for your current position.” The OEE found that “the medical documentation that you have submitted does establish that you are unable to work in your assigned office location on a permanent basis” and offered reassignment to a different office as an alternative accommodation. Kane certifies that the grievant communicated with him by telephone that she was unable to work in-person at the alternative office location “due to childcare issues that were unrelated to her disability.” ¶

Kane certifies that the grievant failed to return to work on-site after Rutgers denied her accommodations request. On March 26, 2024, as a result of the grievant’s failure to return to work on-site, Rutgers issued a pre-termination notice to the grievant informing her that it would be considering the termination of her employment due to her inability to perform her staff pharmacist position on-site. The grievant’s pre- termination meeting occurred virtually on April 10. On April 18, the University issued a Staff Disciplinary Notice to the grievant terminating her employment effective the same date. ¶

On April 24, 2024, HPAE submitted a grievance alleging that the grievant had been unjustly terminated in violation of Article 14.01 of the CNA. On June 13, HPAE filed a Request for Submission of a Panel of Arbitrators with the Commission alleging that Rutgers violated the CNA when it terminated the grievant due to medical accommodations denial. This petition ensued. ¶

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 should be restrained because it has a non-negotiable managerial prerogative to assign or transfer the grievant to in-person work that cannot be challenged by claiming disability discrimination. Rutgers argues that, although HPAE’s grievance is framed as a disciplinary grievance challenging the grievant’s termination, arbitration must be restrained because the merits of the grievance concern Rutgers’ decision to assign her to in-person work. ¶

HPAE asserts that the grievance is mandatorily negotiable and arbitrable pursuant to N.J.S.A. 34:13A-5.3 because it is an appeal of a disciplinary determination. HPAE argues that the issue of whether or not Rutgers had just cause to terminate the grievant is legally arbitrable. HPAE contends that Rutgers arguments in defense of the termination all go to the merits of the grievance and are appropriate for the arbitrator. ¶

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. The Act provides, in pertinent part: ¶

Public employers shall negotiate written policies setting forth grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions, including disciplinary determinations, affecting them, provided that such grievance and disciplinary review procedures shall be included in any agreement entered into between the public employer and the representative organization. Such grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes. . . . Grievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement. . . . In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration. ¶

[N.J.S.A. 34:13A-5.3.] ¶

In New Jersey Turnpike Authority v. New Jersey Turnpike Supervisors’ Association, 143 N.J. 185 (1996), the Supreme Court held that a supervisory employee disciplined for sexual harassment maintained his right under the Act and his union’s CNA to appeal his discipline to a neutral grievance arbitrator even though the merits of the grievance concerned the State’s statutory duty to implement policies prohibiting sexual harassment. The Court held: ¶

We conclude that N.J.S.A. 34:13A-5.3 clearly provides, consistent with the expressed intention of the Legislature, that disciplinary procedures shall be subject to collective negotiations and that those procedures may include binding arbitration. See County College of Morris Staff Ass’n v. County College of Morris, 100 N.J. 383, 397, 495 A.2d 865 (1985) (recognizing that a public employer may contractually agree to abide by principles of procedural fairness, which include deferral to binding arbitration, when determining an accused employee’s guilt or innocence). ¶

[Turnpike Authority, 143 N.J. at 193-194.] ¶

In rejecting the employer’s arguments that disciplinary arbitration should be restrained because it is incompatible with the Law Against Discrimination and/or significantly interferes with its managerial prerogative to remove sexual harassment from the workplace, the Court held: “The Legislature, however, has unmistakably addressed ‘disciplinary procedures’ in the context of terms and conditions of employment, and has clearly determined that they are negotiable.” Turnpike Authority, 143 N.J. at 202. ¶

Here, HPAE’s grievance seeks arbitral review of discipline to determine whether Rutgers had just cause for terminating the grievant based on her alleged inability to continue to work as a CINJ pharmacist without returning to on-site work. The grievance does not challenge Rutgers’ general managerial prerogatives to transfer or reassign the grievant. ¶

Although not germane to the scope of negotiations dispute before us, we will briefly review the case law concerning transfers and reassignments in order to place Rutgers’ arguments in the proper context. While transfers and reassignments are generally not arbitrable, public employers may agree to arbitrate disciplinary transfers and reassignments of non-police employees. City of Plainfield, P.E.R.C. No. 2021-32, 47 NJPER 379 (¶89 2021); Rutgers University, P.E.R.C. No. 2012-14, 38 NJPER 156 (¶45 2011); and Hudson Cty., P.E.R.C. No. 87-20, 12 NJPER 742 (¶17278 1986). 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’n, 152 NJPER Supp.2d 152 (¶135 App. Div. 1985), aff’ g P.E.R.C. No. 84-133, 10 NJPER 344 (¶15158 1984). Rutgers relies on a case in which the Appellate Division disagreed with the Commission’s factual determination that a security officer’s transfer was predominately disciplinary. See Rutgers University (App. Div. 2021), rev’ g P.E.R.C. No. 2020-21, 46 NJPER 188 (¶47 2019); compare Rutgers University, P.E.R.C. No. 2023-17, 39 NJPER 269 (¶62 2022) (in contrast to P.E.R.C. No. 2020-21, the record clearly showed formal allegations of misconduct resulting in grievant’s disciplinary suspension). However, as HPAE’s grievance does not challenge the return to onsite work directive as disciplinary, Rutgers’ assertion that such reassignment was not predominately disciplinary is not in dispute and it is therefore not a relevant determination to be made in this scope of negotiations dispute. ¶

Furthermore, the cases Rutgers cites prohibiting statutory discrimination claims from being used to challenge managerial prerogatives are distinguishable. Both Rockaway Valley Regional Sewerage Authority, P.E.R.C. No. 2023-11, 49 NJPER 236 (¶53 2022) and Maplewood Tp., P.E.R.C. No. 2023-12, 49 NJPER 241 (¶54 2022) involved challenges to denials of religious exemption requests for employees seeking to avoid COVID-19 vaccinations. To the extent those cases alleged religious discrimination to challenge the managerial prerogative to implement a vaccination policy, the Commission cited Teaneck Bd. of Ed., 94 N.J. 9, 14-18 (1983) and restrained arbitration, noting that such discrimination claims should be adjudicated in the proper forum such as the New Jersey Division on Civil Rights.2/ HPAE’s grievance does not allege that the grievant was denied the ability to continue to work from home due to disability discrimination. ¶

Moreover, the Rockaway Valley decision did not seek to challenge a disciplinary determination through arbitration. While the Maplewood decision did seek to challenge a COVID-19 vaccine-related suspension through arbitration, it is distinguishable from the instant case because the grievant was a police officer with no right under the Act to challenge major discipline through binding grievance arbitration.3/ As discussed recently in Rutgers University, P.E.R.C. No. 2025-29, 51 NJPER 287 (¶65 2025), app. pending, the Commission found that the grievant in Maplewood was not precluded from exercising his alternate statutory appeal procedures to challenge his vaccine- related unpaid suspension as discipline. 49 NJPER at 244. Specifically, as a non-Civil Service police officer, the grievant in Maplewood could “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.; 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 the Maplewood cases, the grievant is not a police officer or firefighter and is not subject to alternate statutory appeal procedures; therefore, the Act’s mandates apply and the parties’ negotiated disciplinary review procedures, which include binding arbitration and just cause for review of discharge, are applicable to this disciplinary grievance. See N.J.S.A. 34:l3A-5.3; New Jersey Turnpike Authority, 143 N.J. 185, supra; see also Rutgers, P.E.R.C. No. 2025-29, supra (while employer had managerial prerogative to determine that non- compliance with flu vaccine mandate would result in termination, the employee maintained her statutory and contractual right to review such discipline in binding arbitration). ¶

Finally, we address the parties’ discussion of Union Cty., P.E.R.C. No. 2002-5, 27 NJPER 325 (¶32116 2001), in which the Commission determined that a contract proposal mandating the creation of a light duty position for pregnant corrections officers was not mandatorily negotiable. While the Commission has restrained arbitration of grievances demanding that an employer create light duty assignments, “we have also declined to restrain arbitration of grievances asserting that employees were denied available light duty assignments for which they were qualified.” Union Cty., 27 NJPER at 327. We further noted: ¶

In cases where a light duty policy exists, we have allowed arbitration of disputes where the employer asserted that no position then existed, or that such positions were not available to officers injured off-duty as opposed to on-duty. See Borough of Belmar, P.E.R.C. No. 2000-4, 25 NJPER 367 (¶30158 1999); Ewing Tp., P.E.R.C. No. 97-9, 22 NJPER 283 (¶27153 1996); Franklin Tp., P.E.R.C. No. 95-105, 21 NJPER 225 (¶26143 1995). ¶

[Union Cty., 27 NJPER at 327.] ¶

See also Passaic Cty., P.E.R.C. No. 2005-41, 30 NJPER 484 (¶163 2004) ( “We have specifically concluded that the allocation of available light duty assignments among qualified employees is a mandatorily negotiable issue comparable to the allocation of overtime opportunities among qualified employees” . . . “An arbitrator may determine whether any such positions were in fact available” ); and Parsippany-Troy Hills Tp., P.E.R.C. No. 2010-53, 36 NJPER 25 (¶12 2010) ( “[W]here an employer offers light duty, whether by policy or practice, we have declined to restrain arbitration of grievances asserting that qualified employees were denied available light duty assignments.” ) ¶

Based on this precedent, we will permit arbitration as to whether Rutgers had just cause to terminate the grievant. However, in the event a violation is found, we note that Rutgers retains the managerial prerogative to determine whether to offer any remote work positions or other placements compatible with the grievant’s disability. We decline to speculate about what other remedies might or might not be lawful if a violation is found. Any challenge to a remedy awarded can be raised in post- arbitration proceedings, if necessary. See Kearny PBA Local No. 21 v. Town of Kearny, 81 N.J. 208 (1979); N.J.S.A. 2A:24-7 and 8. ¶

OrderORDER ¶

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

BY ORDER OF THE COMMISSION ¶

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

ISSUED: June 26, 2025 ¶

Trenton, New Jersey ¶

Note1/ N.J.A.C. 13:39-4A.2 permits New Jersey pharmacies to engage in remote prescription processing, provided they comply with detailed requirements, including Board notification, licensure and employment status of remote staff, stringent security measures, documented procedures, pharmacist oversight, and annual compliance attestations. Remote personnel must be employees of the licensed pharmacy, and remote sites may not store or dispense medications and are subject to Board inspection. ¶

2/ Under Teaneck, binding arbitration is barred only where a grievance claims that a managerial decision was tainted by discrimination. However, binding arbitration of alleged discrimination is permitted so long as the grievance does not challenge a managerial prerogative. Turnpike Authority, 143 N.J. at 202, citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination); Neptune Tp., P.E.R.C. No. 2022-42, 48 NJPER 426 (¶97 2022); and Sussex Cty. Sheriff’s Office, P.E.R.C. No. 2019-55, 46 NJPER 20 (¶7 2019). ¶

3/ N.J.S.A. 34:13A-5.3 provides that negotiated disciplinary procedures may not be inconsistent with any alternate statutory appeal procedures or “provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws . . .” See State v. State Troopers Fraternal Ass’n, 134 N.J. 393 (1993); Rutgers University, P.E.R.C. No. 2019-44, 45 NJPER 382 (¶100 2019), aff’d, 47 NJPER 53 (¶13 App. Div. 2020) (police officers may not appeal major discipline to binding arbitration). ¶