The opinion of the court was delivered by: Zazzali, J.
ON CERTIFICATION TO Appellate Division, Superior Court
On certification to the Superior Court, Appellate Division.
This employment dispute requires us to decide whether plaintiffs presented sufficient evidence to establish the existence of individual agreements with defendant and, if so, whether those individual agreements were superseded by a collective agreement.
Plaintiffs, seven tenured Rutgers University-Newark faculty members, allege that defendant Rutgers University unilaterally changed their employment status from calendar-year appointments to academic-year appointments in breach of their individual agreements. The Appellate Division held that the professors did not provide sufficient evidence of individual agreements and, even if they had, the collective agreement generally would prevail over any individual agreements. The court also concluded that the dispute was a matter of managerial prerogative, such that it could be resolved only through non-binding advisory arbitration under the collective agreement. We disagree, and therefore reverse and remand.
Plaintiffs, seven tenured members of the Rutgers University- Newark Faculty of Arts and Sciences, allege that defendant University unilaterally changed their employment status from calendar-year (CY) appointments to academic-year (AY) appointments in breach of their individual agreements. The alleged individual agreements are independent of the collective negotiations agreement negotiated between defendant and the American Association of University Professors (AAUP) that governs the terms and conditions of employment of University faculty members.*fn1
By 1991, each plaintiff had held a CY appointment for at least twenty years. A CY appointment, under the collective agreement, means that the faculty member is "expected to" devote the entire year to his or her University duties with the exception of a one-month vacation. An AY appointment, in contrast, "requires" the faculty member to be in attendance from September 1 to the date of commencement. Defendant and the AAUP negotiated two separate salary schedules for AY and CY appointees, with CY appointees receiving more favorable pay.
In March 1992, David Hosford, Dean of Rutgers-Newark's Faculty of Arts and Sciences, advised plaintiffs that, unless they maintained sufficient duties to satisfy CY criteria, i.e., duties that occupy their time for eleven months of the year, their appointments would be changed to AY status effective July 1992. Plaintiffs objected, arguing that their CY appointments were made without conditions attached to those appointments, such that they had no obligation to perform specific duties beyond the academic year. Plaintiffs contended at that time, and assert here, that defendant elected to "grandfather" their appointments so as to exclude them from any requirement that they work beyond the academic year.
In support of their argument, plaintiffs point to, among other proofs: (1) the deposition of George Horton, a professor and former AAUP representative, who testified that University officials intended to grandfather the appointment status of CY appointees during Union negotiations with defendant in the early 1970s; (2) the deposition of Wells Keddie, a former AAUP President, who testified that the AAUP and defendant had an unwritten understanding that although the University discussed ending the practice of making "unconditional" CY appointments, existing CY appointees would be grandfathered from any changes; (3) the appointment history of other University faculty members indicating that defendant unsuccessfully attempted to alter their CY appointments to AY appointments, presumably because of the agreement to grandfather unconditional CY appointees; and (4) the appointment history of each of the seven plaintiffs, including evidence that suggests in part that defendant was aware that plaintiffs maintained CY appointment status even though they at times did not devote the entire year to University duties.
Further, plaintiffs argue that a July 1984 memorandum from T. Alexander Pond, then Executive Vice President of Rutgers University, established a policy that insulated CY appointees such as plaintiffs from any changes to the conditions of employment of faculty members. That memo (the Pond Memorandum) was addressed to Provosts and Deans and states:
The University Senate recently considered the question of calendar year appointments and provided the President with advice that formalized in writing what has essentially been our practice for some time in regard to such appointments. That advice was reviewed by the Board of Governors.
Set forth below is the statement regulating calendar year appointments which was adopted by the Senate and which I am now promulgating as the University's policy in regard to calendar year faculty appointments:
1. All persons initially appointed and/or tenured on calendar year appointments without conditions attached to those appointments shall continue to hold those appointments, unless an entire class of said appointments is reduced.
2. No further calendar year appointments without specific written conditions shall be made.
3. Non-administrative calendar year appointments shall be made only in instances where the special circumstances of the faculty member's academic work require her/his presence on campus (or usual place of work), on a year- long basis.
4. When the conditions which led to the new calendar year appointment no longer apply, the appointment shall revert to an academic year appointment.
Please note that point number 1. above should not be construed to mean that initial appointment on a calendar year basis without conditions eliminates the obligation of a faculty member to be engaged in his or her professional duties at the University during the full term of his or her appointment, nor should it be construed to mean that a faculty member and his or her chairperson and dean cannot agree to reduce an appointment from calendar year to academic year. In regard to point number 2., the specific written conditions should be understood to refer to an explicit statement of the professional responsibilities entailed by the calendar year appointment. [(Second emphasis added).]
Plaintiffs filed a grievance in May 1992 through the AAUP, pursuant to the collective agreement. Parenthetically, we note that the grievance procedure delineated under this collective agreement is different from similar procedures contained in private-sector collective bargaining agreements covering, for instance, factory workers or construction workers. Nor is this grievance procedure typical of that contained in most collective agreements in the public sector, such as those covering police officers, fire officers, or K-12 teachers. The standard grievance procedure in those agreements usually consists of a few paragraphs. The intricate grievance procedure in this collective agreement consumes twenty-three single-spaced pages of the fifty- three page contract.
The agreement states that either the AAUP or a faculty member can file a grievance. The grievance procedure begins at "Step One," in which University personnel conduct their own investigation resulting in a written response to the grievant. If dissatisfied with the disposition of the grievance at Step One, the AAUP or the grievant ordinarily has thirty working days from the receipt of the Step One decision to appeal the grievance to "Step Two," which is arbitration.
Here, the AAUP, on behalf of plaintiffs, started Step One of the grievance procedure by alleging in a letter to defendant that its unilateral change of plaintiffs' appointments was a violation of the collective agreement and University regulations and policies. In an August 1992 memorandum, the University's Assistant Vice President for Faculty Affairs denied the grievance, stating in part that "[t]he seven grievants were the only FAS faculty who were performing academic year assignments while being paid for calendar year appointments. All other calendar year appointees, regardless of age, have calendar year assignments."
In October 1992, the AAUP appealed that denial to Step Two arbitration. Plaintiffs argued that the dispute was a "Category One" grievance under the collective agreement; defendant argued that it was a "Category Two" grievance. A Category One grievance alleges that the University violated mandatorily-negotiable terms and conditions in the collective agreement. A Category Two grievance generally does not involve a violation of the collective agreement itself, but instead alleges that the University violated policies, other agreements, or regulations affecting mandatorily-negotiable terms. Unlike a Category One grievance that is resolved in binding arbitration, a Category Two grievance is resolved by "advisory arbitration," in which an arbitrator issues an advisory recommendation to the Office of the President, who is charged with issuing a final and binding determination. Article XXII of the collective agreement defines AY and CY appointments and states that grievances under that Article are Category Two grievances.
In March 1994, the arbitrator concluded that the dispute fell under Article XXII of the collective agreement and thus was properly characterized as a Category Two grievance subject only to advisory arbitration. Plaintiffs decided not to pursue advisory arbitration.
In the meantime, plaintiffs had instituted an action against the University in December 1992 in the United States District Court for the District of New Jersey, alleging age discrimination, 29 U.S.C.A. § 621, violations of due process rights, and common-law breach of contract. In 1995, the Honorable William G. Bassler, U.S.D.J., granted defendant's motion for summary judgment on the discrimination and due process claims. In denying summary judgment on the breach of contract claim, the court observed:
A genuine issue of material fact exists as to whether there was a contract preventing reversion of historic calendar year appointments to academic year appointments. A reasonable jury provided with the plain language of the [collective agreement], the 1984 policy statement, the evidence of Rutgers' response to prior challenges to the "historical" calendar year appointments and the testimony of Keddie and Horton regarding the unwritten agreement could find for either party. Consequently, summary judgment on this issue is denied.
Nevertheless, the court dismissed the breach of contract claim without prejudice, citing an insufficient basis to exercise pendent jurisdiction. The Third Circuit affirmed. Troy v. Rutgers, The State Univ., No. 95-5805 (3d Cir. June 5, 1996).
Plaintiffs filed this breach of contract action in the Law Division in October 1996. Plaintiffs and defendant filed summary judgment motions, both of which were denied. Defendant then filed a motion for leave to file an interlocutory appeal with the Appellate Division. The Appellate Division denied defendant's motion without prejudice and remanded the matter to the Law Division for a statement of reasons underlying its decision. In response, the motion court stated that there were a number of material facts at issue, including whether these plaintiffs were "grandfathered" into calendar year appointments (defendant maintaining such wording was never included in the AAUP agreement; plaintiffs submitting deposition testimony that the acts and conduct of Rutgers supports their position).
A fact finder must determine whether or not the acts and conduct of the defendant created a binding agreement between the parties and if not a determination as to whether or not the defendant had the right to terminate the status of the seven plaintiffs from a calendar term to an academic term along with justifiable reasons which would include a question as to whether or not these seven plaintiffs constituted an entire class. There is also conflicting certification facts and deposition testimony as to what the agreement was with regard to the work, as to where and how these plaintiffs were to spend the summer months. A reasonable jury must make a determination. The [c]court cannot as a matter of law rule in either direction and thus both plaintiffs' motion and defendant's motion are denied.
Defendant subsequently filed a second motion for interlocutory review with the Appellate Division. The Appellate Division denied defendant's motion, but remanded the matter to the Law Division for disposition of defendant's argument that the alleged individual agreements were superseded by the collective agreement. Accordingly, on remand, the motion court concluded that there was a fact issue concerning whether plaintiffs were grandfathered into unconditional calendar-year appointments and exempt from any conflicting provisions under the collective agreement. Defendant then filed a renewed motion for leave to appeal with the Appellate Division. The Appellate Division granted that motion.
The Appellate Division held that plaintiffs did not have individual contract rights and that any other rights asserted were to be governed by the collective agreement. The Appellate Division was not persuaded that the testimony of Horton and Keddie, the individual employment histories of plaintiffs, or the Pond memorandum created a contract right. Rather, the court held that the collective agreement and University regulations fully described the obligations of a CY appointee and that the collective agreement thus superseded any separate agreements between plaintiffs and defendant. The court also concluded that the matter was one of managerial prerogative subject to advisory arbitration under the collective ...