H.E. NO. 80-21

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE UNIVERSITY,

Respondent,

-and-	Docket No. CO-78-250-78

RUTGERS COUNCIL OF AMERICAN

ASSOCIATION OF UNIVERSITY PROFESSORS,

Charging Party.

RUTGERS, THE STATE UNIVERSITY,

Respondent,

-and-	Docket No. CO-78-241-85

RUTGERS COUNCIL OF AMERICAN

ASSOCIATION OF UNIVERSITY PROFESSORS,

Charging Party.

Appearances:

For the Respondent,

Pitney, Hardin & Kipp

(S. Joseph Fortunato, of Counsel)

For the Charging Party,

Sterns, Herbert & Weinroth, Esqs.

(John M. Donnelly, of Counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

The Rutgers Council of American Association of University Professors (AAUP) filed two separate charges with the Public Employment Relations Commission (Commission) alleging that Rutgers, The State University, engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended (Act), specifically N.J.S.A. 34:13A-5.4(a)(1) and (5)1/ by its conduct in negotiations. The first charge was filed on April 7, 1978, and alleged that Rutgers refused to negotiate a grievance procedure in conformity with the Commission's decision in Township of West Windsor, PERC No. 77-59, 3 NJPER 124 (1974). The second charge was filed on April 21, 1978. This charge incorporated the allegations of the April 7 charge and, in addition, alleged that Rutgers unilaterally implemented a personnel grievance procedure without reaching a post factfinding impasse. The AAUP submitted an application for interim relief, which was subsequently denied in a proceeding before Stephen B. Hunter, Special Assistant to the Chairman.

It appearing that the allegations of the charges filed by the AAUP, if true, might constitute unfair practices within the meaning of the Act, consolidated Complaints and a Notice of Hearing were issued on June 20, 1978. Hearings were held in New Brunswick, New Jersey, on July 25, August 2, August 24, September 12, October 6, November 15, December 13, 1978 and January 29, 1979, at which time all parties were given an opportunity to examine witnesses, present evidence and to argue orally. Briefs and supplemental briefs were received by May 7, 1979.

It is undisputed that Rutgers and the AAUP are respectively a public employer and an employee representative within the meaning of the Act.

The Unilateral Implementation

The 1975-1977 contract between Rutgers and the AAUP provided for two separate grievance procedures. The Article 9 Grievance Procedure governs grievances that allege violations of provisions of the contract or regulations concerning terms and conditions of employment other than regulations concerning personnel actions. The Article 10 Faculty Personnel Grievance Procedure governs claims of "violations of established University regulations and procedures or provision of the agreement regarding failure to award tenure, promotion or reappointment." This complaint concerns the conduct of negotiations and Rutgers' subsequent unilateral modifications to the Article 10 Faculty Personnel Grievance Procedure. The AAUP claims that Rutgers did not bargain in good faith during the course of negotiations and further a legitimate post fact-finding impasse was not reached in the course of bargaining. Accordingly the AAUP argues it was improper for Rutgers to unilaterally alter the Article 10 Grievance Procedure.

Rutgers maintains that it did bargain in good faith, honestly attempted to reach an agreement and did not alter the contract until there was a legitimate post fact-finding impasse.

Both Rutgers and the AAUP rely on the Commission's decision In the Matter of City of Jersey City, P.E.R.C. No. 77-58, 3 NJPER 123 to support their respective positions.

In Jersey City the city and the union, Local 246, were negotiating for a new contract. The city claimed that it was in a fiscal emergency and took the position in negotiations that it was forced to increase the hours of all its employees including the unit members in question by one hour a day without a corresponding increase in salary. The union would not agreed to such a change. After six negotiating sessions the parties then went through mediation and thereafter fact-finding. The fact finder's report was rejected by both sides. After two additional negotiation sessions the city unilaterally altered the work week of unit members. The union filed an unfair practice charge claiming the city could not lawfully implement such a change unilaterally. The Commission held that the city did not commit an unfair practice. An employer is generally precluded from altering the status quo regarding terms and conditions of employment while engaged in collective negotiations but the Commission recognized that there must be some ultimate resolution to the bargaining process. If the employer demonstrates an honest desire to reach an agreement, uses the impasse resolution procedures of the Commission and still the parties cannot reach an agreement, then the employer does not commit an unfair labor practice by unilaterally implementing its last best offer made during negotiations so long as the offer imposed reflects the employer's best offer, in terms of the employee organization.

In the instant matter, the parties commenced negotiations for a new contract to succeed the 1975-1977 contract in October of 1976. The parties negotiated steadily until June 24, 1977 when the parties entered into a tentative economic agreement and on July 1 the parties began negotiations for modifications to the Article 10 Grievance Procedures. The Article 10 Grievance Procedure provides for a four-step procedure.2/ The first step is a review by the grievant's dean or director. The second step is a formal hearing before the Committee of Review and the Committee of Review issues a written decision. Either party may appeal to the third step, the University Appeals Committee, which is composed of three faculty members chosen by the AAUP, three persons appointed by Rutgers and a seventh member chosen by the appointed members. A decision of this committee is considered advisory to the President and the Board of Governors. If the President's decision is at odds with the University Appeals Committee, the entire matter is put before the University Senate. The Senate then transmits its findings with a recommendation to the Board of Governors, whose decision on the issue is final.

While negotiations were continuing on non-economic items the Governor's office announced that it was rejecting the tentative economic agreement. Shortly thereafter Rutgers put an entirely new economic proposal on the table. On September 30, 1977, Rutgers indicated it believed the parties had reached an impasse over economics. Further, Rutgers and the AAUP, according to Sandra Walther, the Executive Director of Rutgers Council AAUP, and Richard Peskin, chief negotiator for the AAUP, were essentially in agreement on modifications to Article 10. But Rutgers outlined a proposal for an entirely new Article 10 grievance procedure. Rutgers filed a Notice of Impasse and a fact finder was appointed. The first meeting with the fact finder was on December 9. The parties agreed that the fact finder would initially serve as a mediator in an attempt to reach a settlement. At the next meeting, on December 12, the parties largely discussed economics although Rutgers distributed written copies of their proposed new grievance procedure.

The University's proposed procedure consisted of two main steps, first an informal hearing before the Committee of Review. The committee's recommended decision is then forwarded to the President. If the grievant is not satisfied with the President's answer the grievant may then proceed to arbitration before a tripartate panel, one member chosen by the AAUP, one by Rutgers and a neutral arbitrator. The decision of the arbitration panel (as well as the recommended decision of the Committee of Review) is expressly limited to remand to the decision-making body for reconsideration.3/ At the December 6 meeting Peskin took the position Article 10 was settled by the understanding of September 30. Rutgers responded that if every other item in the contract was agreed to, the earlier understanding would be agreeable to the University. Peskin was then asked to identify the elements of the personnel grievance procedure he felt were most important. He identified availability of a remedy other than remand; termination of the process in peer review and continuation of the Committee of Review as it was then constituted.

At the next meeting, on December 12, counsel for Rutgers, H. Reed Ellis, reiterated that Rutgers could not agree to the panel of arbitrators having any power beyond remand.

The AAUP maintained that they were preoccupied with economic issues during this time. However at the December 16 meeting between the parties, the AAUP had their own counterproposal ready and submitted it to Rutgers. The major difference between its personnel grievance procedure and Rutgers' is that, in addition to a remand remedy the proposal provides that in those cases where the panel of arbitrators decides that the evidence of violation is sufficiently strong and convincing, the panel of arbitrators can order a substantive remedy.

On January 18 the parties reached a tentative settlement on an economic package that was ultimately implemented. Also at that meeting Rutgers submitted a revised personnel grievance procedure in which the Provost served on the Committee of Review and again in which remand is the sole and exclusive remedy that can be awarded by the arbitration panel.

All in all between December 12 and January 18 there were six negotiations sessions, two of these sessions were also part fact-
finding sessions. At each session there was a half-hour to an hour of negotiations over the personnel grievance procedure and at one meeting, on December 29, there was approximately six hours of negotiations concerning the personnel grievance procedure. At no time did either party modify their position as to the remedy available to the arbitration panel.

Formal fact-finding on the grievance procedure occurred on January 17 and 18 and February 17 and 23. The parties met with the fact finder on March 27, when he told the parties of his thinking and asked them for their comments.

On April 4, 1978, the fact finder issued his report. Although the fact finder report states "The following recommendations are made in the hope that they will form the basis for further discussion between the parties and resolution hereafter, they do not incorporate specific language in most instances but deal rather in broad principles," the fact finder's recommendations are very specific and simply adopt or modify the University's report paragraph by paragraph. The fact finder recommended that the arbitration panel be limited to a remedy of remand. He also recommended that the Committee of Review hearing be formal in nature and further that the Provost play a part in the Committee of Review. On April 7 the parties met to discuss the fact finder's report. Rutgers announced that it would agree to the fact finder's report and handed out a revised proposal which Rutgers felt was in accord with the fact finder's recommendations. The procedure did include a formal proceeding before the Committee of Review. There is some dispute as to whether the parties negotiated at this meeting or merely reviewed the fact finder's report and Rutgers revised proposal. The meeting lasted three hours and the AAUP did express its position as to items in the report. At the end of the meeting Ellis proposed that the parties hold the filing of grievances under Article 10 in abeyance for 20 days so that negotiations could continue. The Board of Governors was scheduled to meet on April 14 and consider personnel action for the upcoming academic year. Rutgers wanted the new grievance procedure in place to handle the anticipated grievances of the Board's action. The AAUP took this proposal under advisement.

The parties next met on April 12. The meeting began at 2 p.m. with an agreement that negotiations would conclude at 8 p.m. At the outset Peskin rejected Rutgers' proposed moratorium on the filing of grievances - at this meeting Rutgers agreed after a long caucus to remove the Provost from the Committee of Review. Walther acknowledged that this was an important concession from the University. There was much discussion as to open procedural questions, as an example Rutgers agreed to an AAUP position that the record made by the Committee of Review go forward to the arbitration panel, but the AAUP wanted a definition of what was in the record. The AAUP feels that this question (as with other procedural questions) was never resolved.

The major area of disagreement, what Peskin characterized at the time as "philosophically the most important issue" was the question of substantive remedy. Rutgers maintained its position that the only remedy available to the arbitration panel was remand. They did not want an infringement on academic judgment; the Board of Governors should not be limited in their actions.

The AAUP suggested alternative solutions, such as non-
binding recommendations made by the arbitrators and they wanted to discuss, as they phrased it, alternative rather than substantive remedies. Shortly before the meeting was to end Ellis asked for the AAUP's bottom line. The AAUP responded that they weren't thinking that way. The University's position was they did not want non-binding remedies and demanded specific language precluding other remedies (it is noted that the phrase "sole and exclusive remedy" had been in the Rutgers proposals since December 12). Ellis testified that Peskin stated the authority of the Committee of Review and the Panel of Arbitrators to make recommendations other than remand was an essential and critical attribute of any agreement. Peskin's testimony varied from Ellis' on this matter. But Ellis also testified that he spoke privately with the attorney for the AAUP during the negotiations session as asked if his (Ellis') understanding of Peskin's position was correct. That is, an essential attribute of the agreement had to be the University's willingness to permit the Committee of Review and the Panel of Arbitrators to recommend substantive remedies. Counsel for the AAUP acknowledged that Ellis' understanding was correct and this testimony stands uncontroverted. Then Rutgers announced that the AAUP had received its last best offer. The AAUP suggested that since it was after 8:30 the meeting end and "the University and the AAUP considered their respective flexibility." The University responded there was a post fact-finding impasse on a critical issue. Rutgers offered to meet within a day or two to attempt to come to a resolution before the Board of Governors meeting or, alternatively, to agree to a 20-day moratorium on the filing of grievances. There was no agreement and two days later with a prior announcement, Rutgers Board of Governors implemented the new procedure.

The AAUP argues that the negotiations leading up to fact-
finding were in bad faith and that Rutgers rushed the parties into fact finding before there was a legitimate impasse. During November 1977 the AAUP wouldn't meet with Rutgers unless the fact finder was present. The parties were clearly in a bad way over economics and there was an impasse on that issue. Also, there is no evidence that the AAUP ever expressed to the fact finder that formal fact-finding over the grievance procedure was premature at the time it commenced. The argument that these issues were not given enough time for negotiations is unpersuasive. For as noted the parties clearly had time after the January economic settlement to continue to negotiate but they did not – because the major issue was clear and well defined. Rutgers did not want the old cumbersome Article 10 procedure and they wanted remedy limited to remand. The AAUP on the basis of their conduct had no objection to a simplified procedure but they wanted alternative remedies.

The AAUP object to Rutgers inserting a new proposal on the grievance procedure into the negotiations after the parties had reached a tentative agreement on that issue. When the new proposal was introduced into negotiations, the tentative economic package had fallen through and the parties had to begin a new round of negotiations. There were no negotiation ground rules to prohibit the introduction of new items into negotiation and as the AAUP inferentially argues in the West Windsor aspect of this case, the obligation to negotiate over all terms and conditions of employment is ongoing. The obligation is satisfied only when a contract is signed and even then the obligation to negotiate continues as to those terms and conditions of employment not covered in the contract.

The AAUP also argues that Rutgers could not implement the new procedure because there was not a genuine post fact-finding impasse. Rutgers was simply preoccupied with getting the new procedure implemented before the Board of Governors made the personnel actions on April 14, and their refusal to bargain beyond April 14th unless there was a moratorium created unlawful preconditions to bargaining. The AAUP also points to the prior experience of Rutgers and AAUP bargaining when parties bargained for several months after a fact finder's report.

They also point to a number of procedural ambiguities and inconsistencies that were not fully negotiated prior to implementation.4/

Taking the AAUP's last argument first, it is true that there is a recognized duty to continue to bargain despite an impasse on one issue, but this must be distinguished from an impasse on a critical issue. American Fed. of Television and Radio Artists v. NLRB, 395 F.2d 633, 67 LRRM 3032 (CADC, 1968). Here, the other unresolved issues were procedural in nature. The only area of substantive dispute was the issue of remedy and the University was not prepared to budge. Rutgers uniformly kept their position throughout the negotiations and once the fact finder upheld their position, it is not realistic to think that they would give in to the AAUP's position.

The AAUP's position on the issue of remedy was more than pragmatic, it was philosophic, witness Peskin's statement. It was not realistic to think that further legitimate progress could be made in spite of the language changes suggested. The University already had given in to the AAUP on an important issue (the removal of the Provost from the Committee of Review) so there was little further room for compromise. Resolution of all procedural issues would not result in a breakthrough on remedy.5/

Having found a deadlock, it follows that further negotiations would not be fruitful. As in Jersey City, supra, the number of meetings after fact-finding does not control when a post fact-finding impasse occurs. The parties must exhibit a sincere desire to reach an agreement but that does not mean they cannot take a firm, hard stand on one issue as Rutgers did. Their refusal to meet again without preconditions was not motivated by bad faith, it was motivated by realism. Granted the timing of the impasse is questionable. Rutgers undoubtedly was in a rush to get the new procedure implemented. But its underlying position was legitimate. Rutgers demonstrated a sincere desire to reach an agreement as well. The fact finder upheld their position that the Provost should be included in the Committee of Review. But Rutgers moved off this position in an effort to resolve the deadlock. Accordingly, the undersigned will recommend to the Commission that they dismiss the charge relating to Rutgers' unilateral implementation of a grievance procedure.

The AAUP points out that if Rutgers committed an unfair practice when it refused to negotiate a West Windsor grievance procedure, then such an unfair practice must be considered in evaluating whether Rutgers acted in good faith. It is noted elsewhere Rutgers was required to negotiate a West Windsor type procedure and this finding has been considered. However such a consideration doe not alter the undersigned's overall view of the conduct of the parties.

The charging party argues that the respondent Rutgers has the burden of proof in proving its unilateral actions were not an unfair practice. It argues that in order to make out a prima facie case of unfair practice the charging party need only prove that the employer unilaterally changed a term and condition of employment during the pendency of negotiations. Once that has been shown, the charging party has discharged its burden and it has proved a violation of the Act. The burden then shifts to the respondent to show as a defense to the charges that it properly made the change in status quo during negotiations. After making a prima facie case the burden of proof and the burden of going forward with the evidence shifts to the employer to prove its unilateral action was permissible.

The charging party has confused the requirement to go forth with evidence during the course of a hearing with the standards applied to the evidence at the conclusion of a hearing. If the charging party makes out a prima facie case, then the burden is on the respondent to go forward but it need only make out is own prima facie case. If the evidence of the parties is qualitatively equal the respondent must prevail. N.J.A.C. 19:14-
6.8 is explicit: the charging party must prove the allegations in its complaint by a preponderance of the evidence. This standard is applied at the end of the case after all evidence is before the trier of facts. Accordingly the burden never shifts. Merely because the respondent's defense is, in effect, an affirmative defense does not change the charging party's burden.

The charging party further argues that because this case deals with the imposition of a grievance procedure it must be looked at in a different light. The Act provides "public employees shall negotiate written policies setting forth grievance procedures by means of which their employees may process grievances." It is argued that this language represents a strong policy recognition of the desirability of mutually agreed upon dispute resolution mechanisms. This is correct as far as it goes, but the parties did negotiate and went as far as they could in negotiations. Further, the instant case was not over the filing and processing of grievances. Rather it was over the remedy available in arbitration and the same paragraph of the Act quoted by the AAUP states that "grievance procedures may provide for binding arbitration as a means of resolving disputes." (Emphasis supplied). Clearly the Act does not recognize policy considerations concerning a final binding step in the negotiations process. Therefore its argument, which in other circumstances might be compelling, falls short here.

Finally, it is argued that the University may not "unilaterally impose a final and binding arbitration clause upon another party." The AAUP cites Apostolico v. County of Essex., 142 N.J. Super. 296. A trial judge ordered the parties to enter into binding arbitration to resolve a dispute over wages and hours. The employer appealed and the appellate court reversed stating binding arbitration can be invoked only upon agreement of the parties. The trial court order for the parties to submit to binding arbitration made mandatory what was only permissive. Here entirely different dynamics are at work. No one is forcing the AAUP to go to arbitration. Rather, a procedure to permit the AAUP to go to arbitration if they want to has been provided. The AAUP's real objections were not addressed to the process. They were addressed to the remedy. The parties negotiated towards a mutually agreeable procedure and went as far as they reasonably could before the imposition of the new procedure.

West Windsor

At the December 29, 1977, negotiations session the AAUP made a demand for a "West Windsor" grievance procedure. This was defined as a grievance procedure pursuant to the Commission holding in the West Windsor case. In West Windsor, P.E.R.C. No. 77-5, 3 NJPER 124, the Commission analyzed that portion of N.J.S.A. 34:13A-5.3 which states in part:

Public employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them, provided that such grievance procedures shall be included in any agreement entered into between the public employer and the representative organization.

The Commission held that this statutory language is obligatory in nature and must be viewed as imposing an affirmative duty on public employers and majority representatives of public employees. A forum must be provided by means of which public employees or their representatives may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them.

Rutgers replied that they would not respond to such a request in the abstract but if the AAUP had a specific proposal the University would consider it.

This issue was again raised on January 7. The AAUP maintained the parties had to negotiate amendments to Article 9 to cover the principles as set forth in the Commission's decision in West Windsor. Rutgers responded that negotiations on Article 9, the contract grievance procedure, were closed except that what might happen in the negotiations for the personnel grievance procedure could refer back to Article 9.

The issue was raised before the fact finder. In his report, the fact finder states that at the initial meeting, when establishing round rules and parameters, no mention was made of West Windsor of N.J.S.A. 34:13A-5.3. Therefore the fact finder held that the matter was not put before him at an appropriate time. He went on to state his opinion that there is a statutory obligation to negotiate procedures pursuant to N.J.S.A. 34:13A-
5.3 and he recommended that the parties commence such negotiations as soon as possible.

Rutgers however did not alter its position and refused to negotiate. After the complaint issued, the Supreme Court which reviewed the West Windsor matter on appeal, affirmed the Commission's decision at 78 N.J. 98 (1978), but limited the scope of grievance procedure to the interpretation, application or violation of policies, agreements and administrative decisions affecting terms and conditions of employment. The court then expanded West Windsor in The Board of Education of the Township of Bernard, 79 N.J. 311 (1979). The court held that a grievance procedure which encompasses the applicability of managerial prerogatives is itself a term and condition of employment and therefore mandatorily negotiable provided such grievance procedures terminate in a non-binding procedure. (The court held in essence that advisory arbitration on West Windsor issues is mandatorily negotiable).

Essentially, West Windsor defines the limits of what is recognizable as a grievance. It doe not set forth an actual "procedure" as called for in the AAUP's demand. But there is no evidence to indicate that Rutgers reopened negotiations over the Article 10 grievance procedure after there was a tentative agreement, so too should the AAUP have been able to reopen negotiations concerning a West Windsor grievance procedure even though negotiations on the Article 9 grievance procedure were completed. During the course of the hearing the parties notified the undersigned that a West Windsor grievance procedure had been negotiated between the parties and the AAUP no longer seeks a bargaining order as a remedy but still seeks a finding from the Commission that the University acted in violation of its protected rights.

************

Upon the foregoing and upon the entire record in this case the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

The Respondent Rutgers did not violate the Act when it unilaterally implemented a personnel grievance procedure on April 14, 1978.

The Respondent Rutgers did violate N.J.S.A. 34:13A-5.4(a)(5) and derivatively 5.49a)(1) when it refused to negotiate with the AAUP concerning a West Windsor type grievance procedure during the course of negotiations.

Recommended Order

The Hearing Examiner recommends that the Commission ORDER:

A.	That the allegations alleging that Rutgers'

unilateral implementation of a personal grievance procedure constitutes an unfair practice be dismissed in its entirety.

B.	That the Respondent Rutgers cease and desist from

1.	Interfering with, restraining or coercing its

employees in the exercise of the rights guaranteed to them by the Act, in particular by refusing to negotiate an appropriate grievance procedure to cover the interpretation, application or violation of polices, agreements, and administrative decisions affecting all their employees.

2.	That the Respondent Rutgers take the

following affirmative action:

a.	Post at all places where notices to employees

are customarily posted, copies of the attached Notice marked Appendix "A."

Edmund G. Gerber

Hearing Examiner

DATED:	Trenton, New Jersey

November 15, 1979