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D.R. No. 2025-4
Synopsis:
The Director of Representation clarifies the postdoctoral unit of Rutgers Council of AAUP Chapters, AAUP-AFT, AFL-CIO to include and exclude certain external-grant-funded postdoctoral fellows at Rutgers, the State University, on the basis of a test of public employee status involving sufficient institutional control of work and conditional receipt of grant funds. The Director did not find inclusion in the unit to be preempted by statute, regulation, nor the grant policy statements.
PERC Citation:
D.R. No. 2025-4, 51 NJPER 223 (¶53 2025)
Appellate History:
Additional:
Miscellaneous:
NJPER Index:
15.131 36.35
Issues:
D.R. NO. 2025-4 .
D.R. NO. 2025-4
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
RUTGERS, THE STATE UNIVERSITY,
Public Employer,
-and- Docket No. CU-2024-008
RUTGERS COUNCIL OF AAUP CHAPTERS,
AAUP-AFT, AFL-CIO,
Petitioner.
SYNOPSIS
The Director of Representation clarifies the postdoctoral unit of Rutgers Council of AAUP Chapters, AAUP-AFT, AFL-CIO to include and exclude certain external-grant-funded postdoctoral fellows at Rutgers, the State University, on the basis of a test of public employee status involving sufficient institutional control of work and conditional receipt of grant funds. The Director did not find inclusion in the unit to be preempted by statute, regulation, nor the grant policy statements.
D.R. NO. 2025-4 .
D.R. NO. 2025-4
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
RUTGERS, THE STATE UNIVERSITY,
Public Employer,
-and- Docket No. CU-2024-008
RUTGERS COUNCIL OF AAUP CHAPTERS,
AAUP-AFT, AFL-CIO,
Petitioner.
Appearances:
For the Public Employer,
(Syrion Jack, Associate General Counsel)
For the Petitioner,
Weissman and Mintz, attorneys
(Ira W. Mintz, of counsel)
DECISION
On January 5, 2024, Rutgers Council of AAUP Chapters, AAUP-AFT, AFL-CIO (“AAUP” or “Union”) filed a clarification of unit petition seeking clarification of the inclusion of “Class 9” postdoctoral fellows (“postdocs”) into its existing negotiations unit of other postdoctoral fellows and associates. The petition was accompanied by sample paystubs from Class 9 and Class 1 postdocs (Class 1 postdocs are currently in the unit), the 2019-2022 collective negotiations agreement (“CNA”), and the 2022-2026 memorandum of agreement (“MOA”). Rutgers, the State University (“Rutgers” or “University”) opposes the petition, asserting that Class 9 postdocs are not public employees within the meaning of the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (“Act”).
On January 8, 2024, we sent a case letter setting out the briefing and conferencing schedule for this case, which was subject to grants of extensions. On January 22, 2024, Rutgers filed and served its initial position statement, with exhibits, including portions of the National Institutes of Health (“NIH”) Grants Policy Statement (“GPS”) for National Research Service Award Training Grants (“NRSA Grants”).
On January 24, 2024, a Commission staff agent held a conference with both parties. Rutgers clarified the basis of its opposition, asserting that Class 9 postdocs are not public employees within the meaning of the Act because they are not “employed” by Rutgers, and that the terms of the GPS or other grant documents preclude a finding of employee status either because it would allegedly end access to grant funding or because they limit control to a degree that there is no employment relationship. On January 31, 2024, per the schedule and with adequate notice to the parties, the case was limited to these issues.
Rutgers was directed to provide a list of all postdocs and indicate which were Class 1 or Class 9 and which were NRSA grant funded. On January 30, 2024, Rutgers filed and served a list, subject to further clarification as to funding sources (Rutgers also indicated that funding sources expire and commence throughout the year). On January 31, 2024, AAUP provided its own list of postdocs, which differed from Rutgers. The parties were advised to review the differences in the lists.
On February 16, 2024, Rutgers filed and served its first brief; a certification of Rutgers Senior Vice President for Human Resources Vician Fernandez (“Fernandez 1st Cert.”); and a certification of Rutgers Associate General Counsel Syrion Jack (“Jack Cert.”), with exhibits of Internal Revenue Service (“IRS”) Chief Counsel Advisory (“CCA”) memoranda and private letter rulings.
On March 6, 2024, AAUP filed and served its first brief; a certification of staff union organizer Trent McDonald (“McDonald Cert.”); a certification of Class 1 postdoctoral associate Andres Morera (“Morera Cert.”); and a certification of Ira Mintz (“Mintz 1st Cert.”), counsel for AAUP, with exhibits, including Rutgers’ offer letters to postdoctoral fellows and collective bargaining agreements of universities and unions outside of New Jersey.
The Commission staff agent held a second conference with the parties on March 8, 2024. Rutgers indicated that it needed to break down its earlier list into subgroups for postdocs that were Class 1, postdocs being converted to Class 1, terminated postdocs, doctoral students, NRSA Class 9 postdocs, and non-NRSA Class 9 postdocs. An updated list was filed and served by Rutgers on March 8, 2024.1/1/During the processing of this case, Rutgers had identified various people on the original list as being in non-postdoc classifications or not having active Class 9 appointments, and Rutgers also converted a number of people to Class 1 postdocs, which are already in the negotiations unit. This decision addresses the remaining people with active Class 9 postdoc appointments.
On March 25, 2024, Rutgers filed and served its second brief; a certification of Jacqueline Mattis (“Mattis Cert.”), Dean of Faculty at Rutgers-Newark School of Arts and Sciences (“RU-N SAS”); a certification of Bill McCarthy (“McCarthy Cert.”), Dean of Rutgers’ School of Criminal Justice; and a second certification of Fernandez (“Fernandez 2nd Cert.”) with exhibits, including a list of persons classified as Class 9 and grant abstracts/summaries.
On April 11, 2024, AAUP filed and served its second brief; a certification of Brandon Mancilla (“Mancilla Cert.”), Region 9A Director of United Automobile Workers of America (UAW); certifications of postdoctoral fellows Brendane Tynes, Candace Longoria, Mehdi Kamali, and Wesley Evans (“Tynes Cert.”, “Longoria Cert.”, “Kamali Cert.”, and “Evans Cert.”, respectively); and a second certification of Mintz (“Mintz 2nd Cert.”), with exhibits, including another offer letter.
On April 15, 2024, Rutgers requested leave to submit supplemental briefing to respond to and clarify two issues discussed in AAUP’s second brief. Leave was granted to brief these issues, and, on April 22, 2024, Rutgers filed and served its third brief. AAUP did not request leave to file another brief in response.
No disputed substantial material facts require us to convene an evidentiary hearing. N.J.A.C. 19:11-2.2 and -2.6. Based upon my administrative investigation, I make the following:
FINDINGS OF FACT
I take administrative notice that on July 21, 2009, the Director of Representation certified AAUP as the exclusive collective negotiations representative of employees in a unit defined as including all regularly employed post-doctoral associates and post-doctoral fellows employed by Rutgers and excluding “post-doctoral fellows who are not employed by Rutgers”, after the parties had stipulated to the appropriateness of such a unit. (Dkt. No. RO-2009-100).
The recognition provision in the parties’ 2019-2022 CNA is similarly worded. When the parties were negotiating an MOA for a successor CNA, a proposal to explicitly include Class 9 post-doctoral associates and fellows was not adopted. (Fernandez Cert. Ex. A). The parties’ 2022-2026 MOA states the recognition provision was to maintain the current contract language as the 2019-2022 CNA.
Class 9 postdocs generally perform tasks such as conducting individual research, writing grants, laboratory work, attending or presenting at conferences, or writing for the purpose of ultimate publication. (Fernandez 2nd Cert. ¶ 12).
The following individuals are classified by Rutgers as Class 9 postdocs on non-NRSA grants (Non-NRSA Class 9s): Alon Rabinovich, Brendane Tynes, and Mia-Athina Thomaidou. (Fernandez 2nd Cert. Ex. A). Stipends paid to them are not tied to any work directed by Rutgers. (Fernandez 2nd Cert. ¶ 13).
Dr. Rabinovich is a postdoc in the United States Department of Agriculture National Institute of Food and Agriculture Postdoctoral Fellowship Program. (Mattis Cert. ¶ 4). The grant was awarded to him directly. (Mattis Cert. ¶ 5). Dr. Rabinovich selected Rutgers to host his research and is free to take his research to another institution without losing his grant funding. (Mattis Cert. ¶ 7). Mattis certifies that Dr. Rabinovich is under no obligation to provide services to the University. (Mattis Cert. ¶ 7). If Dr. Rabinovich leaves Rutgers, his work and grant funding leaves with him. (Mattis Cert. ¶ 6). He is also able to select a new mentor at Rutgers or at another institution at his own discretion and has recently switched to a new mentor at Rutgers. (Mattis Cert. ¶ 8). Dr. Rabinovich’s work is not performed by any Rutgers employee in the absence of the grant. (Mattis Cert. ¶ 9). His activities include completing research tasks outlined in the grant, providing updates to his faculty advisor, project planning and administration, participating in project meetings with his mentoring team, and disseminating research via scientific publications. (Mattis Cert. ¶ 11). Rutgers does not retain any intellectual property rights over Dr. Rabinovich’s work. (Mattis Cert. ¶ 10).
Dr. Tynes is a postdoctoral fellow in Black Liberation Studies for the Afterlives of Liberation Seminar in the Department of Women’s, Gender, and Sexuality Studies, and she is funded by a Mellon Foundation Sawyer Grant (Fernandez 2nd Cert. ¶ 10, Mintz 2nd Cert. Ex. A, Tynes Cert. ¶ 1, 3).2/2/In its second brief, Rutgers cites to the Mellon Foundation’s webpage on the fellowship at https://www.mellon.org/article/sawyer-seminars, which states: “Mellon support aims to engage scholars in comparative inquiry that would otherwise be difficult to pursue, while at the same time avoiding the institutionalization of such work in new centers, departments, or programs. Sawyer Seminars are, in effect, temporary research centers.” Her offer letter states: “Primary responsibilities will be to conduct original research related to the seminar theme (which they will be invited to share and present in meetings); to assist in the organization of seminar meetings and other activities; and to attend and participate in all seminar meetings and events.” (Mintz 2nd Cert. Ex. A).
Dr. Tynes’ job duties consist of independent research, attending and presenting at conferences, and participating in trainings. (Fernandez 2nd Cert. ¶ 10. Her research centers on the affective experiences of Black women and nonbinary survivors of interpersonal violence who also led anti-violence movements in Baltimore. (Tynes Cert. ¶ 2). She does not have teaching responsibilities. (Tynes Cert. ¶ 5). She worked with the Afterlives team to plan three seminars addressing antiracism in the academy, arts, and activism. (Tynes Cert. ¶ 6). When she is not working on the seminars, she presents her own work, writes research articles and essays, and continues her research. (Tynes Cert. ¶ 6).
Dr. Tynes does not do work that was previously done by another Rutgers employee, and no Rutgers employee would have to do Tynes’ work if the grant was not awarded to her. (Fernandez 2nd Cert. ¶ 10). Dr. Tynes determines her work and is not required to provide a deliverable to the grant sponsor. (Fernandez 2nd Cert. ¶ 10). Rutgers does not retain intellectual rights of Dr. Tynes’ work. (Fernandez 2nd Cert. ¶ 10). She receives a taxable stipend of $60,000 distributed in biweekly paychecks and was offered health insurance. (Tynes Cert. ¶ 4, 5).
Dr. Mia-Athina Thomaidou receives funding through a Rubicon grant from the Dutch Research Council. (McCarthy Cert. ¶ 4). Dr. Thomaidou wrote her own grant proposal, and the grant was awarded directly to her. (McCarthy Cert. ¶ 5). Although Rutgers disburses the Rubicon grant funds to Dr. Thomaidou as a stipend, the grant funding and the research specified by the grant would leave Rutgers if Dr. Thomaidou left Rutgers. (McCarthy Cert. ¶ 5). Dr. Thomaidou selected Rutgers to host her research. (McCarthy Cert. ¶ 6). Dr. Thomaidou’s research was determined before she selected Rutgers to host her research. (McCarthy Cert. ¶ 6). All grant-related tasks are Dr. Thomaidou’s responsibility. (McCarthy Cert. ¶ 6). Dr. Thomaidou has no deliverables owed to Rutgers. (McCarthy Cert. ¶ 6). Rutgers provides space for Dr. Thomaidou to conduct her research. (McCarthy Cert. ¶ 7). Dr. Thomaidou has a faculty mentor, but the mentor does not assign any tasks to her. (McCarthy Cert. ¶ 7).3/3/ In its second brief, Rutgers cites to the Dutch Research Council’s webpage on the grant at https://www.nwo.nl/en/researchprogrammes/rubicon, which states that the purpose of the grant is to “allow talented scientist and academicians who recently obtained their PhD in the Kingdom of the Netherlands to gain experience at a foreign knowledge institute for a period of 1-2 years.”
As a matter of practice, Rutgers has classified individuals who are funded solely by a NRSA grant as “Class 9 Non-Employees”. (Fernandez 2nd Cert. ¶ 5). The following individuals have active Class 9 postdoc appointments on NRSA grants (NRSA Class 9s): Alexandra Williams, Allison Glasser, Allyson Bontempo, Benton Purnell, Candace Longoria, Danyal Siddiqui, Edward Chuang, Elnaz Khezerlou, Gina Moreno, Holly Poore, Hye Choi, Jennifer Dillon, Jonathan Roth, Joshua Henkin, Justin Kidd, Kenneth Acosta, Lazer Gerlikhman, Margaret Whedon, Mehdi Kamali, Myriam Casseus, Natalie Burchat, Rebecca Androwski, Tatiana Popovitchenko, and Wesley Evans. (Fernandez 2nd Cert. Ex. A).
NRSA Class 9s are exclusively paid stipends funded by either Institutional Training Grants (“T32 Grants”) or Individual Training Grants (“F32 Grants”). A grant abstract/summary for select individuals funded by the same T32 Grant (Alexandra Williams, Myriam Casseus, Jennifer Dillon, and Allyson Bontempo) shows that each fellow selected by Rutgers under that grant that Rutgers applied for has a life/career mentor from Rutgers faculty and a research mentor, and that all fellows develop proposals for approval and conduct an independent mentored research project leading to publication. (Fernandez 2nd Cert. Ex. B).
Postdocs funded by an F32 Grant are principal investigators responsible for the program of research and training agreed upon with the United States National Institutes of Health. (Fernandez 2nd Cert. ¶ 11). They directly submit their applications outlining their own goals and objectives of their research and training. (Rutgers 2nd Br. citing ). NRSA Class 9s on an F32 Grant identify a sponsoring institution that will mentor the training experience. (Rutgers 2nd Br. citing ). Pursuant to NIH Policy, the awardee may transfer the grant to another institution with approval by NIH. (Rutgers 2nd Br. citing https://www.ninds.nih.gov/funding/training-career-development/predoctoral-felllows/ninds-postdoctoral-nrsa-fellowship).
The grant abstract/summary (summarizing the research plan and training activity) for an F32 Grant recipient, Dr. Benton Purnell, shows that the NIH required him to develop a research plan that does not overlap with the research being performed by his mentor at his sponsoring institution. (Fernandez 2nd Cert. Ex. C). His proposal explained that his experiments will generate compelling evidence for or against his hypothesis while providing training in writing, mentorship, and qualitatively rigorous hypothesis-testing necessary for a career in science. (Fernandez 2nd Cert. Ex. C).
Candace Longoria is an NRSA T32 postdoc fellow. (Longoria Cert. ¶ 1, 5). The letter from Rutgers to her informing her that she was being recommended for appointment as a postdoctoral fellow on the T32 grant states that she will receive a stipend based on the NIH/NRSA salary structure and that her appointment includes medical insurance and travel funds to attend conferences. (Mintz 1st Cert. Ex. E). In addition to the stipend, Rutgers selected her as a Robert A. Scala Scholar for outstanding performance during her doctoral training, which came with an award of $2,500. (Mintz 1st Cert. Ex. E). The letter explained the NRSA requirements, including engagement in full-time research, and explained that she will meet with an advisory committee periodically to ensure that her research goals are being met. (Mintz 1st Cert. Ex. E).
Dr. Longoria certifies that she has spoken with both Class 1 and Class 9 postdoctoral associates and that Class 1 postdocs (already in the negotiations unit) perform the same work as Class 9 postdocs fellows. (Longoria Cert. ¶ 3, 4). She certifies that Class 1s and Class 9s under T32 or F32 fellowships perform research under the supervision of a faculty member in the lab of that faculty member. (Longoria Cert. ¶ 5, 6). She certifies that the training of Class 9s is typically completed through performance of research at the bench and data analysis of these research experiments, shared through both presentations and publications. (Longoria Cert. ¶ 7). She certifies that both Class 1 and Class 9 postdocs undergo the same mandatory training for animal handling, chemical handling, safety training, and other miscellaneous trainings to perform the same protocols in the same manner under their supporting faculty member. (Longoria Cert. ¶ 8).
Mehdi Kamali is a NIH NRSA T32 postdoc fellow. (Kamali Cert. ¶ 1). He certifies that his work duties, schedules, and responsibilities are precisely the same as those of other postdocs. (Kamali Cert. ¶ 2). He has been assigned similar obligations to other postdocs in the research lab. (Kamali Cert. ¶ 3). He likewise collaborates with other groups and works with undergraduate and graduate students under the direction of faculty members. (Kamali Cert. ¶ 4). In addition to the research, he works toward publishing papers in peer-reviewed journals, registering patents, writing grants, and presenting his research work at national and international conferences. (Kamali Cert. ¶ 5). His paychecks come from Rutgers. (Kamali Cert. ¶ 6).
Wesley Evans was originally a Class 1 postdoc fellow in the lab of Dr. Rafiq Huda in the Cell Biology and Neuroscience Department and paid directly through Dr. Huda’s grant money and funding. (Evans Cert. ¶ 1-2). Evans was then brought onto a NRSA T32 fellowship and re-designated as a Class 9 fellow. (Evans Cert. ¶ 3). As a result of the redesignation, none of his day-to-day duties and responsibilities changed. (Evans Cert. ¶ 4, 7). According to Dr. Evans, Class 1 and Class 9 postdoctoral fellows both receive the exact same training for the handling of animals, chemical handling, safety training, and other laboratory trainings. (Evans Cert. ¶ 8). His salary and benefits did not change except for his healthcare service. (Evans Cert. ¶ 4). Also, Rutgers no longer takes out the state and federal taxes from his paychecks. (Evans Cert. ¶ 9).
Joshua Henkin is a postdoc fellow in the Department of Plant Biology. (Mintz 1st Cert. Ex. D). His offer letter from Rutgers Professor Donald Kobayashi shows that the offer is contingent on completion of “pre-employment” screenings and that, as a “prospective employee”, he is required to show proof of COVID-19 vaccination prior to “commencement of employment”. (Mintz 1st Cert. Ex. D). It also shows that he is required to participate in “employee training” as part of his appointment and without additional compensation. (Mintz 1st Cert. Ex. D). Completion of all training required by the University is a “condition of employment”. (Mintz 1st Cert. Ex. D). This includes, but is not limited to, ethics training, training on unlawful harassment and other policies, statutes, and regulations governing the workplace. (Mintz 1st Cert. Ex. D). Reappointment is contingent upon satisfactory performance. (Mintz 1st Cert. Ex. D). Professor Kobayashi explained in Henkin’s offer letter that the latter’s research will focus on Botanical Approaches to Combat Metabolic Syndrome. (Mintz 1st Cert. Ex. D).
The postdoctoral fellow appointment offer letter to Joshua Henkin states that his appointment is for a salary of $56,880, the offer is contingent upon successful completion of “pre-employment” screenings, and that as a Rutgers “employee”, he will be required to participate in “employee training” and be vaccinated against COVID-19. (Mintz 1st Cert. Ex. D). It states that completion of all training is a “condition of employment” and that failure to provide proof of required vaccinations or exemptions would result in rescission of a candidate’s “offer of employment” or “disciplinary action” up to and including termination. (Mintz 1st Cert. Ex. D). The offer letter states that his research will focus on Botanical Approaches to Combat Metabolic Syndrome, in the Department of Plant Biology (Mintz 1st Cert. Ex. D).
While neither party directly discusses the other identified NRSA Class 9s, they are generally referenced with all the NRSA Class 9s in the certifications of McDonald and Morera. The Class 9 postdocs largely work in research labs under the research direction of a faculty principal investigator on experiments, journal publications, conference presentations, and further grant submissions. (McDonald Cert. ¶ 4). Andres Morera, a Class 1 postdoctoral associate, works side-by-side with multiple Class 9 postdoctoral fellows, including on the same research projects, grants, and publications. (Morera Cert. ¶ 1, 2). Morera certifies that Class 9 postdocs perform the same work as Class 1 postdocs already in the unit and that Class 1s and Class 9s on T32 or F32 fellowships perform research under the supervision of and in the lab of a Rutgers faculty member. (Morera Cert. ¶ 4-6). A bargaining unit that includes postdoctoral research fellows on NIH NRSA T32 and F32 fellowships at Columbia University was certified by the NLRB over objections by the employer. (Mancilla Cert. ¶ 2, 4).
ANALYSIS
Neither party cites to, and I have been unable to find, any Commission decision directly addressing the types of grants at issue in this matter and whether such grantees are employees under the Act. It appears to be an issue of first impression for this agency, although the National Labor Relations Board (NLRB) has addressed it under the National Labor Relations Act (NLRA).
When used in the Employer-Employee Relations Act:
The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer unless this act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of or in connection with any current labor dispute or because of any unfair labor practice and who has not obtained any other regular and substantially equivalent employment. This term, however, shall not include any individual taking the place of any employee whose work has ceased as aforesaid, nor shall it include any individual employed by his parent or spouse, or in the domestic service of any person in the home of the employer, or employed by any company owning or operating a railroad or railway express subject to the provisions of the Railway Labor Act (45 U.S.C. § 151 et seq.). This term shall include any public employee, i.e., any person holding a position, by appointment or contract, or employment in the service of a public employer, except elected officials, members of boards and commissions, managerial executives and confidential employees.
[N.J.S.A. 34:13A-3(d) (emphasis added)]
In interpreting the word “employee” within that definition:
We will consider common law agency cases, but with an emphasis on the labor relations cases applying those principles and the labor relations policies informing our Act. . . . Moreover, the coverage of remedial laws should be construed broadly; an employer-employee relationship may be found under such laws even though one might not be found under common law principles. . . . Our Act is remedial legislation and should be liberally construed to effectuate its purposes of reducing workplace strife and improving morale and efficiency. Compare NLRB v. Town & Country Electric, Inc. 516 U.S. 85 (1995) (construing “employee” broadly under the NLRA).4/4/“In the past, when Congress has used the term "employee" without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.'" At the same time, when reviewing the Board's interpretation of the term "employee" as it is used in the Act, we have repeatedly said that "since the task of defining the term 'employee' is one that 'has been assigned primarily to the agency created by Congress to administer the Act,' . . . the Board's construction of that term is entitled to considerable deference . . . .". NLRB v. Town & Country Electric, Inc., 516 U.S. at 94. The Commission can appropriately look to NLRB precedents and guidelines in representation cases. Lullo v. Intern. Assn. of Fire Fighters, 55 N.J. 409 (1970).
[New Jersey State Judiciary, P.E.R.C. No. 2003-88, 29 NJPER 254 (¶76 2003) (some citations omitted)]
New Jersey State Judiciary primarily concerned determining whether workers were independent contractors, which Rutgers notes is not at issue in the present matter. Rutgers argues that therefore the common law test is largely irrelevant. However, while the postdocs may not be independent contractors, whether they are employees in the common law sense is still at issue. As explained further below, the similarly worded definition of employee in the NLRA has been interpreted to incorporate the common law and the NLRB has found university researchers funded by external grants to be university employees.
The party asserting the application of a statutory exclusion of an employee bears the burden of establishing it. See City of Burlington, H.O. No. 2002-1, 28 NJPER 1 (¶33000 2001) (holding that the party seeking application of a statutory exemption bears the burden of proving its applicability), citing NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-12 (2001) (finding that the Board’s burden rule was reasonable and consistent with the National Labor Relations Act because it was supported by the general rule that the burden of proving applicability of a special exception generally rests on the one who asserts it and because practicality favored placing the burden on the asserter where it was easier to prove the exercise of any relevant duties than to disprove their exercise), cited in NJ Transit, P.E.R.C. No. 2024-18, 50 NJPER 264 (¶59 2023); State of New Jersey, P.E.R.C. No. 86-18, 11 NJPER 507 (¶16179 1985) (“This policy is consistent with the Supreme Court’s declaration that the Act’s public policy favors the organization of all employees desiring collective negotiations: the burden must therefore be on the party seeking to place an employee outside the Act’s protection.”), recon. den. P.E.R.C. No. 86-59, 11 NJPER 714 (¶16249 1985); Rutgers and HPAE, D.R. No. 2024-4, 50 NJPER 329 (¶79 2024).
As noted in State of New Jersey, D.R. No. 2024-6, 50 NJPER 445 (¶109 2024) req. for. rev. pending:
We have sometimes said that because representation matters are administrative investigations, the traditional concept of burden is not applicable. This is because the burden here is not specifically on an employer or a majority representative, or on a petitioner or a respondent, but rather on whichever party asserts the applicability of a special exclusionary exception to our policy of favoring the organizing of employees, our broad view of community of interest, and our preference for broad-based units. It is perhaps more accurate to say that given the broad definition of employee in the Act, we have a presumption that particular persons are not excluded from that definition and that we only exclude them if the exceptions are shown by evidence in the record submitted by any party. In the absence of such evidence, we do not find the exceptions apply. It is in the interest of any party desiring a finding that an exception applies to ensure the record shows its applicability and to supplement the record with its own submissions if the other parties have not done so.
The issue in this matter, of course, is not a particular statutory exclusion that would otherwise exclude an “employee” from the statutory definition, but whether the postdoctoral fellows are even employees in the common law sense. I have found no decision from this agency expressly stating our presumption where there is a dispute as to that question, as it appears that parties are usually in agreement as to whether individuals are at least common law employees. However, I am persuaded by the logic of the above cited cases and the policies of our Act that, where there is such a dispute, we should start from the presumption that the individuals sought to be covered under the Act are employees. It is in the interest of the party arguing otherwise to ensure the record shows, if it does not already, that the individuals, for example, do not receive remuneration or are not sufficiently under the direction or control of the employer.
The Commission has routinely held the source of funding for salaries will not by itself determine who is the employer. State of New Jersey (Racing Commission), D.R. No. 91-35, 17 NJPER 357 (¶22165 1991) (where state controlled labor relations, workers were public employees despite being paid, pursuant to statute, by private permit holders); Cranford Tp., D.R. No. 86-26, 12 NJPER 566 (¶17214 1986) (finding employee status under the Act even if salaries are paid through federally funded CETA or Community Development Block Grants; Burlington County College, D.R. No. 2004-6, 29 NJPER 426 (¶145 2003) (finding college was the employer of counseling specialist despite title being funded through special projects grant). But see Union Tp., P.E.R.C. No. 96-38, 22 NJPER 22 (¶27009 1995) (finding that unpaid volunteers were not employees within the meaning of the Act).5/5/That is, a person who has never received compensation and is not intended to receive compensation from an employer is not an employee of that employer. However, a person who has received compensation can later be on unpaid leave and still be considered an employee, as demonstrated through voting eligibility determinations for elections: to be eligible to vote, a person must have been hired, assigned to a unit position, and performed unit work for pay by the eligibility cutoff date, though can be on unpaid leave status on that date. Cumberland Cty. Bd. of Social Services, P.E.R.C. No. 2003-89, 29 NJPER 240 (¶72 2003); NLRB v. Tom Wood Datson, Inc., 767 F.2d 350 (7th Cir. 1985); NLRB v. Family Heritage Home--Beaver Dam, Inc., 491 F.2d 347 (7th Cir. 1974). A person can also remain an employee under the Act if their work has ceased as a consequence of or in connection with any current labor dispute or because of any unfair labor practice. See N.J.S.A. 34:13A-3(d).
In Columbia University., 364 N.L.R.B. 1080, 207 L.R.R.M. 1089, 364 NLRB No. 90 (2016), the Board held that the NLRA’s definition of employee included persons who perform work at the direction of an employer for which they are compensated. The definition of employee under 29 U.S.C. § 152(3) (similar to the definition under N.J.S.A. 34:13A-3(d)), provides that it shall include “any employee” subject to certain exceptions. The Columbia University Board determined that statutory coverage of an employee is not foreclosed by the existence of some other additional relationship that the NLRA does not reach. The Board determined that student assistants who have a common law employment relationship with their university, including those engaged in research funded by external grants, were statutory employees.
In doing so, the Board overturned and criticized Brown University, 342 NLRB 483 (2004) for excluding common law employees merely because they also had a student relationship with the university, referring to it as a decision that disregarded the broad definition of employee and that was based on policy concerns not derived from the NLRA and far removed from the Board’s expertise. Columbia University, 364 N.L.R.B. at 1082. Compare In re Atlantic Cty., 445 N.J. Super. 1, 15 (App. Div. 2016) (criticizing PERC for undermining its own mandate in the Act when it based its decision on laws and goals outside of its charge and attempted to fill a gap it did not have authority to fill), aff'd on other grounds, 230 N.J. 237 (2017). The Board looked to the empirical evidence of successful experience of collective negotiations at public universities under state law and found it relevant, as that experience was the closest proxy for experience under the NLRA. Id. at 1088.
The Columbia University Board noted the absence of specific pertinent exclusions to the definition of employee in the NLRA. The Board acknowledged that an "array of federal statutes and regulations apply to colleges and universities," but stated “[t]hat application of the Act in some specific respect might require accommodation to another federal law cannot mean that the Board must refrain from applying the Act, at all, to an entire class of statutory employers or statutory employees.” Columbia University at Footnote 50. The Board rejected the argument that academic freedom would be infringed by collective bargaining and stated that defining the precise contours of mandatory subjects of bargaining is a task the Board should address case by case, which would allow the Board to consider issues that might actually arise in a concrete, not speculative, context. Id. at 1087. The Board noted that potential conflicts with federal law related to the disclosure of educational records and unions’ right to information to carry out collective bargaining could be addressed when the particular factual settings arise. Id. at Footnote 93.
The Board also rejected a different proposed test for employee status:
Columbia also argues for our adoption of another, similar non-common-law standard: the "primary beneficiary" analysis used by the courts in some Fair Labor Standards Act (FLSA) cases, including cases involving the employee status of student interns. Because the FLSA definition of a statutory employee is not tethered to the common law (as the Act's definition is), and because the FLSA reflects policy goals distinct from those of the Act, we are not persuaded that the "primary beneficiary" analysis should govern this case. For the same reason, we are not persuaded by Columbia's contention that the Department of Labor's recent guidance regarding whether graduate research assistants are employees within the meaning of the FLSA bears on the separate question of whether student assistants who have a common-law employment relationship with their universities should be regarded as employees under the NLRA.
[Columbia University at Footnote 49].
The Board stated that “Even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer's control, suffices to establish an employment relationship for purposes of the Act.”. Id. at 1085. The Board cited approvingly to the Restatement of Employment Law:
For purposes of employment law, student assistants cannot be fairly categorized as "volunteers," rather than employees. See Restatement of Employment Law § 1.02 ("An individual is a volunteer and not an employee if the individual renders uncoerced services to a principal without being offered a material inducement"). As the Restatement explains, "[w]here an educational institution compensates student assistants for performing services that benefit the institution, . . . such compensation encourages the students to do the work for more than educational benefits and thereby establishes an employment as well as an educational relationship." Id., comment g. The Restatement illustrates this principle with the following example:
A is a graduate student in biochemistry at university P. In order to complete the degree requirements, A must work in a laboratory under P's auspices, either for pay or as a volunteer. A works in the laboratory of a professor, for which A is paid a yearly stipend and given full tuition remission. The professor has secured grants to support the research that A is assisting. A is an employee of P. P is providing A with significant benefits both in order to further A's education and also to obtain A's services on P's funded research.
[Columbia University at Footnote 52].
The Board found that research-based financial support frequently came in whole or in part from grants from government or other outside entities to support specified research tasks. Id. at 1092. Research officers generally participated in research funded by outside entities. Id. The research grants specified the nature of the research and the duties of the individuals working on the grant. Id. The revenue from the grant beyond the amounts allotted to research assistantships went to Columbia's general operating expenses. Id. at 1093. The employer had argued that graduate research assistants on training grants were not employees because they were supported by the government and did not provide a service to the university. Id. at Footnote 98. The Board found that externally funded research assistants were statutory employees, overturning Leland Stanford., 214 N.L.R.B. 621 (1974). The Columbia University Board held that where a university exerts the requisite control over the research assistant's work, and specific work is performed as a condition of receiving the financial award, a research assistant is properly treated as an employee under the Act. Columbia University at 1096. The Board found that the research of the student assistants met research goals associated with grants from which the university received substantial income, and they worked under the direction of their departments to ensure that particular grant specifications were met. Id. The Board found that the university typically received a benefit from the research assistant's work, as it received a share of the grant as revenue, and it is relieved of any need to find other sources of funding for graduate students under a research grant, and that it therefore had an incentive to ensure proper completion of the work in accordance with the grant. Id. The Board determined that as a research assistant's aid package required fulfillment of the duties defined in the grant, the award was thus compensation. Id.
The university had argued that research assistants funded by training grants presented unique circumstances, but the Board found that the university received revenue from the grants, was charged with ensuring that research assistants received appropriate training within a formalized program (consistent with the funder's goal of having a well-trained workforce in biomedical and behavioral research), and accordingly it oversaw and directed the research assistants who received the grants. Id. at 1097. The Board found that participation in specific training activities is a requirement for receipt of training grants, and thus, notwithstanding the grantor's statement that the grant aid is not salary, the Board found it was a form of compensation. Id. Essentially, the Board held that if a university receives revenue from a training grant and requires trainees to participate in training activities, it is overseeing and directing them and the grant aid is a form of compensation.
Subsequently, in Columbia University II, Case No. RC-225405 (09/18/2018), the Regional Director for Region 2 of the NLRB issued a Decision and Direction of Election in a case rejecting the employer’s arguments that postdoctoral fellows are not employees within the meaning of the NLRA because their research is funded independently from external sources. (Mintz 2nd Cert. Ex. B). In that case, the Postdoctoral Fellow Patel moved from a grant funded by Columbia to an NIH grant that she applied for directly. Id. The transition from fellow to postdoc appointments had no impact on her daily research tasks or on her relationships with her primary investigator and other staff in the lab. Id. Although the researchers worked independently on their own projects, that work was in accord with the research goals of the university and pursuant to the terms of the grants under which they worked. Id. A bargaining unit that included postdoctoral research fellows was subsequently certified, which includes fellows on NIH NRSA T32 and F32 fellowships. (Mancilla Cert. ¶ 2, 4).
I find persuasive the analysis and reasoning of the NLRB in Columbia University and Columbia University II, which itself was influenced by the experience of public sector universities. For the same reasons as the NLRB, and because the Commission has already held that common law principles apply, I decline to apply the primary beneficiary and FLSA tests advocated by Rutgers. I also do not find that a determination that Class 9 fellows are employees under the Act to be preempted. To be preemptive, a statute or regulation must speak in the imperative and leave nothing to the discretion of the public employer. IFPTE Local 195 v. State, 88 N.J. 393, 403-04 (1982).
The NRSA Grants Policy Statement indicates that NIH awards an institutional allowance to Rutgers to help support the costs of training, which are not subject to prior approval requirements and not required to be accounted for on an actual cost basis. GPS 11.2.9.4. The allowance is intended to offset appropriate administrative costs of training and are paid directly to and administered by Rutgers. GPS 11.2.9.4. Although NRSA fellowships are not provided as a condition of employment and therefore Rutgers cannot charge awards for costs associated with Federal Insurance Contributions Act (FICA), workers’ compensation, life insurance, unemployment insurance, and -- unless approved by the fellow -- union dues, this does not preclude a finding of employee status under the Act. GPS 11.2.9.8. Indeed, the allowance for the fellow to opt for dues deductions acknowledges that a fellow may be considered an employee under other statutes. NRSA trainees are not considered to be an employer-employee relationship solely because of NRSA support, their stipends are taxable. GPS 11.3.10.6, .7. This taxability shows that although NIH may not consider the stipends to be salaries, the Internal Revenue Service considers them to be taxable income. Id. While NIH does not consider NRSA trainees to be employees solely because of the stipends, NIH does not discourage or otherwise prevent Rutgers from hiring NRSA trainees and fellows as employees. GPS 11.3.8.2. Stipends can be supplemented provided it is done without additional obligations for the trainee. GPS 11.3.10.1. Fellows may also seek additional part-time employment for up to 25% of their time on research, teaching, or clinical work so long as the compensation is not from another grant that supports the same research that is part of the trainee’s training and so long as it does not detract from or prolong the approved training program. GPS 11.3.10.2. Even though negotiations over some aspects of compensation and other specific terms and conditions of employment might be preempted, the Grants Policy Statement does not prevent a finding that trainees are employees under the Act. The exact scope of mandatory negotiations for a unit with NRSA trainees can be determined on a case by case basis by the Commission.
I find that two of the Non-NRSA Class 9s, Dr. Rabinovich and Dr. Mia-Athina Thomaidou are not employees under the Act. Dr. Rabinovich was awarded his grant directly, selected Rutgers to host, and is free to take his research to another institution without losing his grant funding. He has the ability to select his own mentor and has already switched mentors. He completes tasks outlined in the grant and provides updates to his faculty advisor, but he is under no obligation to provide services to Rutgers and Rutgers does not retain any intellectual property rights over his work. Since Rutgers does not control his funding and he does not perform work at the direction of Rutgers, I find that he is not an employee under the Act.
Dr. Mia-Athina Thomaidou wrote her own grant proposal, it was awarded directly to her, and her research was determined before she selected Rutgers to host it. Although Rutgers currently disburses the funds to her as a stipend, the grant funding and research specified by it would follow her if she left Rutgers. All grant-related tasks are her responsibility. Although she has a faculty mentor, they do not assign tasks to her, and she owes no deliverables to Rutgers. Rutgers is essentially merely providing space to her to conduct her research. As Rutgers does not control her funding and she does not work at the direction of Rutgers, I find she is not an employee under the Act.
However, I do find that the other non-NRSA Class 9, Dr. Tynes, is an employee under the Act. She was given an offer letter that assigned her responsibilities to conduct research related to the seminar theme, to assist in organizing seminar meetings, and to attend and participate in all seminar meetings and events. Her duties also include presenting at conferences and participating in training. She also receives a taxable stipend of $60,000 distributed by Rutgers in biweekly paychecks and was offered health insurance. I find that she performs some work at the direction of Rutgers and receives the stipend and benefits as compensation.
NRSA Class 9 F32 fellow Benton Purnell is a principal investigator responsible for the program of research and training agreed upon with NIH. He directly submitted his application outlining his own goals and objectives of his research and training. NIH, not Rutgers, required him to develop a plan that does not overlap with research already being performed by his sponsoring institution mentor. He chose Rutgers as his sponsoring institution to mentor the training experience. He may also transfer the grant to another institution with the approval of NIH. Accordingly, I find that the grant is not compensation distributed by Rutgers for the performance of work done at the direction of Rutgers, and that therefore he is not an employee under the Act.
I find that all the NRSA Class 9s funded through T32 grants to be employees under the Act. Their stipends are disbursed by Rutgers. Rutgers applied for the T32 grants and selected the individual T32 fellows. Their proposals must be approved by Rutgers and their research projects are mentored. Alexandra Williams, Myriam Casseus, Jennifer Dillon, and Allyson Bontempo were selected by Rutgers to be funded under the same grant. Candace Longoria’s offer letter explains her stipend, medical insurance, and travel funds for attending conferences. Rutgers also selected her for a $2,500 award. Her letter explained her requirements to engage in full-time research and to meet with an advisory committee to ensure her research goals are being met. She performs research under the supervision of a faculty member in the lab of that faculty member. Mehdi Kamali has been assigned work duties, responsibilities, and obligations. He works with undergraduate and graduate students under the direction of faculty members and his paychecks come from Rutgers.
Wesley Evans was a Class 1 postdoc fellow in the negotiations unit and later brought onto a NRSA T32 fellowship and redesignated a Class 9 fellow. However, none of his day-to-day duties and responsibilities changed. His compensation for these duties did not change except with respect to healthcare service and Rutgers no longer taking out taxes from his paychecks. I find that he is an employee under the Act.
Joshua Henkin’s offer letter refers to him as an employee and that his salary is $56,880. It shows that the offer is contingent on completion of pre-employment screenings and proof of vaccination as a prospective employee prior to commencement of employment. It shows that failure to provide proof of vaccination or exemptions will result in rescission of the offer or disciplinary action up to and including termination. It shows that he is required to participate in employee training without additional compensation, and that completion of all training is a condition of employment. It shows that his reappointment is contingent upon satisfactory performance. It explains what his research will focus on. I find that he is compensated for work performed at the direction of Rutgers and is an employee under the Act.
I find that all other fellows at issue are also employees under the Act.6/6/Allison Glasser, Danyal Siddiqui, Edward Chuang, Elnaz Khezerlou, Gina Moreno, Holly Poore, Hye Choi, Jonathan Roth, Justin Kidd, Kenneth Acosta, Lazer Gerlikhman, Margaret Whedon, Natalie Burchat, Rebecca Androwski, and Tatiana Popovitchenko. They work in research labs under the research direction of a faculty principal investigator on experiments, journal publications, conference presentations, and further grant submissions. They work side-by-side with Class 1s on research projects, grants, and publications. They perform the same work as Class 1 postdocs already in the unit and perform research under the supervision of and in the lab of a Rutgers faculty member. Unlike some of the other fellows referenced above, no evidence has been presented rebutting their presumed status as employees.
ORDER
AAUP’s unit is clarified to exclude Dr. Rabinovich, Dr. Mia-Athina Thomaidou, and Dr. Benton Purnell, and to include all other NRSA postdoctoral fellows and Dr. Brendane Tynes.
/s/ Ryan M. Ottavio
Director of Representation
DATED: January 21, 2025
Trenton, New Jersey
A request for review of this decision by the Commission may be filed pursuant to N.J.A.C. 19:11-8.1. Any request for review must comply with the requirements contained in N.J.A.C. 19:11-8.3.
Any request for review is due by January 31, 2025.***** End of DR 2025-004 ***** |
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