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, 1979 ^2/ 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:

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...

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 A who are not residents of Hudson County, @ advising such employees that if they wished to claim an exemption from the A 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.

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?

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 York^10/ Pennsylvania^11/ 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 A 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, A 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, A 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 A 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 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 A resolution or ordinance @ by governing bodies for implementation of the provisions of Chapter 63. See finding of Fact No. 7, supra.

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 A 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 A 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.

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 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

1/ These Subsections prohibit employers, their representatives or agents from:
(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.
(2) Dominating or interfering with the formation, existence or administration of any employee organization.
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act.
(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employee in that unit, or refusing to process grievances presented by the majority representative. @

A request by the Charging Party for interim relief was denied by the Special Assistant to the Chairman of the Commission on January 17, 1979, P.E.R.C. No. 79-47, 5 NJPER 52 and on February 23, 1979, P.E.R.C. No. 79-52, 5 NJPER 93.
2 / The delay in scheduling the initial hearing and the second hearing was due to unusual conflicts, including vacations, in the schedules of counsel for the parties and the Hearing Examiner in both instances.
3/ The County claims that in several years prior to 1970 there was a dearth of Case Workers in the County and, as a result of this emergent condition, the County hired non-resident employees (see R-4). It is noted that of the six witnesses produced by the Charging Party, five were hired prior to or in the year 1970 and were non-residents at the time of hire and remained so thereafter.
4/ Note is made of the reference of the Director of the County Welfare Board in 1971 that it was reverting to its A ...established policy...concerning residence of employees...under Revised Statutes ( N.J.S.A.) 11:22-7... @ with regard to the hiring of County employees (R-4). Note is also made of a letter from Civil Service to the Director of the County Welfare Board, dated July 29, 1971, in which it is stated, inter alia, that: A ... the Hudson County Welfare Board must first appoint from all existing eligible lists containing residents... @ (R-6; see also, R-7).
5/ See Finding of Fact No. 5, supra.
6/ In so concluding, the Hearing Examiner refers to State v. State Supervisory Employees Ass = n., 78 N.J . 54 (1978) where the Supreme Court said at page 67: A Thus, negotiable terms and conditions of employment are those matters which intimately and directly affect the work and welfare of public employees and on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives... @ (Emphasis supplied). A residency requirement clearly satisfies this test. The Hearing Examiner notes that this finding and conclusion is consistent with the non-binding conclusion of the Special Assistant to the Chairman of the Commission in P.E.R.C. No. 79-47, 5 NJPER 52, 54 (1979), this being the interim relief proceeding involving the instant parties (see footnote 1, supra).
7/ Detroit Police Officers Association v. City of Detroit, 391 Mich . 44, 190 N.W. 2d 97, 1 PBC para. 10,353 (Mich. Supr. Ct. 1974).
8/ City of Brookfield v. WERC, 1 PBC para. 10,279 (Wisc. Cir. Ct. 1974) and City of Madison , WERC Decis. No. 15,095 (1976).
9/ Boston School Committee , Mass. LRC Case No. MUP-2503 (1977) and Bd. of Trustees of Lowell University, Mass. LRC, 1977-78 PBC para. 40,517 (1978).
10/ City of Auburn, 9 PERB para. 3085 (1976) and City of Buffalo, 9 PERB para. 3015 (1976).
11/ City of Erie Sch. Dist . 9 Pa.PER para. 9132 (1978) and Ambridge Area Sch. Dist ., 9 Pa.PER para. 9034 (1978).
12/ City of Bridgeport , Conn. SBLR Case No. MPP-3437 (1977) and New Haven Bd. of Ed ., Conn. SBLR, 1979 PBC para. 41,174 (1979).
13/ Finding of Fact No. 10, supra.
14/ See Findings of Fact Nos. 5 and 9, supra . It is noted here that of the 35 non-resident employees in the Charging Party = s negotiations unit as of the time of the hearing, at least four of these non-residents were hired since 1970 (see Finding of Fact No. 11, supra ). Further, on August 5, 1977 the Director of the County Division of Welfare sent a memo to all non-resident employees of the County, advising that if they wished to make a claim for an exemption they must act no later than August 12, 1977 (see Finding of Fact No. 13, supra ). There is no evidence on the record indicating that the memo of August 5, 1977 was ever implemented and the Hearing Examiner concludes that it was not implemented.
15/ See footnote 4, supra.
16/ Finding of Fact No. 6, supra.
17/ Finding of Fact No. 7, supra . It is noted further that Section 7 of chapter 63 provides that it shall not A alter, abrogate, repeal or otherwise affect any residency requirement in effect...on the effective date of this act... @
18/ Finding of Fact No. 14, supra.
19/ It should be noted here that the Hearing Examiner rejects the contention of the County that the instant charge of unfair practices, filed on October 11, 1978, is time barred under the six-month rule contained in Section 5.4(c) of the Act. Inasmuch as the effective date of the Residency Ordinance of February 9, 1978 was postponed by Chapter 422 until June 30, 1978, the Hearing Examiner finds that the triggering event for a charge of unfair practices occurred on July 1, 1978 when the County Executive issued his memo, supra. See Warren Hills Regional Bd. of Education , P.E.R.C. No. 78-69, 4 NJPER 188, 189 (1978). Thus, the charge of unfair practices was timely filed. Further, there having been no valid and enforced residency requirement prior to the adoption of the February 9, 1978 Residency Ordinance, there was no waiver or acquiescence by the Charging Party estopped from so filing by an conduct herein. (Cf. Respondent County = s main brief at pp. 15-19).
20/ See, for example, Galloway Twp. Bd. of Ed. v. Galloway Twp. Ass = n of Educ. Secretaries , P.E.R.C. No. 76-31, 2 NJPER 182, 184 (1976), aff = d. 78 N.J. 1, 6-8 (1978); Galloway Twp. Bd. of Ed. v. Galloway Twp. Ed. Ass = n., P.E.R.C. No. 76-32, 2 NJPER 186, 187 (1976), aff= d. 78 N.J. 25 (1978); and Piscataway Twp. Bd. of Ed., P.E.R.C. No. 91, 1 NJPER 49, 50 (1975), appeal dismissed as moot (App. Div., Docket No. A-8- 75), pet for certif. den. 70 N.J. 150 (1976).
21/ See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, 255 (1976).
22/ In view of the foregoing findings and conclusions of the Hearing Examiner, he does not pass upon nor decide the contention of the Charging Party that the employees in the collective negotiations unit are in fact State and not County employees, and therefore not covered by N.J.S.A . 11:22-7 and the Residency Ordinances adopted by the County. (See Charging Party = s main brief, pp. 24-26 and reply, p. 7).