H.E. NO. 2023-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE

UNIVERSITY OF NEW JERSEY,

Respondent,

-and-	Docket Nos. CO-2018-183 CO-2018-213

HEALTH PROFESSIONALS & ALLIED

EMPLOYEES, AFT, AFL-CIO,

Charging Party.

SYNOPSIS

A Hearing Examiner grants the University's motion for summary judgment in part, and denies it in part. The Hearing Examiner determined that the University has shown that it adequately responded to five of six information requests made by HPAE regarding a letter of intent between the University and Robert Wood Johnson-Barnabas Health to create a partnership. With respect to the sixth information request, the Hearing Examiner finds that a material factual dispute exists as to whether the University has properly responded.

A Hearing Examiner's Report and Recommended Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission, which reviews the Report and Recommended Decision, any exceptions thereto filed by the parties, and the record, and issues a decision that may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law. If no exceptions are filed, the recommended decision shall become a final decision unless the Chair or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further.

H.E. NO. 2023-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE

UNIVERSITY OF NEW JERSEY,

Respondent,

-and-	Docket Nos. CO-2018-183 CO-2018-213

HEALTH PROFESSIONALS & ALLIED

EMPLOYEES, AFT, AFL-CIO,

Charging Party.

Appearances:

For the Respondent,

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys

(John J. Peirano, of counsel)

For the Charging Party,

Weissman & Mintz, attorneys

(Ira W. Mintz, of counsel)

HEARING EXAMINER'S DECISION ON MOTION

FOR SUMMARY JUDGEMENT

On February 6, 2018, the Health Professionals & Allied Employees, AFT, AFL-CIO ("Union" or "HPAE") filed an unfair practice charge (docketed as CO-2018-183) against Rutgers University ("University"). The charge alleges that the University violated section 5.4a (5)1/ of the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act") by failing to produce information responsive to an August 9, 2017 information request.

On March 5, 2018, HPAE filed another unfair practice charge (docketed as CO-2018-213), also alleging that the University violated section 5.4a (5) of the Act by failing to produce information responsive to a February 6, 2018 information request. More specifically, the charges allege that the University refuses to provide information relevant to a partnership and letter of intent, respectively, between the University and Robert Wood Johnson-Barnabas Health ("Barnabas Health" or "RWJBH").

On August 9, 2021, the Director of Unfair Practices issued a Complaint and Notice of Pre-hearing on both charges and assigned the matters to me as Hearing Examiner.2/ On September 2, 2021, the University filed an Answer setting forth affirmative defenses and denying that it violated the Act in connection with the Union's requests for information.

On April 20, 2022, the consolidated matter was scheduled for hearing on June 14 and 15, 2022. On or about June 12, 2022, the University advised me that it intended to file a motion for summary judgment. Given the impending motion, the June 14 and 15, 2022 hearing dates were adjourned and a briefing schedule was established.

On August 5, 2022, the University filed a motion for summary judgment, accompanied by a brief, exhibits, and certifications of Farrah Gold Henry, University Associate Vice President and Deputy General Counsel ("Henry Cert."); Abdel Kanan, University Director of Labor Relations ("Kanan Cert."); Kathleen Bramwell, University Senior Vice Chancellor for Finance and Administration of Rutgers Biomedical and Health Sciences ("RBHS") ("Bramwell Cert."); Steven Adreassen, University Vice Chancellor and Chief of Staff of RBHS ("Andreassen Cert."); Vicente Gracias, M.D., University Senior Vice Chancellor for Clinical Affairs of RBHS ("Gracias Cert."); and James Lidon, attorney with the firm of McElroy, Deutsch, Mulvaney & Carpenter, LLP, retained by the University ("Lidon Cert."). On September 15, 2022, HPAE filed a brief in opposition to the University's motion for summary judgment.3/ On September 16, 2022, the motion for summary judgment and opposition were referred to me for a decision.

Accordingly, I have reviewed the parties' submissions. Based upon the record, I make the following:

FINDINGS OF FACT

1.	The HPAE is the exclusive majority representative of a group of health and professional employees, including but not limited to registered nurses, employed by the University.

2.	On June 30, 2017, the University, Barnabas Health, and Rutgers Health Group, Inc.4/ entered into a Letter of Intent ("LOI"). The LOI ". . . sets forth the Parties' understanding, terms, and relationships reached to date with respect to the formation of a world-class academic medical center that is nationally recognized for its education, research, clinical care, and commitment to improving access to healthcare and reducing healthcare disparities." (Bramwell Cert., at ¶3, Ex. A).

3.	On August 9, 2017, HPAE Staff Representative Corrado Cotumaccio ("Cotumaccio") sent a letter to Kanan requesting "certain information related to the creation of Rutgers Health and the signing of the 'Letter of Intent' between Rutgers and [Barnabas Health] . . ." The Union's request included budgetary documents, a list of unit members who would be covered under the "Rutgers Health banner," and copies of any filings or agreements regarding the partnership. (Kanan Cert., at ¶3, Ex. A).

4.	On February 6, 2018, Cotumaccio sent another letter to Kanan requesting additional information related to the partnership between the University and Barnabas Health, including a description of the Clinical Operating Structure, a list of unit employees covered under the Clinical Operating Structure, a list of which Health Professional Programs will be included in the partnership, and other information. (Id., at ¶4, Ex. B).

5.	On February 6, 2018, HPAE filed an unfair practice charge (CO-2018-183) regarding the University's alleged failure to respond to the August 9, 2017 information request.

6.	On March 5, 2018, HPAE filed another unfair practice charge (CO-2018-213) regarding the University's alleged failure to respond to the February 6, 2018 information request.

7.	The University reviewed the August 9, 2017 and February 6, 2018 requests for information and concluded that no responsive documents existed. Specifically, the University stated that "[s]ince the [LOI] is a framework for future negotiation, and not a definitive agreement, there was no agreement or understanding, documented or not, between Rutgers and [Barnabas Health] concerning any of the matters about which HPAE sought information." (Bramwell Cert., at ¶7).

8.	On April 20, 2018, an exploratory conference was conducted by PERC on the pending charges. During the conference, the University asserted that the Union sought information which "did not exist and/or was not in the University's possession." The University also argued that the information request was vague and overbroad. (Henry Cert. at ¶4).

9.	On May 30, 2018, pursuant to discussion during the April 20, 2018 exploratory conference, HPAE sent an updated information request to the University. The May 30, 2018 information request sought to clarify " . . . those areas Rutgers University previously stated were 'vague' and 'ambiguous'." The updated information request also contained revised wording to address the University's contention that ". . . Rutgers Health was not an entity or employer." (Id., at Ex. D).

10.	On July 2, 2018, the University responded by letter to HPAE's May 30, 2018 information request. The University's response provided certain information and contained a number of objections to the various requests made by the Union. (Id., at Ex. E).

11.	After a conference call was held between the parties and the PERC staff agent on July 3, 2018, HPAE was asked to clarify what specific requested information was outstanding. On July 6, 2018, HPAE responded to the University's July 2, 2018 letter. In its response, HPAE asserts that while certain information has been provided, the University continues to fail to provide sufficient responses to the requests for information. HPAE also asserts that the University's objections to the requested information are invalid. (Id., at Ex. F).

12.	On August 15, 2018, the University provided a supplemental response to the Union's information requests to include an executed Master Affiliation Agreement between Barnabas Health and the University. (Id., at Ex. G).

13.	On May 13, 2020, pursuant to a discussion at an April 30, 2020 status conference with a PERC staff agent, HPAE sent a revised information request to the University ". . . in hopes that the University's responses will obviate the need for any further litigation over these unfair practice charges." (Id., at Ex. H).

14.	On June 3, 2020 and June 5, 2020, the University submitted a supplemental position statement and revised supplemental position statement, arguing that the charges should be dismissed. (Id. at Exs. I-J).

15.	On July 21, 2021, HPAE sent another information request to the University requesting information regarding alleged subcontracting of unit work at Barnabas Health. (Kanan Cert., at Ex. C).

16.	On November 29, 2021, the University responded to HPAE's May 13, 2020 and July 21, 2021 requests for information. In its response, the University objected to the requests on grounds including that the information sought ". . . pertained to current and future circumstances and was not responsive or relevant to the August 9, 2017 or February 6, 2018 requests." The University also noted that its efforts to provide responses to certain requests were ongoing. (Henry Cert,, at ¶18, Ex. K).

17.	On April 20, 2022, I conducted a settlement conference with the parties. During the conference, the Union was directed to draft an updated information request to reflect each specific item of previously requested information that remained outstanding. During this call, I also set the matter for hearing on June 14 and 15, 2022.

18.	On April 26, 2022, HPAE sent its updated request for information to the University requesting information concerning HPAE members and the agreement between the University, Barnabas Health, and Robert Wood Johnson University Hospital. (Id., at Ex. L). The University argues that the Union's April 26, 2022 information request constitutes ". . . yet another new set of requests for information entirely distinct from that sought in the August 9, 2017 and February 6, 2018 requests." (Id., at ¶20).

19.	On June 9, 2022, HPAE filed a proposed amendment to its unfair practice charge, seeking to allege the University's failure to reply to information requests made subsequent to filing of the original charge. The University objected to the proposed amendment.

20.	On or about June 12, 2022, the University advised me that it intended to file a motion for summary judgment. Consequently, I adjourned the scheduled hearing dates and established a briefing schedule concerning the proposed amendment. I further advised that, following the decision on the amendment, I would establish a briefing schedule for the summary judgment motion.

21.	By letter dated June 22, 2022, I notified the parties that I was accepting HPAE's amended charge. Specifically, I determined that Rutgers was not unfairly prejudiced by the amended charge, and that it ". . . was on notice that HPAE had always intended to amend its charge if the case was not settled." I further requested that the University make every effort to file its motion for summary judgment on or before July 22, 2022.

22.	On August 5, 2022, Rutgers filed its motion for summary judgment, supported by exhibits and six certifications.

23.	On September 15, 2022, HPAE filed a brief in opposition to the University's motion for summary judgment.

The University argues that summary judgment should be granted in its favor with respect to the August 9, 2017 and February 6, 2018 information requests, because there is no genuine dispute that those requests ". . . sought information related to an entity that does not exist, were premature insofar as they related to nothing more than an LOI between Rutgers and [Barnabas Health], and sought information pertaining to individuals not represented by HPAE." The University argues summary judgment should also be granted in its favor with respect to the May 30, 2018 request, since that request was ". . . premature and still related to an LOI, as the University had not signed any formal agreement related to the affiliation with [Barnabas Health]."

The University further argues that the May 30, 2018, May 13, 2020, and April 26, 2022 information requests should be dismissed because each of those requests arose during settlement discussions on the instant unfair practice charge.

Finally, the University asserts that the May 13, 2020, July 21, 2021 and April 26, 2022 information requests must be dismissed ". . . on the grounds that their inclusion by amendment in the Complaint on June 22, 2022 and placement on a fast track toward a hearing are premature because the University still is in the process of attempting to identify responsive documents in light of the evolving state of affairs." Proceeding directly to a hearing on those allegations, according to Rutgers, ". . . deprives the University of standard PERC process . . .", including the ability to conduct discovery.

HPAE argues summary judgment is inappropriate because material disputes of fact exist that require a plenary hearing. Specifically, HPAE argues ". . . an evidentiary hearing is required so that HPAE can examine Rutgers' witnesses and prove that Rutgers has the information it failed to provide and therefore violated the Act." HPAE further asserts that the University's justifications for failing to provide responsive documents are inconsistent and insufficient to overcome the Union's legal right to the requested information.

STANDARD OF REVIEW
Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); see also, Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). In determining whether summary judgment is appropriate, we must ascertain "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 523. "Although summary judgment serves the valid purpose in our judicial system of protecting against groundless claims and frivolous defenses, it is not a substitute for a full plenary trial" and "should be denied unless the right thereto appears so clearly as to leave no room for controversy." Saldana v. DiMedio, 275 N.J. Super. 488, 495 (App. Div. 1995); see also, UMDNJ, P.E.R.C. No. 2006-51, 32 NJPER 12 (¶6 2006).

While a party is not required to file an affidavit or

certification in support of summary judgment, where a "party

opposing the motion [for summary judgment] does not submit any

affidavits or documentation contradicting the moving party's

affidavits and documents, then the moving party's facts may be

considered as true, and there would necessarily be no material

factual issue to adjudicate unless, per chance, it was raised in

the movant's pleadings." State of New Jersey (Corrections), H.E.

No. 2020-2, 46 NJPER 195 (¶49 2019), adopted P.E.R.C. No. 2020-

49, 46 NJPER 509 (¶113 2020) (citing CWA Local 1037 (Schuster),

H.E. No. 86-10, 11 NJPER 621, 622 (¶16217 1985), adopted P.E.R.C.

No. 86-78, 12 NJPER 91 (¶17032 1985); City of Hoboken, H.E. No.

95-17, 21 NJPER 107 (¶26065 1995), adopted P.E.R.C. No. 95-91, 21

NJPER 184 (¶26117 1995); Nutley Tp., H.E. No. 99-18, 25 NJPER 199

(¶30092 1999) (final agency decision); N.J.A.C. 1:1-12.5(b)

("[w]hen a motion for summary decision is made and supported, an

adverse party in order to prevail must by responding affidavit

set forth specific facts showing that there is a genuine issue

which can only be determined by an evidentiary proceeding")). As

the New Jersey Supreme Court explained in Judson:

[I]f the opposing party offers no

affidavits or matter in opposition,

or only facts which are immaterial

or of an insubstantial nature . . .

he will not be heard to complain if

the court grants summary judgment,

taking as true the statement of

uncontradicted facts and the papers

relied upon by the moving party,

such papers themselves not

otherwise showing the existence of

an issue of material fact.

[17 N.J. at 75].

ANALYSIS
Without the proper exchange of essential information, the collective negotiations process cannot function properly. Hardin and Higgins, The Developing Labor Law, 856 (4th ed. 2001). An employer is obligated to provide relevant information to the union because without such information, the union would be unable to perform its statutory duties as the negotiations agent -- the statutory majority representative -- of its negotiations unit. Burlington Cty. Bd. of Chosen Freeholders and CWA, P.E.R.C. No. 88-101, 14 NJPER 327 (¶19121 1988), aff'd NJPER Supp.2d. 208 (¶183 App. Div. 1989); State of N.J. (OER) and CWA, P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), recon. den. P.E.R.C. No. 88-45, 13 NJPER 841 (¶18323 1987), aff'd NJPER Supp.2d 198 (¶177 App. Div. 1988).

However, a union's right to receive information from an employer is not absolute. The employer is not required to produce information clearly irrelevant, confidential or information it does not possess. See, Union Tp., H.E. No. 2004-8, 30 NJPER 45 (¶14 2003) (hearing examiner found Township made a good faith effort to respond to unions' requests on health benefits and change in carrier by providing information it possessed in a timely manner, seeking information from the carrier which it did not have, and providing the unions with information as soon as it obtained it).

A. The August 9, 2017 and February 6, 2018 Requests for Information

The original requests for information in this case were made on August 9, 2017 and February 6, 2018. The University contends that these requests (as well as requests made subsequently) were ambiguous, overbroad, sought information that was not relevant, and sought information that was not in Rutgers' possession or did not exist.

Notwithstanding these objections, Bramwell certifies that she was involved in the University's efforts to determine whether documents responsive to HPAE's information requests existed. (Bramwell Cert., at ¶4-5). The initial requests sought information pertaining to the LOI between Rutgers and [Barnabas Health]. (Kanan Cert., Ex. A-B). Bramwell certifies that "[s]ince the [LOI] is a framework for future negotiations, and not a definitive agreement, there was no agreement or understanding . . . concerning any of the matters about which HPAE sought information." (Bramwell Cert., at ¶7).

Gracias certifies that "Rutgers Health" is a brand name, does not correspond to a corporate entity or employer, and does not have a budget. (Gracias Cert., at ¶4-5). Gracias further certifies that, "[a]s of August 2017 and through the winter and early spring of 2018, there were no correspondence, filings, reports or other documents between the State of New Jersey and Rutgers . . ." regarding the creation of Rutgers Health or the partnership outlined in the LOI. (Id. at ¶ 6-7).

With respect to the first two information requests, I find that the University has satisfied the standard to warrant the granting of summary judgment. Specifically, the University has submitted certifications showing that it searched for documents responsive to the requests and concluded no such records existed. In the absence of any certifications or affidavits from the Union establishing a material issue of fact, and in light of the fact that an employer has no obligation to produce information that it does not possess, I grant the University's motion for summary judgment with respect to the August 9, 2017 and February 6, 2018 information requests.

B. The May 30, 2018 Request for Information

The Union's next information request was sent on May 30, 2018, following a conference between the parties and a PERC staff agent. Bramwell certifies that she was part of the group involved in determining whether responsive documents to the May 30, 2018 information request existed. On July 2, 2018, the University responded to the request. Aside from repeating the objections from its previous responses, Rutgers provided links to certain information related to the Rutgers Health brand, including the Rutgers Health website and informational brochures. (Bramwell Cert. at ¶8; Henry Cert. at Ex. E).

The Union has not submitted certifications or other competent evidence to establish that Rutgers, in fact, had additional documents or information in its possession beyond what was disclosed, or that it otherwise failed to sufficiently respond to the May 30, 2018 information request. Based on the uncontested facts asserted by Rutgers and the legal standards set forth above, I grant the University's motion for summary judgment with respect to HPAE's May 30, 2018 information request.

C. The May 13, 2020 and July 21, 2021 Information Requests

HPAE's next two information requests were dated May 13, 2020 and July 21, 2021, following ongoing settlement conferences between the parties and with involvement and oversight from a PERC staff agent. Bramwell certifies that she was involved in investigating whether information responsive to these requests existed, and in gathering various agreements and documents. (Bramwell Cert., at ¶9-10).

The University responded to the May 13, 2020 and July 21, 2021 requests on November 29, 2021. (Henry Cert., at Ex. K). In its response, the University continued to object to the requests and explain that it had no responsive information. For example, in response to a request for "[a] list of all clinical programs that currently include HPAE negotiations unit employees that are currently conducted by Rutgers Health Group. . . including through an accountable care organization or other legal entity," the University responded, in part, ". . . Rutgers Health Group [] is a separate 501(c)(3) entity which does not have any clinical programs and has no employees . . . Subject to and without waiving its objections, the University does not possess any information or documents responsive to this request." Id.

The University did produce some information in its November 29, 2021 response, including a certificate of incorporation and bylaws for Rutgers Health Group. (Id.). The University asserts that its investigation into responsive documents is ongoing, and notes that it has supplemented its responses, ". . . without any prompting from PERC or HPAE . . ." when additional information became available.5/ (Bramwell Cert., at ¶11; Henry Cert., at ¶13).

Further, the University has certified that Chancellor Brian Strom was in communication with the Union and employees with updates concerning the University's affiliation with RWJBH while the instant charge was processed. Specifically, the University certified that Chancellor Strom met with HPAE representatives to discuss the LOI on January 24, 2018 and May 4, 2018. The Chancellor sent an email to employees on April 3, 2018 regarding the LOI and the affiliation with Barnabas Health. Chancellor Strom again met with the Union on May 2, 2019, May 16, 2019, and August 4, 2021 ". . . to continue to discuss the affiliation with [Barnabas Health], with the intention of continuing to keep the Union informed of information regarding the affiliation . . . ." (Andreassen Cert., at ¶8-9).

Based on the above, I grant the University's motion6/ with respect to the May 13, 2020 and July 21, 2021 information requests. The University has certified, without contradiction, that it investigated whether it had documents responsive to the Union's requests, and has produced the information in its possession. Further, the communications between Chancellor Strom and the Union/employees, and the University's production of supplemental information as the matter progressed, suggest it is not withholding information that it is required to produce. HPAE has not submitted certifications or affidavits establishing that the University withheld specific information or that it otherwise failed to sufficiently respond to the May 13, 2020 and July 21, 2021 requests for information.

D. The April 26, 2022 Request for Information

HPAE's final request for information was made on April 26, 2022 following a settlement conference that I conducted with the parties. (Henry Cert., at Ex. L). During that conference, the Union was instructed to list in its new request all items that were still outstanding from each prior request. It is assumed, therefore, that any previously requested item not contained in the April 26, 2022 information request has been produced, or is no longer being sought by HPAE. The Union's April 26, 2022 request contains 16 items pertaining to the University/RWJBH, and its negotiations unit members. Rutgers responded to this request on June 8, 2022. (Lidon Cert., at Ex. A).

As with prior requests, Bramwell certifies that she was involved in the University's efforts to search for information responsive to the Union's April 26, 2022 request, and that the University's efforts in this regard are ongoing. Bramwell certifies that "[n]o documentation responsive to several of the requests were located. Given that RBHS is large and decentralized, the University's efforts to identify and gather responsive documents have been time-consuming and remain ongoing with respect to certain requests." (Bramwell Cert., at ¶13).

On June 22, 2022, I granted HPAE's proposed amendment regarding Rutgers' alleged failure to adequately respond to information requests made subsequent to the filing of the original charge. Rutgers argues that, since the April 26, 2022 request did not yet result in the issuance of an amended complaint, it has not had the opportunity to file an answer or engage in discovery as to HPAE's amended allegations.7/

With respect to the April 26, 2022 information request, I cannot find that the University has made a sufficient showing to warrant the granting of summary judgment. Material factual disputes exist as to whether the University has sufficiently responded, especially given the University's acknowledgment that its search for responsive information is ongoing. The Discovery process will provide the parties an opportunity to obtain more information and allow the University to fully respond to the remaining allegations in the amended charge.

Accordingly, I grant in part, and deny in part without prejudice the University's motion for summary judgment as set forth in the order below.

ORDER

The University's motion for summary judgment with respect to the August 9, 2017, February 6, 2018, May 30, 2018, May 13, 2020, and July 21, 2021 requests for information is granted. The University's motion for summary judgment with respect to the April 26, 2022 request is denied, without prejudice.

/s/ Jordan Ablon

Jordan Ablon

Hearing Examiner

DATED: April 18, 2023

Trenton, New Jersey

As this decision does not fully resolve the issues in the Complaint it may not be appealed to the Commission except by a request for special permission filed within five days of service of this Order. See N.J.A.C. 19:14-4.8(e); N.J.A.C. 19:14-4.6.

Any request for special permission to appeal is due by

April 25, 2023.