STATE OF NEW JERSEY, (KEAN UNIVERSITY) v. COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS AFT (C-000011-20, UNION COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3469-19
STATE OF NEW JERSEY,
(KEAN UNIVERSITY),
Plaintiff-Appellant,
v.
COUNCIL OF NEW JERSEY
STATE COLLEGE LOCALS
AFT,
Defendant-Respondent.
_________________________
Argued June 30, 2021 - Decided July 12, 2022
Before Judges Accurso and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No. C-
000011-20.
Elizabeth A. Davies, Deputy Attorney General, argued
the cause for appellant (Matthew J. Platkin, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Elizabeth A.
Davies, on the briefs).
Kevin P. McGovern argued the cause for respondent
(Mets Schiro & McGovern, attorneys; Kevin P.
McGovern, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Plaintiff Kean University appeals from a trial court order affirming an
arbitration award in favor of defendant Council of New Jersey State College
Locals, AFT, AFL-CIO, arguing the award was not reasonably debatable, was
procured by undue means, and the arbitrator exceeded and imperfectly
executed his powers. We agree the arbitrator exceeded his powers and the
award was not reasonably debatable. Thus, we reverse.
The union filed the grievances in this matter in response to Kean's
decision to re-assign two tenured professors, one in Art History and the other
in Music, from teaching to curriculum development, student advising, and
recruitment, in response to falling enrollments in their programs. Kean filed a
scope of negotiations petition to restrain arbitration, asserting its decision to
reassign the professors to non-teaching duties "based on an educational policy
decision" was one within its academic judgment and managerial prerogative
and thus non-negotiable. The union countered that Kean was requiring
"faculty members to perform new jobs, unrelated to their core teaching
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function, apparently forever, while also denying them opportunities for
research."
In its decision on the petition, the Public Employment Relations
Commission noted it has "consistently held that 'the right to assign teachers
non-teaching duties is a non-negotiable management prerogative,'" In re
Mahwah Bd. of Educ., P.E.R.C. No. 83-96, 9 N.J.P.E.R. ¶14051, 1983 N.J.
PERC LEXIS 334 at 3 (1983), although it has "place[d] no limitation on . . .
faculty grievance[s] challenging . . . non-teaching reassignment[s] on grounds
that same [are] beyond [the grievant's] primary duties," In re Warren Cnty.
Cmty. Coll., P.E.R.C. No. 2016-48, 42 N.J.P.E.R. ¶98, 2016 N.J. PERC
LEXIS 9 at 23 (2016). It also noted it has deemed such assignments
mandatorily negotiable when they "primarily affect the working hours,
workload, or compensation of employees," Mahwah, 9 N.J.P.E.R. at 3, and
likewise noted the allocation or rotation of non-teaching duties among teachers
is a mandatorily negotiable subject, In re Princeton Reg'l Bd. of Educ.,
P.E.R.C. No. 2003-15, 28 N.J.P.E.R. ¶33143, 2002 N.J. PERC LEXIS 69 at 9
(2002).
Faced with the parties' conflicting narratives — the union
acknowledging the declining enrollments in the Art History and Music
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programs, while pointing out the University is still offering the courses the
grievants formerly taught, and Kean's contention that it chose the grievants for
non-teaching duties based on "an educational policy determination centered on
reducing student and program impact," while conceding it had originally
solicited volunteers for reassignment before conscripting the grievants for the
non-teaching assignments — PERC found Kean's articulated reason "of an
educational policy rationale" for its selection of the grievants for reassignment
"inconclusive."
PERC accordingly restrained arbitration "to the extent that the instant
grievances challenge the University's managerial prerogative to assign non-
teaching duties" to the grievants. But it permitted arbitration to proceed on the
questions of 1) whether "the non-teaching duties" the University assigned the
grievants "fall outside the grievants' primary duties"; 2) "[t]he impact of
performing non-teaching duties" on the grievants in terms of "compensation,
workload, [and] working hours"; and 3) "[i]f the University cannot sufficiently
demonstrate that an educational policy rationale was in fact the basis for
assigning non-teaching duties to only the grievants," PERC permitted the
arbitrator to "proceed to assess the frequency/rotation/allocation of non -
teaching duties among employees."
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The arbitrator, however, addressed none of those questions directly in
determining the University violated Article XII, Section B.7 and Article XII,
Section C.2 of the parties' collective negotiations agreement as the union
alleged. Instead, interpreting Article XII, "Faculty Responsibilities," and
specifically subsection 7 of section B, "Teaching Responsibilities," which
states:
[a]ssignment of non-teaching duties within load for
any faculty member, for any purpose, is a matter of
academic/managerial judgement of the College/
University
and subsection 2 of section C, "Other Responsibilities," providing in pertinent
part that
[f]aculty responsibilities which have been traditionally
performed by the faculty and are reasonable and
consistent with sound academic practice shall be
continued consistent with previous practice[,]
in conjunction with subsection 1 of section B, providing
[t]he basic academic year teaching load for full-time
faculty shall be twenty-four (24) teaching credit hours.
All overload for full-time faculty shall be voluntary
and overload rates shall be paid for all voluntary
teaching assignments beyond twenty-four (24)
teaching credit hours. No full-time faculty member
may be assigned more than fifteen (15) teaching credit
hours per semester within load. The teaching load for
part-time faculty shall be a minimum of one half the
teaching load for full-time faculty[,]
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the arbitrator concluded "Article XII has specific references to both teaching
load" and "the assignment of non-teaching duties," but "the language does not
include a clear and unambiguous formula setting all aspects of the
apportioning or balancing of 'teaching load' assignments and the performance
of 'non-teaching duties.'" Although finding the grievance did "not directly
implicate" Section C1 because "the nature of the non-teaching duties
themselves is not in dispute," thereby implicitly finding the non-teaching
1
Article XII C. "Other Responsibilities" provides:
1. Non-teaching duties include scholarly, research and
artistic activities; service through sharing their
professional expertise both within and beyond the
College/University; and the mentoring and advisement
of the students in their courses and programs. During
the period of instruction faculty shall be present on
campus as necessary to their professional
responsibilities and shall also be accessible to
students, faculty and staff colleagues through
whatever normal, electronic, telephonic or written
modes they find most convenient during the academic
year. Nothing contained herein shall in any way affect
the terms and/or continued application of any locally
negotiated agreements and/or previous practices
pertaining to non-teaching responsibilities, nor shall
anything contained herein affect the rights of the
College/University, UNION or Local Union under the
New Jersey Employer-Employee Relations Act.
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duties were within the job description of a full-time tenured professor, he
nevertheless took it upon himself to "interpret" the language of Sections B.1
and B.7 of Article XII to devise a "formula" for apportioning between teaching
and non-teaching duties.
Specifically, the arbitrator concluded
the non-teaching duties that the University has the
right to assign "within load" must be assigned in
conjunction with a faculty member's performance of
teaching credit hours and that the non-teaching duties
must fall within the presence of a faculty member
carrying a teaching load, so long as the availability of
a credit course exists for assignment to the affected
faculty member who is qualified to teach the course
and is, in fact, taught as was done here by adjunct
faculty instead of the full-time professor.
The arbitrator thus determined that although the University had both
express and reserved rights under Article XII to assign non-teaching duties to
the grievants, he found the University's authority did not extend "to converting
a full-time faculty member's primary responsibility to teach credit courses
'within load' to the predominant or exclusive performance of non-teaching
duties involving administrative or programmatic work even if such work is
intended to support departmental goals and objectives." The arbitrator rejected
the undisputed evidence that the University had several times before assigned
tenured faculty members exclusively non-teaching duties, as all involved
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"negative behavioral or negative performance issues" not present in this case.
He concluded that
[e]ven assuming that the University's decisions here
were based on "operational considerations," its use of
this broad and general term cannot serve as a fig leaf
to allow for the conversion of a faculty member's
primary duty to teach available courses within his or
her expertise to one that instead predominantly or
exclusively involves performing non-teaching duties.
Turning to remedy, the arbitrator found no basis for a substantive
remedy on compensation as both grievants were paid as full-time faculty, and
the union had likewise failed to prove "any lost professional opportunities or
recognition/rewards due to the reassignments." Instead, the arbitrator directed
the University to cease and desist "from converting a faculty member's primary
duty to teach an available course within his or her expertise to an assignment
that predominantly or exclusively involves the performance of non-teaching
duties."
The trial court rejected the University's arguments that the arbitrator
imposed new terms and conditions on the parties that were not a part of the
agreement, making his interpretation inconsistent with its plain meaning and
not reasonably debatable, modified the agreement in contravention of the
undisputed evidence of the parties' past practice, and exceeded his authority by
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going beyond PERC's scope of negotiations ruling. The University reprises
those arguments on appeal.
Notwithstanding our limited review of arbitration awards, Bound Brook
Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017), we have no hesitation in
finding the trial court erred in affirming this award. Beyond failing to directly
address the issues PERC charged him with resolving, the arbitrator plainly
added terms to the agreement the parties never negotiated; his interpretation of
the agreement is simply not reasonably debatable, see Borough of E.
Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201-02 (2013), and
should have led to the trial court's refusal to enforce the award. See Borough
of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 212
(2021).
The parties' collective negotiations agreement is clear. Section B.1 of
Article XII limits only the maximum number of teaching credit hours, "or its
equivalent," Article XII B.4., a faculty member may be assigned by the
University per year and per semester. The agreement plainly acknowledges a
faculty member's responsibilities include "teaching responsibilities," Article
XII B., and "other responsibilities," Article XII C. Article XII C.1. defines
such non-teaching duties to include "scholarly, research and artistic activities;
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service through sharing their professional expertise both within and beyond the
College/University; and the mentoring and advisement of the students in their
courses and programs."
Contrary to the arbitrator's construction of the agreement, there is no
provision requiring faculty members be assigned to teach at least some part of
their maximum "load" each semester if appropriate classes are available. To
the contrary, pursuant to Section B.7. of Article XII, "[a]ssignment of non-
teaching duties within load for any faculty member, for any purpose, is a
matter of academic/managerial judgment of the College/University." The
University's prerogative to assign a faculty member non-teaching duties within
that faculty member's maximum "load" is stated with no limit other than the
non-teaching duties must be "responsibilities which have been traditionally
performed by faculty and are reasonable and consistent with sound academic
practice," Article XII C.2.
The arbitrator thus had no call to determine how the University should
"apportion[] or balance[e] . . . 'teaching load' assignments and the performance
of 'non-teaching duties,'" and certainly none to impose a test for how the
University should assign non-teaching duties when the parties had never
negotiated one. The arbitrator disregarded the clear language of the agreement
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and effectively bound the parties to new terms and conditions, significantly
modifying the contract in the process. See Borough of Carteret, 247 N.J. at
212.
Although the arbitrator failed to address directly the issues PERC
assigned him, his opinion makes clear he made findings on two of three of the
issues. As to whether "the non-teaching duties" the University assigned the
grievants "fall outside the grievants' primary duties," the arbitrator noted "the
nature of the non-teaching duties themselves is not in dispute." Both grievants
testified they had previously performed all the non-teaching duties currently
assigned them. Accordingly, there is no question but that the non-teaching
duties the University assigned the grievants were not outside the job
description of a full-time, tenured professor.
The arbitrator also made clear in his discussion of remedy that the Union
had failed to establish the grievants had suffered "any lost professional
opportunities or recognition/rewards due to the reassignments." Because both
sides agree the grievants were still being paid as full-time, tenured professors,
it's clear the arbitrator found no "impact of performing non-teaching duties" on
the grievants in terms of "compensation, workload, [and] working hours."
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That leaves the question of whether the University established "that an
educational policy rationale was in fact the basis for assigning non-teaching
duties to only the grievants." While there was considerable testimony
presented as to the criteria the University used to select the grievants for
reassignment, the arbitrator did not address whether the University established
an educational policy rationale for choosing them specifically. The arbitrator
stated he did "not reach any conclusions [as] to the parties' negotiations
obligation relating to the procedures of the reassignment of a faculty member
to the performance of non-teaching duties," leaving the parties to their rights
"to refer any such disagreements to their grievance procedure and/or PERC's
unfair labor practice jurisdiction."
Because we find the University was within its rights under the parties'
clearly worded agreement to reassign full-time tenured faculty members such
as grievants to non-teaching duties within their job descriptions, as here, and
the arbitrator found they suffered no diminution in their compensation or any
loss of professional opportunities, recognition or rewards on account of the
reassignments, we reverse the trial court order confirming the award, as not
reasonably debatable, and vacate the award in its entirety. We leave the
parties to their rights under the agreement as to the frequency, rotation and
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allocation of non-teaching duties among employees, including the grievants in
the event the union can establish the absence of an educational policy rationale
for the reassignment.
Reversed.
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