IN THE MATTER OF RUTGERS, ETC. AND OFFICE PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, ETC. (PUBLIC EMPLOYMENT RELATIONS COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-1228-19

IN THE MATTER OF RUTGERS,

THE STATE UNIVERSITY OF

NEW JERSEY,

Petitioner-Appellant,

and

OFFICE PROFESSIONAL

EMPLOYEES INTERNATIONAL

UNION, LOCAL 153,

Respondent-Respondent.

_____________________________

Argued December 3, 2020 – Decided May 24, 2021

Before Judges Ostrer, Accurso, and Vernoia.

On appeal from the New Jersey Public Employment

Relations Commission, PERC No. 2020-21.

John J. Peirano argued the cause for appellant

(McElroy, Deutsch, Mulvaney & Carpenter, LLP,

attorneys; John J. Peirano, of counsel and on the briefs;

David M. Alberts, on the briefs).

Matthew G. Connaughton argued the cause for

respondent Office Professional Employees

International Union, Local 153 (Cohen, Leder,

Montalbano & Connaughton, LLC, attorneys; Matthew

G. Connaughton, on the brief).

Ramiro Perez, Deputy General Counsel, argued the

cause for respondent New Jersey Public Employment

Relations Commission (Christine Lucarelli, General

Counsel, attorney; Ramiro Perez, on the statement in

lieu of brief).

PER CURIAM

Rutgers, the State University of New Jersey (Rutgers), appeals from the

Public Employment Relations Commission's (PERC) final decision denying

Rutgers's request for an order restraining the binding arbitration of a grievance

filed by the Office and Professional Employees International Union, Local 153

(Local 153). The grievance asserted that Rutgers violated the parties' collective

negotiations agreement by transferring a security officer from his assignment at

University Hospital (UH) to the Rutgers–Newark campus. In the scope of

negotiations proceeding following Rutgers's petition to restrain the arbitration,

PERC found the transfer was "predominantly disciplinary" and that Rutgers did

not present an operational justification for the transfer. PERC determined the

transfer was not an exercise of a managerial prerogative and therefore Local

153's grievance was arbitrable. We reverse PERC's determination because the

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factual findings upon which it is based are not supported by substantial credible

evidence.

I.

Local 153 is the collective negotiations representative of the regular full-

time and part-time security officers, public safety dispatchers, and senior

security officers employed by Rutgers. 1 At all times pertinent to the pending

appeal, Rutgers and Local 153 were parties to a collective negotiations

agreement. In May 2017, Local 153 filed a grievance alleging Rutgers violated

the agreement by "unjustly transfer[ring] . . . [security officer] Keith Russell,"

who Local 153 alleged is a "[s]hop [s]teward," "without '[j]ust [c]ause.'"

In its request for a panel of arbitrators to hear and decide the grievance,

Local 153 generally described the facts underlying the dispute: "On or about

April 6, 2017, [s]hop [s]teward and [s]ecurity [o]fficer, Keith Russell was

retaliated against for performing his duties assigned and exercising his right as

1

The collective negotiations unit also includes some temporary full-time staff

employed as security officers, public safety dispatchers, and senior security

officers.

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3

a [s]hop [s]teward," and "[a]s a result, he was transferred to another

worksite/post."2

Following the assignment of an arbitrator, Rutgers filed a petition for a

scope of negotiations determination, claiming Local 153's "request for

arbitration interfere[d] with [Rutgers's] non-negotiable managerial prerogative

to determine reporting locations for its security officers." In other words,

Rutgers claimed it exercised a non-negotiable management prerogative when it

transferred Russell from his post at UH to the Rutgers–Newark campus.

In support of its petition, Rutgers submitted certifications from Abdel

Kanan, Director of Labor Relations–Rutgers Biomedical Health Sciences, and

Michael J. Rein, Deputy Chief of University Police of the Rutgers University

2

The record is bereft of any competent evidence Russell was a shop steward at

the time of the transfer. As PERC correctly notes in its decision, N.J.A.C. 19:13-

3.6(f)(1) provides that facts set forth in the parties' briefs in a scope of

negotiations proceeding shall be "supported by certification(s) based upon

personal knowledge." Although Local 153 claimed Russell was a shop steward,

the assertion is untethered to any evidence. Before PERC and again on appeal,

Local 153 has relied exclusively on the facts asserted by Rutgers, as set forth in

the certifications of Rutgers's representatives Abdel Kanan and Michael J. Rein.

The certifications refer to Local 153's claim that Russell was a shop steward, but

neither certification states as a matter of fact that Russell was a shop steward at

the time of his transfer. Local 153 does not argue on appeal that PERC erred by

failing to find Russell's transfer is a mandatory subject of negotiations because

he was a shop steward. See In re Loc. 195, IFPTE, 88 N.J. 393, 419 (1982)

(holding a public employer's transfer of union officials is not a management

prerogative and is therefore negotiable).

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4

Police Department. In his certification, Kanan explained the circumstances

giving rise to the grievance, and he described Rutgers's filing of the petition for

the scope of negotiations determination. Kanan's certification also included as

attachments the collective negotiations agreement and correspondence

concerning UH, Russell, and Russell's transfer. Kanan certified that Rutgers is

party to a continuing services agreement with UH, pursuant to which Rutgers

agreed to "provide police and security services as requested by UH[,] and UH

agreed to pay for the services provided."

In Rein's certification, he explained that on or about April 5, 2017, UH

notified Rutgers "that due to an incident with [Russell] and [the] UH employee

assigned to drive for the president of UH, . . . UH was 'restricting' [Russell] from

working anywhere pertaining to [UH]." Rein annexed to his certification an

email from a UH representative which states, "At the request of the UH [chief

executive officer], I am requesting that Keith Russell be removed from all

assignments associated with [UH]."

Rein also certified that "[a]s a result" of UH's request, Rutgers's security

supervisors informed Russell about "the information received from UH and told

[Russell] that he was being moved to another post outside of UH." The

supervisors also advised Russell "the reassignment was not considered

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5

discipline[]," but rather was "management[] exercising its right to reassign

personnel." Rutgers then transferred Russell to its Newark campus. The transfer

did not result in any change of Russell's "shift or days off, reporting relationship,

salary, benefits, or title."

The facts asserted in Kanan's and Rein's certifications were not refuted by

any other evidence. Local 153 did not submit any affidavits or certifications in

opposition to the facts set forth by Kanan and Rein.

In its final decision on Rutgers's scope of negotiations petition, PERC

summarized the facts set forth in Kanan's and Rein's certifications and noted

Local 153 claimed in its grievance that Russell was transferred in retaliation for

performing his duties as a shop steward. PERC explained that its inquiry was

limited to determining "whether the subject matter in dispute is within the scope

of collective negotiations."

PERC found that although "the substantive decision to transfer or reassign

an employee is 'preeminently a policy determination' . . . beyond the scope of

negotiations or binding arbitration," "disciplinary review procedures are

mandatorily negotiable[,] and binding arbitration may be used as a means for

resolving a dispute over a disciplinary determination . . . ." PERC reasoned that

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6

resolution of the scope of negotiations petition required it to decide if Russell's

transfer was predominantly disciplinary in nature.

PERC found Russell's transfer was predominantly disciplinary in nature

because "the transfer . . . was precipitated by [the] alleged incident of

misconduct"—"the altercation between [Russell] and UH's [p]resident's

driver"—and because Rutgers did not present any "operational justification" for

the transfer. PERC concluded the dispute which formed the subject of the

grievance was arbitrable because the transfer was predominantly disciplinary.

Rutgers appeals from PERC's final decision. It claims there is no evidence

supporting PERC's finding that Russell's transfer was predominantly

disciplinary and PERC erred by ignoring evidence establishing there was an

operational need for the transfer—responding to UH's request that Russell

provide no further security services at its facility.

II.

It is well-established that the issues that "may be submitted to binding

arbitration in the public sector [are] circumscribed." Teaneck Bd. of Educ. v.

Teaneck Tchrs. Ass'n, 94 N.J. 9, 13 (1983) (quoting Kearny PBA Loc. #21 v.

Kearny, 81 N.J. 208, 215 (1979)). In the public sector, "prerogatives of

management, particularly those involving governmental policy making, cannot

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7

be bargained away to be determined by an arbitrator." Ibid. (quoting Kearny,

81 N.J. at 215). "To be arbitrable, a matter must qualify as one on which the

parties may negotiate. A matter which is not legally negotiable in the first place

cannot be arbitrable." Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of

Educ., 78 N.J. 144, 160 (1978). As a result, "[t]he scope of arbitrability is

generally coextensive with the scope of negotiability." Teaneck Bd. of Educ.,

94 N.J. at 14.

"[T]he scope of public employment negotiation is divided, for purposes

of analysis, into two categories of subject matter comprised of mandatorily

negotiable subjects and nonnegotiable matters of governmental policy."

Robbinsville Twp. Bd. of Educ. v. Wash. Twp. Educ. Ass'n, 227 N.J. 192, 198

(2016). "A scope-of-negotiations determination is the method by which it is

decided 'whether or not a particular subject matter is negotiable . . . .'" Barila v.

Bd. of Educ. of Cliffside Park, 241 N.J. 595, 613 (2020) (quoting In re Loc. 195,

IFPTE, 88 N.J. 393, 401 (1982)). N.J.S.A. 34:13A-5.4(d)

"assign[s] . . . PERC . . . 'the power and duty'" to determine "in the first

instance . . . 'whether a matter in dispute is within the scope of collective

negotiations.'" Id. at 614. "PERC is [thus] the forum for the initial

determination of whether a matter in dispute is within the scope of collective

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8

negotiations." Ibid. (alteration in original) (quoting State v. State Supervisory

Emps. Ass'n, 78 N.J. 54, 83 (1978)). "Where PERC concludes that a particular

dispute is not within the scope of collective negotiations, and thus not arbitrable,

it must issue an injunction permanently restraining arbitration." Ridgefield

Park, 78 N.J. at 154.

We accord substantial deference to PERC's scope of negotiations

determinations. Twp. of Franklin v. Franklin Twp. PBA Loc. 154, 424 N.J.

Super. 369, 377 (App. Div. 2012). They will be upheld unless "arbitrary,

capricious or unreasonable, . . . lack[ing in] fair support in the evidence," or in

"violat[ion of] a legislative policy expressed or implicit in the governing

statute." Ibid. (quoting Commc'ns Workers of Am., Local 1034 v. N.J. State

Policemen's Benev. Ass'n, Local 203, 412 N.J. Super. 286, 291 (App. Div.

2010)); see also City of Jersey City v. Jersey City Police Officers Benev. Ass'n,

154 N.J. 555, 568 (1998) (explaining PERC's scope of negotiations

determinations "will stand unless . . . clearly demonstrated to be arbitrary or

capricious" (quoting In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J.

322, 329 (1989))). We uphold PERC's findings that are supported by sufficient

credible evidence, In re Bridgewater, 95 N.J. 235, 246 (1984), but its

"interpretation of a statute or its determination of a strictly legal issue" is not

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9

entitled to any special deference, Bd. of Educ. v. Neptune Twp. Educ. Ass'n,

144 N.J. 16, 31 (1996) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.

85, 93 (1973)).

The "time-honored test" that must be satisfied to support a finding that an

issue is negotiable requires that "(1) the item intimately and directly affects the

work and welfare of public employees; (2) the subject has not been fully or

partially preempted by statute or regulation; and (3) a negotiated agreement

would not significantly interfere with the determination of governmental

policy." Robbinsville Twp. Bd. of Educ., 227 N.J. at 199 (quoting In re Loc.

195, 88 N.J. at 404). A subject "that affects the work and welfare of public

employees is negotiable only if it is a matter 'on which negotiated agreement

would not significantly interfere with the exercise of inherent management

prerogatives pertaining to the determination of governmental policy.'" In re Loc.

195, 88 N.J. at 404 (quoting Paterson Police PBA Local No. 1 v. City of

Paterson, 87 N.J. 78, 86 (1981)).

To determine "whether a negotiated agreement would significantly

interfere with the determination of governmental policy," PERC is required "to

balance the interests of the public employees and the public employer." Id. at

404-05. PERC's analysis must include "a weighing or balancing" to determine

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whether the "dominant issue" concerns the exercise of a non-negotiable

management prerogative. Bd. of Educ. of Woodstown-Pilesgrove Reg'l Sch.

Dist. v. Woodstown-Pilesgrove Reg'l Educ. Ass'n, 81 N.J. 582, 591 (1980). As

the Court explained in In re Local 195, "[w]hen the dominant concern is the

government's managerial prerogative to determine policy, a subject may not be

included in collective negotiations even though it may intimately affect

employees' working conditions." 88 N.J. at 405.

In In re County of Hudson, P.E.R.C. No. 87-20, 12 N.J.P.E.R. ¶ 17278,

1986 N.J. PERC LEXIS 345 (1986), PERC reviewed a scope of negotiations

petition that sought to restrain arbitration over a grievance challenging two

employees' transfers that were alleged to be disciplinary. PERC considered that

"[t]he substantive decision to transfer . . . an employee is 'preeminently a policy

determination' and beyond the scope of negotiations or binding arbitration," id.

at 5 (quoting In re Loc. 195, 88 N.J. at 417), and also that N.J.S.A. 34:13A-5.3

provides in part that "disciplinary review procedures are mandatorily negotiable

and binding arbitration may be used as a means for resolving a dispute over a

disciplinary determination . . . ," id. at 6. PERC engaged in the analysis required

by the Court in In re Local 195; it weighed the competing interests presented by

the grievance and determined that "on balance" the transfers at issue

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"predominantly involved a form of discipline triggering the application of

N.J.S.A. 34:13A-5.3." Id. at 8. For that reason, PERC concluded the transfers

were "predominantly disciplinary and therefore arbitrable." Ibid.; see also In re

Rutgers, the State University, P.E.R.C. No. 2012-14, 38 N.J.P.E.R. ¶ 45, 2011

N.J. PERC LEXIS 125 at 9 (2011) (restraining arbitration of a grievance

challenging the transfer of an employee because "[t]he facts in [the] record

[were] not sufficient to categorize the [transfer] as disciplinary").

Here, PERC employed the same analysis and reasoning, and applied the

same standard in its determination of Rutgers's scope of negotiations petition. 3

3

We reject Rutgers's claim that PERC's reliance on the "predominantly

disciplinary" standard is required by N.J.S.A. 34:13A-25 and N.J.S.A. 34:13A-

27(a). N.J.S.A. 34:13A-25 provides that "[t]ransfers of employees by employers

between work sites shall not be mandatorily negotiable except that no employer

shall transfer an employee for disciplinary reasons," and N.J.S.A. 34:13A-27(a)

provides in part that "[i]f there is a dispute as to whether a transfer of an

employee between work sites . . . is disciplinary, [PERC] shall determine

whether the basis for the transfer . . . is predominately disciplinary." N.J.S.A.

34:13A-27(b) further provides that "[i]f [PERC] determines that the basis for a

transfer is predominately disciplinary, [PERC] shall have the authority to take

reasonable action to effectuate the purposes of this act."

The "act" referred to in N.J.S.A. 34:13A-27(b) is Public Law 1989, Chapter

269, which consists of nine sections that are codified in N.J.S.A. 34:13A -22 to

-29. The act supplemented the New Jersey Employer-Employee Relations Act,

N.J.S.A. 34:13A-1 to -21, as it existed when Public Law 1989, Chapter 269 was

enacted in 1990. The act has no application here because by definition the act

applies only to employers that are "local or regional school district[s],

educational services commission[s], jointure commission[s], county special

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The parties do not challenge PERC's use of the predominantly disciplinary

standard as the appropriate benchmark for the weighing and balancing of the

competing interests at play where it is alleged a transfer constitutes an act of

discipline. Further, we defer to PERC's judgment where, as here, its "expertise"

in public sector employer-employee relations "is essential towards

understanding the proper context of a dispute." In re Hunterdon Cnty., 116 N.J.

at 328.

Rutgers argues PERC erred because its finding Russell's transfer was

"predominantly disciplinary and therefore arbitrable" is not supported by the

evidence. When an error in an administrative agency's fact finding is alleged,

we decide only "'whether the findings made could reasonably have been reached

on sufficient [or substantial] credible evidence present in the record[,]'

services school district[s], or board[s] or commission[s] under the authority of

the [Commissioner of Education] or the State Board of Education." N.J.S.A.

34:13A-22. Rutgers does not fall within the list of employers to whom the act

applies. As a result, the act's requirements, including those set forth in N.J.S.A.

34:13A-25 and -27, do not establish the standard for a scope of negotiations

determination for Rutgers or any other public employer that does not fall within

the act's definition of "employer" contained in N.J.S.A. 34:13A-22.

Nonetheless, PERC adopted the "predominantly disciplinary" standard prior to

the adoption of the act, see In re Cnty. of Hudson, 1986 N.J. PERC LEXIS 345

at 8, as the benchmark for the weighing and balancing of interests required in a

scope of negotiations petition involving a grievance alleging a transfer

constitutes discipline.

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considering 'the proofs as a whole.'" In re Taylor, 158 N.J. 644, 656 (1999)

(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). It is "well-

established . . . that PERC's decisions are entitled to substantial deference.

PERC has a special expertise with regard to the terms of public employment and

review of its factual determinations is limited." Dep't of Corr. v. Commc'ns

Workers of Am., 240 N.J. Super. 26, 33 (App. Div. 1990) (citation omitted).

PERC's determination that Russell's transfer is predominantly disciplinary

is not supported by either sufficient or substantial credible evidence. To the

contrary, the evidence undermines PERC's factual findings. PERC found the

transfer was "precipitated by an alleged incident of misconduct" involving an

"altercation between [Russell] and UH's [p]resident's driver." There is,

however, no evidence Russell engaged in any "misconduct" or that either UH or

Rutgers ever asserted Russell engaged in misconduct. Kanan's and Rein's

certifications, which constitute the only evidence presented to PERC, do not

refer to any alleged misconduct on Russell's part, do not aver Russell engaged

in any misconduct, and do not describe any misconduct. Similarly, the

certifications do not describe a purported "altercation" or allege Russell was

engaged in an altercation. Consistent with that lack of evidence, Rutgers

affirmatively advised Russell the transfer was not disciplinary. Thus, PERC's

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finding that Russell's "misconduct"—his involvement in an "altercation"—

precipitated his transfer is unsupported by any evidence.

To be sure, UH reported there was an "incident" that caused it to request

that Russell no longer be assigned as a security officer at UH's facility. UH's

actions or intentions are not, of course, at issue here because Russell was neither

employed by nor transferred by UH. The evidence shows that UH determined,

for reasons known only to it, that it would not permit Rutgers to assign Russell

to perform security services at UH's facility. As Kanan explained in his

certification, Rutgers's agreement with UH states that Rutgers will provide

security services "as requested by UH." The unrefuted evidence established UH

requested that the security services provided by Rutgers not include the

assignment of Russell to UH's facilities.

Unlike PERC, Rutgers chose not to assume the incident involved either

misconduct or an altercation, and there is no evidence Rutgers took any action

to discipline Russell. As Rein explained, Rutgers transferred Russell not as an

act of discipline, but only "as a result" of UH's request that Russell not provide

security services at UH's facility. Stated differently, the evidence presented

showed Rutgers was contractually obligated to provide UH with the security

services UH requested, and UH requested that Russell not provide any security

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services at its facility. The evidence showed Russell was transferred solely to

accommodate UH's requirement that Russell no longer be allowed at its facility,

and it undermines PERC's finding that Rutgers failed to provide an "operational

justification" for the transfer. Rutgers explained in detail its operational

justification—UH's refusal to allow Russell to return to its facility—and PERC

erred by failing to acknowledge Rutgers transferred Russell solely in response

to UH's request.

We thus reverse PERC's finding that Russell's transfer was predominantly

disciplinary. The limited findings of fact upon which PERC's determination is

based find no support in the evidence. In fact, the evidence permits only one

conclusion: Russell's transfer was not predominantly disciplinary but instead

was in response to UH's request. The dominant issue presented by the grievance

is Rutgers's decision to transfer Russell for non-disciplinary, operational reasons

based on UH's request that Russell no longer provide security services at its

facility. That issue is non-negotiable and therefore not arbitrable. See In re Loc.

195, 88 N.J. at 405; see also In re Cnty. of Hudson, 1986 N.J. PERC LEXIS 345

at 5; In re Rutgers, 2011 N.J. PERC LEXIS 125 at 8. PERC abused its discretion

by concluding otherwise. See In re Reallocation of Prob. Officer, 441 N.J.

Super. 434, 450 (App. Div. 2015) (overturning agency decision where "there

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[were] insufficient facts [in the record] to support the decision . . . , rendering it

arbitrary and capricious").

Reversed.

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