P.E.R.C. No. 2026-14, 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, Petitioner, -and- Docket No. SN-2025-020 AFSCME, NEW JERSEY COUNCIL 63, LOCAL 888, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, and denies, in part, a scope of negotiations petition filed by Rutgers, the State University of New Jersey, which seeks a restraint of binding arbitration of a grievance filed by AFSCME, New Jersey Council 63, Local 888. The grievance alleges Rutgers’s disciplinary termination of a Security Officer, following the results of a psychological fitness-for-duty examination ordered by Rutgers, was without just cause. The Commission restrains arbitration to the extent the union challenges Rutgers’ decision to order the grievant to undergo a fitness-for-duty examination, finding that decision is not mandatorily negotiable or legally arbitrable. The Commission finds that procedures for implementing an employer’s right to determine fitness-for-duty are mandatorily negotiable and legally arbitrable, and discipline that may result from a fitness-for- duty examination is subject to review through arbitration or an applicable alternative statutory appeal process. Accordingly, the Commission permits arbitration of procedural issues raised by Local 888, including its contention that before making the termination decision Rutgers refused the union’s request for the report of the psychologist relied upon by Rutgers. The Commission further permits arbitration on the issue of whether Rutgers had just cause to terminate the grievant’s employment as a result of the fitness-for-duty examination. ¶

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-2025-020 AFSCME, NEW JERSEY COUNCIL 63, LOCAL 888, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Vice President for University Labor Relations and Special Counsel for Labor Affairs, David A. Cohen; Associate General Counsel, Jenna Rottenberg ¶

For the Respondent, Staff Attorney - AFSCME New Jersey Council 63, Seth Gollin ¶

DECISION ¶

On April 29, 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 AFSCME, New Jersey Council 63, Local 888 (Local 888 or AFSCME). The grievance asserts that Rutgers violated Article 4 (Grievance Procedure) of the parties’ collective negotiations agreement (CNA) when it terminated the employment of the grievant who was employed as a Security Officer. Rutgers contends that the grievant was terminated from her position because she was unable to perform her assigned job duties. ¶

Rutgers filed briefs, exhibits, and the certifications of University Police of Rutgers University Police Department (RUPD), Captain Brian Emmett, and its Senior Labor Relations Specialist, Julie Cartegna. Local 888 filed a brief, an exhibit and the certification of its counsel, Seth Gollin.1/ These facts appear. ¶

Local 888 represents all regular maintenance and service employees, both full-time and part-time, in the classifications listed under Appendix A of the CNA, which includes the title of the grievant herein: Security Officer/Parking Enforcement Officer. Rutgers and Local 888 were parties to a CNA in effect from July 1, 2018 through June 30, 2024. Rutgers and Local 888 are also parties to a Memorandum of Agreement with a term of July 1, 2024, through June 30, 2028. The grievance procedure ends in binding arbitration and includes the following provision: ¶

No employee shall be discharged, suspended, or disciplined in any way except for just cause. The sole right and remedy of any employee who claims that he or she has been discharged, suspended, or disciplined in any way without just cause shall be to file a grievance through and in accordance with the grievance procedure. ¶

The Captain certifies to the following pertinent facts. Rutgers hired the grievant as a Security Officer/Parking Enforcement Officer on July 1, 2002. As a member of Public Safety, the grievant is tasked with ensuring a safe environment for everyone at Rutgers. The grievant remained employed by Rutgers as a Security Officer/Parking Enforcement Officer until Rutgers terminated her employment on January 12, 2023. ¶

On June 14, 2022, the Rutgers Internal Affairs Bureau (IAB) of the Rutgers University Police Department (RUPD) initiated an internal affairs investigation as a result of the grievant’s conduct, including alleged violations of several departmental policies, from July 2021 through June 2022. ¶

During an interview conducted as part of the IAB investigation, the investigator, Sergeant G.G., provided the grievant with an opportunity to respond to the charges. At that time, the grievant made statements that raised concerns that she was not fit for duty, including stating that she has mental health issues that interfered with her ability to perform her job. Sergeant G.G. informed the Captain of those statements. ¶

On or around November 14, 2022, the grievant sustained an injury on duty. When a nurse from Rutgers Occupational Health called her to discuss her injury and coordinate her care, the grievant made several additional concerning statements and acted erratically and irrationally. M.S., M.D., Director of the University’s Occupational Health Department, reported the grievant’s conduct to the Captain. ¶

As a result of receiving those reports regarding the grievant’s conduct from the doctor and Sergeant G.G., the Captain determined that it may be appropriate for the grievant to undergo a fitness-for-duty examination. The Captain consulted with the doctor to obtain his input on whether the grievant should undergo a fitness-for-duty examination, and the doctor agreed that the grievant should be referred to the exam. The Captain recommended to K.C., the Chief of University Police that the grievant be ordered to undergo a fitness-for-duty examination. ¶

Chief K.C. agreed and on December 8, 2022, ordered the grievant to attend a fitness-for-duty evaluation on December 13 and 15, 2022, to be conducted by the Institute for Forensic Psychology (IFP), an independent medical provider of expert psychological evaluations for police and public safety agencies. On December 13 and 15, 2022, L.Z.S, PhD., ABPP, a licensed psychologist at IFP conducted the grievant’s fitness-for-duty examination. ¶

On December 21, 2022, Dr. L.Z.S. informed RUPD that he found the grievant not to be psychologically fit for duty, stating, among other things, that the grievant could not perform the essential functions of her job as a Security Officer. In pertinent part, the grievant had reported to Dr. L.Z.S. during her examination that she is “markedly symptomatic currently, and that her symptoms have interfered considerably with her ability to perform the essential functions of her job.” As a result of the examination and Dr. L.Z.S.’ evaluation of the “frequency, nature, and severity of her symptoms” as well as her prior treatment “without significant amelioration,” Dr. L.Z.S. concluded “with a reasonable degree of psychological probability that [the grievant] would not be able to function effectively as a Security Officer, and she is unlikely to be restored to duty in a reasonable period of time.” ¶

On December 23, 2022, following receipt of Dr. L.Z.S.’ report and recommendation and upon consultation with University Occupational Health, the Captain directed the grievant to remain on paid leave and scheduled a meeting with her supervisor, J.D.G., former Campus Safety Administrator - Newark to discuss the results of the IFP examination. Consistent with IFP’s recommendations and finding that she was “not fit for duty with little chance of recovery,” the Captain consulted with the Chief and Dr. M.S., as well as others at Rutgers, and determined that the grievant was unable to perform the essential functions of her position as a Security Officer/Parking Enforcement Officer and decided to move forward with the termination of the grievant’s employment. ¶

On January 3, 2023, Mr. J.D.G. provided the grievant with a Preliminary Notice of Disciplinary Action (PNDA) advising her that Rutgers was considering terminating her employment because she was not fit for duty and could no longer perform the essential functions of her position. On January 4, in a “Pre- Disciplinary Conference,” Mr. J.D.G. met with the grievant, along with her Union Representative T.K. and Security Lieutenant D.R., to discuss the PNDA and to provide the grievant with an opportunity to respond with any information or facts that she believed would mitigate against proceeding with the termination of her employment. The grievant replied that she did not have any mitigating factors. Mr. J.D.G. provided the Captain with an email summary of that meeting. ¶

On January 12, 2023, following multiple attempts to schedule a meeting with the grievant, Mr. J.D.G. had a meeting with the grievant to discuss the potential termination of her employment. The grievant did not attend the scheduled meeting. Following the meeting, the Captain sent an email to the grievant, attaching a Final Notice of Disciplinary Action (FNDA) and advising her that her employment with Rutgers was terminated effective immediately. ¶

The Senior Labor Relations Specialists for Rutgers Office of Labor Relations certifies to the following facts. Local 888 filed a Step 3 grievance with the Office of University Labor Relations (OULR) alleging that Rutgers violated Article 4 of the parties’ CNA. On November 14, 2023, she conducted a Third Step grievance hearing pursuant to the parties’ CNA. At the hearing, Local 888 challenged Rutgers decision to send the grievant for a fitness-for-duty examination and argued that the grievant was fit to return to duty. The Senior Labor Relations Specialist issued a written decision on November 29, 2023, denying the grievance. ¶

On December 13, 2023, Local 888 filed a Request for Submission of a Panel of Arbitrators seeking to arbitrate the issue of whether Rutgers “terminated the grievant, without just cause in violation of Article 4.” This petition ensued. The arbitration hearing is being held in abeyance pending the outcome of this petition. ¶

The record contains a copy of a Confidentiality Agreement between Rutgers and Local 888, executed on May 15, 2024, subject to which Rutgers agreed to provide Local 888 with “certain documents and information in connection with [Local 888’s] information requests” concerning the grievance at issue. Local 888’s counsel certifies that the Confidentiality Agreement was reached approximately six months after the third step grievance hearing and Rutgers’ decision thereon, and after AFSCME had filed its request for arbitration. Local 888’s counsel further certifies that prior to the execution of the Confidentiality Agreement Rutgers had refused to provide AFSCME and the grievant with a copy of the fitness-for-duty report upon which the grievant’s termination was based. ¶

The Commission’s inquiry in 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 argues it had a non-negotiable managerial prerogative to order the grievant to undergo a fitness for duty examination; and that its decision to do so was based upon significant concerns about whether certain conduct of the grievant impaired her ability to perform her assigned duties as a public safety officer. Rutgers argues that other than Rutgers’ assessment of the grievant’s fitness for duty, Local 888 presents in its grievance no issue that is severable from that non- negotiable determination. ¶

Local 888 argues that Rutgers’ factual assertions concerning the reasons for the grievant’s termination relate to the merits of the grievance, which are for the arbitrator to decide. AFSCME further argues it has the right to challenge the bases and conclusions upon which the termination decision was based, and that such a challenge is separate from Rutgers’ decision to order the fitness for duty examination. Local 888 states, however, that it did not receive a copy of the fitness for duty report until a confidentiality agreement was executed after the Step 3 grievance hearing and termination decision, and after it filed for arbitration on the grievance. ¶

In reply, Rutgers reiterates its prior arguments and contends the union cited no legal support for its position. ¶

ANALYSIS ¶

Public employers generally have a non-negotiable managerial prerogative to order employees to undergo fitness-for-duty examinations. See Camden Cty. Bd. of Chosen Freeholders, P.E.R.C. No. 2020-60, 47 NJPER 32, 35 (¶6 2020) (citing, e.g., City of Millville, P.E.R.C. No. 2012-21, 38 NJPER 198 (¶67 2011); New Jersey Transit, P.E.R.C. No. 2007-15, 32 NJPER 317 (¶132 2006); City of Elizabeth, P.E.R.C. No. 2001-33, 27 NJPER 34 (¶32017 2000); State of New Jersey, P.E.R.C. No. 96-55, 22 NJPER 70 (¶27032 1996); City of Jersey City, P.E.R.C. No. 88-33, 13 NJPER 764 (¶18290 1996)). ¶

However, “procedures for implementing an employer’s right to determine fitness-for-duty are mandatorily negotiable and legally arbitrable, and discipline that may result from a fitness-for- duty examination is subject to review through arbitration or an applicable alternative statutory appeal process such as Civil Service.” Camden Cty., supra, 47 NJPER at 35.2/ See also, Evesham Tp., P.E.R.C. No. 2011-14, 36 NJPER 318, 319 (¶123 2010)(factual dispute over fitness for duty involved mandatorily negotiable issue of whether employee met job requirements and was legally arbitrable, thus union could arbitrate claim that employer inaccurately determined grievant could not perform job); N.J. Transit Corp., P.E.R.C. No. 2007-63, 33 NJPER 145, 146 (¶51 2007)(CNA contained “neutral and negotiable procedure for resolving a dispute over the employer’s initial determination that the grievant was unfit for duty and should be permanently terminated from a . . . position,” citing, e.g., Wyckoff, supra, 26 NJPER 308 (permitting arbitration over determination that police officer was not fit to perform duties); Phillipsburg, supra, 14 NJPER 245 (same)). ¶

Applying the foregoing precedent to the record presented here, we restrain arbitration to the extent the grievance at issue challenges Rutgers’ decision to order the grievant to undergo a fitness-for-duty examination. We find that decision is not mandatorily negotiable or legally arbitrable. ¶

However, we deny Rutgers’ petition to the extent it seeks to restrain arbitration of procedural issues raised by Local 888 in connection with that decision. These include but are not limited to Local 888’s contention that before making the termination decision at issue Rutgers refused to provide the union with requested relevant information, namely the report of the psychologist relied upon by Rutgers. See Rutgers, supra, 46 NJPER at 525 (¶116 2020)(arbitrator’s review of union’s asserted impact and procedural challenges to fitness for duty determination, including that employer failed to provide grievant with report of licensed clinician upon which fitness for duty determination was based, would not significantly interfere with University’s determination to send grievant for examination).3/ See also, Camden Cty., supra, 47 NJPER at 35 (granting interim relief to union on unfair practice charge challenging, inter alia, employer’s refusal to provide union with requested information regarding fitness for duty exam until after employee was deemed unfit for duty). ¶

We further deny Rutgers’ petition to the extent it seeks to restrain arbitration on the issue of whether Rutgers had just cause to terminate the grievant’s employment based upon Rutgers’ fitness for duty determination. Camden Cty., supra; Evesham Tp. supra; N.J. Transit, supra, 33 NJPER 145; Wyckoff, supra; Phillipsburg, supra. ¶

In so holding, we distinguish this matter from a Commission decision relied upon by Rutgers, City of Elizabeth, P.E.R.C. No. 2019-53, 46 NJPER 7 (¶3 2019), recon. den., P.E.R.C. No. 2020-20, 46 NJPER 186 (¶46 2019). There, we restrained arbitration of a grievance asserting the City violated the parties’ CNA by ordering a fitness for duty examination of a police sergeant, reassigning him, and declaring him temporarily ineligible from performing “payjobs” or extra-duty uniformed police work. The latter was ordered while the sergeant was under a criminal investigation for his alleged illegal conduct during such an extra-duty payjob assignment. We found the City had non- negotiable rights to determine if its public safety personnel are fit to perform their duties and to reassign police officers, and that it otherwise had a strong managerial interest in regulating which officers can perform uniformed extra-duty work. 46 NJPER 7, 9-10. ¶

In its motion for reconsideration, the union in Elizabeth conceded the City’s authority to determine fitness for duty. 46 NJPER 186, 188. The union sought reconsideration only of its procedural challenges to the fitness for duty decision. Id. at 186. These were based on the City’s alleged violations of procedural requirements of an “Early Warning System” (EWS) policy it had adopted in accordance with certain Attorney General directives. Ibid. We denied reconsideration in light of the Assistant County Prosecutor’s certified statements that strict compliance with EWS procedures in the grievant’s case (specifically, meeting and conferring with him and providing him an opportunity to correct his behavior) would have compromised the on-going criminal investigation. Id. at 188. Under those “specific circumstances,” we held the City’s “exercise of discretion as to if and when to initiate EWS procedures . . . [could not] be subject to arbitral review.” 46 NJPER 186, at 188. We further denied reconsideration on the basis that “no disciplinary sanction was imposed on the grievant.” Id. ¶

Here, as in Elizabeth, we restrain arbitration of any challenge to the employer’s decision to require that an employee undergo a fitness for duty examination. However, this case, unlike Elizabeth, involves the imposition of a disciplinary sanction on the grievant (employment termination). Nor has Rutgers identified any “specific circumstances” that would support a conclusion that its alleged refusal to provide relevant information to Local 888 was a discretionary act not subject to arbitral review. ¶

OrderORDER ¶

The request of Rutgers, the State University of New Jersey for a restraint of binding arbitration is granted in part and denied in part. It is granted to the extent Local 888’s grievance challenges Rutgers’ decision to order the grievant to undergo a fitness-for-duty examination. It is otherwise denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: November 17, 2025 ¶

Trenton, New Jersey ¶

Note1/ Local 888 submitted a certification of its counsel encompassing an exhibit (R-1). However, Local 888 did not recite all pertinent facts supported by certification(s) based upon personal knowledge. N.J.A.C. 19:13-3.6(f). ¶

2/ Citing: Bridgewater Tp., 196 N.J. Super. 258, 262 (App. Div. 1984); IFPTE, Local 194A v. Burlington County Bridge Comm’n, 240 N.J. Super. 9, 25-26 (App. Div. 1990), certif. denied, 122 N.J. 183 (1990); N.J. Transit Corp. (App. Div. 2010); Town of Phillipsburg, P.E.R.C. No. 88-86, 14 NJPER 245 (¶19091 1988); Wyckoff Tp., P.E.R.C. No. 2000-106, 26 NJPER 308 (¶31125 2000); Atlantic County Sheriff’s Office, P.E.R.C. No. 2005-28, 30 NJPER 444 (¶147 2004); and Rutgers University, P.E.R.C. No. 2020-52, 46 NJPER 522 (¶116 2020)). ¶

3/ We note that unlike in this case, the union in Rutgers, 46 NJPER 522, did not challenge either the University’s decision to send the grievant for a fitness for duty examination or its determination that the grievant was unfit for duty. Id. at 525. But that fact does not alter our determination in this case, for the reasons stated herein. ¶