On December 19, 1985, the Director of Representation issued a Notice of Hearing. On February 25, 26 and 27, 1986, I conducted a hearing on two of the disputed titles. In the February 27 hearing, the AAUP raised for the first time its contention that a pre-Act negotiations relationship and/or special circumstances existed between the AAUP and Rutgers which would allow supervisors to remain in a unit which represented nonsupervisory employees under N.J.S.A. 34:13A-5.3. In view of this position, I bifurcated these

1/ The titles are Associate University Librarian for Technical Services; Assistant University Librarian for Public Services; Director, Special Collections and Archives; Deputy University Librarian; Personnel Officer; Director, Archibald Stevens Alexander Library; Director, Library of Science and Medicine;Director, Mabel Smith Douglas Library; Director, Kilmer Library; Director, Camden College of Arts & Sciences Library; Director, John Cotton Dana Library; Director, Newark Law Library; and Director, Camden Law Library.

...nor, except where established practice, prior agreement or special circumstances, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits non-supervisory personnel to membership....

In W. Paterson Bd. of Ed ., P.E.R.C. No. 77 (1973), the Commission defined established practice as a relationship preceding the passage of the Act in 1968 involving

an organization regularly speaking on behalf of a reasonably well defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations)

2/ Transcript citations are as follows: TA - February 25, 1986; TB--February 26, 1986; TC--February 27, 1986; TD--May 29, 1986; TE--June 18, 1986; TF--June 25, 1986; TG--July 10, 1986; TH--July 24, 1986; TI--July 29, 1986; TJ--September 29, 1986; TK--October 14, 1986; TL--December 10, 1986; TM--December 22, 1986; TN--January 19, 1987; TO--February 2, 1987; TP--February 5, 1987; TQ--April 8, 1987; TR--May 5, 1987.

Established practice includes the joint determination of terms and conditions of employment through negotiation on bilateral basis. There must be the give and take of negotiation as contrasted with the unilateral determination of terms and conditions of employment by a public employer following discussions with public employees or their representatives. To require less would render meaningless a statutory prohibition based upon accepted principles of labor relations. [slip op. at p. 3].

The Commission has stressed that the "mixed units [are] inherently unworkable and therefore in most cases inappropriate." In re W. Paterson Bd. of Ed ., P.E.R.C. No. 79 (slip at p. 4). Accordingly, the Commission has consistently given narrow construction to the exception and has required proof by a clear and convincing evidence standard. Tp. of Teaneck, E.D. No. 23 (1971) and Parsippany-Troy Hills Bd. of Ed., D.R. No. 82-51, 8 NJPER 283 ( & 13128 1982). The exception does not apply "where the circumstances underlying the pre-existing relationship no longer exist...." Ramapo-Indian Hills Board of Education , D.R. No. 81-26, 7 NJPER 119, 120 ( & 12048 1981). Accordingly, the Commission has refused to apply the exception where the responsibilities of employees have changed significantly (see e.g. Ramapo and Borough of Metuchen, D.R. No 84-3, 9 NJPER 524 (& 14212 1983)) or where the identity and structure of either of the parties has changed (see Atlantic City Convention Center, P.E.R.C No 85-108, 11 NJPER 303 (& 16107 1985).

"Special circumstances" language of Section 5.3 of the Act has also been given limited effect by the Commission. In Tp. of Mine Hill, D.R. No. 79-4, 4 NJPER 297 ( & 4148 1978), req.for rev. den., P.E.R.C. No. 79-8, 4 NJPER 416 ( & 4186 1978), the Director of Representation rejected a hearing officer recommendation that a supervisor could be in a unit with nonsupervisors where there was no

other unit to which the supervisor could belong. Similarly, in Tp. of Maple Shade, D.R. No. 79-10, 4 NJPER 440 ( & 4199 1978), the Director of Representation rejected a claim that special circumstances should allow the continued inclusion of non-policeemployees and police employees in one unit. To date, the Commission has limited "special circumstances" to the continued inclusion of employees in a negotiations unit, otherwise inappropriate for inclusion in that unit, until the expiration of a collective negotiations agreement. In re Clearview Reg. High School Bd. of Ed., D.R. No. 78-2, 3 NJPER 248, 252 (1977).

3/ Rutgers raised substantive factual disputes as to AAUP proposed findings of fact numbers 12, 16, 17, 18, 19, 20, 21, 23, 30, 37, 40, 41, 47, 53, 54, 58, 63, 64, 65, 68, 69, 70, 71, 117, 140, 160, 188, 196, 219, 234, 284, 374, 375 and 377. Other Rutgers objections to AAUP proposed findings of fact concerned lack of relevance or transcript/documentary references, or opposition to conclusory language.

2. The President of the University during the pre-Act period was Mason Gross. Other administrative officers of the University at that time included Richard Schlatter, Provost and Vice President; John Swink, Vice President and Treasurer; and Karl Metzger, Secretary.

3. The Board of Governors' committee structure during the pre-Act period included a Budget and Finance Committee and an Educational Planning and Policy Committee.

4. The American Association of University Professors has had a chapter in New Brunswick since at least 1963 (Exhibit EO 10-729). ^4/ Separate chapters existed in the Newark and Camden (then "South Jersey") campuses of Rutgers; faculty at those campuses did not vote for officers of the New Brunswick chapter, but had their own officers (TN67-68). New Brunswick AAUP officers in the pre-Act period who testified are Allen Robbins, Peter Lindenfeld and

4/ Employee Organization exhibit numbers reflect a prior numbering system; to minimize confusion, the prior numbering system was retained.

5. Beginning in early 1965, the AAUP provided information and/or advocacy of specific proposals to the Board of Governors and the administration concerning faculty salaries, ^5/ pensions^6/ and sabbatical leave programs.^7/ Communications occurred through a variety of written documents and meetings between AAUP and University officers. AAUP efforts were constant and vigorous in these three topics for almost three years. Administration officials, especially President Gross, agreed generally with AAUP goals, but favored a gradual approach which would improve faculty terms and conditions of employment over time. As for specific AAUP proposals presented to the Board of Governor's Budget and Finance Committee, AAUP witness David Lester conceded that "[c]certainly it's not my recollection that the university or at least [the]

5/ See AAUP proposed finding of fact numbers 20, 24, 30, 33, 44, 48, 50, 52, 54, 56 62, 66, 67, 91, 101, 110, 111, 113, 120, 121, 130, 135, 145, 148, 155, 158, 186, 200, 205, 209, 227, 234, 238, 245, 248, 251, 252, 254, 257, 275, 284, 287, 288, 292, 295, 296, 309, 310, 311, 315, 317, 322, 328, 340, 364 and 368, together with cited exhibits.

6/ See AAUP proposed finding of fact numbers 47, 58, 59, 60, 74, 75, 76, 80, 81, 83, 87, 98, 99, 102, 105, 108, 109, 114, 118, 124, 129, 140, 172, 192, 228, 237 and 240, together with cited exhibits.

7/ See AAUP proposed findings of fact numbers 47, 245, 248, 254, 255, 266, 268, 274, 276, 294, 295, 297, 301, 302, 308, 315, 322 and 364, together with cited exhibits.

6. AAUP influence on the Rutgers Administration and Board of Trustees during the pre-Act period is evident in many actions and correspondence of President Gross. Gross was open to allsuggestions of the AAUP; when interested, he would refer issues and proposals to his subordinates for study. He also solicited information from the AAUP which might support his proposals to the Board of Governors. ^8/

7. AAUP also contacted State government appointed and elected officials, seeking improvements in the pension system and State budgetary allocations sufficient to fund salary increases sought by the AAUP. AAUP representatives also appeared before committees of the Legislature and presented testimony in annual budget hearings. ^9/

8. In some areas, Rutgers and the AAUP coordinated and/or supported each other's efforts to influence the legislative and executive branches of State government. For example, Administration and AAUP leaders discussed a coordinated approach to a proposed Higher Education Bill, and supported each other's efforts to gain

8/ (see, e.g. AAUP proposed finding of fact numbers 247, 281, 283 and 293 and Exhibits EO-10-276, 277, 91, 236, 237, 251.

9/ See AAUP proposed findings of fact numbers 208, 210, 213, 214, 236, 239, 242, 286 300, 309 and 317, together with cited exhibits.

9. Before, during and after the above AAUP efforts, the University Senate and Faculty Assembly existed pursuant to University regulations. Those bodies discussed a wide variety ofissues overlapping the issues raised by the AAUP to the administration. ^11/

10. During a four-year period preceding the passage of the Act, the AAUP assisted seven faculty members who filed complaints with University committees upon denial of tenure, promotion or reappointment.*@FN See AAUP proposed finding of fact numbers 127, 128, 160, 168, 258, 260 and 312, and Rutgers proposed findings of fact numbers 57-65.@ There was no established grievance procedure negotiated between the AAUP and Rutgers; instead, faculty members could appeal adverse personnel decisions to the "Committee of Review" of their college within the university. Half of each committee was appointed by the college dean; the other half was elected by the college faculty in elections where the AAUP had no role. An aggrieved faculty member did not have to be represented by the AAUP in proceedings before a committee of review; the AAUP had no right to be present during proceedings if their representation was not requested; and there was no mandatory procedure for appeal

10/ See e.g. AAUP proposed finding of fact numbers 116, 230, 232 and 317 and Exhibits EO-10-84, 93 and 295.

11/ See Rutgers proposed finding of fact numbers 23 and 24.

11. For the 1967-68 academic year, the Legislature funded the National AAUP "A" average salary level for Rutgers faculty, which the AAUP had sought for the 1966-67 academic year (see Rutgers proposed finding of fact numbers 41 and 42).

12. For the 1967-68 academic year, the Legislature enacted legislation allowing Rutgers faculty to enroll in an alternative pension program administered by TIAA-CREF, which the AAUP had sought since May 1965 for academic year 1966-67 (TG 99-100; TL 130-131; Exhibit EO-10-1148).

13. The AAUP sought a sabbatical leave program for Rutgers faculty since early 1965. No sabbatical leave program was implemented in the pre-Act period (TL 131-132; Exhibit EO-10-1148).

14. There is no record evidence of a signed agreement between the AAUP and Rutgers concerning any term and condition of employment in the pre-Act period, and AAUP witnesses conceded that no such pre-Act document was ever proposed or executed (TL 110; TQ 16).

15. Joel Jacobson, former Executive Vice President of the New Jersey AFL-CIO, was a member of the Rutgers Board of Governors from 1959 through 1974. He recalled that President Gross often informed the Board of meetings which Gross held with AAUP officers, and of Gross's concerns that, absent improvements in faculty wages and benefits, some faculty would leave the university. While Gross and the Board were sympathetic about the problem, "[n]nobody was ready to throw bombs about it...." Jacobson could not recall any "collective bargaining," which he defined as talking, reaching agreements and expressing disagreements between Rutgers and the AAUP (TQ 3 and 10-16).

I. Was Rutgers Council of AAUP Chapters "an organization regularly speaking on behalf of a reasonably well defined group of employees"?

Rutgers argues that the Respondent Rutgers Council of AAUP Chapters cannot demonstrate an established practice exception under the Act because it has not demonstrated that it was "an organization regularly speaking on behalf of a reasonably well defined group of employees." West Paterson Bd. of Ed ., P.E.R.C. No. 77 (1973)(slip. op. at p. 10). In support of this argument, Rutgers contends: 1) The AAUP failed to demonstrate that membership in the AAUP by more than half of the faculty at any time during the pre-Act period; 2) The AAUP could not have been an exclusive representative since the University Senate and Assembly debated and formulated proposals

While the AAUP did not demonstrate membership constituting a majority of the faculty during the pre-Act period, such a showing is not necessary to make out an established practice exception. Indeed, a majority representative who is certified by PERC election may not and need not have a membership of a majority of the unit it represents. In either case the employee organization need only demonstrate a majority of support; in the pre-Act setting, such demonstration is reasonably inferred from the treatment received by an organization from a public employer. Here, written and oral communications between representatives of the AAUP and Rutgers established that Rutgers considered the AAUP to be an organization which represented faculty; the University's willingness to meet with other groups and other individuals to discuss faculty interests does not diminish the status which it accorded to the AAUP by its conduct (see Finding of Fact No. 5).

I also reject the contention that AAUP's status as a representative of the faculty is undermined by the existence of the University Senate and Assembly in the pre-Act period. As the Commission noted in Rutgers, The State University, P.E.R.C. No.

76-13, 2 NJPER 13,15 (1976), there need be no conflict between collegial institutions like the University Senate or Assembly and the collective negotiations rights and responsibilities of a majority representative of faculty in a university setting.

Rutgers also argues that the established practice exception cannot apply to the Rutgers Council of AAUP Chapters because that organization did not act on behalf of faculty members during the pre-Act period. Instead, the record demonstrates that the New Brunswick Chapter of American Association of University Professors was the body whose officers repeatedly interacted with Rutgers' officials as to faculty concerns in New Brunswick. The faculty at the Rutgers Newark and Camden (then "South Jersey") Campuses had their own officers and did not participate in the election of New Brunswick officers nor did they authorize New Brunswick Chapter officers to act on their behalf.

Rutgers has accurately summarized the facts in this area. (See Finding of Fact No. 4.) At the same time, there is no record evidence that the Rutgers Chapter ever ceased its existence, or that there was any lack of continuity between the New Brunswick Chapter and the Rutgers Council of AAUP Chapters with respect to New Brunswick faculty. However, there is no evidence that the New Brunswick Chapter in the pre-Act period ever spoke on behalf of faculty at Newark or Camden or was ever authorized to do so. Assuming for the moment that an established practice is demonstrated between the New Brunswick Chapter of the AAUP and Rutgers, the

question becomes whether or not the successor organization, Rutgers Council of AAUP Chapters, is entitled to rely upon such established practice.

As noted above at page 4, the Commission has narrowly construed this exception and refuses to apply it where either the responsibilities of relevant employees have changed significantly or where the identity and structure of one of the parties has changed. Thus, in Atlantic City Convention Center , the Commission refused to apply the established practice exception notwithstanding clear and convincing evidence of a pre-Act negotiations relationship because the employer had changed since the pre-Act period. The City of Atlantic City administered the Convention Center in the pre-Act period but since 1982, the Convention Center was run by a separate authority created by statute. Here, the identity and structure of the employee organization has not only changed since the pre-Act period, but the scope of the unit of employees which the Rutgers Council represents is much broader than that represented by the New Brunswick Chapter in the pre-Act period. While the Commission has not previously ruled in such circumstances, the extension of the established practice exception to this factual pattern is not consistent with the Commission's previous narrow constructions of the exception. Accordingly, I recommend that the Commission find that the established practice exception cannot apply to the current

collective negotiations relationship between Rutgers and the Rutgers Council of AAUP Chapters. ^12/

II. Did the New Brunswick AAUP Chapter have an "established practice" relationship with Rutgers?

Assuming that the Commission finds the change in identity, structure and scope of the unit represented by the Rutgers Council of AAUP Chapters to be no impediment to application of the established practice exception, I proceed to the issue of whether established practice existed. This inquiry focuses on whether or not AAUP efforts to improve employee conditions and resolve differences occurred with an employer who "engage[d] in the process with an intent to reach agreement." West Paterson , P.E.R.C. No. 77 (1973)(slip opinion at p. 10). The AAUP acknowledges that "[c]oncededly, there was neither formal recognition nor a written agreement [in the pre-Act period] which would be considered as a contract today." AAUP Brief at p. 5. As noted above at page 5, evidence of a pre-Act contract or like document is not a prerequisite to demonstrate established practice. However, there must be clear and convincing evidence of oral or written agreement by the parties as to terms and conditions of employment. Henry Hudson Reg. School Dist. Bd. of Ed. and Riverdale Bd. of Ed.

12/ Since the application of the established practice exception to a majority representative under these facts is a matter of first impression, the issue is appropriately addressed under a complete record as developed here. See Essex County Educational Services Commission, P.E.R.C No. 83-65, 9 NJPER 19,20 (& 14009 1982)

The AAUP's role in grievance administration in the pre-Act period again demonstrates influence but not negotiation. The grievance procedures were not negotiated or established with AAUP consent; the AAUP had no exclusive role in those procedures in terms of representing grievants; and AAUP witnesses described their

efforts as "intercession" in "informal procedures" rather than full participation in the resolution of grievances. (See Finding of Fact No. 10). When AAUP intervention led to results which were satisfactory to and accepted by a grievant, the AAUP and the grievant wrote letters to each other indicating their satisfaction. Again, influence of the AAUP is evident but negotiation with the University is not. The testimony of all witnesses leads to the same conclusion. The two primary AAUP witnesses were Allen Robbins and David Lester, President of the AAUP and Chairman of its Committee on Salary and Fringe Benefits, respectively. Neither witness could testify to handshakes or oral agreements with any administration officials or members of the Board of Governors of the University. Robbins and Lester had many meetings and communications with University representatives and undoubtedly influenced the thinking of those officials. However, they also testified that those officials did not reach agreement with them nor did the officials indicate an intent to reach agreement (see Finding of Fact Number 5); rather, University officials were receptive to information and advocacy provided by the AAUP which might help achieve common goals of raising salaries and benefits for University professors and achieving/maintaining a first-rate University. In addition, John Swink, University Vice President and Treasurer, and Joel Jacobson, a member of the Board of Governors during the pre-Act period, denied that negotiations in any form took place. Jacobson's testimony is particularly compelling, since he is an experienced labor leader

Notwithstanding the testimony and documents reviewed above, AAUP argues that, under the circumstances of the era and the

University setting, it did all it could do to represent faculty interests and is entitled to rely upon its efforts as an "established practice." AAUP argues that since it was "unlawful or, at best, unenforceable" for these parties to negotiate a contract prior to 1968, the lack of a contract or other agreements in the record should not be held against the AAUP in seeking the established practice exception (Brief at p. 28).

I reject this argument. In Henry Hudson Reg. School Dist. Bd. of Ed. , the Commission's Executive Director rejected an employer argument that the absence of pre-Act collective negotiations rights in the public sector precluded "established practice." Instead, the Commission would review the history of the parties' relationship to discern whether the process engaged in, however labeled, "demonstrate[d] the desirability and propriety, in terms of the Act's objectives, of continuing that same relationship..." (slipopinion at p. 4). The Executive Director found an established practice even in the absence of a written contract, relying on the testimony of a board member and two employee representative witnesses. The board member's testimony was quoted by the Hearing Officer:

Well, we would, I guess, go through the normal labor negotiations in a sense. We would be presented a packet as to the...demands of the teacher's association regarding salary, benefits, etc.-right down the line, plus policy, grievance committees and things of this nature. We would discuss this at this meeting and we would go to our Board and discuss it. We would have committee meetings, work shop meetings and the[n] go back again to the teachers and have another meeting and this would go back and forth until

ultimately we came up with an agreement between the two bodies.

Similarly, in River Dell Bd. of Ed ., the Executive Director adopted the findings of fact and recommendations of a hearing officer who found that the parties had reached oral agreements during the pre-Act period. 2 NJPER at 90, 95. There is no analogous evidence here; instead, even AAUP witnesses acknowledge that the parties did not reach specific oral agreements as to terms and conditions of employment nor did the University hold any meetings with the AAUP with the intent to reach agreement (see Findings of Fact 5 and 15).

In conclusion, I find that while the AAUP was a vigorous advocate for employee interests during the pre-Act period, it never reached any written or oral agreement with an employer with which it had an intent to reach any such agreement. Accordingly, applying Commission case law to the facts presented, I find that the AAUP has failed to demonstrate by clear and convincing evidence an established practice with Rutgers which would allow the supervisors to remain in a negotiations unit with nonsupervisory employees under Section 5.3 of the Act.

III. Special Circumstances

Alternatively, AAUP argues that the unique setting of Rutgers and the AAUP during the pre-Act period, together with the pre-Act history reviewed above, establishes "special circumstances" within the meaning of Section 5.3 of the Act which would allow supervisors to remain in a unit that represented nonsupervisory employees. The AAUP emphasizes the Commission's recognition of

collegiality as a "unique situation" for collective negotiations. As noted above, the Commission has held that collegiality (i.e. a system of faculty participation in University governance) need not conflict with collective negotiations. Rutgers, The State University.

There is no precedent for this reading of the special circumstances exception; indeed, the Commission has strictly construed the term (see discussion at pp. 5-6). Given this history, I cannot recommend that the Commission apply the special circumstances exception to these facts. While the constant and vigorous efforts of the AAUP to represent faculty interests in the pre-Act period are impressive and well documented, I have already concluded that their relationship with Rutgers did not rise to the level of an established practice. I do not see where the collegial relationships at Rutgers, then and now, should create a special circumstance as intended in Section 5.3. Indeed, one need only examine the pre-Act practices of the parties as to grievances to reach this conclusion. Notwithstanding a collegial relationship, the University did not at that time accord the AAUP any exclusive or structured role in the presentation and resolution of grievances. In contrast, today's AAUP has an exclusive and structured role in the administration of processing and the resolution of grievances (see Exhibit J-1, Article IX). There is nothing unique to collegiality that would have precluded a more formal role for the AAUP in grievance administration in the pre-Act period than

post-Act. Accordingly, I conclude that there are not special circumstances which should allow supervisors to remain with nonsupervisors represented by the AAUP.

Respectfully submitted,

Mark A. Rosenbaum
Hearing Officer


Dated: September 2, 1988
Trenton, New Jersey