D.R. NO. 82-6

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RUTGERS, THE STATE UNIVERSITY,

Public Employer,

-and-	Docket No. RO-79-187

ASSOCIATION OF RESIDENCE

COUNSELORS OF RUTGERS COLLEGE,

Petitioner.

Appearances:

For the Public Employer, Pitney, Hardin & Kipp, Esqs.

(S. Joseph Fortunato, of Counsel; Nancy Adams on the

brief)

For the Petitioner, Mr. Jack LeClair, President,

Association of Residence Counselors

DECISION

On March 26, 1979, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the "Commission") by the Association of Residence Counselors of Rutgers University (the "Association") seeking to represent all residence counselors employed by Rutgers University through the Rutgers College Dean of Students Office ("Rutgers"). Rutgers objected to the holding of an election among these employees, asserting that they are not employees as defined by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act") and are thus excluded from the rights of self-organization and collective negotiation granted to public employees by the Act.

Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer Dennis Alessi on January 21, 22 and 23, 1980 and February 22, 1980. At the outset of these hearings the parties agreed, with the approval of the undersigned, that the Hearing Officer "would initially hear the question concerning whether or not these people [i.e., the residence counselors] are employees, and subsequent to that determination, if necessary, we would then at a separate hearing consider the question as to whether or not the unit of Petitioner [the Association] is appropriate."1/ At these hearings, the parties were given opportunities to examine witnesses, present relevant evidence and argue orally. Both parties submitted post-hearing briefs. Subsequently, on October 10, 1980, Hearing Officer Alessi resigned from the agency and the undersigned, pursuant to N.J.A.C. 19:11-6.4, designated Hearing Officer Robert E. Anderson to issue a Report and Recommendation on the record as made. The Hearing Officer issued his Report and Recommendations on October 31, 1980, H.O. No. 81-6, 6 NJPER 575 (¶11291 1980), a copy of which is attached hereto and made a part hereof. On December 1, 1980, Rutgers filed exceptions to the Hearing Officer's Report.

The undersigned has considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, exhibits, factual stipulations and exceptions, and on the basis thereof, finds and determines as follows:

1.	The Rutgers College Dean of Students Office, Rutgers - The State University, is a public employer within the meaning of the Act, is the employer of the employees who are the subject of this Petition, and is subject to the provisions of the Act.

2.	The Association of Residence Counselors of Rutgers College seeks to represent a unit of residence counselors in collective negotiations with Rutgers pursuant to the Act.

3.	Rutgers asserts that the residence counselors are not employees within the meaning of the Act and that the Association is not an employee representative within the meaning of the Act, contentions which the Association disputes.

4.	The Hearing Officer concluded that the residence counselors are public employees and that the Association is an employee representative within the meaning of the Act. The Hearing Officer reserved judgment on the question of whether or not a unit of residence counselors would effectuate the purposes of the Act, and recommended that this question be considered at a subsequent hearing. In so ruling, the Hearing Officer concluded that Rutgers had not made public policy arguments sufficient to warrant dismissal of the Association's petition.

5.	Rutgers has excepted to the Hearing Officer's findings of fact and conclusions of law. Specifically, Rutgers contends that the Hearing Officer erred in finding that the residence counselors are public employees and that the Association is an employee representative within the meaning of the Act. Rutgers also excepts to the Hearing Officer's recommendation that Rutgers has not adduced public policy reasons sufficient to warrant the conclusion that these employees are not entitled to rights of self-organization and collective negotiations.

Having reviewed the entire record, including Rutgers' exceptions, the undersigned adopts the Hearing Officer's findings of fact and recommended conclusions that the residence counselors are employees within the meaning of the Act. However, for the reasons cited below, the undersigned concludes that public policy considerations compel a findings that the residence counselors herein can only be accorded limited rights under the Act, and that those rights do not include representation by the Association for the purpose of collective negotiations. Accordingly, the undersigned determines that the petition must therefore be dismissed.

The residence counselors at Rutgers are graduate students who perform a variety of student-related and administrative responsibilities that range from counseling students and helping them adjust to college life to supervising, opening and closing dormitories at assigned times. In return for these services, the residence counselors receive tuition remission for up to 24 credit hours per year, as well as a stipend of $3,500 for the first year, $3,750 the second year and $4,000 the third year (residence counselors are limited to a maximum of three one-year appointments). In addition, the residence counselors receive rent-free furnished living accommodations which they must reside in, and a campus telephone. Residence counselors receive neither health insurance nor pension benefits from Rutgers and Rutgers deducts federal income tax and social security payments from their bi-weekly paychecks.2/

The Act defines "employee" as follows:

The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer unless this Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of or in connection with any current labor dispute or because of any unfair practice and who has not obtained any other regular and substantially equivalent employment. This term, however, shall not include any individual employed by his parent or spouse, or in the domestic service of any person in the home of the employer, or employed by any company owning or operating a railroad or railway express subject to the provisions of the Railway Labor Act. This term shall include any 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, members of boards and commissions, managerial executives and confidential employees. N.J.S.A. 34:13A-3(d).

The definition is very broad, and its exceptions are very specific. Rutgers does not argue that the residence counselors herein fall within the enumerated exceptions; instead, Rutgers urges that public policy concerns, including the importance of preserving the relationship between Rutgers and its students, compel a finding that the residence counselors are not employees within the meaning of the Act. The undersigned determines that the public policy arguments advanced by Rutgers are not relevant to the determination of public employee status, as defined by the Act, although these arguments are considered below in another context.

The determination of the status of the residence counselors are employees within the meaning of the Act is based on the statutory definition, buttressed by guidance from relevant private sector case law. Upon examination of the statutory definition of employee, there is nothing therein to suggest that the residence counselors are not employees within the meaning of the Act. The residence counselors are clearly appointed to positions in the service of a public employer, and do not fall within any of the statutory exceptions. It is important to note that the Legislature did not specifically exclude students from employee status. The undersigned concludes the terms "student" and "employee" are not mutually exclusive under the Act.

Moreover, a review of private sector case law indicates the residence counselors herein are the kind of students whom the National Labor Relations Board has recognized to be employees under the National Labor Relations Act.3/ In this connection, the undersigned endorses the analysis of the NLRB case law by the Hearing Officer below.

The Board has denied employee status under the NLRA to students who worked as research assistants,4/ interns,5/ residents6/ and clinical fellows.7/ The central thread running through these decisions is the Board's finding that all of these various types of students either received academic credit for their employment or were required to complete their employment to qualify for certifications in specialties or subspecialties. In this sense, the above-enumerated student groups were primarily interested in their academic status and secondarily interested in their employment qua employment. It is noteworthy that income derived in such pursuits is often not taxable under the Internal Revenue Code, Section 117(b). However, when the Board has found that no connection exists between the students' employment and their academic credit or certification, employee status under the NLRA will not be denied.8/

The undersigned adopts the Hearing Officer's factual finding that "there is no more than a de minimis showing that the work performed by the residence counselors related to the academic degree program for graduate students...and the mutual interests of the residence counselors and Rutgers in the ungraded and fully compensated services being rendered must be considered predominantly, if not exclusively, economic rather than academic." Applying NLRB case law to this factual finding, and with the definition of "employee" in our Act not to the contrary, the undersigned concludes that the residence counselors are employees within the meaning of the Act.

The undersigned now turns to the remaining conclusions of law made by the Hearing Officer. The Hearing Officer determined that since the residence counselors were employees within the meaning of the Act, the Association was necessarily an employee representative under the Act. The Hearing Officer reserved judgment on another legal question: whether or not a unit of residence counselors would effectuate the purposes of the Act.

Whereas the Hearing Officer reserved judgment on the latter legal question, the undersigned finds that it is appropriate to make that determination at this juncture based on the public policy arguments amply litigated and briefed by the parties herein. For the reasons cited below, the undersigned determines that a unit of Residence Counselors would not effectuate the purposes of the Act, and therefore dismisses the instant petition.

The Commission has previously held that although individuals might be employees under the Act, nonetheless, circumstances might exist whereby those employees are not entitled to organize and collectively negotiate pursuant to the Act. In State of New Jersey, E.D. No. 67, 1 NJPER 2 (1975), the Commission's Executive Director considered the negotiations rights of consulting physicians employed by the State on a part-time basis. Initially, the Executive Director determined that the consulting physicians could not be "excluded from the definition of public employee." State of New Jersey, supra, at 2 NJPER 7. Based on his findings that the consulting physicians had flexible, inconsistent hours which they scheduled around their private practices, and that the pursuit of their private practices remained their top priority, the Executive Director concluded:

Their 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.

In an analogous case involving students, the NLRB reached a conclusion similar to that of the Executive Director in State of New Jersey, supra. In San Francisco Art Institute, supra, the NLRB considered a representation petition filed by a group of students who also functioned as janitors and reached the following conclusion:

The resolution of this question turns on whether the student janitors manifest a sufficient interest in their conditions of employment to warrant representation in a separate unit.

Upon close consideration of the matter, we are of the opinion that it will not effectuate the policies of the Act to direct an election in a unit consisting of student janitors only. We are influenced in our decision chiefly by the brief nature of the students' employment tenure, by the nature of compensation for some of the students, and by the fact that students are concerned primarily with their studies rather than with their part-time employment. In our view, the student janitors are best likened to temporary or casual employees, whose certification would predictably present unusually vexsome problems. For instance, owing to the rapid turnover that regularly and naturally occurs among student janitors, it is quite possible that by the time an election were conducted and the results certified the composition of the unit would have changed substantially.

*	*	*

The fact that the student janitors who presently seek representation attend the institution for which they work brings into sharp and special focus the very tenuous secondary interest that these students have in their part-time employment. By contrast, were these same students working for a commercial employer, the insubstantiality of their employment interest could not so readily be deduced. Accordingly, for the foregoing reasons, we find that a unit of student janitors only is not appropriate for the purposes of collective bargaining.

The facts of the instant matter, as found by the Hearing Officer and adopted by the undersigned, bespeak a situation similar to those in State of New Jersey, supra, and San Francisco Art Institute, supra, and call for a similar result. The residence counselors herein work variable hours,9/ tailor their scheduled to meet their academic requirements.,10/ and must be concerned primarily with their academic commitments rather than their part-time employment (i.e., if a residence counselor is dropped from his/her graduate program of study, and is no longer enrolled at Rutgers, he/she is ineligible to be a residence counselor).11/ Moreover, in those instances where a student must contend with certain academic obligations, the requirements of his part-time employment are waived or relaxed.12/

Under established Board law the determination of whether student or other part-time employees are entitled to collective-
bargaining representation depends upon whether the nature of their employment gives them a sufficient interest in wages, hours, and other working conditions to justify such representation. The sufficiency of this interest will ordinarily turn upon such factors as continuity of employment, regularity of work, the relationship of the work performed to the needs of the employer, and the substantiality of their hours of work. San Francisco Art Institute, supra, at page 1508 (dissenting opinion).

The factors cited above indicate that the work performed by the residence counselors is not regular, but rather sporadic, and that the relationship of the work performed to the needs of the employer is secondary to the employer's concern for the academic obligations of the employees as students. The continuity of employment of the residence counselors over the last five years is measured by an annual turnover rate of 45 to 50%.13/ The substantiality of the residence counselors' hours of work was estimated at an average of 17 hours per week.14/

The totality of these circumstances indicates that the residence counselors do not possess sufficient interest in their employment relationship with Rutgers to warrant the right to collective negotiations under the Act. This is not to say that any one of the above-enumerated factors, standing alone, would indicate an insufficient interest in an employment relationship. Nor does the finding here stand for the proposition that student employees, per se, are ineligible for collective negotiations under the Act.

For the reasons stated above, the undersigned concludes that the residence counselors do not manifest a sufficient interest in their employment relationship with Rutgers to warrant the full rights accorded to employees under the Act. Therefore, while the undersigned adopts the Hearing Officer's conclusions that the residence counselors are employees under the Act, the undersigned declines to adopt the remainder of the Hearing Officer's recommendations. Instead, the undersigned concludes that it would not effectuate the purposes of the Act to grant the residence counselors herein the right to collectively negotiate pursuant to the Act, and hereby dismisses the instant petition.

BY ORDER OF THE

DIRECTOR OF REPRESENTATION

Carl Kurtzman, Director

DATED:	August 7, 1981

Trenton, New Jersey