Opinion
DOCKET NO. A-1286-15T3
07-26-2016
IN THE MATTER OF STATE OF NEW JERSEY, ROWAN UNIVERSITY, Petitioners-Respondents, and COMMITTEE OF INTERNS AND RESIDENTS SEIU HEALTHCARE, Respondent-Appellant.
Ira W. Mintz argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Mintz, on the briefs). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent State of New Jersey, Rowan University, (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief). Robin T. McMahon, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Ms. McMahon, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2015-030. Ira W. Mintz argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Mintz, on the briefs). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent State of New Jersey, Rowan University, (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief). Robin T. McMahon, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Ms. McMahon, on the statement in lieu of brief). PER CURIAM
Rowan University ("Rowan" or "the University"), decided to discontinue the training of a medical resident who allegedly malpositioned ureteral stents intentionally. The Public Employee Relations Commission (PERC) held that decision was beyond the scope of negotiations, and thus was not arbitrable, because the decision implicated Rowan's academic freedom and medical judgment. We affirm.
I.
The following facts are drawn from the certifications and exhibits before PERC. Dr. Jacob Kunes was a second-year resident in the Urological Surgery Residency Program (Program) at the Rowan University School of Osteopathic Medicine (School). As a resident, he was responsible for the care and treatment of patients on the urological surgery service at three hospitals in Burlington, Camden, and Gloucester Counties. His work was supervised by attending physicians affiliated with the School.
On Saturday, May 24, 2014, Dr. Kunes and other medical residents attended a social gathering at a bar. At the gathering, Dr. Kunes admittedly made a comment about "floating" or malpositioning ureteral stents during surgical procedures. Dr. Kunes certified he "joked with his colleagues about how if a stent is misplaced during a surgical procedure at least one would be able to gain experience in retrieving and correctly placing the stent." He certified that he never said that he "had intentionally misplaced a stent for the purpose of gaining experience on how to retrieve it." As set forth below, Rowan has a different view of what Dr. Kunes said at the social gathering and whether he actually malpositioned stents.
On June 20, 2014, Dr. Kunes was called into a meeting with Dr. Gordon Brown, the Director of the Program. Dr. Brown accused Dr. Kunes of intentionally malpositioning a stent during a surgical procedure. Dr. Kunes certified he told Dr. Brown that the statement was made in jest and taken out of context, and that he "had never intentionally misplaced a stent."
On June 30, 2014, Dr. Kunes was called into a meeting with Dr. Brown; Dr. Joanne Kaiser-Smith, Assistant Dean of Graduate Medical Education; and Terry Brown, Director of Graduate Medical Education. During the meeting, Dr. Brown and Dr. Kaiser-Smith accused Dr. Kunes of intentionally misplacing a stent during a surgical procedure, and Dr. Kunes gave the same denial. At the conclusion of the meeting, Dr. Kunes was handed a letter stating in pertinent part:
[I]n late May and early June you told a senior resident in your Program and Dr. Brown that you have been purposefully "pushing the limits" of treatment of the patients in your care. You described to them how you deliberately floated ureteral
stents on two patients in order for you to gain experience on how to retrieve them . . . .
Your conduct of floating the stents requires the University to reconsider your continued training because it is unethical and unacceptable behavior. The University cannot put any of its patients in harm's way. Therefore the University is officially discontinuing your training in the Urological Surgery Residency Program effective June 30, 2014.
Dr. Kaiser-Smith later certified that she discontinued Dr. Kunes from the Program "because he performed surgical procedures during his training that, in my academic and medical judgment, were medically unnecessary, posed a substantial risk to patients and were inconsistent with the [Osteopathic] Association's Core Competencies and the School's academic standards." She certified that "Dr. Kunes deliberately and unnecessarily floated ureteral stents on two patients in order to gain experience in how to retrieve them."
Dr. Kunes appealed to Thomas Cavalieri, Dean of the School. Dr. Kunes certified that during that appeal, an attending physician, who supervised a surgery at which Dr. Kunes had been present and where a stent was malpositioned, described the events of the surgery to Dean Cavalieri. The attending physician said that no misconduct had occurred.
Dean Cavalieri upheld discontinuing Dr. Kunes from the Program. Dean Cavalieri later certified that, in his "academic and medical judgment, Dr. Kunes' performance of medically unnecessary and dangerous surgical procedures was antithetical to his responsibility to promote patient care and demonstrate professional conduct, as well as inconsistent with the Associations Core Competences and the School's Academic standards."
Respondent, the Committee of Interns and Residents SEIU Healthcare (CIR), represents full and regular part-time physicians and dentists titled as interns, residents, and fellows, who are employed by the School, including Dr. Kunes. CIR and Rowan are parties to a Collective Negotiation Agreement (CNA), under which Dr. Kunes is covered. The CNA provides that residents "may be disciplined or discharged for cause," that "[d]isciplinary actions shall be grievable," that disciplinary actions may be arbitrable, and that "PERC shall appoint a single neutral arbitrator from its Panel of Labor Arbitrators" for arbitrable actions.
The CNA names the parties as CIR and the University of Medicine and Dentistry of New Jersey (UMDNJ). On July 1, 2013, UMDNJ's School of Osteopathic Medicine was transferred to Rowan University. See N.J.S.A. 18A:64M-31. The CNA was effective from November 1, 2009 through October 31, 2012. None of the parties dispute the applicability of the CNA to Rowan in 2014.
CIR filed an internal grievance with Rowan, challenging Dr. Kunes' termination. Rowan sent a letter rejecting the grievance. On August 1, 2014, CIR filed a request with PERC seeking arbitration, stating that Rowan refused to process the grievance.
On October 17, 2014, Rowan filed a scope-of-negotiations petition with PERC, seeking restraint of arbitration. On January 16, 2015, Rowan applied to PERC for a stay of arbitration, which had been scheduled for January 21. On January 20, the PERC-designated arbitrator denied Rowan's request as untimely. On February 3, Rowan renewed its application for a stay of continuing arbitration. On March 16, 2015, the arbitrator again denied Rowan's application, holding that there was "a critical material factual dispute in this matter; specifically, whether [Dr. Kunes] actually performed the alleged surgical procedure."
On August 13, 2015, PERC issued a decision on Rowan's original October 17, 2014 scope-of-negotiations petition. PERC found Dr. Kunes' termination was non-negotiable and granted a restraint of arbitration. PERC cited Dean Cavalieri's certification that "based on his medical judgment, [Dr. Kunes] was terminated based on performance of unauthorized medical procedures during his residency." PERC "decline[d] to allow an arbitrator to second-guess the University's medical and academic judgment of the performance of a resident physician and suitability for continuing in the program." PERC found that "the University's academic freedom interests predominate and the Act cannot permit binding arbitration to frustrate those interests."
CIR moved for reconsideration. CIR attached a January 20, 2015 certification from the attending physician who had spoken on Dr. Kunes' behalf before Dean Cavalieri, as well as excerpts of testimony from the suspended arbitration. The attending physician certified and testified that he was assisted by Dr. Kunes in one surgery during which a stent was accidently malpositioned, but that he witnessed no misconduct by Dr. Kunes and was himself responsible.
In the other arbitration excerpts submitted with the motion for reconsideration, Dr. Brown testified that the senior resident reported to him that "Dr. Kunes had admitted intentionally malpositioning a stent" at the social gathering, and that Dr. Kunes "admitted in the [June 20, 2014] discussion to misplacing a stent" in the Burlington hospital, but that Dr. Brown did not know for sure whether or in which surgery Dr. Kunes had done so. Dr. Kaiser-Smith testified that Dr. Brown reported that Dr. Kunes had admitted "I said it and I did it," namely intentionally floated a stent in Burlington, but that on other occasions Dr. Kunes had denied doing so. Dr. Cavalieri testified that the senior resident had reported to him and to Dr. Brown that she heard Dr. Kunes say at the social gathering he was "pushing the limits" and had "deliberately floated stents in patients to gain experience." Dr. Cavalieri testified that Dr. Kunes told Dr. Cavalieri he had not done so and that his statement had been misunderstood.
On November 19, 2015, PERC denied CIR's motion for reconsideration. PERC ruled that "we do not decide whether the facts are as alleged by the grievant in a scope proceeding." PERC remained "satisfied that the University's decision implicated its academic freedom and that CIR has not demonstrated extraordinary circumstances that would warrant reconsideration." CIR appeals.
II.
Courts must "apply a deferential standard of review to determinations made by PERC." City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998). "PERC is a specialized administrative agency designated by statute to interpret, implement, and enforce the [Employer-Employee Relations Act]," N.J.S.A. 34:13A-1 et seq. [hereinafter "the Act"]. Borough of Keyport v. Int'l Union of Operating Eng'rs, 222 N.J. 314, 351 (2015). "PERC brings expertise to the resolution of public-body labor disputes, and its 'interpretation of the [Act] is entitled to substantial deference.'" Ibid. (citations omitted).
"The Legislature has vested PERC with 'the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations.'" City of Jersey City, supra, 154 N.J. at 567-68 (quoting N.J.S.A. 34:13A-5.4(d)). "The standard of review of a PERC decision concerning the scope of negotiations is 'thoroughly settled. The administrative determination will stand unless it is clearly demonstrated to be arbitrary or capricious.'" Id. at 568 (citations omitted). We must hew to our narrow scope of review. State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 83-84 (1978).
III.
Rowan repeatedly asserted that its dismissal of a resident for malpositioning a stent implicates its academic freedom and medical judgment, making such a decision beyond the scope of negotiations and thus not arbitrable. "PERC is the forum for the initial determination of whether a matter in dispute is within the scope of collective negotiations." State Supervisory Employees Ass'n, supra, 78 N.J. at 83. A subject is negotiable when: "(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." City of Jersey City, supra, 154 N.J. at 568 (quoting In re Local 195, IFPTE, AFL-CIO, 88 N.J. 393, 404-05 (1982)). "The scope of arbitrability is generally coextensive with the scope of negotiability." Old Bridge Bd. of Ed. v. Old Bridge Ed. Ass'n, 98 N.J. 523, 527 (1985).
Thus, "[t]his appeal is distinguishable from the posture of the appeal in State, Office of Emp. Relations v. Commc'ns Workers of America, AFL-CIO, 154 N.J. 98, 109-11 (1998) (OER), where the State waived the threshold issue of substantive arbitrability." Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 192 n.2 (2004).
CIR argues that the discharge of Dr. Kunes from the Program and from employment at the School affects his work and welfare, and, thus, whether he intentionally malpositioned stents thus is negotiable and arbitrable.
However, our Supreme Court has repeatedly "recognized that rights guaranteed by the Act will be preempted when they infringe on important educational policies." In re Univ. of Med. & Dentistry of N.J., 144 N.J. 511, 533 (1996) [hereinafter "UMDNJ"]. "The public interest in promoting higher education reflects the view that it 'perform[s] an essential social function . . . ,' by promoting 'the pursuit of truth, the discovery of new knowledge through scholarship and research, teaching and general development of students, and the transmission of knowledge and learning to society at large.'" Id. at 533 (quoting Dixon v. Rutgers, 110 N.J. 432, 448 (1988)).
"As a result of this interest, courts have developed a concept of '[a]cademic freedom, [which,] though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.'" Dixon, supra, 110 N.J. at 448 (alternation by our Court) (quoting Regents of the Univ. of California v. Bakke, 438 U.S. 265, 312, 98 S. Ct. 2733, 2759, 57 L. Ed. 2d 750, 785 (1978)). "The extent of this academic freedom concept was charted thirty years ago by Justice Frankfurter in his oft-quoted concurrence in Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S. Ct. 1203, 1218, 1 L. Ed. 2d 1311, 1332 (1957), when he spoke of 'four essential freedoms' of universities, namely, the freedom to determine for themselves 'on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study.'" Id. at 448-49; see UMDNJ, supra, 144 N.J. at 533. Indeed, a university's interest in academic freedom is so expansive that most decisions regarding "who may be admitted to study" fall within the academic-freedom exception. Dixon, supra, 110 N.J. at 449.
Here, as in UMDNJ, "this case involves a university teaching hospital deciding to terminate a student/employee for his alleged inability to treat patients in accordance with medical standards. That situation triggers a concern for academic freedom that might temper the rights provided in the Act." UMDNJ, supra, 144 N.J. at 532.
In UMDNJ, the issue was merely whether an intern could be accompanied to a School disciplinary hearing by a CIR representative. The Court found that did not interfere with the School's academic judgment because "UMDNJ would not have been precluded from making an academic decision," "[n]o academic decision of UMDNJ is being second-guessed," and "CIR is not asking the Court to review the decision to dismiss." Id. at 534-35. Here, by contrast, CIR was second-guessing Rowan's academic decision to terminate Dr. Kunes, was asking the arbitrator to review the factual support for that decision, and was seeking to preclude Rowan from making that academic decision.
The Court in UMDNJ cautioned that such interference would trigger "a persuasive academic-freedom argument." Id. at 535. Collective bargaining "rights end as soon as it is clear that the matter involves a truly academic or medical judgment. At that point, the university's interest in academic freedom predominates over the rights guaranteed by the Act[.]" Id. at 536. "To the extent that UMDNJ's actions do involve its assertion of its right to academic freedom, there is no doubt that the Employer-Employee Relations Act will not be permitted to frustrate that effort." Id. at 534. Thus, the Court indicated "CIR should not be able to interfere with [UMDNJ's] academic and medical decisions." Ibid.
Our Supreme Court applied UMDNJ's cautionary language in Hernandez v. Overlook Hosp., 149 N.J. 68, 74-77 (1997). In Hernandez, a medical resident was discharged from an academic residency program for academic reasons, including that she "improperly treated or diagnosed patients," lacked "clinical judgment," "failed to offer adequate leadership and guidance," and "had difficulty with professionalism and decorum." Id. at 71. The resident claimed that she had a right to counsel at her internal hearing. Id. at 70. The Court rejected her claim, because "the decision to terminate plaintiff was based solely on her academic performance" and circumstances which "arose entirely out of her status as a medical student participating in an academic residency program." Id. at 76. The Court reiterated its warning in UMDNJ "that the union was not entitled to interfere with UMDNJ's academic and medical decisionmaking process and that UMDNJ had the right 'to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Id. at 75 (quoting UMDNJ, supra, 144 N.J. at 533). "Assessing a student's academic performance must be left to the sound judgment of the individual academic institution." Id. at 77.
Here, Rowan's decision to dismiss Dr. Kunes for intentionally malpositioning stents involved Rowan's academic and medical judgment. Arbitration of that decision would significantly interfere with the policies of protecting academic freedom and ensuring the proper training of doctors. Accordingly, we affirm PERC's holding that Rowan's decision was beyond the scope of negotiations, and thus not arbitrable.
Because Rowan never claimed that it could terminate Dr. Kunes merely because he had discussed malpositioning stents at the social gathering, we need not reach whether a hypothetical discussion about intentionally malpositioning stents would constitute or justify termination on academic or medical grounds. Nor have we any occasion to determine what disciplinary or other matters would be grievable and arbitrable under the CNA. We note that the CNA itself provided that "[i]n no event shall matters concerning academic or medical judgment be the subject of a grievance," and that "[t]he arbitrator shall not [review or] substitute his or her judgement for [the university's] academic or medical judgements[.]"
IV.
CIR argues that it did not seek to interfere with Rowan's academic or medical judgment to terminate a resident who malpositioned stents intentionally, but only to arbitrate whether Dr. Kunes had actually done so. CIR contends that factual dispute is arbitrable.
In essence, CIR is arguing that Rowan is free to make such a judgment as long as an arbitrator finds the factual basis for Rowan's judgment is correct, and that the arbitrator gets to decide the central issue of whether Dr. Kunes intentionally malpositioned stents. Such arbitration would usurp the university's academic and medical judgment, and intrude on its academic freedom. It would also shift the decision-making primarily to the arbitrator, who would conduct the "trial," leaving to Rowan only the possible pronouncement of the almost-inevitable "sentence." CIR's proposed exception would largely swallow the rule against arbitrating academic and medical judgments.
As in Hernandez, supra, "[t]he relief sought by [CIR] . . . would diminish the [the university's] ability to exercise academic judgment and deny [it] the opportunity to apply the procedures that it deems necessary to attain appropriate levels of performance from its residents." 149 N.J. at 79. "As such, [Rowan's] interest in academic freedom predominates because the relief sought by [CIR] will result in an 'appreciable interference' with [its] academic judgment" and decision-making. Ibid. (quoting UMDNJ, supra, 144 N.J. at 534).
Moreover, shifting the factual decision-making to an arbitrator would raise similar concerns as those that led the Court to deny assistance of counsel in Hernandez. "If academic termination hearings are transformed into legal proceedings that involve legal procedures, the academic hearing would become an adversarial and litigious contest. . . . The procedure would become complicated, legalistic, and time consuming and expeditious review of academic judgments would be severely hindered." Id. at 79-80.
In addition, candid input and evaluations from attending physicians and senior residents regarding the residents' academic performance could be discouraged, raising a concern that residents may escape critical review of poor academic and practical performance. Those evaluations ensure that residents are performing at acceptable levels of competency and professionalism. Without such input, the integrity of the program and the public interest is at stake.
[Id. at 80.]
Such concerns are particularly acute here, where the factual issue involves the proper performance of medical procedures, a subject on which the university's doctors have far greater expertise than any arbitrator. Thus, as in Hernandez:
Because of [Dr. Kunes'] unique status as a doctor-in-training and considering the strong public policy of ensuring that only qualified physicians serve the public, we find that [Rowan] is qualified, both substantively and procedurally, to pass judgment on whether plaintiff is fit to practice medicine in its programs. To hold otherwise and not afford great deference to a Program's expertise in this area would, in effect, threaten the autonomy of such . . . programs to determine the academic standards by which residents are to be educated, trained, and judged.
[Id. at 81.]
Such "evaluations should be conducted in an academic, rather than a legal, environment." Id. at 77. Accordingly, PERC properly restrained arbitration.
V.
CIR argues that PERC was required to conduct an evidentiary hearing on whether Dr. Kunes intentionally malpositioned stents before finding Rowan's decision was non-negotiable. PERC must conduct an evidentiary hearing prior to making a scope-of-negotiations determination only when the threshold question of negotiability turns on a factual dispute. Bd. of Ed., Vocational School, Camden Cty. v. CAM/VOC Teachers Ass'n., 183 N.J. Super. 206, 214 (App. Div. 1982). However, PERC need not conduct such an evidentiary hearing when the parties have not timely and properly requested such a hearing. N.J.A.C. 19:13-3.7(a). CIR admits neither party requested an evidentiary hearing.
CIR argues that the PERC-designated arbitrator it requested could conduct such an evidentiary hearing. However, PERC's regulations state that "[e]videntiary hearings pursuant to this subchapter shall be conducted by a hearing examiner." N.J.A.C. 19:13-1.1(a). Moreover, we have stated that "if scope of negotiability turns on a dispute of facts, . . . the Legislature contemplated that PERC, not the arbitrator, resolve that factual dispute." CAM/VOC Teachers Ass'n, supra, 183 N.J. Super. at 214; see N.J.S.A. 34:13A-5.4(d) ("The commission shall at all times have the power and duty . . . to make a determination as to whether a matter in dispute is within the scope of collective negotiations" based on "its findings of fact and conclusions of law."). CIR has not cited anything authorizing an arbitrator to conduct such an evidentiary hearing.
More importantly, CIR's argument misapprehends the extent to which an evidentiary hearing is needed for PERC's non-negotiability determination. Such a determination turns on whether the subject-matter of the decision is academic or medical in nature, not whether the particular academic or medical decision is correct. PERC's decision "whether the subject matter of a particular dispute is within the scope of collective negotiations" addresses solely that "'abstract issue,'" and "the reach of this decision is limited." Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 7 8 N.J. 144, 154 (1978) (citation omitted). "Where the dispute concerns the legal arbitrability of a grievance sought to be submitted to binding arbitration pursuant to a collectively negotiated grievance/arbitration procedure, the Commission will not determine:" (1) "Whether the grievance is covered by the arbitration clause of an agreement;" (2) "Whether the facts are as alleged by the grievant;" (3) "Whether a contract provides a defense for the employer's alleged action;" (4) "Whether there is a valid arbitration clause in an agreement;" or (5) "Any other similar question." N.J.A.C. 19:13-1.1(b) (emphasis added); see Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 154 (such issues are "'not to be determined by the Commission in a scope proceeding.'"). This procedure for resolving whether an issue is within the scope of negotiations was established with the explicit intention of "avoid[ing] protracted administrative litigation with respect to disputes that normally will involve solely questions of law and policy." N.J.A.C. 19:13-1.1(a).
In any event, this scope-of-negotiations determination did not turn on disputed facts. CIR has cited no evidence to dispute the numerous certifications that Rowan terminated Dr. Kunes based on its judgment that he intentionally malpositioned ureteral stents. The disputed facts go to whether or not Rowan's judgment was factually correct, which PERC properly held was non-negotiable, as it implicated Rowan's academic freedom and medical judgment. Thus, PERC did not need to resolve the factual issue of whether Dr. Kunes in fact intentionally malpositioned stents. PERC simply, and correctly, held that the arbitrator was not the appropriate finder of fact, because the issue involved Rowan's medical judgment and academic freedom.
CIR claims that PERC did not require all certifications to be based on personal knowledge. However, Dr. Brown had personal knowledge of Dr. Kunes' statement to him, and Dr. Kaiser-Smith and Dr. Cavalieri had personal knowledge of why they decided to terminate Dr. Kunes. In any event, in the absence of contrary evidence CIR cannot show prejudice.
CIR argues PERC placed the burden of proof on CIR by noting that CIR did not produce the attending physician's certification until its motion for reconsideration. This argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Finally, we note that neither we nor PERC has determined whether Dr. Kunes actually malpositioned any stents, intentionally or otherwise. Nor do we have before us the issue of whether the internal proceedings provided by Rowan in reaching its decision constituted a "fair procedure." Hernandez, supra, 149 N.J. at 81. We rule only that PERC's decision that the issue was non-negotiable was neither arbitrary nor capricious.
Thus, our decision is without prejudice to any such claim under Hernandez, supra, 149 N.J. at 81, and Mittra v. Univ. of Med. & Dentistry of N.J., 316 N.J. Super. 83 (App. Div. 1998). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION