SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3469-19

STATE OF NEW JERSEY,

(KEAN UNIVERSITY),

Plaintiff-Appellant,

v.

COUNCIL OF NEW JERSEY

STATE COLLEGE LOCALS

AFT,

Defendant-Respondent.

_________________________

Argued June 30, 2021 - Decided July 12, 2022

Before Judges Accurso and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Union County, Docket No. C000011-20.

Elizabeth A. Davies, Deputy Attorney General, argued 

the cause for appellant (Matthew J. Platkin, Acting 

Attorney General, attorney; Melissa H. Raksa, 

Assistant Attorney General, of counsel; Elizabeth A. 

Davies, on the briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Kevin P. McGovern argued the cause for respondent 

(Mets Schiro & McGovern, attorneys; Kevin P. 

McGovern, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Plaintiff Kean University appeals from a trial court order affirming an 

arbitration award in favor of defendant Council of New Jersey State College 

Locals, AFT, AFL-CIO, arguing the award was not reasonably debatable, was 

procured by undue means, and the arbitrator exceeded and imperfectly 

executed his powers. We agree the arbitrator exceeded his powers and the 

award was not reasonably debatable. Thus, we reverse. 

The union filed the grievances in this matter in response to Kean's 

decision to re-assign two tenured professors, one in Art History and the other 

in Music, from teaching to curriculum development, student advising, and 

recruitment, in response to falling enrollments in their programs. Kean filed a 

scope of negotiations petition to restrain arbitration, asserting its decision to 

reassign the professors to non-teaching duties "based on an educational policy 

decision" was one within its academic judgment and managerial prerogative 

and thus non-negotiable. The union countered that Kean was requiring 

"faculty members to perform new jobs, unrelated to their core teaching 
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function, apparently forever, while also denying them opportunities for 

research." 

In its decision on the petition, the Public Employment Relations 

Commission noted it has "consistently held that 'the right to assign teachers 

non-teaching duties is a non-negotiable management prerogative,'" In re 

Mahwah Bd. of Educ., P.E.R.C. No. 83-96, 9 N.J.P.E.R. ¶14051, 1983 N.J. 

PERC LEXIS 334 at 3 (1983), although it has "place[d] no limitation on . . . 

faculty grievance[s] challenging . . . non-teaching reassignment[s] on grounds 

that same [are] beyond [the grievant's] primary duties," In re Warren Cnty. 

Cmty. Coll., P.E.R.C. No. 2016-48, 42 N.J.P.E.R. ¶98, 2016 N.J. PERC 

LEXIS 9 at 23 (2016). It also noted it has deemed such assignments 

mandatorily negotiable when they "primarily affect the working hours, 

workload, or compensation of employees," Mahwah, 9 N.J.P.E.R. at 3, and 

likewise noted the allocation or rotation of non-teaching duties among teachers

is a mandatorily negotiable subject, In re Princeton Reg'l Bd. of Educ., 

P.E.R.C. No. 2003-15, 28 N.J.P.E.R. ¶33143, 2002 N.J. PERC LEXIS 69 at 9 

(2002).

Faced with the parties' conflicting narratives — the union 

acknowledging the declining enrollments in the Art History and Music 
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programs, while pointing out the University is still offering the courses the 

grievants formerly taught, and Kean's contention that it chose the grievants for 

non-teaching duties based on "an educational policy determination centered on 

reducing student and program impact," while conceding it had originally 

solicited volunteers for reassignment before conscripting the grievants for the 

non-teaching assignments — PERC found Kean's articulated reason "of an 

educational policy rationale" for its selection of the grievants for reassignment 

"inconclusive." 

PERC accordingly restrained arbitration "to the extent that the instant 

grievances challenge the University's managerial prerogative to assign nonteaching duties" to the grievants. But it permitted arbitration to proceed on the 

questions of 1) whether "the non-teaching duties" the University assigned the 

grievants "fall outside the grievants' primary duties"; 2) "[t]he impact of 

performing non-teaching duties" on the grievants in terms of "compensation, 

workload, [and] working hours"; and 3) "[i]f the University cannot sufficiently 

demonstrate that an educational policy rationale was in fact the basis for 

assigning non-teaching duties to only the grievants," PERC permitted the 

arbitrator to "proceed to assess the frequency/rotation/allocation of nonteaching duties among employees." 
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The arbitrator, however, addressed none of those questions directly in 

determining the University violated Article XII, Section B.7 and Article XII, 

Section C.2 of the parties' collective negotiations agreement as the union 

alleged. Instead, interpreting Article XII, "Faculty Responsibilities," and 

specifically subsection 7 of section B, "Teaching Responsibilities," which

states: 

[a]ssignment of non-teaching duties within load for 

any faculty member, for any purpose, is a matter of 

academic/managerial judgement of the College/

University 

and subsection 2 of section C, "Other Responsibilities," providing in pertinent 

part that

[f]aculty responsibilities which have been traditionally 

performed by the faculty and are reasonable and 

consistent with sound academic practice shall be 

continued consistent with previous practice[,]

in conjunction with subsection 1 of section B, providing 

[t]he basic academic year teaching load for full-time 

faculty shall be twenty-four (24) teaching credit hours. 

All overload for full-time faculty shall be voluntary 

and overload rates shall be paid for all voluntary 

teaching assignments beyond twenty-four (24) 

teaching credit hours. No full-time faculty member 

may be assigned more than fifteen (15) teaching credit 

hours per semester within load. The teaching load for 

part-time faculty shall be a minimum of one half the 

teaching load for full-time faculty[,]
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the arbitrator concluded "Article XII has specific references to both teaching 

load" and "the assignment of non-teaching duties," but "the language does not 

include a clear and unambiguous formula setting all aspects of the 

apportioning or balancing of 'teaching load' assignments and the performance 

of 'non-teaching duties.'" Although finding the grievance did "not directly 

implicate" Section C1 because "the nature of the non-teaching duties 

themselves is not in dispute," thereby implicitly finding the non-teaching 

1

 Article XII C. "Other Responsibilities" provides:

1. Non-teaching duties include scholarly, research and 

artistic activities; service through sharing their 

professional expertise both within and beyond the 

College/University; and the mentoring and advisement 

of the students in their courses and programs. During 

the period of instruction faculty shall be present on 

campus as necessary to their professional 

responsibilities and shall also be accessible to 

students, faculty and staff colleagues through 

whatever normal, electronic, telephonic or written 

modes they find most convenient during the academic 

year. Nothing contained herein shall in any way affect 

the terms and/or continued application of any locally 

negotiated agreements and/or previous practices 

pertaining to non-teaching responsibilities, nor shall 

anything contained herein affect the rights of the 

College/University, UNION or Local Union under the 

New Jersey Employer-Employee Relations Act.
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duties were within the job description of a full-time tenured professor, he 

nevertheless took it upon himself to "interpret" the language of Sections B.1 

and B.7 of Article XII to devise a "formula" for apportioning between teaching 

and non-teaching duties. 

Specifically, the arbitrator concluded 

the non-teaching duties that the University has the 

right to assign "within load" must be assigned in 

conjunction with a faculty member's performance of 

teaching credit hours and that the non-teaching duties 

must fall within the presence of a faculty member 

carrying a teaching load, so long as the availability of 

a credit course exists for assignment to the affected 

faculty member who is qualified to teach the course 

and is, in fact, taught as was done here by adjunct 

faculty instead of the full-time professor.

The arbitrator thus determined that although the University had both 

express and reserved rights under Article XII to assign non-teaching duties to 

the grievants, he found the University's authority did not extend "to converting 

a full-time faculty member's primary responsibility to teach credit courses 

'within load' to the predominant or exclusive performance of non-teaching 

duties involving administrative or programmatic work even if such work is 

intended to support departmental goals and objectives." The arbitrator rejected 

the undisputed evidence that the University had several times before assigned 

tenured faculty members exclusively non-teaching duties, as all involved 
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"negative behavioral or negative performance issues" not present in this case. 

He concluded that

[e]ven assuming that the University's decisions here 

were based on "operational considerations," its use of 

this broad and general term cannot serve as a fig leaf 

to allow for the conversion of a faculty member's 

primary duty to teach available courses within his or 

her expertise to one that instead predominantly or 

exclusively involves performing non-teaching duties. 

Turning to remedy, the arbitrator found no basis for a substantive 

remedy on compensation as both grievants were paid as full-time faculty, and 

the union had likewise failed to prove "any lost professional opportunities or 

recognition/rewards due to the reassignments." Instead, the arbitrator directed 

the University to cease and desist "from converting a faculty member's primary 

duty to teach an available course within his or her expertise to an assignment 

that predominantly or exclusively involves the performance of non-teaching 

duties."

The trial court rejected the University's arguments that the arbitrator 

imposed new terms and conditions on the parties that were not a part of the 

agreement, making his interpretation inconsistent with its plain meaning and 

not reasonably debatable, modified the agreement in contravention of the 

undisputed evidence of the parties' past practice, and exceeded his authority by 
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going beyond PERC's scope of negotiations ruling. The University reprises 

those arguments on appeal.

Notwithstanding our limited review of arbitration awards, Bound Brook 

Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017), we have no hesitation in 

finding the trial court erred in affirming this award. Beyond failing to directly 

address the issues PERC charged him with resolving, the arbitrator plainly 

added terms to the agreement the parties never negotiated; his interpretation of 

the agreement is simply not reasonably debatable, see Borough of E.

Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201-02 (2013), and 

should have led to the trial court's refusal to enforce the award. See Borough 

of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 212

(2021).

The parties' collective negotiations agreement is clear. Section B.1 of 

Article XII limits only the maximum number of teaching credit hours, "or its 

equivalent," Article XII B.4., a faculty member may be assigned by the 

University per year and per semester. The agreement plainly acknowledges a 

faculty member's responsibilities include "teaching responsibilities," Article 

XII B., and "other responsibilities," Article XII C. Article XII C.1. defines 

such non-teaching duties to include "scholarly, research and artistic activities; 
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service through sharing their professional expertise both within and beyond the 

College/University; and the mentoring and advisement of the students in their 

courses and programs." 

Contrary to the arbitrator's construction of the agreement, there is no 

provision requiring faculty members be assigned to teach at least some part of 

their maximum "load" each semester if appropriate classes are available. To 

the contrary, pursuant to Section B.7. of Article XII, "[a]ssignment of nonteaching duties within load for any faculty member, for any purpose, is a 

matter of academic/managerial judgment of the College/University." The

University's prerogative to assign a faculty member non-teaching duties within 

that faculty member's maximum "load" is stated with no limit other than the 

non-teaching duties must be "responsibilities which have been traditionally 

performed by faculty and are reasonable and consistent with sound academic 

practice," Article XII C.2. 

The arbitrator thus had no call to determine how the University should 

"apportion[] or balance[e] . . . 'teaching load' assignments and the performance 

of 'non-teaching duties,'" and certainly none to impose a test for how the 

University should assign non-teaching duties when the parties had never 

negotiated one. The arbitrator disregarded the clear language of the agreement 
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and effectively bound the parties to new terms and conditions, significantly 

modifying the contract in the process. See Borough of Carteret, 247 N.J. at 

212. 

Although the arbitrator failed to address directly the issues PERC 

assigned him, his opinion makes clear he made findings on two of three of the 

issues. As to whether "the non-teaching duties" the University assigned the 

grievants "fall outside the grievants' primary duties," the arbitrator noted "the 

nature of the non-teaching duties themselves is not in dispute." Both grievants 

testified they had previously performed all the non-teaching duties currently 

assigned them. Accordingly, there is no question but that the non-teaching 

duties the University assigned the grievants were not outside the job 

description of a full-time, tenured professor. 

The arbitrator also made clear in his discussion of remedy that the Union 

had failed to establish the grievants had suffered "any lost professional 

opportunities or recognition/rewards due to the reassignments." Because both 

sides agree the grievants were still being paid as full-time, tenured professors, 

it's clear the arbitrator found no "impact of performing non-teaching duties" on 

the grievants in terms of "compensation, workload, [and] working hours."
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That leaves the question of whether the University established "that an 

educational policy rationale was in fact the basis for assigning non-teaching 

duties to only the grievants." While there was considerable testimony 

presented as to the criteria the University used to select the grievants for 

reassignment, the arbitrator did not address whether the University established 

an educational policy rationale for choosing them specifically. The arbitrator 

stated he did "not reach any conclusions [as] to the parties' negotiations 

obligation relating to the procedures of the reassignment of a faculty member 

to the performance of non-teaching duties," leaving the parties to their rights 

"to refer any such disagreements to their grievance procedure and/or PERC's 

unfair labor practice jurisdiction."

Because we find the University was within its rights under the parties' 

clearly worded agreement to reassign full-time tenured faculty members such 

as grievants to non-teaching duties within their job descriptions, as here, and 

the arbitrator found they suffered no diminution in their compensation or any 

loss of professional opportunities, recognition or rewards on account of the 

reassignments, we reverse the trial court order confirming the award, as not 

reasonably debatable, and vacate the award in its entirety. We leave the 

parties to their rights under the agreement as to the frequency, rotation and 
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allocation of non-teaching duties among employees, including the grievants in 

the event the union can establish the absence of an educational policy rationale 

for the reassignment.

Reversed.