Decisions

H.O. No. 79-7

Synopsis:

In a Clarification of Unit Petition, a Commission Hearing Officer finds that the community mental health worker, emergency room, is a professional job title, and that counselor and team leader are not professional job titles. Therefore, it is recommended by District 1199J be clarified to include the title of community mental health worker, emergency room, and that the unit represented by AFSCME be clarified to include the titles of counselor and team leader.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Report and Recommendations, any exception thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Officer's findings of fact and/or conclusions of law.

PERC Citation:

H.O. No. 79-7, 5 NJPER 242 (ś10137 1979)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

33.333 33.336 34.4

Issues:

Decisions WordPerfect PDF

NJ PERC: . - HO 79-007.pdf

Appellate Division:

Supreme Court:

H.O. NO. 79-7 1.
H.O. NO. 79-7

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

In the Matter of

JERSEY CITY MEDICAL CENTER,

Public Employer-Petitioner,

-and- Docket No. CU-79-4

DISTRICT 1199J, NATIONAL UNION OF
HOSPITAL AND HEALTH CARE EMPLOYEES,
RWDSU, AFL-CIO,

Employee Organization,

-and-

AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES, AFL-CIO, LOC. 2254,

Employee Organization.

Appearances:

For the Petitioner
Lamb, Hutchinson, Chappell, Ryan & Hartung
(Joseph T. Ryan, of Counsel)

For District 1199J
Greenberg, Margolis and Ziegler, PA
(Philip Freedman and Arthur S. Kramer, of Counsel)

For A.F.S.C.M.E.
Vincent Griese

HEARING OFFICER = S REPORT AND RECOMMENDATION

On August 7, 1978, a Clarification of Unit Petition was filed with the Public Employment Relations Commission by the Jersey City Medical Center (the A Center @ ). The petition sought to clarify the unit placement of three titles.
District 1199J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO ( A District 1199J @ ) which currently represents a unit of all professional employees employed by the Center contends that these titles are professional employees within the meaning of the Act and are appropriately included in the unit District 1199J represents. AFSCME, AFL-CIO, Local 2254, ( A AFSCME @ ) which currently represents a unit of all blue and white collar employees by the Center alleges that if these titles are not professional titles, then the titles are appropriately included in the unit AFSCME represents.
Pursuant to a Notice of Hearing, a hearing was held before the undersigned Hearing Officer on December 11, 1978. During the hearing, all parties were given the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. In accordance with the request of District 1199J and the consent of the Center and AFSCME, an extension to file briefs was granted. All briefs were filed by February 22, 1979. AFSCME did not file a brief.
Upon the entire record in this proceeding, the Hearing Officer finds:
(1) District 1199J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, and AFSCME, AFL-CIO, Local 2254 are employee organizations within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., (the A Act @ ) and is subject to its provisions.
(2) The Jersey City Medical Center is the employer of the employees involved herein, is a public employer within the meaning of the Act and is subject to its provisions.
(3) The titles in question are (a) community mental health worker, emergency room, (b) counselor, adult partial hospitalization unit and (c) team leader, children = s partial hospitalization unit.
(4) On March 15, 1978, District 1199J was certified as exclusive representative of a unit of all full-time and regular part-time professional employees employed by the Center.
(5) On November 13, 1974, AFSCME was certified as exclusive representative of a unit of all blue and white collar employees employed by the Center.
BACKGROUND
Individuals who hold the title of community mental health worker, emergency room (herein ER worker) perform their duties and functions in the emergency room. Patients who enter the emergency room whether for physical or mental problems are initially given a physical examination by a medical doctor. At the discretion of the medical doctor, the patient is referred to the ER worker.
The ER worker interviews the patient for A the purpose of evaluating mental status, family background, development history, and medical history. @ ¹^/ The ER worker evaluates this information and formulates a recommendation. The types of recommendation include referral of the patient to another service of the hospital (e.g. in-patient hospitalization, out-patient clinic, psychiatric unit) or referral to a community agency (e.g. Planned Parenthood). Final decisions with respect to a patient are not made by the ER worker, but are discussed with the emergency room doctor or with a psychiatrist if the recommendation is to admit the patient to the hospital.
The Center provides an 80 hour training session for the
ER workers. In addition, there are once a week staff meetings to discuss problems. The educational background of the ER workers ranges from matriculating towards a bachelor of arts degree is psychology to having received a masters degree in psychology.²^/ The official job description³^/ states that prior work experience is psychiatric patients is preferred. Other factors considered are life experience and educational background in a health related field.
The second title is counselor, adult partial hospitalization unit (herein Counselor).⁴^/ The staff of the adult partial hospitalization unit consists of a director, a psychologist, two psychiatric nurses, a vocational rehabilitation counselor, an art therapist and three counselors.⁵^/ The staff meets twice a week to discuss specific problems and to plan activities. The opinions of the counselors are to solicit to determine further treatment. Final decision with respect to treatment are not made by the counselors.
The counselors, as do the nurses, the therapist and the vocational rehabilitation counselor, have a caseload of ten to fifteen people. The responsibility attached to this caseload is to record weekly observations of the patients. With respect to all the patients and not limited to an individual = s caseload, counselor conduct activities such as cooking, sewing, arts and crafts, and photography. Additionally, counselors might take patients to the bank or supermarket to help them adjust to everyday living. Counselors have also conducted visits to patients = homes to observe the family situation.
The testimony of various witnesses leads to a certain amount of discrepancy concerning the conduct of group therapy sessions. The Director, Dr. Candela, conceded that counselors do have group meetings of patients,⁶^/ but he would not characterize them as group therapy. On the other hand, Edith Simkins, a counselor, testified that the purpose of these group meetings is to prepare the patients to become functioning members of the community, and as a result, is therapeutic.⁷^/
The job description does not require any specific educational background, but prior experience with psychiatric patients is required. This job was advertised in the New York Times newspaper and it stated that the Center was seeking an individual with A some college background. @ ⁸^/ Of the three counselors, only one individual has some American college background.⁹^/ The counselors receive on the job training for one month. This is taught by the staff of the adult partial hospitalization unit which might lead to an experienced counselor teaching a recently hired counselor.
The third title is team leader, children = s partial hospitalization unit. The staff consists of a coordinator, a staff psychiatrist, a primary therapist, a psychiatric nurse, two teachers and four team leaders. In most respects, team leaders have very similar functions that counselors do. Instead of adults, the patients are children who have been referred to the unit by the school the child attends. There is a relationship with the Jersey City board of Education which provides two teachers who teach academic subjects. The team leaders provide instruction of non-academic subjects¹⁰^/ in a group setting similar to activities conducted by counselors with adults.
The team leaders, as do the counselors, have a caseload. This requires that a team leader record observations of five or six children which will be utilizing in determining further treatment. There are bi-weekly staff meetings at which a treatment plan is developed for each child. The team leader has input in this process.
The job requires only a high school diploma. Some of the team leaders have bachelor = s degrees.
POSITION OF THE PARTIES
The Center alleges that none of the employees in these three titles are professional employees. Citing the N.J. Supreme Court = s directive to consider federal precedent,¹¹^/ the Center refers to the National Labor Relations Board cases where employees with similar duties to the duties of the three titles herein were found not to be professional employees.¹²^/
It is the position of District 1199J that the employees in the three disputed titles are professional employees. District 1199J alleges that the duties of all three jobs fall within the definition of professional employees within the meaning of the Act.¹³^/
AFSCME contends that if these employees are professional employees, then the titles are appropriately in the unit currently represented by District 1199J. If not, AFSCME should represent these employees.
DISCUSSION
The instant issue is whether the employees in the three disputed titles are professional employees within the meaning of the Act.¹⁴^/ The definition of the Act of a professional employee establishes three elements. These elements are that the work performed is (1) intellectual and varied, (2) requires the consistent exercise of discretion and judgment, and (3) requires knowledge of an advanced nature in a particular field.
The nature of the responsibilities and the relative independence in the performance of their jobs leads to the finding that the ER workers are professional employees. The ER workers make independent judgements with respect to treatment of patients.¹⁵^/ Their work is virtually unsupervised. They are confronted with patients with a wide variety of problems. After interviewing the patients, the ER worker must make an independent judgement as to treatment. The ER worker must decide whether to refer the patients to one of the services of the hospital or to an outside agency. The ER worker, at times, suggests to the emergency room doctor the prescription of medication.¹⁶^/ The only time a judgement as to further treatment by an ER worker receives serious scrutiny is if the recommendation is to admit the patient to the hospital. That decision is reviewed merely by a telephone conversation between the ER worker and a psychiatrist. The psychiatrist rarely overrules the decision to admit the patient without first interviewing the patient personally.¹⁷^/
Though not required by the Center, all but one of the ER workers has at least a bachelor = s level degree in psychology.¹⁸^/ this fact cannot be disregarded especially in light of the fact that prior to the fall of 1978, a master = s level psychologist performed the functions that the ER workers currently do.¹⁹^/ The functions performed by the ER workers certainly requires advanced knowledge. The judgements made involve an analysis of the information gathered by the ER worker. It is difficult to imagine how an ER worker without any training could make a judgement as to the treatment of a patient. The information gathering might be standardized (e.g. the question asked of a patient), yet, the ability to analyze that information and determine a course of treatment requires some advanced training.
Therefore, due to the variety of patients = problems the ER workers face, the independent judgement they exercise in relation to these problems, and their educational background, the undersigned finds that the ER workers are professional employees and that the unit represented by District 1199J should be clarified to include this title.
The job function of the counselors and the team leaders are quite similar. Both work in conjunction with other professionals (e.g. nurses, teachers, psychiatrists). Both conduct activities which have some therapeutic value²⁰^/ and are responsible for recording data to aid in further treatment of the patients.
From the record as a whole, there is no doubt that the counselors in the adult unit and the team leaders in the children = s unit spend most of the time in direct contact with the patients.
Yet, the undersigned finds that the role of the counselors and team leaders is to gather information and to monitor progress. While they do have input into weekly staff meetings, the counselors and team leaders are not making final decisions as to treatment, nor do they work without supervision.
In the children = s unit, the children are taught daily by certified teachers and are seen by a primary therapist at least one per week.²¹^/ The remainder of the time, the team leaders are responsible to conduct activities. District 1199J contends that these activities have a therapeutic value and that this therapeutic quality of the work performed by the team leaders is the type of work performed by a professional employee. Yet, it appears that every activity has therapeutic value. The therapeutic value of work performed does not, in and of itself, raise the work performed to the level of a professional worker. In fact, Carol Turano, Coordinator of the Children = s Partial Hospitalization and a witness for District 1199J, testified that routine administration of medication by nurses has a therapeutic value.²²^/
The work performed by the team leaders does not appear to require knowledge of advanced nature. The knowledge requires is the ability to conduct an activity. Team leaders teach activities in fields of their own knowledge. Teaching children, carpentry, arts and crafts, or acting is not the type of advanced knowledge required by the Act. This is not to say that the functions of the team leaders is not difficult, but the work performed does not warrant a finding that the team leaders are professional employees.
Likewise, the undersigned finds that the counselors are responsible for monitoring progress, rather than exercising judgement with respect to the adults in their unit of the hospital. Because of the great amount of contact with the patients, the counselors, as do the team leaders, are in a critical position to observe and record the actions and progress of the patients. The undersigned, though, finds that these duties do not require that exercise of judgement by a professional employee as envisioned by the Act. The counselors are responsible for helping the patients to cope with every day living. For example, they take the patients to supermarkets, to banks and to apply for welfare assistance. They also teach cooking and sewing classes. Certainly, the recording of these events by the counselors aid in determining further treatment, but the counselors do not have the authority to make independent judgements. The work performed does not require advanced knowledge. In fact, none of the current employees has any education or training in this field.
In conclusion, it is noted that the work performed by the counselors and team leaders is varied. It is acknowledged that the counselors and team leaders are an important cog in their respective units of the hospital. By the very fact that they work with psychiatric patients, it is obvious that they must confront various problems and crises. This might qualify the work as varied as required by the definition of a professional employee; but, the undersigned finds that the other two elements, the exercise of discretionary judgement and the requirement of advanced knowledge, are lacking. The bulk of the work consists of the direction of activities and the recording of observations. Though these are key responsibilities with respect to the care of the patients, this work is routine and does not meet all the requirements of the definition of a professional employee.
RECOMMENDATIONS
For the above stated reasons, the Hearing Officer recommends that the unit currently represented by District 1199J, be clarified to include the title of community mental health worker, emergency room. It is further recommended that the unit currently represented by AFSCME be clarified to include the titles of counselor and team leader.
Respectfully submitted,

Bruce D. Leder
Hearing Officer

DATED: May 30, 1979
Trenton, New Jersey
1/ Tr. p. 62.
2/ Tr. p. 127.
3/ Exhibit J-2.
4/ This unit of the hospital provides treatment for psychotic patients from 9 a.m. - 3:30 p.m.
5/ A fourth position as counselor is currently vacant.
6/ Tr. p. 49.
7/ Tr. p. 136.
8/ Exhibit R-1.
9/ One counselor has an associate of science degree and is working toward a BA in psychology. Another has a teaching certificate from Cuba, and the third has a high school diploma.
10/ The activities include carpentry and recreation.
11/ Lullo v. International Association of Fire Fighters, 55 N.J. 409 (1970).
12/ Lakeshore Manor Inc., 225 NLRB 908 (1976), Sodat Inc., 218 NLRB 1327 (1975), Barnert Memorial Hospital, 217 NLRB 775 (1975).
13/ N.J.A.C. 19:10-1.1.
14/ Id.
15/ Tr. pp. 63, 64.
16/ Tr. pp. 122, 123.
17/ Tr. pp. 110, 111.
18/ The one ER worker who does not have a degree is working toward a degree in psychology.
19/ Tr. p. 65.
20/ Dr. Hill, Administrative Director of Child Psychiatry, testified that the team leaders conduct activities which are therapeutic, T. 33. Dr. Candela, Director of the Adult Partial Hospitalization, similarly testified with respect to the counselors, T. 56.
21/ Tr. p. 98.
22/ Tr. p. 99.

***** End of HO 79-7 *****