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H.O. No. 77-1

Synopsis:

PERC Citation:

H.O. No. 77-1, 2 NJPER 258 (1976)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

435.202 437.10 101.01 430.15 435.40 435.20 437.50

Issues:

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NJ PERC: . - HO 77-001.pdf

Appellate Division:

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H.O. NO. 77-1 1.
H.O. NO. 77-1

STATE OF NEW JERSEY
BEFORE A HEARING OFFICER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SOMERSET COUNTY GUIDANCE CENTER,

Public Employer,

-and- Docket No. RO-76-78

PROFESSIONAL EMPLOYEES ASSOCIATION OF
SOMERSET COUNTY GUIDANCE CENTER;
affiliated with DISTRICT 1199, NATIONAL
UNION OF HOSPITAL AND HEALTH CARE
EMPLOYEES, RWDSU, AFL-CIO,

Petitioner.

Appearances:

For the Petitioner
Messrs. Greenberg & Margolis
By: Philip Freedman, Esq.

For the Public Employer
Messrs. Lanigan & O = Connell
By: Daniel F. O = Connell, Esq.

HEARING OFFICER = S REPORT
AND RECOMMENDATIONS

A Petition for Certification of Public Employee Representative was filed on November 14, 1975 with the Public Employment Relations Commission by the Professional Employees Association of Somerset County Guidance Center; affiliated with District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO (hereinafter A Petitioner @ )¹^/ which sought to be certified as the exclusive representative for purposes of collective negotiations for all professional employees employed by the Somerset County Guidance Center (hereinafter A Public Employer @ or A Center @ ).²^/
The Petition was perfected on November 25, 1975 with the filing of a showing of interest by the Petitioner in accordance with N.J.A.C. 19:11-1.2 and N.J.A.C. 19:10-1.1.
Pursuant to a Notice of Hearing, a hearing was held in Somerville, New Jersey, before the undersigned Hearing Officer on the following dates: February 18, 1976; March 4, 11 and 15, 1976.³^/
During the hearing all parties were given an opportunity to examine witnesses, to prevent evidence and to argue orally. Both parties requested an opportunity to file briefs after the close of the hearing; and, following the grant by the Executive Director of an extension of time for filing briefs until April 16, 1976, briefs were received from the Petitioner and Public Employer on April 20, 1976 and April 21, 1976 respectively.
Upon the entire record, the exhibits admitted into evidence and the briefs in the instant proceeding the Hearing Officer finds:
1. The Somerset County Guidance Center, an agency of the Board of Chosen Freeholders, County of Somerset, State of New Jersey, is the employer of the employees involved herein, is a Public Employer within the meaning of the New Jersey Employer- Employee Relations Act (hereinafter A the Act @ ) and is subject to its provisions.
2. The Professional Employees Association of Somerset County Guidance Center, affiliated with District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is an employee organization within the meaning of the Act and is subject to its provisions.
3. The appropriate unit for the purposes of collective negotiations, as agreed to by the parties⁴^/ is defined as follows:
Included: All Professionals employed by the Somerset County Guidance Center.

Excluded: All other employees, Administrator, Medical Director, Clinical Coordinator, Chief Psychiatric Social Worker, Psychology Interns, non-professional, clerical, craft and confidential employees, police, managerial executives and supervisors within the meaning of the Act.

4. The parties are not in agreement as to whether several categories of employees of the Public Employer are properly includable in the above-defined unit for collective negotiations.
Therefore, as the parties do not consent to a secret ballot election in an appropriate unit and the question is unresolved as to the disposition of the instant petition, a question concerning the representation of public employees exists and the matter is properly before the Commission.
BACKGROUND
The Public Employer is a mental health care agency which provides a variety of primarily out-patient services at various locations in Somerset County including Somerville (main office), Franklin Township and Bernardsville (branch offices); Somerset County College, North Branch (partial hospitalization) and Somerset Hospital, Somerville (Emergency Services). A third branch office was, at the time of the hearing, scheduled to open in North Plainfield in April 1976.
The Board of Chosen Freeholders of Somerset County acts as the governing board of the Center. The Center = s Administrator functions as the manager of the Center. Lines of communication and responsibility run from the Administrator to the Medical Director, Clinical Coordinator and Chief Psychologist, according to the Center = s Table of Organization.⁵^/ Below these titles on the chart are the Assistant Chief Psychologist (reporting to the Chief Psychologist); Branch Office Supervisor, Unit Supervisor, Partial Hospitalization Coordinator, Coordinator of Emergency Services and Coordinator of Consultation and Education (all reporting to the Clinical Coordinator).
MAIN ISSUE
The parties stipulated that the scope of the hearing was limited to a consideration of the following issues:
1. Whether employees in the following title are professional employees and are thus includable in the stipulated appropriate unit for collective negotiations: Mental Health Aides;
2. Whether employees in the title part-time Psychiatrist share a community of interest with other full-time professionals employed by the Public Employer and are thus includable in the stipulated appropriate unit for collective negotiations;
3. Whether the following professional employees of the Public Employer are supervisory within the meaning of the Employer-Employee Relations Act, and are, therefore, excludable from the stipulated appropriate unit for collective negotiations: Branch Office Supervisor; Unit Supervisor; Chief Psychologist, Assistant Chief Psychologist; Coordinator of Consultation and Education; Coordinator of Emergency Services; Coordinator of Partial Hospitalizations.⁶^/ The parties also stipulated that no dispute existed as to the inclusion of the following titles in the previously defined unit: Psychologists; Psychiatrists; Psychiatric Social Workers; Graduate Psychiatric Nurses; Senior Psychiatric Social Worker; Occupational Therapist; Recreational Therapist.⁷^/
The undersigned hearing officer concurs that the seven titles mentioned above are non-supervisory professional employees of the Public Employer and recommends their inclusion in the petitioned-for unit for collective negotiations.
The undersigned will now deal with the remaining issues in dispute in the order they appear in the record.
MENTAL HEALTH AIDES - POSITIONS OF THE PARTIES
The Center = s Mental Health Aides (numbering 2 at the time of the hearing) work in the Partial Hospitalization (PH) program at Somerset County College in North Branch. Other employees assigned to the PH program are the PH Coordinator, Occupational Therapist and Psychiatric Nurse.
The Public Employer contends that the Aides are paraprofessional personnel, performing mostly clerical duties and are possessed of a lesser degree of education and training than professionals in the PH program.
The Petitioner urges that the Aides are professionals, based upon their education and training and their duties and responsibilities which the Petitioner contends, requires the exercise of independent judgment and discretion.
In the alternative, the Petitioner contends that even if the Aides are not determined to be professionals, they may properly be included in the unit for collective negotiations by affording the professionals a vote as to whether they wish to be included in a bargaining unit with the Aides (the so-called A professional option @ ).
MENTAL HEALTH AIDES - DISCUSSION
N.J.A.C. 19:10-1.1 defines A Professional Employee @ to mean:
...any employee whose work is predominantly intellectual and varied in character, involves the consistent exercise of discretion and judgment, and requires knowledge of an advanced nature in the field of physical, biological, or social sciences, or in the field of learning. The Commission will also consider whether the work is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. The term shall also include any employee who has acquired knowledge of an advanced nature in one of the fields described above, and who is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined herein. The term shall include, but not be limited to, attorneys, physicians, nurses, engineers, architects, teachers, and the various types of physical, chemical and biological scientists.

Testimony on the Mental Health Aide title was provided by the Administrator, Joseph Del Sori and Richard Jaglowski, one of the Aides. Exhibit E-1 is a job description for the position.
The Aide position requires a Bachelors degree in Psychology or Social Work, a year of experience in the field, or the equivalent combination of education and experience.
Administrator Del Sordi testified that the knowledge required to perform the functions required of a Mental Health Aide came primarily from in-service training rather than the Aides educational background, but did say that in order to absorb the in-service training, the required background was essential.⁸^/
While the Mental Health Aide normally performs occupational and group therapy functions in conjunction with other personnel in the PH program, the job involves frequent one-on-one contact with the program = s patients.⁹^/
In this regard, the Aide is called upon to conduct intake interviews of potential patients, make visits to patients = homes, is to assist patients in A readjusting to the norms of everyday living, @ as well as establishing a working relationship between clients (patients), the community and other agencies.
In relation to this last function, Administrator Del Sordi testified that he viewed the Aide as A ...ombudsman, namely a patient advocate to the patient in the sense of having a good working relationship with the specific clients that are in the program and being able to assist them in any way possible that they may need. @ ¹⁰^/
In connection with the intake interviews, which in part, involve assisting the patient with the completion of forms, the Aide takes a case history and submits a recommendation (made in writing and discussed at regular staff meetings) as to whether the patient should enter the program and what type of treatment may prove beneficial.¹¹^/ The Aides = recommendations require acceptance or acquiescence by the PH Coordinator and/or Medical Director before they are implemented, but the interviews and recommendations are conducted and Formulated independently by the Aide. Similarly, the Aide makes a recommendation following a home visit, based on his or her evaluation of the patient = s progress and readjustment to life in the community.¹²^/
Mr. Jaglowski also testified that recently everyone in the PH program including the Aides, had been assigned a caseload of five or six patients with whom the staff member would hold individual counseling sessions.¹³^/
Although the Aides = recommendations may be countermanded, the same appears to be true for other personnel in the PH program, such as the therapist and nurse.¹⁴^/ Nonetheless the Aide conducts interviews, visits and counseling on an independent regular basis without direct supervision. Review comes after the evaluation is formulated and the recommendation is submitted.
The Commission = s definition of A Professional Employee @ closely tracks the language of Section 2(12) of the National Labor Relations Act. The National Labor Relations Board has recently passed upon the question of whether certain A Mental Health Clinicians fit within the NLRA = s definition of A Professional Employees. @ ¹⁵^/
The parties to Malcolm X Center for Mental Health, 222 NLRB No. 147, 91 LRRM 1352 (February 19, 1976) had stipulated that certain employees of the Center, designated A Mental Health Clinicians @ were professional employees within the meaning of the N.L.R.A.
This category includes psychiatrists, psychologists, social workers, mental health nurses, an activity therapist, and certain employees designated as mental health workers. In this last category are included RN = s, LPN = s, employees with bachelor = s degrees and associate of arts degrees, and certain employees without degrees. @ 91 LRRM at 1354 (emphasis added)

The Board, however, went behind the parties = stipulation and determined for itself that all the A clinicians @ did fit the definition of A professional. @
In reviewing the duties of the clinicians in Malcolm X, the Board cited functions performed by clinicians which are also performed by the Aides in the instant case among them intake interviews and the evaluation and recommendations flowing from them. The Board found:
...[G]enerally, all the Employer = s clinicians are engaged in primary and secondary clinical services, and they all provide psychotherapy for the Employer = s clients.

In sum, the mental health clinicians = work, dealing as it does with the various mental problems of the clients, involves the consistent exercise of discretion and judgment in the treatment of those clients, and is a clearly intellectual endeavor. We thus agree with the parties = stipulation that those employees classified as the Employer = s mental health clinicians are professional employees. 91 LRRM at 1354

The undersigned similarly concludes that Mental Health Aides are professional employees, performing work which is predominantly intellectual and varied in character, involving the consistent exercise of discretion and judgment and which requires knowledge of an advanced nature in the field of physical, biological or social sciences.

PART-TIME PSYCHIATRIST - POSITIONS OF THE PARTIES
The Center employs one part-time psychiatrist, assigned to the Franklin Township branch office, who regularly works 16 hours per week providing direct services to patients. Two full-time psychiatrists, assigned to the main office in Somerville are also employed by the Center. The parties have agreed that the full- time psychiatrists are properly includable in the petitioned-for unit for collective negotiations.
The Public Employer argues that the part-time psychiatrist does not share a sufficient A community of interest @ with the full-time psychiatrists and other non-supervisory professionals employed at the Center, to warrant the inclusion of the title in the unit. The Petitioner argues to the contrary. Testimony on the title was provided by Administrator Del Sordi, and to a limited extent by Dr. Robert Weiss, the Center = s Chief Psychiatrist.
PART-TIME PSYCHIATRIST - DISCUSSION
In support of its argument, the Public Employer relies on an evaluation and comparison of the facts in the instant case to those present in State of New Jersey, E.D. No. 67, 1 NJPER 2 (1975), where the Executive Director found that part-time, consulting physicians, did not share a community of interest with other professionals (including full-time staff physicians) employed by the State.
In State of New Jersey, supra, the Executive Director found that consulting physicians performed different work than staff physicians; were compensated on an hourly rate, as opposed to yearly salary; did not receive the same fringe benefits; served on an A as needed @ basis, with flexible hours designed to accommodate the demands of their private practices; did not perform A on-call @ duties; and were subject to only minimal administrative control.
In making his determination, the Executive Director compared the facts in State of New Jersey, supra, with those of Albert Einstein Medical Center v. Pennsylvania Labor Relations Board, 6 PPER 8, 88 LRRM 2280, 330 A. 2d 264 (1975) where the Pennsylvania Commonwealth Court included part-time pharmacists, in a unit with full-time pharmacists where both categories of professionals were paid on the same basis, shared many common fringe benefits and did similar work.
As in State of New Jersey, supra, the part-time psychiatrist in the instant case, is paid an hourly rate as opposed to a yearly salary, does not receive the same fringe benefits as the full-time psychiatrist, is not A on-call @ and has an outside practice.¹⁶^/
However, as in Einstein, supra, both the part-time and full- time psychiatrists perform the same work i.e. providing psychiatric treatment to the Center = s patients. All of the Center = s psychiatrists are under the supervision of the Medical Director.¹⁷^/ The part-time psychiatrists in the instant case works regularly for 16 hours per week, rather than on an A as needed @ basis as in State of New Jersey, supra.
In State of New Jersey, supra, the Executive Director did not fully explore the question as to whether the consulting physicians were Public Employees within the meaning of the Act, but rather found there was nothing in the record indicating they were not Public Employees, 1 NJPER at 7. A factor in the Executive Director = s finding of no community of interest in State of New Jersey, supra, was also that the consulting physicians A ...services to the State are ancillary to their private practices which are their primary means of livelihood. In sum, their employment relationship is too ephemeral to carry with it the rights and obligations of the Act. @ ¹⁸^/
However, in a subsequent decision, the Executive Director determined that part-time employees, who exhibited a sufficient A regularity of employment @ with a public employer, were properly included in a bargaining unit with full-time employees, even where the part-time employees performed similar services for other public or private employers.¹⁹^/
Because the part-time psychiatrist in the instant case performs the same work, under the same medical supervision as his full-time colleagues, and exhibits a sufficient A regularity of employment @ to be considered a A Public Employee @ within the meaning of the Act,²⁰^/ the undersigned views the facts of the instant case to be distinguishable from those in State of New Jersey, supra, and thus finds the part-time psychiatrist to share a community of interest with other full-time professionals employed by the Public Employer.
It should be noted however, that the existence (or lack of existence) of a community of interest among the part-time psychiatrist and other professionals is not the sole determinant of questions concerning bargaining unit definition and composition.
In deciding that nursing and education professionals, employed by the State of New Jersey should be part of a state- wide professional bargaining unit, rather than separate professional units, our Supreme Court determined that exclusive reliance on the concept of A community of interest @ in public employment unit determinations was inappropriate.²¹^/
The Court determined that the Commission had the obligation of determining in each instance which unit of employees is appropriate for collective negotiations while giving A due regard for @ community of interest.²²^/
The undersigned finds that the part-time psychiatrist position exhibits a sufficient regularity of employment to be considered a Public Employee within the meaning of the Act entitled to representation, shares a community of interest with other professionals employed by the Public Employer and therefore ought to be included in the petitioned-for unit for collective negotiations.
SUPERVISORY TITLES - FRAMEWORK FOR ANALYSIS
The remaining issues in dispute involve the question as to whether seven employees of the Public Employer are supervisors within the meaning of the Act, and therefore ought to be excluded from the petitioned-for unit for collective negotiations.
N.J.S.A. 34:13A-6(d) provides, in relevant part, that A ...except where dictated by established practice, prior agreement, or special circumstances, no unit shall be appropriate which includes (1) both supervisors and nonsupervisors... @
N.J.S.A. 34:13A-5.3 clarifies what is meant by the term A supervisor, @ by mandating that no supervisor, A ...having the power to hire, discharge, discipline or effectively recommend the same,... @ shall, except where established practice, prior agreement or special circumstances dictates the contrary, be admitted to membership in an employee organization having non- supervisors as members.²³^/ (emphasis added)
In determining whether or not a particular employee is a supervisor, the Commission is guided by the approach to the issue set forth by our Supreme Court in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971):
If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisor is not present. 57 N.J. at 425. (emphasis added)

In view of the statutory definition of supervisory, and the Supreme Court = s analysis in Wilton, supra, the undersigned believes that in determining whether or not the employees involved herein are supervisors, the following two-tiered analysis should be utilized:
(1) Does the employee have the direct of effective power to hire, discharge or discipline?

(2) Do the employees duties create an actual or potential substantial conflict of interest between the employee and the other members of the bargaining unit?

If (1) above is answered in the affirmative, the analysis need go no further; the employee is a supervisor. if the answer to (1) is negative, then the employee is a supervisor only if a substantial conflict of interest is found when applying (2).
COORDINATOR OF CONSULTATION AND EDUCATION
The Coordinator of Consultation and Education (C and E) is in charge of the Center = s community education program. As described by Administrator Del Sordi, the purpose of the C and E program is:
...to provide community education, in-service education to various health and social service and welfare agencies and interested community agencies within the county relevant to the area of mental health, and also provide program consultation to the staff of various agencies that request our assistance as a mental health agency.²⁴^/

There are no full-time staff assigned solely to the C and E program. Even the C and E Coordinator spends up to 30 percent of her time as Psychiatric Social Worker, handling a caseload.²⁵^/
The program, in essence, operates as a speakers bureau. The C and E Coordinator, in response to a request by a group or agency, will contact a staff member (presumably one with expertise on the topic involved) and ask that employee to give the speech or conduct the training session.
The C and E Coordinator, Joan Weigand, testified that if the staff member asked to fill the request could not, or did not wish to attend, she would ask another staff member, fill the request herself, or inform the requesting party that no one was available.²⁶^/
Two job descriptions of the position of C and E Coordinator were introduced into evidence. P-1 was a description prepared by Administrator Del Sordi during the period after he assumed his duties at the Center in October, 1975 and prior to January 15, 1976. Another description, E-2 was prepared subsequent to January 15, 1976 and prior to February 2, 1976. Ms. Weigand testified she had been running the C and E program since November 1974, without being informed of or aware of any job descriptions until P-1 and E-2 were formulated.
The change made by E-2 reflects Ms. Weigand = s practice of requesting rather than assigning staff members to fill C and E requests.²⁷^/
Both descriptions indicate that the C and E Coordinator is responsible for making recommendations to the Clinical Coordinator concerning selection, performance and termination of A assigned Mental Health staffing members @ (E-2) and A assigned Psychiatric Social Workers. @ (P-1) Ms. Weigand testified that she has never made any recommendations in this regard nor was aware, until the job descriptions were prepared, that she was expected to make recommendations.²⁸^/ Even assuming that the C and E Coordinator is now responsible for making recommendations concerning the selection, performance and termination of staff members participating in the C and E program, two reasons appear which dictate a finding that the C and E Coordinator does not have the direct or effective power to hire, discharge or discipline.
First, Administrator Del Sordi = s testimony indicated that the C and E Coordinator = s recommendations would be subject to independent investigation by the Administrator and the Clinical Coordinator.²⁹^/
Second, any evaluations or recommendations made by staff members by the C and E Coordinator are made relative to C and E functions, which involve usually only one or two hours of the employee = s work week and are not in relation to the performance of clinical duties.³⁰^/
The undersigned finds it unlikely that an unsatisfactory performance by an employee with regard to a C and E function would result in termination or discipline by the Center, if the person = s clinical duties were otherwise acceptable.
The evidence relating to Ms. Weigand = s relationship to the other staff since November, 1974 when she assumed the C and E duties reveals no actual or potential A conflict of interest @ with regard to the second standard for review. This conclusion is buttressed by the fact that only a small fraction of each staff member = s time is devoted to C and E because the C and E Coordinator has authority to request, rather than assign C and E duties.
Accordingly, the undersigned finds the position of Coordinator of Consultation and Education includable in the unit as a non-supervisory professional title.
UNIT SUPERVISOR
The Unit Supervisor, like the Coordinator of Consultation and Education reports to the Clinical Coordinator in the Center = s Administrative hierarchy.
The Unit Supervisor holds a Masters degree in Social Work, is assigned a clinical caseload, oversees a training program for students seeking maters degrees and is assigned psychiatric social workers with whom she consults and assigns work.
The Unit Supervisor = s alleged supervisory relationship with the psychiatric social workers assigned to her is the issue at hand. The undersigned views her relationship as a supervisor to students in the training program to be irrelevant here, as the students are not employees of the Center.
Four job descriptions for the position were introduced into evidence. Two of these, E-6 and E-7 are of recent vintage, prepared respectively between January 15, 1976 and February 2, 1976 and a short while before January 15, 1976 by the Administrator. the other two descriptions, E-8 and P-3 were apparently on file when the Administrator began his job in October, 1975. E-8 and P-3 are similar in format but the contents of each bear significant differences. However, it was apparent from the testimony of the Unit Supervisor, Sybil Reid her past work in the position (which she has held since late 1974) and her current perception of her duties differed in various respects from each of the four descriptions. Accordingly, the undersigned gives little weight to all four descriptions as being indicative of the duties actually performed by the Unit Supervisor, and relies instead on the testimony of Ms. Reid and Administrator Del Sordi.³¹^/
One of the duties contained in E-6 (and not reflected in either P-3 or E-8) is that the Unit Supervisor is responsible for making recommendations concerning the selection, performance evaluation and termination of Psychiatric Social Workers assigned to her, to the Administrator and Clinical Coordinator. Ms. Reid testified that she has never participated in any way in the selection (hiring) nor termination of any of the Psychiatric Social Workers employed by the Center.³²^/ Her testimony on this point was uncontroverted. Ms. Reid further testified that she has not participated in disciplining any psychiatric social workers assigned to her. On two occasions when a psychiatric social worker, assigned to Ms. Reid, was not performing in a manner deemed appropriate by the Clinical Coordinator, the Clinical Coordinator bypassed Ms. Reid and took the matter up directly with the staff member involved.³³^/ Ms. Reid testified that if she observed unsatisfactory performance on the part of one of the staff assigned to her she would relay the facts and circumstances to the Clinical Coordinator and await his decision on how to proceed.³⁴^/
It is undisputed that Ms. Reid does not have the direct power to hire, discharge or discipline and on these facts the undersigned concludes that any recommendations she may make in these areas either are, or would be subject to independent investigation; most likely by the Clinical Coordinator. Therefore, the Unit Supervisor does not have the effective power to hire, discharge or discipline.
With regard to A conflict of interest @ factors, Ms. Reid testified that she relays (rather than formulates) work assignments from the Clinical Coordinator to her psychiatric social workers and provides A clinical supervision @ which she described as follows:
When she (a psychiatric social worker) meets with me, she brings to my attention issues which are of concern to her, and I offer her the benefit of my suggestions and opinions and advice, which she is free to accept or discard, based on her clinical judgment.³⁵^/

The psychiatric social workers assigned to the unit Supervisor, in the main, perform their Clinical functions as professionals independently of the Unit Supervisor. The record shows that in the two instances during Ms. Reid = s tenure, when corrective action was taken regarding her staff, the correction came from a level higher than hers on the administrative hierarchy. Nothing in the record indicates to the undersigned that the relationship between the Clinical Coordinator, Unit Supervisor and Psychiatric Social Workers assigned to her unit, in instances where corrective action may be needed, will change in the future.
The position of the Unit Supervisor in the instant case is distinguishable from the A team leaders, @ found, in Malcolm X Center, supra, to be supervisors within the meaning of the NLRA.
There the NLRB = s finding was based upon the team leaders = possession of the following supervisory indicia: (1) significant in put into hiring of team members; (2) they were not found to be mere conduits of information to and from management; (3) responsibility for team = s daily activities; (4) processed grievances and granted requests for time off; (5) made evaluations leading to raises and (6) received additional compensation for their work as team leaders. 91 LRRM at 1355.
The undersigned finds nothing in the record to indicate that the A unit @ which Ms. Reid allegedly supervises at the Center, functions with the same degree of autonomy as was present in the A teams @ described in Malcolm X Center, supra. Nor does the position of Unit Supervisor possess the authority contained in reasons (1), (2), (4) and (5), listed above.
On these facts, the undersigned concludes that no actual or potential substantial conflict of interest exists among the Unit Supervisor, the Psychiatric Social Workers assigned to the position nor any other professionals employed by the Center. Thus the undersigned finds the position of Unit Supervisor to be a non-supervisory, professional title.
COORDINATOR OF EMERGENCY SERVICES
The Coordinator of Emergency Services oversees the Center = s emergency psychiatric service program which is based at the Center = s main office during normal working hours and at all other times at Somerset Hospital.
The program is A ...a 24-hour, 7-day a week program, the primary purpose of which is to provide walk-in via a Guideline hotline telephone service crisis intervention, fact-to-face contract, in terms of giving specific clinical assistance and counseling to people that are in need of care and treatment. @ ³⁶^/
The Coordinator of Emergency Services reports in the administrative hierarchy to the Clinical Coordinator.
At the time of the hearing, the Center was completing a hiring procedure for two full-time and 17 part-time employees who would take over functions currently performed by a list of volunteers and provide face-to-face counseling and other clinical services to emergency service clients. Under the volunteer set- up, services were deemed indirect because the volunteers had to contact an on-call professional or one of the Center = s psychiatrists before the patient could receive counseling from a mental health professional. The new service will put patients in direct contact with a mental health professional without delay.
The Coordinator of Emergency Services will now coordinate the scheduling of the new employees and will continue to provide clinical services himself. Much of the testimony provided by Administrator Del Sordi and the Coordinator, Joseph Vaccaro, concerned the latter = s participation in the interviewing and selection process.
A Role-playing @ type interviews were conducted by Mr. Vaccaro and the Clinical Coordinator with the frequent presence of Administrator Del Sordi.
Mr. Vaccaro was instructed to prepare a priority ranking following the selection process, which he did, and then revised after meeting with the Clinical Coordinator who had prepared his own priority ranking of the applicants.
Testimony as to whether Mr. Vaccaro = s priority ranking would control the decision to hire conflicted in the record. Administrator Del Sordi made it clear that Mr. Vaccaro = s recommendations would be considered, but did not clearly state to Mr. Vaccaro that his priority ranking would control the process.³⁷^/ Mr. Vaccaro testified that his final priority ranking was arrived at after discussions with the Clinical Coordinator and that while it was his impression his recommendations would be considered, he believed the Administrator would have the final say.³⁸^/
Testimony was also presented relative to Mr. Vaccaro = s recommendation that one of the participants in the program be taken off the list of available volunteers. The recommendation proceeded through the Clinical Coordinator and Medical Director (who concurred with Mr. Vaccaro), but was ultimately overruled by the Administrator.³⁹^/
Two job descriptions were also introduced into evidence; E-5, which was an existing description in the personnel file, and E-4, a description prepared by the Administrator which upgraded Mr. Vaccaro = s title, reflected the expected change to a staff of employees from volunteers and added the following: A participates in the selection, performance evaluations and termination process of staff members, making the necessary recommendations to the Clinical Coordinator and Guidance Center Administrator. @
Upon the evidence presented, the undersigned concludes that the Coordinator of Emergency Services does not have the direct or effective power to hire, discharge or discipline. The record establishes that Mr. Vaccaro = s recommendations in this area are subject to independent review and investigation by his superiors.
Turning to conflict of interest considerations, the record shows no conflict between Mr. Vaccaro and the psychiatrists who participate in the emergency service program. The psychiatrists inform Mr. Vaccaro of their availability and he adjusts his schedule accordingly.⁴⁰^/ No conflict of interest as contemplated by Wilton, supra, existed regarding Mr. Vaccaro = s relationship with the volunteers, since as non-employees they would not be included in the unit.
However, as of this writing, it is expected that full and part-time employees will have taken the place of the volunteers. While the status of these new employees was not explored at the hearing, Administrator Del Sordi did refer to them in testimony as A professionals. @ ⁴¹^/ If the individuals are professionals, eligible for inclusion in the unit, the Coordinator of Emergency Services then may be a supervisor in relation to these employees if an actual or potential substantial conflict of interest exists between them. As there is no record of experience on which to base a conflict of interest determination, the undersigned finds that the Coordinator of Emergency Services may vote in an election for choice of employee representative among the professional employees, but that his ballot may be challenged by any party if it is believed that including the Coordinator of Emergency Services in a unit with the newly hired staff for the program would create an actual or potential substantial conflict of interest between them.⁴²^/
PARTIAL HOSPITALIZATION COORDINATOR
The Center = s Partial Hospitalization Coordinator oversees the Partial Hospitalization (PH) program, located at Somerset County College, which has been operating since July, 1975. The staff of the program includes the PH Coordinator, two Mental Health Aides, graduate nurse, recreational and occupational therapist and a secretary.
Evidence on the PH Coordinator position was presented in the form of two recently prepared job descriptions, E-11 and E-12, testimony from Administrator Del Sordi, and from Mental Health Aide Richard Jaglowski, as the status of the PH Coordinator was also covered in testimony concerning the Mental Health Aide position. As with the previously discussed supervisory titles, the record fails to establish that the PH Coordinator possesses the direct or effective power to hire, discharge or discipline.
Testimony on the Mental Health Aide title established that the PH Coordinator has the final work, among the staff of the PH program with regard to courses of treatment that the other professionals are recommending or pursuing with regard to their patients.⁴³^/ However, the undersigned does not view this type of consultation as indicative of the kind of conflict of interest envisioned by the Court in Wilton, supra.
The most recent job description for the position (E-11) indicates that the PH Coordinator is responsible to participate in the performance evaluation of PH staff members, making recommendations to the Clinical Coordinator and the Administrator. While this type of duty may be more in line with the type of conflict envisioned by Wilton, supra,⁴⁴^/ the record is devoid of instances showing an actual conflict of interest in this regard between the PH Coordinator and the other PH staff. Moreover, in view of the testimony tending to show that the administrative authority of the position is rather limited, the undersigned concludes that any potential conflict of interest would not be substantial.⁴⁵^/ The undersigned views the PH Coordinator = s prime responsibility to be one of program supervision. Most, if not all, personnel decisions appear to be made at a higher level.
Accordingly, the undersigned finds the PH Coordinator to be a non-supervisory, professional employee of the Public Employer.
BRANCH OFFICE SUPERVISOR
The Branch Office Supervisor is assigned to coordinate the clinical services performed by the Center = s staff at the offices in Bernardsville, Franklin Township and North Plainfield, which was expected to open in April, 1976.
The Branch Office Supervisor rotates, as does the staff among the branch offices during a particular workweek. Staff assigned to the branch offices consists of Senior Psychiatric Social Workers, Assistant Chief Psychologist, Unit Supervisor and part-time psychiatrist. The Branch Office Supervisor relays work assignments to staff from the Clinical Coordinator, maintains a clinical caseload, reports on services rendered at the branches and attends clinical and administrative conferences. The Clinical Coordinator appears above the Branch Office Supervisor in the Administrative hierarchy of the Center.
Three job descriptions were introduced into evidence; E-9 and E-10, prepared by Administrator Del Sordi, and P-4, an existing job description.
The two recent descriptions contain the following: Supervises staff personnel; participates in the selection, performance evaluation and terminating making the necessary recommendations to the Guidance Center Administrator and Clinical Coordinator. @
As with the previously discussed titles, the record shows that position of Branch Office Supervisor does not have the direct or effective power to hire, discharge or discipline. Mary Lou Holland, who holds the position testified that she was not asked to participate in hiring during her 18-month tenure in the position although three professionals were hired to perform services in the branch offices in that period.⁴⁶^/ It is also clear that Ms. Holland does not supervise or evaluate the work of the psychologist or the psychiatrist assigned to the branch office.⁴⁷^/ Her contact with these titles consists primarily of relaying case assignments.
Ms. Holland has the responsibility to provide annual evaluations of four social workers assigned to her for consultation.⁴⁸^/ No evaluation had been made at the time of the hearing, as the individuals assigned to Ms. Holland had not been working with her for a full 12 months. While this type of evaluation could raise a potential for conflict, the undersigned is not persuaded that conflict would be substantial.
The position of the Branch Office Supervisor on the Administrative chain of command (below the Administrator and Clinical Coordinator), and testimony concerning personnel decisions in the Center establishes that effective personnel decisions are made at a level higher than the Branch Officer Supervisor.
Testimony also established that Ms. Holland does not exercise day-to-day supervision over the four personnel assigned to her. She testified that a problem regarding a social worker in the branch office would be referred to the Clinical Coordinator (who also performs the functions of Chief Psychiatric Social Worker). It is also apparent that the four social workers perform Clinical Services independently of Ms. Holland; consulting with her only when they experience problems or seek another opinion.
Upon this record, the undersigned is unable to conclude that the potential for conflict of interest raised by the annual evaluations is substantial. Thus the undersigned recommends the inclusion of the position of Branch Office Supervisor in the unit as a non-supervisory professional title.
ASSISTANT CHIEF PSYCHOLOGIST
The Assistant Chief Psychologist, Dr. Fred Hirschberg appears in the administrative hierarchy beneath the Chief Psychologist, whose lines of communication run to the Clinical Coordinator, Medical Director and Administrator. He maintains a clinical caseload and is responsible to review the clinical performance of any staff psychologists assigned to him.⁴⁹^/
An existing job description, P-2 and one prepared in January, 1976, E-3 were introduced into evidence. The main difference between the documents is that E-3 adds participation, by making recommendations, in selection, performance evaluation and termination.⁵⁰^/ However, based upon the record, the undersigned finds that the Assistant Chief Psychologist possesses no direct or effective power to hire, discharge or discipline. The Petitioner introduced two job descriptions into evidence, P-7 and P-8 for the positions of Senior and Staff Psychologist, respectively. Both indicate that both positions are reportable to the Assistant Chief Psychologist.⁵¹^/
Testimony showed no conflict of interest between the Assistant Chief Psychologist and Senior Psychologists, and the undersigned concludes that the two titles would be compatible in a bargaining unit.
Dr. Hirschberg testified at length about two incidents concerning the unsatisfactory clinical performance of a Staff Psychologist assigned to him.⁵²^/ While it was clear from testimony that Dr. Hirschberg did not have direct or effective authority to impose discipline, the undersigned believes that the authority of the Assistant Chief Psychologist vis-a-vis staff psychologists raises a potential for conflict of interest. However, because the potential conflict involves only one title (and at the time of the hearing one person) included in the proposed unit and because the Assistant Chief Psychologist position shown by the record, carries no effective or direct power to make major personnel decisions (such decision being made at a level higher on the Center = s organizational chart), the undersigned concludes that any conflict would not be substantial and the Assistant Chief Psychologist ought to be included in the unit as a non-supervisory, professional title.
CHIEF PSYCHOLOGIST
The Chief Psychologist, Dr. Robert Weiss is responsible for the operations of the Center = s psychologists and psychology interns.⁵³^/ He maintains a clinical caseload and is responsible for the clinical supervision of the Center = s three Senior (Ph.D.) Psychologists, including Dr. Hirschberg, the Assistant Chief Psychologist. The position appears on the Center = s Table of Organization above the Assistant Chief Psychologist with lines of communication running upward to the Clinical Coordinator, Medical Director and Administrator.
Testimony on the title was provided by Dr. Weiss and Administrator Del Sordi. Four job descriptions were received into evidence; E-13, an existing job description, E-14. prepared by Administrator Del Sordi; E-15 a revised description prepared shortly prior to February 2, 1975 and P-6, a description prepared prior to E-14 which was discarded after E-14 was finalized.
Testimony showed that Dr. Weiss has frequently participated in the selection process for psychologists hired by the Center. This participation has taken the form of preparing advertisements to be placed in psychology journals to attract prospective employees to the Center and conducting interviews to screen and evaluate the applicants. However, Dr. Weiss = work in the selection process has not risen to the level of giving him direct or effective power to hire.⁵⁴^/ Other testimony indicated that Dr. Weiss = participation in discipline, also has not shown him to possess direct or effective power in that area.⁵⁵^/ While Dr. Weiss testified that no one from the Psychology Department has been terminated for cause during his tenure, the undersigned doubts that his authority at the Center contains the direct or effective power to terminate.
Clinical services at the Center are provided by professionals in three main disciplines; psychology, psychiatry and social work. Dr. Weiss holds the highest position at the Center among the Psychologists. William Cullinan, the Clinical Coordinator, who also performs the functions of Chief Psychiatric Social Worker, is in a similar position regarding the field of social work, as in the Medical Director vis-a-vis the psychiatrists.⁵⁶^/
Dr. Weiss is responsible for the clinical supervision of three of the four psychiatrists in the departments and has been asked to make an evaluation of psychologists.⁵⁷^/ He was also asked to furnish to the Administrator salary requests from members of his departments.⁵⁸^/
Based upon Dr. Weiss = position as head of the psychology department, his participation in the hiring process, and his responsibility for the clinical performances of the other psychologists employed by the Center, the undersigned concludes that a potential for substantial conflict of interest, as envisioned by the Court in Wilton, supra, exists among Dr. Weiss and the other psychologists employed by the Center.
Accordingly, the undersigned recommends that the position of Chief Psychologist be excluded from the petitioned-for unit for collective negotiations as a supervisory title.
SUMMARY OF SUPERVISORY FINDINGS
The undersigned, based upon an examination of all the evidence in regard to the seven alleged supervisory titles has found in each case that none of the positions contain the direct or effective power to hire, discharge or discipline.
Examination of the record with respect to the titles, Coordinator of Consultation and Education, Unit Supervisor, Partial Hospitalization Coordinator, Branch Office supervisor, and Assistant Chief Psychologist reveals no actual or potential substantial conflict of interest among these respective titles and other professional employees sought to be included in the petitioned-for unit.
With respect to the position of Coordinator of Emergency Services, the undersigned also finds no actual or potential substantial conflict of interest between this title and other professional employees at the Center.
However, as the Center was, at the time of the hearing, preparing to hire full and part-time employees for the Emergency Service program, the undersigned recommended inclusion in the unit of the Emergency Service Coordinator could be modified if it is shown an actual or potential, substantial conflict of interest exists between the title and the new full and part-time employees, provided these employees are professionals, and are thus includable in the petitioned-for unit.⁵⁹^/ If any party believes such conflict exists, then the ballot of the Coordinator of Emergency Services may be challenged in an election.
The evidence with respect to the remaining position, Chief Psychologist, exhibits potential substantial conflict of interest between the position and other professionals in the unit. Therefore, under this Wilton mandated standard, the undersigned finds the Chief Psychologist position to be supervisory.
RECOMMENDATIONS
Based upon the findings it is hereby recommended that an election be directed among the employees in the following unit:
Included: All professionals employed by Somerset County Guidance Center,⁶⁰^/ including but not limited to: full and part- time Psychiatrists, Psychologists, Assistant Chief Psychologist, Psychiatric Social Workers, Graduate Psychiatric Nurses, Senior Psychiatric Social Workers, Occupational Therapist, Recreational Therapist, Mental Health Aides, Coordinator of consultation and Education, Partial Hospitalization Coordinator, Unit Supervisor, Branch Office Supervisor, Coordinator of Emergency Services.
Excluded: All other employees, Administrator, Medical Director, Clinical Coordinator, Chief Psychiatric Social Worker, Psychology Interns, Chief Psychologist, non-professional, clerical, craft and confidential employees, police, managerial executives and supervisors within the meaning of the Employer- Employee Relations Act. The election is to determine whether or not these aforementioned employees with to be represented for purposes of collective negotiations by Professional Employees Association of Somerset County Guidance Center; affiliated with District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. The election should be conducted in accordance with the Rules and Regulations of the Commission.

Respectfully submitted,

/s/Don Horowitz
Hearing Officer

DATED: July 14, 1976
Trenton, New Jersey
1/ At the time the Petition was filed, Petitioner was known as A Professional Employees Association of Somerset County Guidance Center. @ Petitioner = s Counsel moved to amend the Petition during the hearing to reflect the Petitioner = s affiliation with District 1199. Said motion was granted by the Hearing Officer. Tr. 3/11/76 at 2, 54, 55.
2/ The name of the Public Employer was apparently changed after the close of the hearing in Somerset County Mental Health Center (Public Employer = s brief at i.) Since all documents reflect the Public Employer = s former name, and as no motion to amend has been made this report refers to the Public Employer as Somerset County Guidance Center.
3/ The Hearing was scheduled to be held in Trenton, New Jersey, but was moved to Somerville upon the mutual request of the parties and the consent of the Hearing Officer.
4/ Tr. 2/18/76 at 8. It should be noted that the Commission does not consider itself bound by parties = stipulations regarding unit definition. However, the Hearing Officer concurs that the above-defined unit is appropriate, especially in light of N.J.S.A. 34:13A-6(d) which provides:

...except where dictated by established practice, prior agreement or special circumstances, no unit shall be appropriate which includes...both professional and non- professional employees unless a majority of such professional employees vote for inclusion in such unit...

5/ Exhibit E-17.

6/ Tr. 2/18/76 at 9 and 10. The title referred to in issue #1 above was incorrectly spelled. All references hereinafter will be to Mental Health Aides.
7/ Tr. 2/18/76 at 11.
8/ Tr. 2/18/76 at 40.
9/ Mr. Jaglowski testified that he had conducted group therapy himself during a changeover in the position of PH Coordinator, Tr. 2/18/76 at 80.
10/ Tr. 2/18/76 at 42.
11/ Tr. 2/18/76 at 51-52.
12/ Tr. 2/18/76 at 59.
13/ Tr. 2/18/76 at 55.
14/ Tr. 2/18/76 at 78.
15/ The similarity of language and construction of the statutes between the New Jersey Employer-Employee Relations Act and the National Labor Relations Act indicates an intention on the part of the Legislature to use the experience and adjudications of the private sector as a guide in the administration of this Act. Lullo v. International Association of Fire Fighters, 55 N.J. 409 (1970).
16/ Tr. 2/18/76 at 95-97, 99, 101.
17/ Tr. 2/18/76 at 97. The part-time psychiatrists receive his cases from the Branch Office Supervisor, while the full-time psychiatrist take assignments from the Clinical Coordinator. However, the undersigned views this difference solely as a function of the different work sites for the part-time and full-time psychiatrists.
18/ 1 NJPER at 8.
19/ Clearview Regional District Board of Education, E.D. No. 76- 24, 2 NJPER 63 (1976).
20/ N.J.S.A. 34:13A-3(d) defined employee to: A ...include public employee, i.e. any person holding a position by appointment or contract, or employment in the service of a public employer, except elected officials, heads and deputy heads of departments and agencies, and members of boards and commissions, provided that in any school district this shall exclude only the superintendent of schools or other chief administrator of the district. @
21/ In the Matter of State of New Jersey and Professional Association of N.J., Department of Education, 64 N.J. 231 (1974) (State Professional Case).
22/ 64 N.J. at 257.
23/ As there is no existing bargaining relationship between the parties, and because the Center existed as a private, rather than public agency prior to the effective date of L. 1968, c. 303, the exceptions relating to A established practice @ and A prior agreement @ are inapplicable here. Also, no party has urged, nor does the undersigned find that A special circumstances @ exist in relation to the supervisory issues.
24/ Tr. 3/14/76 at 5.
25/ Tr. 3/4/75 at 26.
26/ Tr. 3/4/76 at 30.
27/ Tr. 3/4/76 at 34.
28/ Tr. 3/4/76 at 30, 32.
29/ Tr. 3/4/76 at 22-24.
30/ Tr. 3/4/76 at 35-36.
31/ The testimony of both persons, however, clarified apparent inaccuracies or changes in each of the four descriptions.
32/ Tr. 3/4/76 at 116.
33/ Tr. 3/4/76 at 120.
34/ Tr. 3/4/76 at 122-123.
35/ Tr. 3/4/76 at 122.
36/ Tr. 3/4/76 at 65.
37/ Tr. 3/4/76 at 74.
38/ Tr. 3/4/76 at 93-93. When testimony was presented, it was not known which individuals had been hired for the program.
39/ Tr. 3/4/76 at 85-86, 94.
40/ Tr. 3/4/76 at 96.
41/ Tr. 3/4/76 at 80.
42/ This procedure was utilized under similar circumstances in Jersey City Medical Center, Docket No. RO-503, October 26, 1973, an unpublished decision of the Executive Director (U.D. 37).
43/ Tr. 2/18/76 at 78.
44/ In this regard see the Commission = s decision in City of Camden, Department of Public Safety, Division of Fire, P.E.R.C. No. 52 (1971).
45/ Tr. 3/11/76 at 65; testimony concerning a request for a non- paid day off. As with the position of Unit Supervisor, the PH Coordinator = s limited authority distinguishes the facts in the instant case with those discussed in the supervisory section of Malcolm X Center, supra, discussed in this report, supra, at 18-19.
46/ Tr. 3/11/76 at 30.
47/ Tr. 3/11/76 at 32.
48/ This duty is reflected in all job descriptions and in testimony, Tr. 3/11/76 at 35-36.
49/ He also supervises psychology interns, who are an excluded title and thus no relevant to the determination at hand.
50/ Another difference is that E-3 purports to establish supervisory authority over all psychologists, while P-2 indicates such authority over only staff psychologists.
51/ Both P-7 and P-8 were prepared by Administrator Del Sordi. The undersigned however gives little weight to P-7, P-8 and E-3, based upon their recent vintage, and testimony showing that past practice had been that the Senior Psychologists reported to the Chief Psychologist. Tr. 3/16/76 at 39.
52/ Tr. 3/4/76 at 54-60.
53/ As noted with the previously discussed title, the Chief Psychologists relationship with psychology interns is not of concern here.
54/ Tr. 3/15/76 at 27-30, 42-46.
55/ Tr. 3/16/76 at 26, 46-47.
56/ See testimony of Mary Lou Holland, Tr. 3/11/76 at 52.
57/ Tr. 3/16/76 at 18.
58/ Tr. 3/16/76 at 34 and E. P-9.
59/ In order to determine whether the new, part-time employees (assuming them to be professionals) can vote in the election, the parties = attention is directed to the A regularity of employment @ standard enunciated in Clearview Regional District Board of Education, supra.
60/ Now apparently Somerset County Mental Health Center.

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