State of New Jersey, Rowan University and Committee of Interns and Residents SEIU Healthcare
In P.E.R.C. No. 2016-6, the Commission restrained arbitration over the decision of Rowan University to terminate a resident for allegedly intentionally misplacing or “floating” a stent during a surgical procedure. The resident denied the allegation and the Commission departed from the analysis of a Commission Designee who had denied an interim restraint of arbitration. The Designee had found that, based on the factual dispute, it would require a fact-intensive exploration to determine what actually occurred. The Designee further stated that the actual facts would first need to be gleaned by the arbitrator so that a determination could be made by the Commission whether the termination was a disciplinary matter (mandatorily negotiable) or based on an academic and medical judgment (non-negotiable prerogative). For some reason, the Designee’s decision does not have an Interim Relief Number and is not reported on the Commission’s web site. In rejecting the Designee’s approach, the Commission declared that it would not allow an arbitrator to second-guess the University’s medical and academic judgment of the performance of a resident physician and his suitability for continuing in the program.
The Union moved for reconsideration, noting that the parties had completed four days of arbitration and arguing that the Commission appeared to misunderstand the reason for the resident’s termination, improperly placed the burden of proof on the Union, and improperly resolved a factual dispute without the benefit of an evidentiary hearing. The Union offered portions of the arbitration testimony in which University officials acknowledged that they did not know for sure whether the resident actually malpositioned a stent. The Union asked that the Commission permit the arbitrator to complete the hearing and resolve the factual dispute as to whether the resident performed the unauthorized procedure as the University had found. The Commission denied reconsideration stating that it was satisfied that the University’s decision implicated its academic freedom. P.E.R.C. No. 2016-38. The Union has appealed.