H.E. NO. 80-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF HUDSON,

Respondent,

-and-	Docket No. CO-79-82-71

COUNCIL 52, LOCAL 2306,

AFSCME, AFL-CIO,

Charging Party.

Appearances:

For the County of Hudson,

Murray, Granello and Kenney, Esqs.

(Robert E. Murray, Esq. and Bruce J. Ackerman, Esq.)

For Council 52, Local 2306, AFSCME, AFL-CIO,

Rothbard, Harris and Oxfeld, Esq.

(Sanford R. Oxfeld, Esq.)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on October 11, 1978 by Council 52, Local 2306, AFSCME, AFL-CIO (hereinafter the "Charging Party", the "Council" or the "Local") alleging that the County of Hudson (hereinafter the "Respondent" or the "County") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the County, through its Department of Welfare, imposed a residency requirement on its employees, notwithstanding the conditions of initial appointment, Civil Service certifications, and prior contractual provisions, without attempting to negotiate the same with the Charging Party, and that the County has warned non-residents that they must comply with the residence requirement by December 31, 1978, or have their employment terminated, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 30, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on June 27 and August 21, 19792/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-hearing briefs by October 1, 1979 with reply briefs by October 11, 1979.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The County of Hudson is a public employer within the

meaning of the Act, as amended, and is subject to its provisions.

2.	Council 52, LOCAL 2306, AFSCME, AFL-CIO is a public

employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The County and the Local have been parties to a series

of collective negotiations agreements covering a unit of Case Workers, etc., the most recent of which are the 1977 and 1978-80 agreements, received in evidence as R-1 and R-2, respectively.2a/

4.	The collective negotiations agreements, supra, contain

no provision with respect to the residency of unit employees.

5.	Effective February 9, 1978, the County adopted

Ordinance No. 63-2-1978, with respect to residency, which provides, in pertinent part, as follows:

1. Except as otherwise provided by law...every person holding an office, position or employment, the authority and duties of which relate to the County of Hudson, shall be a bona fide resident of the County of Hudson during the term of his employment.

2. All officers and persons employed by the County of Hudson or hereafter to be employed by the county of Hudson are hereby required as a condition of their continued employment to have their place of abode in the County and to be bona fide residents therein.

3. A bona fide resident, for the purpose of this ordinance, is a person having a permanent domicile within the County of Hudson and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the County limits...

(Emphasis supplied) (CP-1).

6.	Effective February 25, 1978, the Legislature enacted

Chapter 422, which provides that:

__________________________

2a/	The unit certifications by the Commission issued on January 6, 1970 and November 12, 1972 (R-1, p. 3).

1. Notwithstanding the provisions of N.J.S.A. 49A:9-1 or any law to the contrary, any officer or employee of a county who was employed by a county on the effective date of this act shall be exempt from the requirement of residency within a respective county until June 30, 1978.

2. This act shall take effect immediately."

(Emphasis supplied) (CP-2).

7.	Effective June 30, 1978, the Legislature enacted

Chapter 63, which provides, inter alia, that:

1. Unless otherwise provided by law, the governing body of any local unit may by resolution or ordinance, as appropriate, require, subject to the provisions of this act, all officers and employees employed by the local unit after the effective date of this act to be bona fide residents therein...

* * * *

3. The governing body of a local unit which has adopted a resolution or ordinance, as the case may be, pursuant to section 1 of this act shall require therein that all nonresidents subsequently appointed to positions or employments shall become bona fide residents of the local unit within 1 year of their appointment...

It shall be the duty of the hiring authority to insure that all employees hired after the effective date of this act remain bona fide residents of the local unit in which they are employed. Failure of any such employee to maintain residency in a local unit shall be cause for removal or discharge from service. In the event such employee does not maintain bona fide residency, the hiring authority shall notify said employee that failure to again take up bona fide residency in the local unit within 6 months of such notification will result in removal or discharge from service...

4. Any local unit which has adopted an ordinance or resolution, as the case may be, pursuant to section 1 of this act, shall provide therein that whenever the governing body, or appointing authority, shall determine that there cannot be recruited a sufficient number of qualified residents for available specific positions or employments, the local unit shall advertise for other qualified applicants. The local unit, or the hiring authority thereof, shall thereupon classify all qualified applicants for such positions or employments so determined in the following manner: ...

b. In the case of counties:

(1) Other residents of

contiguous counties.

(2) Other residents of

the State.

(3) All other qualified

applicants...

* * * *

7. The provisions of this act shall apply to all residency requirements adopted on and after the effective date of this act. Nothing herein shall be construed as to alter, abrogate, repeal or otherwise affect any residency requirement in effect in any local unit by ordinance or resolution, or rule or regulation of a local unit, on the effective date of this act; provided, however, that any amendment, modification or other change in any such residency requirement shall be subject to all the relevant provisions of this act...

(Emphasis supplied) (CP-3).

8.	Effective June 14, 1979, the County adopted Ordinance

No. 248-6-1979, amending the February 9, 1978 Ordinance, supra,

which provides, inter alia, that:

Where the appointing authority shall determine that there cannot be recruited a sufficient number of qualified residents for available specific positions or employments, the appointing authority shall advertise for other qualified applicants. The hiring authority shall thereupon classify all qualified applicants for such positions or employments in the following manner:

(a) Other residents of contiguous counties.

(b) Other residents of the State.

(c) All other qualified applicants...

(CP-4).

9.	N.J.S.A. 40:41A-101(c) provides that:

No ordinance shall take effect less than 20 days after its final passage by the board and approved by the county executive, or supervisory or board chairman or president, where such approval is required, unless the board shall adopt a resolution declaring an emergency and at least two-thirds of all the members of the board vote in favor of such resolution. (Emphasis supplied)

10.	N.J.S.A. 11:22-7, last amended in 1930, provides that:

For all positions and employments in the classified service, where the service is to be rendered in a particular county, municipality or school district, or any judicial district of such county, and payment therefor is made from the funds of such county, municipality or school district, or judicial district of the county, the commission shall limit the eligibility of applicants to the qualified residents of the county, municipality or school district, or judicial district of such county, in which the service is to be rendered and from the funds of which the employee is to be paid. (Emphasis supplied)

11.	Of the approximately 300 employees in the Charging

Party's collective negotiations unit, about 35 of these employees were, at the time of the hearing, non-residents of Hudson County (1 Tr. 79). Of these 35 non-resident employees, at least four were hired since 1970 (1 Tr. 78).3/

12.	Agnes Bligh, the Principal Clerk-Typist at the Hudson

County Welfare Division since 1970, who had access to the files of the Personnel Director and was familiar with hiring practices since that date, testified on cross-examination that she knew of no resolution or written memorandum of the Welfare Board, in which a policy of hiring residents over non-residents is embodied (1 Tr. 85, 86).4/

13.	On August 5, 1977 James F. Young, the Director of the

County Division of Welfare since May 1976, sent a memo to all employees "who are not residents of Hudson County," advising such employees that if they wished to claim an exemption from the "residence requirement" they must act no later than August 12, 1977 (R-9).

14.	Under date of July 1, 1978 non-resident employees of

the County were sent a memo by the County Executive, which referred to the February 9, 1978 Residency Ordinance,5/ which memo set a deadline of December 31, 1978 for establishing a bona fide residence within the County, unless an extension of time is granted by the County Executive, and that failure to acquire such residence would result in termination (R-10, p.2).

15.	The Charging Party witnesses were unanimous in their

testimony that they knew nothing about a residency requirement at the time of their hire and were not advised of such requirement until the facts giving rise to the instant charge of unfair practices arose.

THE ISSUES

1.	Is the requirement of residency a mandatorily

negotiable term and condition of employment for incumbent public employees? If so,

2.	Did the County have a valid and enforced residency

requirement in effect for incumbent employees prior to the adoption of the Residency Ordinance on February 9, 1978? If not,

3.	Did the County violate the Act when on July 1, 1978 it

threatened termination of employment for non-resident incumbent employees who did not acquire residence by December 31, 1978 without first negotiating with the Charging Party?

DISCUSSION AND ANALYSIS

The Requirement of Residency As a Condition of Continued Employment For Incumbent Employees Is a Term and Condition of Employment and Is Mandatorily Negotiable

In agreement with the Charging Party, which cites numerous public sector decisions from other jurisdictions, the Hearing Examiner finds and concludes, in a case of first impression, that the requirement of residency as a condition for continued employment of incumbent employees is a term and condition of their employment and is, therefore, mandatorily negotiable.6/ The jurisdictions which have concluded that a residency requirement is a mandatorily negotiable term and condition of employment include Michigan,7/ Wisconsin,8/ Massachusetts,9/ New York10/ Pennsylvania11/ and Connecticut.12/ These decisions from other jurisdictions have, as a group, found a mandatory obligation to negotiate a residency requirement for incumbent employees and have excluded from this obligation the initial hiring decision and, also, promotions.

The Hearing Examiner is of the opinion that these decisions constitute a sound statement of the law in the public sector and it is adopted herein.

Prior to February 9, 1978 The County Did Not Have in Effect a Valid and Enforced Residency Requirement For Incumbent Employees

As has been previously found, N.J.S.A. 11:22-7 was last amended in 1930.13/ Although this statute does not, by its terms, mandate that a statute or ordinance must be adopted by the "particular county, municipality or school district, or any judicial district of such county..." in order for it to become effective, the Hearing Examiner finds it most significant that the pertinent court decisions on residency subsequent to 1930 have involved instances where there was in effect an ordinance or other enactment by the political subdivision with respect to requiring residency as a condition for continued employment. Thus, for example, the Supreme Court has twice considered the residency ordinance of the City of Newark, originally adopted in 1932, and in each instance found it valid: Kennedy v. City of Newark, 29 N.J. 178 (1959) and Abrahams v. Civil Service Commission, 65 N.J. 61 (1974). Likewise, in Skolski v. Woodcock, 149 N.J. Super. 340 (1977), the Appellate Division there noted that, "Bergen County has adopted the Civil Service Act...," thereafter quoting the provisions of N.J.S.A. 11:22-7, supra. (149 N.J. Super. at 344). Also, in Skolski the Court said that, "Residency requirements for governmental employment, whether at the state, county or municipal level, and whether imposed by statute or ordinance, are valid and enforceable...(citing Abrahams and Kennedy, supra)" (149 N.J. Super. at 344).

Thus, the Hearing Examiner is of the view that the courts of New Jersey have placed a gloss upon the "residency requirement" of the Civil Service Act, namely by recognizing that there must be an implementing ordinance, statute or other enactment by the political subdivision before a residency requirement may be enforced.13a/ There is nothing in the instant record which substantiates that there was an ordinance or any like enactment of the County, such as a resolution of the Board of Chosen Freeholders, with respect to a "residence requirement" for incumbent employees until February 9, 1978 when the County adopted a Residency Ordinance which, by its terms and under law, became effective March 1, 1978.14/

In finding and concluding that the County did not have a valid and enforced residency requirement for incumbent employees

____________________

13a/	This view is reinforced by the language of Chapter 63, namely, Sections 1, 3 and 4, which refers to the adoption of "resolution or ordinance" by governing bodies for implementation of the provisions of Chapter 63. See finding of Fact No. 7, supra.

until the Residency Ordinance of February 9, 1978 became effective, the Hearing Examiner has given due consideration to the County's proofs regarding an "established policy...concerning residence of employees," dating back to 1971.15/ The Hearing Examiner is of the opinion that the 1971 correspondence between the County and Civil Service does not, standing alone, establish that there was a valid and enforced residence requirement for incumbent employees prior to the adoption of the 1978 Residency Ordinance. Of great concern to the Hearing Examiner is why there was a need for a Residency Ordinance in 1978 if there was a valid and enforced residency requirement for incumbent employees prior thereto.

Next for consideration is the significance or relevance of the adoption by the Legislature of Chapter 422, effective February 25, 1978, a date prior to the effective date of the February 9, 1978 Residency Ordinance. In agreement with the contention of the County, the Hearing Examiner is of the view that Chapter 422 merely provided a personal exemption from the residency requirement "within a respective county until June 30, 1978."16/ Chapter 422 did not operate to void the February 9, 1978 Residency Ordinance, but merely postponed its implementation to June 30, 1978, the date on which Chapter 63 became effective.17/

Having concluded that the Residence Ordinance of February 9, 1978 was in "effect" on June 30, 1978, and having previously found that the County sought to implement the ordinance on July 1, 1978,18/ the final question to be resolved is whether or not the County was obligated to negotiate with the Charging Party prior to implementation.19/

The County Violated Subsection (a)(5), and Derivatively Subsection (a)(1), of The Act When on July 1, 1978 it Threatened to Terminate Non-Resident Incumbent Employees Without First Negotiating With the Charging Party

In view of the finding and conclusion of the Hearing Examiner that a residency requirement for incumbent employees is a mandatorily negotiable term and condition of employment, followed by the finding and conclusion that the County did not have a valid and enforced residency requirement for incumbent employees in effect prior to the adoption of the Residence Ordinance on February 9, 1978, little time need be spent in discussing the Hearing Examiner's final finding and conclusion, namely, that the County violated the Act when it failed first to negotiate with the Charging Party before threatening incumbent employees with termination in the memo from the County Executive dated July 1, 1978. Clearly, if mandatory negotiations were required before implementation of the February 9, 1978 Residency Ordinance then the failure to so to do is per se a violation of Subsection (a)(5),20/ and derivatively a violation of Subsection (a)(1),21/ of the Act. Having so found a violation of the Act, the Hearing Examiner will recommend an appropriate remedy.22/

The Charging Party having adduced no evidence that would support a violation of Subsections (a)(2) and (3) of the Act, the Hearing Examiner will recommend dismissal of these allegations in the Unfair Practice Charge.

* * * *

Upon the foregoing, and upon the entire record in this case, the hearing makes the following:

CONCLUSIONS OF LAW

The Respondent County violated N.J.S.A. 34:13A-5.4(a)(5), and derivatively 5.4(a)(1), when, without first negotiating with the Council and/or the Local, its County Executive issued a memo on July 1, 1978 threatening incumbent non-resident employees with termination if they did not acquire bona fide residence within the County by December 31, 1978.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent County cease and desist from:

1.	Interfering with, restraining or coercing its

employees in the exercise of the rights guaranteed to them by the Act, in particular, by threatening non-resident incumbent employees with termination of employment unless they acquired bona fide residence within the County by a specific date.

2.	Refusing to negotiate in good faith with the

Council and/or the Local concerning terms and conditions of employment of employees represented by the Council and/or the Local, in particular, with respect to the threat of termination of non-resident incumbent employees unless they acquired bona fide residence within the county by a specific date.

B.	That the Respondent County take the following

affirmative action:

1.	Enter into negotiations in good faith with the

Council and/or the Local regarding implementation of the Residency Ordinance of February 9, 1978 as to incumbent employees prior to implementation.

2.	Post at all places where notices to employee are

customarily posted, copies of the attached notice marked Appendix "A". Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, after being signed by the Respondent's authorized representative and shall be maintained by it for a period of sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent County to assure that such notices are not altered, defaced or covered by other material.

3.	Notify the Director of Unfair Practices within

twenty (20) days of receipt what steps the Respondent County has taken to comply herewith.

C.	That the charges of violations by the Respondent County

of N.J.S.A. 34:13A-5.4(a)(2) and (3) be dismissed in their entirety.

Alan R. Howe

Hearing Examiner

DATED:	October 18, 1979

Trenton, New Jersey