(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
In the Matter of University of Medicine and Dentistry of New Jersey and Committee of Interns and
Residents (A-113-95)
Argued March 26, 1996 -- Decided June 19, 1996
GARIBALDI, J., writing for a unanimous Court.
The issues on this appeal are: 1) whether the University of Medicine and Dentistry of New Jersey
(UMDNJ), a public employer, violated the New Jersey Employer-Employee Relations Act (Act) when it
refused to allow an intern's union representative to be present at an investigatory interview concerning the
extent of discipline to be imposed on the intern for alleged incompetence; and 2) whether UMDNJ violated
the Act when it refused to provide the intern's union representative with notice and information regarding
the disciplinary action.
In order to be a licensed physician in New Jersey, a medical school graduate must complete a year
of post-graduate training known as an internship. UMDNJ operates internship and residency programs at its
medical schools. The Committee on Interns and Residents (CIR) is the union recognized as the majority
representative that acts on behalf of UMDNJ interns and residents.
In 1989, CIR and UMDNJ entered into a collective negotiating agreement (CNA) governing certain
aspects of the terms and conditions of employment of interns and residents. The CNA provides a
mechanism to resolve disputes or "grievances." One alternative is for informal resolution wherein the
grievant may request the presence of a mutually agreed on CIR representative. Article XIII of the CNA
provides that no intern or resident may grieve any decision that is based on academic or medical judgment.
However, Article XIV of the CNA enables a resident or intern who is disciplined or discharged for cause to
institute a grievance action.
UMDNJ also supplies its interns with an Internship Manual (IM) that provides additional rules and
regulations governing their conduct. Article Nine of the IM provides for corrective action against the intern
if his or her professional conduct, actions and/or statements are disruptive or are reasonably likely to be
detrimental to patient safety or the delivery of quality patient care. The IM does not provide for notice to
CIR in this disciplinary process. Article Nine does not apply to "terms and conditions of employment" that
are, instead, subject to the CNA. When an Article Nine complaint is made, the Dean or his or her designee
conducts an investigation. At the conclusion of the investigation, a written report is filed with a
recommendation of no action, admonition, warning, probation, suspension, or termination. If there is an
immediate threat to patient life or patient safety, the IM authorizes the administration to summarily suspend
the intern.
Dr. Stephen Tenner, an intern at UMDNJ, was subject to discipline as a result of complaints alleging inadequate performance. Pursuant to Article Nine of the IM, Tenner was summarily suspended. No notice was provided to CIR. At Tenner's request, and on his behalf, a CIR representative attempted to discover why the CNA was not being followed and requested a formal statement of charges, access to Tenner's personnel file, and Tenner's reinstatement pending a hearing. UMDNJ's internship director informed the representative that the situation involved "academic or medical judgment;" therefore, pursuant to Article XIII, the CNA did not apply. Throughout the investigatory process, UMDNJ continued to refuse to allow CIR to participate, despite Tenner's request for a representative. UMDNJ contended that it had properly denied CIR's role in the Tenner investigation because the complaint related to Tenner's medical
and academic activities and, therefore, Article Nine of the IM, rather than Articles XIII and XIV of the
CNA, governed.
A committee recommended that Tenner be placed on probation for two months. Shortly after he
completed probation, the administration received letters from six different doctors complaining about
Tenner's continuing poor performance. Tenner was again summarily suspended. Once again, UMDNJ acted
pursuant to Article Nine of the IM, rather than Articles XIII and XIV of the CNA. An investigation was
convened but no notice was given to CIR. Following the investigation, Tenner's internship was terminated.
CIR filed an unfair labor practice charge with the New Jersey Public Employment Relations
Commission (PERC), alleging that in forbidding CIR to represent Tenner at the two investigatory interviews
and in withholding from CIR notice of and information pertaining to the disciplinary action taken against
Tenner, UMDNJ violated certain provisions of the Act. CIR claimed that the Act itself obligated UMDNJ
to provide notice to CIR and allow it access to information and the hearing. CIR did not seek any remedy
for Tenner, but rather sought a prospective order requiring UMDNJ to provide those statutory rights in the
future.
A PERC hearing examiner agreed with UMDNJ that the statutory right to participate in the hearing
did not apply under the facts of this case, and that Article XIII waived all of those statutory rights. PERC
reversed, finding that the statutory rights did apply to Tenner's situation and that Article XIII was not a
waiver of those rights. Consistent with CIR's limited request for relief, PERC ordered UMDNJ to stop
denying CIR the right to represent employees in investigatory interviews and denying CIR information about
disciplinary actions.
UMDNJ filed a motion for reconsideration that raised, for the first time, a claim that interns were
not employees under labor law. UMDNJ argued that the interns were students and, therefore, were not
covered under the Act. UMDNJ also argued that Article XIII embodied its general right to academic
freedom, and PERC's decision infringed on that right by allowing CIR to determine how UMDNJ operated
its educational institution. PERC granted the motion for reconsideration and held that, although interns may
be students, they are also employees who deserve the protections of labor law. PERC also upheld its earlier
decision that there was no infringement on academic freedom. The Appellate Division affirmed, substantially
for the reasons set forth in PERC's opinion. The Supreme Court granted UMDNJ's petition for
certification.
HELD: The University of Medicine and Dentistry of New Jersey committed an unfair labor practice in
refusing to provide notice and information to the Committee of Interns and Residents concerning
the disciplinary proceedings against an intern and in refusing to allow CIR to attend the investigatory
interviews. Because of UMDNJ's right to academic freedom, however, CIR's right to information
and its ability to attend hearings is terminated as soon as it is clear that the disciplinary proceedings
were initiated solely due to academic and medical concerns.
1. UMDNJ stipulated at the PERC hearing that it is a public employer and that CIR is a public employee
representative within the Act, thereby conceding that interns and residents are public employees for the
purposes of the Act. Moreover, UMDNJ entered into a CNA with CIR concerning the work performance
and pay of interns. Without having raised below the issue that interns are not employees, without allowing
CIR to develop a record contesting that assertion, and without having PERC assess the relevant evidence and
arguments, UMDNJ's stipulation and its failure to raise this issue at the hearing preclude it from now
challenging PERC's classification of Tenner as an employee. Thus, for purposes of this decision, Tenner is
an employee. (pp. 12-16)
2. The National Labor Relations Act (NLRA) has been interpreted to provide an employee the right to have union representation at disciplinary investigations (the Weingarten right). Although the NLRA does not
apply to State employees, PERC has adopted the Weingarten right in New Jersey. In view of the purposes
behind the Act and the benefits of the Weingarten right, PERC's identification of the Weingarten right
within the Act is a permissible construction of the statute. PERC has broad discretion in construing the Act
and there is no legislative language or history contradicting PERC's conclusion. Moreover, the Court is
guided by federal precedent. (pp. 16-21)
3. Tenner would have been entitled to the Weingarten right during the investigation only if he reasonably
believed that disciplinary action might result. If the decision to discipline the employee has already been
made, then there is no right to union representation. The Weingarten right is triggered here because Tenner
requested union representation at an investigatory interview that concerned the extent of discipline that was
to be imposed on him. Furthermore, the Court declines to find that the CIR waived Tenner's Weingarten
and other substantive rights by entering into the CNA with UMDNJ. It is unnecessary to consider whether
Article XIII constitutes a clear and unmistakable waiver in view of the Court's disposition of UMDNJ's
academic-freedom argument. (pp. 21-26)
4. The rights guaranteed by the Act will be preempted when they infringe on important educational policies.
CIR should not be able to interfere with UMDNJ's academic and medical decisions. Here, UMDNJ's
academic-freedom argument fails because the enforcement of Tenner's Weingarten right would not have
resulted in any interference with UMDNJ's academic judgment; CIR sought only to have a union
representative accompany Tenner to his two interviews. CIR has the right to notice and information about
pending discipline so that it may decide whether the discipline involves an academic or medical judgment.
Thus, UMDNJ must notify CIR of any disciplinary actions and provide it with access to information about
the case. However, as soon as it clear that the matter involves a truly academic or medical judgment,
UMDNJ's interest in academic freedom predominates over the rights guaranteed by the Act. At that point,
the union representative should leave the hearing and should expect to receive no further information.
(pp. 27-33)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
113 September Term 1995
IN THE MATTER OF UNIVERSITY OF
MEDICINE AND DENTISTRY OF
NEW JERSEY, (SCHOOL OF
OSTEOPATHIC MEDICINE),
Respondent-Appellant,
and
COMMITTEE OF INTERNS AND
RESIDENTS,
Charging Party-Respondent.
Argued March 26, l996 -- Decided June 19, 1996
On certification to the Superior Court,
Appellate Division.
Katherine L. Suga, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Barbara A.
Harned, Deputy Attorney General, on the
brief).
Carol G. Dunham argued the cause for
respondent (Reitman Parsonnet, attorneys;
William J. Volonte, on the brief).
Robert E. Anderson, General Counsel, argued
the cause for respondent New Jersey Public
Employment Relations Commission.
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, we consider the interrelationship between
the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:l3A-l
to -29, and the University of Medicine and Dentistry of New
Jersey's (UMDNJ) right to academic freedom. Specifically, we
must determine whether UMDNJ, a public employer, violated the Act
when it refused to allow an intern's union representative to be
present at an investigatory interview concerning the extent of
discipline to be imposed on that intern for his alleged
incompetence. A second issue is whether UMDNJ violated the Act
when it refused to provide the intern's union representative with
notice and information regarding the disciplinary action.
UMDNJ was created for the purpose of "establish[ing] and operat[ing] programs of medical, dental, nursing, health related professions and health sciences education . . . ." N.J.S.A. l8A-64G-2. The University is comprised of several schools, one of which is the School of Osteopathic Medicine (SOM). UMDNJ operates internship and residency programs at its medical schools, including the School of Osteopathic Medicine. Interns and residents working for UMDNJ are unionized. The Committee on Interns and Residents (CIR) is the union recognized as the majority representative that acts on behalf of interns and residents.
In New Jersey, every student who completes medical school and wishes to be licensed as a physician must complete a year of
post-graduate training known as an internship. N.J.S.A. 45:9-8(3). At the conclusion of the internship, the intern's employer
files an evaluation of that intern's performance with the State
medical-licensing board, which determines whether to license the
doctor to practice medicine. UMDNJ's internship program requires
interns to work each month in a different practice area under the
guidance of a different faculty member/doctor. The job
responsibilities of interns include working with patients,
attending lectures, completing various assignments, and teaching
medical school students. They are graded on their performance
each month, and they also may receive oral evaluations from the
faculty member to whom they are assigned. Interns at UMDNJ earn
at least $32,000 annually for their work. UMDNJ's School of
Osteopathic Medicine operates an internship and residency
training program for graduates of osteopathic medical schools at
Kennedy Memorial Hospital and the University Medical Center.
In 1989, CIR and UMDNJ entered into a collective negotiating agreement (CNA) governing certain aspects of the terms and conditions of employment of interns and residents (collectively known as Housestaff Officers). In particular, the contract provides a mechanism to resolve disputes, or "grievances." The CBA defines "grievance" as an allegation that there has been
1. A breach, misinterpretation or improper application of the terms of this Agreement; or
2. An improper or discriminatory application
of, or failure to act pursuant to, the
written rules, policies or regulations of the
University or statutes to the extent that any
of the above established terms and conditions
of employment which are matters which
intimately and directly affect the work and
welfare of Housestaff Officers and which do
not significantly interfere with inherent
management prerogatives pertaining to the
determination of public policy.
The CNA provides for several different types of grievance
resolution. In particular, the parties may agree to seek an
informal resolution and avoid a formal adjudication of every
allegation. Therefore, the CNA provides for an informal
discussion between the aggrieved intern and the Chief Resident or
other hospital designee. "The grievant may, at his or her
option, request the presence of a mutually agreed upon CIR
representative during attempts at informal resolution." Ibid.
Those unhappy with an informal resolution are permitted under the
agreement to pursue a more formal process culminating in
arbitration. Article XIII of the CNA provides that, during this
formal process, "[t]he Program Director or designee shall meet
with the grievant and a representative of the . . . CIR for the
purpose of discussing the grievance."
Article XIII of the CNA does, however, impose one important
limit on this complaint procedure. "In no event shall matters
concerning academic or medical judgment be the subject of a
grievance under the provisions of this Article." Thus, no intern
or resident may grieve any decision that is based on academic or
medical judgment.
While Article XIII of the CNA does not allow complaints
about actions based on medical judgment, Article XIV of the CNA
discusses "disciplinary action" and provides:
Housestaff Officers may be disciplined or
discharged for cause, however, these actions
shall be grievable . . . .
The University shall give five (5) working
days advance notice, in writing, of any
intended disciplinary action to the affected
Housestaff Officer and the CIR. The notice
shall state the nature and extent of
discipline, the specific charges against the
Housestaff Officer and describe the
circumstances upon which each charge is
based.
However, the CNA is not the only document governing the
relationship between UMDNJ and its interns. UMDNJ also supplies
its interns with an Internship Manual that provides additional
rules and regulations governing the interns' conduct. Article
Nine in the Internship Manual provides for "Corrective Actions."
The Internship Manual specifically states that that provision
does not apply to "terms and conditions of employment," which are
instead subject to the CNA.
Article Nine of the Internship Manual provides that
[w]henever an intern engages in, makes or
exhibits acts, statements, demeanor or
professional conduct, either within or
outside of the medical center, and the same
is or is reasonably likely to be detrimental
to patient safety or to the delivery of
quality patient care, disruptive to medical
center operations or an impairment to the
community's confidence in the medical center
and/or its intern training program,
corrective action against the intern may be
initiated . . . .
The manual does not provide for notice to CIR in such an
instance; nor does it contemplate any place for CIR in the entire
disciplinary process.
When such a complaint is made, the dean or a designee is to
conduct "an investigation." Such investigation "is not a
'hearing,' but may include a discussion with the person(s)
initiating the request, and with other individuals who may have
knowledge of the events involved." At the conclusion of that
investigation, a written report is filed that may recommend no
action, admonition, warning, probation, suspension or
termination. The Internship Manual provides that "[a]ny
recommendation for suspension or termination of internship
entitles the intern to the procedural rights." However, the
'procedural rights' are not delineated.
If such a complaint is made, and the allegation requires
immediate action "to protect the life of any patient or to reduce
the substantial likelihood of injury or damage to the health or
safety of any patient, employee, or other person," then the
Internship Manual authorizes the administration to summarily
suspend the intern. A summary suspension is effective
immediately on imposition, and prompt notification must be
provided to the intern.
After graduating from medical school, Dr. Stephen Tenner began his internship for UMDNJ. Within the first two months of Tenner's internship, his supervisors began to perceive problems with his performance. Tenner was not working well with the nurses and was very indecisive in his medical judgment, constantly changing his mind about the course of treatment for patients. Several doctors reported those problems to Dr. George Charney, the chief medical officer of the hospital. He spoke to Tenner about those complaints on August 14, 1990. In October, Tenner wrote to Charney and asked for time off to concentrate on resolving various problems. Tenner was granted a paid leave of absence from October 22 to November 9.
Tenner's problems continued after he returned from leave. In early December, another doctor found his performance inadequate and counseled him regarding the problems he perceived. Tenner continued to show inadequate knowledge and to be indecisive in selecting courses of treatment.
Because the hospital worked with a skeletal crew during the week between Christmas and New Year's Day, the administration was afraid to allow Tenner to continue treating patients since there would be less supervision of his work. On December 21, 1990, Charney received yet another complaint and, acting pursuant to Article Nine of the Internship Manual, summarily suspended Tenner, finding him to present a threat to the safety of
patients. In his letter to Tenner notifying him of the
suspension, Charney wrote that the suspension was "based on
continued acts, statements, professional conduct, and continued
poor performance [that] is detrimental to the delivery of quality
care and is likely to be detrimental to patient safety and has
been disruptive to medical center operations." No notice was
provided to CIR.
On the next day, the entire UMDNJ administration went on
vacation and did not return until December 31. In the meantime,
Tenner sought the help of Deborah Friedman, a CIR employee. She
made several telephone calls to discover why the CNA was not
being followed. She asked for a formal statement of the charges,
access to Tenner's personnel file, and Tenner's reinstatement
pending a hearing.
Friedman received no response to her phone calls, so she
sent a letter to Dr. Jay Yanoff, UMDNJ's internship director,
requesting a meeting to discuss the situation. Yanoff spoke to
her by telephone and explained that because this situation
involved an "academic or medical judgment" pursuant to Article
XIII, the CNA did not apply. Accordingly, there was no need for
CIR's involvement in the case and CIR was not entitled to have
access to UMDNJ's file on Tenner. He did state that Tenner
himself could have access to his file, but there is a dispute
about whether Tenner was actually given such access.
On January 2, 1991, Dr. Thomas Allen was selected to
investigate this complaint, again pursuant to Article Nine of the
Internship Manual. He asked several others to assist him.
Friedman complained yet again that CIR had not been provided
information about the charge; she also complained that CIR was
not being allowed to participate in the hearings despite Tenner's
request that a CIR representative attend. She complained that
"[w]e cannot even begin to evaluate whether we agree with your
characterization of this as a matter of academic and medical
judgment precluding the filing of a grievance," because no
information had been provided.
UMDNJ refused to allow CIR to participate in the
investigation, still contending that UMDNJ had properly denied
CIR a role in the Tenner investigation because the complaint
related to Tenner's medical and academic activities, and,
therefore, Article Nine of the Internship Manual, rather than
Articles XIII and XIV of the CNA, was the governing standard.
However, UMDNJ did allow Tenner to have another intern or a
faculty member present in the investigation in order to assist
him. Tenner declined that offer.
The committee recommended that Tenner be placed on probation
for two months. Dr. Belsky, one of the committee members, agreed
to act as a mentor for Tenner and meet with him weekly to help
Tenner improve his skills. Tenner successfully completed this
probation on March 10, 1991, although Dr. Belsky was not entirely
satisfied with Tenner's performance.
Shortly after Tenner completed probation, Dr. Charney
received letters from six different doctors complaining about
Tenner's performance. The complaints were not new: faulty
medical judgment, failure to follow instructions, erroneous
notes, and the giving of incorrect dosages of medication to
patients. Charney attempted to meet Tenner to discuss those
complaints, but Tenner refused to talk with him.
On April 10, 1991, Charney again summarily suspended Tenner.
Once again, UMDNJ acted pursuant to Article Nine of the
Internship Manual rather than Articles XIII and XIV of the CNA.
Dr. Allen convened an investigation, but no notice was provided
to CIR. Allen recommended that Tenner be terminated, and the
Dean concurred and terminated his internship.
On July 16, 1991, CIR filed an unfair practice charge with
the New Jersey Public Employment Relations Commission (PERC).
The charge alleged that in forbidding CIR to represent Tenner at
the two investigatory interviews and in withholding from CIR
notice of and information pertaining to the disciplinary action
taken against Tenner, UMDNJ violated certain provisions of the
Act, N.J.S.A. 34:l3A-5.4(a)(l) and (a)(5). Notably, CIR did not
base the argument on any violation of the CNA, but rather on a
claim that the Act itself, irrespective of contractual language,
obligated UMDNJ to provide notice to CIR and allow it access to
information and the hearing. CIR did not seek any remedy for
Tenner, but rather sought a prospective order requiring UMDNJ to
provide those statutory rights in the future.
PERC assigned the matter to a hearing examiner. At the
hearing, UMDNJ stipulated that it was a "public employer" and
that CIR was a "public employee representative." UMDNJ did not
contest that Tenner was an employee, but rather argued that it
was not obligated to provide notice, information, and access to
the hearing because CIR had waived those statutory rights in
Article XIII. The PERC examiner agreed with UMDNJ, finding that
the statutory right to participate in the hearing did not apply
under the facts of this case, and that Article XIII waived all of
those statutory rights. UMDNJ (School of Osteopathic Medicine),
19 NJPER ¶24095, rev'd, 19 NJPER ¶24155 (PERC 1993).
PERC reversed, finding that the statutory rights did apply
to Tenner's situation and that Article XIII was not a waiver of
those rights. UMDNJ (School of Osteopathic Medicine), 19 NJPER
¶24155 (1993). "Even if the union had agreed to limit an
employee's right to pursue a substantive claim through a
particular grievance procedure, that agreement would not
constitute a clear waiver of an employee's procedural right . . .
." Id. at 344. Consistent with CIR's limited request for
relief, PERC did not order any remedy with respect to Tenner
personally. Instead, PERC ordered UMDNJ to "Cease and Desist
from . . . denying [CIR] the right to represent employees at
investigatory interviews . . . [and] denying CIR information
about disciplinary actions." Ibid.
UMDNJ then filed a motion for reconsideration that raised,
for the first time, a claim that interns were not employees under
labor law, but rather students and therefore deserve no statutory
protection. UMDNJ also argued that Article XIII embodied its
general right to academic freedom, and PERC's decision infringed
on that right by allowing CIR to determine how UMDNJ operated its
educational institution. PERC granted the motion for
reconsideration. On reconsideration, PERC held that interns may
be students but are also employees and therefore deserve
protection under labor law. Furthermore, PERC found no
infringement on academic freedom in its earlier decision and
therefore affirmed it.
In an unpublished per curiam decision, the Appellate
Division affirmed, substantially for the reasons set forth in
PERC's opinion. We granted UMDNJ's petition for certification.
142 N.J. 573 (1995).
Article 1, paragraph 19 of the New Jersey Constitution guarantees the right of public employees to organize and petition the government. To effectuate this right, the Legislature enacted the Employer-Employee Relations Act, N.J.S.A. 34A:1 to -29 (the Act), creating certain substantive rights on behalf of
public employees, including the right to engage in collective
bargaining and collective representation.
By definition, the Employer-Employees Relations Act applies
only to employees. For the first time in its motion for
reconsideration before PERC, UMDNJ asserted that interns,
including Tenner, were not employees but were students.
Therefore, because interns are not employees, they would not be
covered by the Act.
This is a question of first impression in New Jersey, but
many other jurisdictions have considered whether interns are
employees or students. The National Labor Relations Board (NLRB)
has rejected the claim that interns and residents are "employees"
covered by the National Labor Relations Act (NLRA). See Cedars-Sinai Medical Ctr.,
223 NLRB 251 (Mar. 23, 1976). The NLRB
concluded that "interns, residents, and clinical fellows are
primarily engaged in graduate educational training . . . and that
their status is therefore that of students rather than of
employees." Id. at 254. "Notwithstanding the NLRB line of
cases, the vast majority of states addressing the question of
housestaff bargaining rights have held that housestaff are
employees within the meaning of their respective collective
bargaining statutes. . . ." Neil M. Gerster, Medical Housestaff:
Scholars or Working Stiffs? The Pending PERB Decision,
12 Pac.
L. J. 1127, 1133-34 (1981). See, e.g., Regents of the Univ. of
California v. Public Employment Relations Bd.,
715 P.2d 590 (Cal.
1986); Regents of the Univ. of Michigan v. Michigan Employment
Relations Comm'n,
204 N.W.2d 218 (Mich. 1973); House Officers
Ass'n for the Univ. of Nebraska Medical Center & Affiliated
Hosps. v. University of Nebraska Medical Ctr.,
255 N.W.2d 258
(Neb. 1977); University Hosp., Univ. of Cincinnati College of
Medicine v. State Employment Relations Bd.,
587 N.E.2d 835 (Ohio
1992). But see Ross v. University of Minnesota,
439 N.W.2d 28
(Minn. Ct. App. 1989)(viewing resident as a student for purposes
of reviewing termination from a residency program); Philadelphia
Ass'n of Interns & Residents v. Albert Einstein Medical Ctr.,
369 A.2d 711 (Pa. 1977)(following NLRB view).
Commentators have generally agreed with those states that
have rejected Cedars-Sinai and have instead held that interns are
employees for purpose of labor relations law. See, e.g., Daniel
W. Srsic, Collective Bargaining by Physicians in the United
States and Canada,
15 Comp. Lab. L. J. 89, 105 (1993); Judith L.
Maute, Student-Workers or Working Students? A Fatal Question for
Collective Bargaining of Hospital House Staff,
38 U. Pitt. L.
Rev. 762, 767-69, 772-73 (1977); Kathleen Drake, Labor Problems
of Interns and Residents: The Aftermath of Cedars-Sinai,
11
U.S.F. L. Rev. 694, 702-05 (1977). But see Stephen L. Sepinuck,
Hospital Residents and Interns: Inconsistent Treatment under
Federal Law, 29 St. Louis U. L. J. 665 (1985)(noting "extensive
criticism" of Cedars-Sinai, but concluding that case was
correctly decided).
Both PERC and UMDNJ recognize that interns are not
considered employees at all times and for all purposes, just as
they are not considered students at all times and for all
purposes. Interns have, in fact, a dual status. They work in
patient care and are paid; on the other hand, they are obligated
to attend lectures, are given grades, and must complete their
program in order to be licensed as physicians. As PERC stated in
its Decision and Order on Motion for Reconsideration, "[t]hose
additional factors may create additional rights and
responsibilities under other sources of authority, but they do
not nullify the rights interns have as public employees under the
Act."
As mentioned supra at __ (slip op. at 10), UMDNJ stipulated
at the PERC hearing that it is a "public employer," and that CIR
is a "public employee representative within the [Act]," thus
conceding that interns and residents are "public employees" for
the purposes of the Act. Moreover, UMDNJ had entered into a CNA
with CIR concerning the work performance and pay of interns, and
had paid Tenner more than $30,000 for his hospital work. UMDNJ
never raised, until its motion for reconsideration, any argument
that interns should not be recognized as employees under the Act.
As PERC observed, when an employer contests rather than concedes
that a worker is an "employee," PERC conducts a hearing on that
fact-sensitive issue. See, e.g., Somerset County College, 13
NJPER ¶18150, at 363 (1987)(detailing evidence presented at such
a hearing). Without having that issue raised below, without
allowing CIR to develop a record contesting that assertion, and
without having PERC assess the relevant evidence and arguments,
UMDNJ's stipulation and its failure to raise this issue at the
hearing preclude it from now challenging PERC's classification of
Tenner as an employee. For purposes of this decision, we deem
Tenner to be an employee.
N.J.S.A. 34:13A-5.4(a)(1) states:
Public employers, their representatives or agents are prohibited from:
(1) Interfering with, restraining or coercing
employees in exercise of the rights
guaranteed to them by this act.
CIR alleges that UMDNJ violated this provision by refusing to
allow it to represent Tenner during the investigatory hearing.
Like New Jersey's Act, the NLRA provides that "[i]t shall be
an unfair labor practice for an employer to interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed in section 157 of this title."
29 U.S.C.A.
§158(a)(1). Section 157 guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection."
29 U.S.C.A.
§157.
In NLRB v. J. Weingarten, Inc.,
420 U.S. 251,
95 S. Ct. 959,
43 L. Ed.2d 171 (1975), the NLRB first announced the employee's
right to have union representation at disciplinary investigations
("Weingarten right"). Weingarten involved a lunch-counter worker
who had been accused of stealing food from her employer. When
the store manager and a member of the store's security team
questioned her, she requested the presence of her union
representative at the interview, but those requests were denied.
Id., 420 U.S. at 254-55, 95 S. Ct. at 962-63, 43 L. Ed.
2d at
176-77. The employee filed a claim with the NLRB arguing that
the employer's actions had interfered with her rights, contrary
to
29 U.S.C.A.
§158(a)(1).
The NLRB found that the employer's action in refusing to
allow union representation violated the NLRA because it
interfered with the right, codified in
29 U.S.C.A.
§157, of
employees to act together for mutual benefit. The Supreme Court
upheld this interpretation of the NLRA and defined the contours
of that new right:
First, the right inheres in §7's guarantee of
the right of employees to act in concert for
mutual aid and protection. . . .
Second, the right arises only in situations where
the employee requests representation. . . .
Third, the employee's right to request representation as a condition of participation in an interview is limited to
situations where the employee reasonably
believes the investigation will result in
disciplinary action. . . .
Fourth, exercise of the right may not interfere
with legitimate employer prerogatives. . . .
Fifth, the employer has no duty to bargain with
any union representative who may be permitted to
attend the investigatory interview. . . . "The
representative is present to assist the employee,
and may attempt to clarify the facts or suggest
other employees who may have knowledge of them.
The employer, however, is free to insist that he
is only interested, at that time, in hearing the
employee's own account of the matter under
investigation."
[Weingarten, supra, 420 U.S. at 256-260, 95
S. Ct. at 963-65, 43 L. Ed.
2d at 177-79
(citation omitted)]
In addition to relying on the language of the statute, the
Court also discussed the policy justifications for the NLRB's
conclusion. The Court noted that "[r]equiring a lone employee to
attend an investigatory interview which he reasonably believes
may result in the imposition of discipline perpetuates the
inequality the [National Labor Relations] Act was designed to
eliminate, and bars recourse to the safeguards the Act provided
`to redress the perceived imbalance of economic power between
labor and management.'" Id., 420 U.S. at 262, 95 S. Ct. at 966,
43 L. Ed 2d at l80 (quoting American Ship Building Co. v. NLRB,
380 U.S. 300, 3l6,
85 S. Ct. 955, 966, l
3 L. Ed.2d 855, 866
(l965)). The Court also defended the Board's ruling as being
beneficial to employers as well as employees:
A single employee confronted by an employer
investigating whether certain conduct
deserves discipline may be too fearful or
inarticulate to relate accurately the
incident being investigated, or too ignorant
to raise extenuating factors. A
knowledgeable union representative could
assist the employer by eliciting favorable
facts, and save the employer production time
by getting to the bottom of the incident
occasioning the interview.
[Id., 420 U.S. at 262-63, 95 S. Ct. at 966,
43 L. Ed 2d at l8l.]
The NLRA does not apply to state employees, see
29 U.S.C.A.
§152(2), so the Weingarten decision provides no rights to CIR or
Tenner. However, New Jersey's Act has a provision similar to
Section 157, the root of the Weingarten right, granting public
employees "the right, freely and without fear of penalty or
reprisal, to form, join, and assist any employee organization."
N.J.S.A. 34:13A-5.3. In East Brunswick Board of Education, 5
NJPER ¶10206 (1979), PERC adopted the Weingarten rule "[i]n view
of the similarity between the unfair practice provisions of the
National Labor Relations Act and those of the New Jersey
Employer-Employee Relations Act, as amended . . . ." Id. at 399.
The New Jersey Act is indeed similar to the National Labor
Relations Act (NLRA) in its description of what constitutes an
unfair labor practice. Galloway Tp. Bd. of Educ. v. Galloway Tp.
Ass'n of Educ. Secretaries, 78 N.J. l, 9 (l978).
Neither party contests PERC's adoption of the Weingarten
right as consistent with New Jersey's Act. The conclusion that
the Act provides New Jersey public employees with the Weingarten
right is consistent with the purposes behind the Act as described
in Red Bank Regional Education Ass'n v. Red Bank Regional High
School Board of Education, 78 N.J. l22 (l978). In that case,
this Court confronted the question whether a union has the right
to file an organizational grievance instead of asking an
individual employee to file a grievance in her own name. In
concluding that unions indeed enjoy such a right under N.J.S.A.
34:l3A-5.3, the Court noted that "[t]he principle of collectivity
. . . in public employment labor relations is at the heart of the
legislative scheme." Red Bank Regional Ed. Ass'n, supra, 78 N.J.
at l38. The Court stated that to deny the union the sought-after
right "would surely `short-circuit' the system of collectivity
the Legislature sought to promote in the Act and weaken its
benefits." Ibid.
There are other policy justifications for granting New
Jersey public employees the protection of the Weingarten rule.
As one commentator has explained, an investigatory interview of
an employee often entails an atmosphere of isolation and
intimidation of the employee. See Anthony R. Baldwin, Weingarten
and the Taylor Law -- A Claimed Difference Without Distinction,
7
Hofstra Lab. L.J. l23, l27-29 (l989). In such a setting,
employees may be less than articulate in attempting to defend
themselves. Employees may not realize that they could exonerate
themselves through recounting to the employer certain mitigating
circumstances. Thus, an employee's defense may be less than
compelling, squandering the last chance of exculpation before
punishment is delivered. See id. at l30. Those concerns have
prompted some to compare the Weingarten right accorded employees
to the protections accorded the criminally accused. See id. at
l39 (citing Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. l602, l
6 L. Ed.2d 694 (l966)).
In view of the purposes behind the Act and the benefits of
the Weingarten right, we find that PERC's identification of the
Weingarten right within the Act is a permissible construction of
the statute. We emphasize the broad discretion granted to PERC
in construing the Act and the absence of legislative language or
history contradicting PERC's conclusion. In re Hunterdon County
Bd. of Chosen Freeholders,
116 N.J. 320, 328-29 (1989). We also
observe this Court's willingness to be guided in its
interpretation of the Act by the federal courts' "experiences and
adjudications under the [NLRA]." Galloway Tp. Bd. of Educ.,
supra, 78 N.J. at 9.
Tenner would have been entitled to the Weingarten right during the investigation only if he reasonably believed that disciplinary action might result. See Weingarten, supra, 420 U.S. at 252-53, 95 S. Ct. at 961-62, 43 L. Ed. 2d at 175. The reasonable belief standard is guided by "objective standards under all the circumstances of the case." Id., 420 U.S. at 257 n.5, 95 S. Ct. at 964 n.5, 43 L. Ed. 2d at 178 n.5 (quoting Quality Mfg. Co., 195 NLRB 197, 198 n.3 (1972)). If the decision
to discipline the employee has already been made, then there is
no right to union representation. Thus, in John E. Runnels
Hospital, 11 NJPER ¶16064 (1985), PERC found no violation of
Weingarten when the employer held a meeting simply to inform an
employee of a prior decision to terminate -- because the decision
had already been reached, there could be no reasonable
anticipation of discipline at the meeting.
The hearing examiner decided that the Weingarten right was
not triggered in this case because Tenner had already been
summarily suspended before the investigation began, but PERC
rejected that conclusion. We agree with PERC. As discussed
supra at __ (slip op. at 6), summary suspension as contemplated
by the Internship Manual is an ex parte temporary measure, akin
to a temporary restraining order, preventing the intern from
working when the intern presents a danger to patient safety. The
temporary order is then quickly followed by a hearing where UMDNJ
decides whether to warn, suspend, or terminate the intern.
Clearly, one attending such a hearing can reasonably anticipate
disciplinary action to result. The mere fact that one has been
temporarily restrained pending a hearing does not mean that a
permanent suspension or termination is not additional discipline.
Here, the Weingarten right is triggered because Tenner
requested union representation at an investigatory interview that
concerned the extent of discipline that was to be imposed on him.
However, we must still consider whether the Weingarten right was
waived contractually or is limited by the public policy of
academic freedom.
CIR also contends that UMDNJ violated Tenner's rights under the Act by refusing to notify it of the pending disciplinary action and provide the union with information so it could determine how to exercise its right and duty to represent Tenner.
N.J.S.A. 34:13A-5.4(a)(5) prohibits employers from "refusing to negotiate in good faith with a majority representative concerning terms and conditions of employment of employees" in that union. PERC has interpreted that provision as stating that an employer's failure to provide its employees' union with information that the union needs to represent its members constitutes a refusal to negotiate in good faith. See, e.g., New Jersey Transit Bus Operations, Inc., 15 NJPER ¶20150 (1989)(holding that employer must provide information about employee complaint to union to allow union to determine whether complaint was meritorious); City of Atlantic City, 15 NJPER ¶20003 (1988)(same); New Jersey Office of Employee Relations, 13 NJPER ¶18284 (1987)(same).
Accordingly, "[a]n employer must supply information if [there is] a probability that the information is potentially relevant and that it will be of use to the union in carrying out its statutory duties." New Jersey Office of Employee Relations, supra, 13 NJPER at 754 (finding that union had right to
information about vacation policies and records in order to
determine whether employee's complaint was merited and worthy of
grievance). Thus, unions are entitled to "'a broad range of
potentially useful information.'" Ibid. (quoting Proctor & Gamble
Mfg. Co. v. NLRB,
603 F.2d 1310, 1315 (8th Cir. 1979)). PERC
requires every public employer to provide its employees' union
with the information that the union needs to evaluate the merits
of an employee's complaint about employer conduct unless such
information is "clearly irrelevant or confidential." Ibid.
PERC's interpretation of that provision of the Act, as with
the Weingarten right, follows the interpretation of the NLRA by
the federal courts. Ibid. (recognizing that PERC development of
right to information "rel[ied] on federal precedent"). The NLRA
states that it is an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his
employees . . . ."
29 U.S.C.A.
§158(a)(5). That provision has
been interpreted as requiring employers to provide relevant
information to their employee's union. "There can be no question
of the general obligation of an employer to provide information
that is needed by the bargaining representative for the proper
performance of its duties." NLRB v. Acme Industrial Co.,
385 U.S. 432, 435-36,
87 S. Ct. 565, 568,
17 L. Ed.2d 495, 499
(1967).
As with the Weingarten right, neither party challenges the
correctness of PERC's application of the statute. Indeed, UMDNJ
concedes in its petition for certification that, ordinarily,
"[i]nformation regarding the discipline of employees may very
well constitute information 'relevant to contract administration'
which must be provided to the majority representative." Thus, no
one disputes that UMDNJ is ordinarily required to provide notice
and information to CIR when it initiates disciplinary action.
However, as with the Weingarten right, UMDNJ argues that that
right also was waived contractually by Article XIII in the CNA
and preempted by the government policy in favor of academic
freedom.
If this appeal did not involve an academic teaching hospital, we could easily affirm PERC's decision. Once one agrees that the intern is an employee and that the substantive rights advanced by PERC are correct applications of the Act, UMDNJ's conduct appears to violate those rules. However, 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 points to the preamble to the CNA, which states that "[t]he parties recognize that it is the responsibility of the University to provide a quality educational program," as well as to Article XIII's limit on grievances related to academic
decisions, and argues that these provisions indicate that CIR
made a "'clear and unmistakable waiver'" of the rights guaranteed
by the Act. Prudential Ins. Co. of America v. NLRB,
661 F.2d 398, 401 (5th Cir. 1981)(citation omitted). We decline to find
that CIR waived Tenner's Weingarten and other substantive rights
by entering into the CNA with UMDNJ.
First, we observe that PERC has held that the Weingarten
right may not be waived in a collective bargaining agreement,
because the right is a personal right belonging to each
individual. Camden County Vo-Tech, 7 NJPER ¶12206, at 468
(1981). The PERC hearing examiner in this case urged PERC to
reconsider its rule in view of Prudential's interpretation of the
NLRA, but PERC has not yet done so. UMDNJ (School of Osteopathic
Medicine), supra, 19 NJPER at 205. N.J.S.A. 34:13A-5.2 states
that PERC "shall make policy and establish rules and regulations
concerning employer-employee relations in public employment . . .
and to implement fully all the provisions of this act." We are
therefore reluctant to announce such a change until PERC first
considers that issue. Even if we were to adopt the Fifth
Circuit's holding in Prudential, it is questionable that Article
XIII of the CNA actually constitutes a "clear and unmistakable"
waiver, especially because of Article XIV's statement that
disciplinary "actions shall be grievable." However, we find it
unnecessary to consider that issue in view of our disposition of
UMDNJ's academic-freedom argument.
UMDNJ contends that its general right to academic freedom preempts the substantive rights provided by the Act, since those rights would infringe upon its ability "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." Sweeney v. State of New Hampshire, 354 U.S. 234, 263, 77 S. Ct. 1203, 1217, 1 L. Ed.2d 1311, 1332 (1957)(Frankfurter, J., concurring).
We have recently summarized the concept that Justice Frankfurter described:
The concept of academic freedom that the university invokes in support of its claim of privilege is not unfamiliar to the judiciary. The public interest in promoting higher education reflects the view that "it performs 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. 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 v. Rutgers, the State Univ.,
110 N.J. 432, 448 (1988)(citations omitted).]
Accord Snitow v. Rutgers Univ.,
103 N.J. 116, 121-22 (1986).
Our cases have recognized that rights guaranteed by the Act
will be preempted when they infringe on important educational
policies. See Board of Educ. v. Neptune Tp. Educ. Ass'n, ___
N.J. ___, ___ (1996). Thus, in Association of New Jersey State
College Faculties, Inc. v. Dungan,
64 N.J. 338 (1974), we allowed
the Board of Higher Education to promulgate guidelines on
granting tenure to teachers even though the Board had not
consulted with the union as required by the Act. Id. at 353-56.
In reaching our decision in Dungan, we cited with approval a
recommendation that
Collective bargaining in colleges and
universities not extend to academic freedom
and tenure and related faculty personnel
manners, and that grievances involving issues
of freedom and tenure be referred to academic
procedures outside the collective bargaining
process.
See also Burlington County College Faculty Ass'n v. Board of Trustees, Burlington County College, 64 N.J. 10 (1973)(holding that setting of college calendar implicated academic freedom and was therefore outside scope of Act); cf. Bethlehem Tp. Bd. of Educ. v. Bethlehem Tp. Educ. Ass'n, 91 N.J. 38, 46 (1982) ("[M]atters which involve sensitive educational policy decisions, could not be the subject of mandatory negotiations, even in the absence of preempting legislation," but are instead left solely to management's discretion.). Similarly, the Michigan Supreme Court, while holding that interns are employees, recognized that "[s]ome conditions of employment may not be subject to collective bargaining because those particular facets of employment would interfere with" the university's autonomy. Regents of Univ. of Michigan, supra, 204 N.W. 2d at 224; cf. Ezekwo v. New York City
Health & Hosp. Corp.,
940 F.2d 775, 785 (2d Cir.) (recognizing
that, even if residents are deemed to be employees guaranteed
certain rights, hospital may remove residents who present threat
to patient safety without following normal procedures ordinarily
required pursuant to Due Process Clause of United States
Constitution), cert. denied,
502 U.S. 1013,
112 S. Ct. 657,
116 L. Ed.2d 749 (1991).
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. We agree with UMDNJ that CIR should not
be able to interfere with its academic and medical decisions.
However, UMDNJ's academic-freedom argument fails because the
enforcement of Tenner's Weingarten right would not have resulted
in any appreciable interference with UMDNJ's academic judgment.
UMDNJ would not have been precluded from making an academic
decision; CIR sought only to have a union representative
accompany Tenner to his two interviews. As PERC in its brief
recognized, Weingarten "neither grants an employee a substantive
right to avoid a discharge nor constricts the employer's
substantive rights to decide who may be discharged." The issue
is not whether UMDNJ properly discharged Tenner after its
investigations, but whether during its investigations it properly
gave Tenner procedural rights to representation, notice and
information that CIR and Tenner were entitled to under the Act.
The CIR representative serves only to observe, assist and
clarify. The employer has no duty to bargain with the union
representative at the investigatory interview and may insist that
its only interest lies in hearing the employee's own account of
the matter under investigation. See Weingarten, supra, 420 U.S.
at 260, 95 S. Ct. at 966,
43 L. Ed 2d at l79. The employer runs
the interview and may expel a representative who interferes with
the questioning. New Jersey Bell Telephone Co.,
308 NLRB 277
(l992).
No academic decision of UMDNJ is being second-guessed. CIR
is not asking the Court to review the decision to dismiss Tenner,
but rather seeks review of UMDNJ's decision to deny Tenner the
statutory right to have someone accompany him as he states his
case.
If that union representative could have legally obstructed
or hindered UMDNJ's decision regarding disciplinary action
against Tenner, a persuasive academic-freedom argument could be
made. We recognize that there may be situations that might arise
in which an employer's interest in academic freedom outweighs its
employee's right to particular collective action under a state's
labor laws. For example, if the Act provided a union with the
right to veto a university's dismissal of a professor, a court
might properly refuse to enforce that provision on the ground
that it is contrary to the university's First Amendment rights.
However, UMDNJ has failed to explain how granting the Weingarten
right to interns and residents would interfere with the
university's academic judgment. Any interference with UMDNJ's
academic freedom in this case was minimal.
CIR also has the right to notice and information about
pending discipline so that it may decide, without simply relying
on unverified assertions by UMDNJ, that the discipline does
indeed involve an academic or medical judgment. At the PERC
hearing, UMDNJ asserted that discipline for dress code violations
could constitute academic or medical judgment, because, in some
sense, part of being a doctor is dressing the part.
Understandably, interns and CIR might not agree with this
characterization and should not be forced to rely on UMDNJ's
assertions.
Instead, UMDNJ must notify CIR of any disciplinary actions
and provide it with access to information about the case.
Similarly, interns are entitled to union representation pursuant
to Weingarten. We emphasize, as PERC and CIR conceded at oral
argument, that Weingarten does not contemplate that the union
representative act as an adversarial advocate in a proceeding;
instead the union representative is simply there to consult with
the intern, to explain the proceedings and provide a sympathetic
ear during the hearing.
However, while the intern is entitled to those rights, those
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, and the union representative should
leave the hearing and expect to receive no further information.
A graduate or professional school is, after
all, the best judge of its students' academic
performance and their ability to master the
required curriculum. The presence of
attorneys or the imposition of rigid
[procedural] rules . . . would serve no
useful purpose, notwithstanding that the
dismissal in question may be of permanent
duration.
[Board of Curators of Univ. of Missouri v.
Horowitz,
435 U.S. 78, 85 n.2, 98 S. Ct. at
948, 953 n.2,
55 L.Ed 2d 124, 132 n.2
(quoting Greenhill v. Bailey,
519 F.2d 5 (8th
Cir. 1975)]
We recognize that this solution is an unwieldy one, since it
relies upon the good faith of the union in recognizing academic
matters and ending its participation at that time. Because we
accept CIR's representation that it is interested in UMDNJ's
academic freedom and ability to train good doctors, we believe
that it will not put its members' interests ahead of those
interests. Its behavior in this case, including its decision to
seek no relief for Tenner in recognition of the medical judgment
behind his termination, confirm the good-faith nature of CIR's
representation. If our assumption does not prove to be true,
then we will be forced to consider whether to preempt the Act at
an earlier stage in the disciplinary process.
In summary then, we affirm PERC and the Appellate Division's
conclusion that UMDNJ committed an unfair practice in refusing to
provide notice and information to CIR about Tenner's case and in
refusing to allow CIR to attend the investigatory interviews.
Because of UMDNJ's right to academic freedom, however, CIR's
right to information and its ability to attend hearings is
terminated as soon as it is clear, as in this case, that the
disciplinary proceedings were initiated solely due to academic
and medical concerns. CIR must be provided with enough
information to make that decision; once it does, it has no
further business in the process.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-113 SEPTEMBER TERM 1995
ON APPEAL FROM