D.U.P. NO. 79-4

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BERGEN COUNTY COURT JUDGES,

Respondent,

-and-	Docket No. CO-77-166

LOCAL 1979, COUNCIL 52,

AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES,

AFL-CIO,

Charging Party.

Appearances:

For the Respondent

William F. Hyland, Attorney General of New Jersey

(Melvin E. Mounts, Deputy Attorney General)

For the Charging Party

Roth, Harris & Oxfeld, Esqs.

(Sanford R. Oxfeld, of Counsel)

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on December 22, 1976 and amended on January 7, 1977 by Local 1979, Council 52, American Federation of State, County and Municipal Employees AFL-CIO (the "Charging Party") against the Bergen County Court Judges (the "Respondent") alleging that the Respondent was engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the "Act"), specifically N.J.S.A. 34:13A-5.4(a)(3), (5) and (7).1/

The Charging Party states that it is the exclusive representative of probation officers, senior probation officers and principal probation officers employed by the County Judges, and claims that the County Judges unilaterally increased the salary of a particular probation officer and changed the title of said probation officer without negotiating same with it.

N.J.S.A. 34:13A-5.4(c) sets forth in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. This standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

For the reasons stated below the undersigned has determined that the Commission's complaint issuance standards have not been met.

During the processing of this particular matter, the parties were apprised of a decision of the Supreme Court, Passaic County Probation Officers Association v. County of Passaic, et al., 73 N.J. 247 (1977) and were requested to provide briefs regarding the issues raised by the Court decision as it related to the instant matter. Additionally, the parties were advised that the instant matter would be further held in abeyance pending Commission disposition of a related matter, In re County of Ocean, P.E.R.C. No. 78-49, 4 NJPER 92 (¶4042 1978). Subsequent to the issuance of that Commission decision the parties were again invited by the undersigned to submit any further statements of position and/or briefs detailing the applicability, if any, of the Passaic County and Ocean County cases to the instant matter.

On July 5, 1977, the County Judges submitted a motion to the undersigned urging the dismissal of the Charge. Neither party has submitted any material subsequent to the undersigned's January 31, 1978 letter requesting briefs as to the applicability of the Ocean County matter.

The undersigned has carefully reviewed the allegations of the Charge and has determined that the continued processing of this Charge is controlled by the procedure set forth in the Ocean County determination. In this determination the Commission after analyzing the Passaic County Probation Officers case, stated the following test:

"The Commission, upon receipt of an unfair practice filed by individuals employed within the court system or by majority representatives of such individuals, will first determine whether the actions challenged on their face, concern employees who may be considered to be an 'integral and necessary' part of the judicial system. The Commission will then examine whether the judiciary's constitutional administrative authority to 'make rules governing the administration of all courts in the state' (Article 6, Section 2, Paragraph 3 of the N.J. Constitution) was relied upon in taking the actions that were the subject of a particular charge. The Commission will also consider whether there are pertinent statutory grants of authority over the particular class or classes of affected judicial employees involved in the proceeding or whether the Court Rules adopted by the New Jersey Supreme Court, pursuant to the above cited constitutional directive, refer to specific authorities that members of the judiciary have over these employees. The Commission will also investigate whether there were any Administrative Directives, such as those cited by the Supreme Court in Passaic, supra, that addressed themselves to issues germane to the unfair practice charge. If the Commission is satisfied that the factual and legal circumstances in a case closely parallel those in the Passaic Probation Officers matter, we will refuse to further process the pending charge, will seek withdrawal of that case, and will, absent withdrawal, dismiss the charge for failure to state a claim upon which relief can be granted by the Commission." (Footnote designation omitted).

In applying the above test, the undersigned finds that the employees involved herein, probation officers, are an "integral and necessary" part of the judicial system. Such employees, probation officers, were the subject of the dispute brought before the Supreme Court in the Passaic Probation Officers case. The Motion to Dismiss the instant charge, filed by the County Judges, states that the Judges relied upon their constitutional authority and a Rule of the Court in taking the action which is the subject of the Unfair Practice Charge. More specifically, the County Judges state:

"in the instant matter there can be little doubt that the action herein under challenge was, on its face, taken pursuant to the constitutional authority of the Court. Charging Party alleges violation of the EERA as a result of the designation of Howard Williams as Director of the Pretrial Intervention Program of Bergen County. This designation was made by Court order as issued by the Assignment Judge of the County. The order specifically cites the authority upon which it purports to be based as it is captioned:

In the matter of designation of a Bergen County employee under R.1:33-3 (b). (Ra38)

The cited rule states that:

The Assignment Judge, subject to the approval of the Chief Justice, may delegate to any trial judge sitting in the county or to any officer or employee of the courts of the county such of the responsibilities, duties and functions imposed upon him by this rule as, in his discretion, he shall consider necessary to desirable. To assist him, he may designate to serve at his pleasure, from among the court clerks and other employees of the courts in the county such assignment clerks and other assistants as he may deem necessary or desirable.

It is undisputable, therefore, that the action herein challenged is purported to have been taken pursuant to the courts constitutional administrative authority..."

From the above it is clear to the undersigned that the exclusive representative represents employees who are an "integral and necessary" part of the judicial system, and that in taking action the County Judges relied upon their constitutional authority and a Court Rule.

On June 21, 1978, the undersigned, in accordance with the Commission's directive, requested that the Charging Party withdraw the instant Charge. The Charging Party has not responded to this request, nor has it provided the undersigned with reasons why a complaint should issue. Therefore, the undersigned must at this time decline to issue a complaint for failure to state a claim upon which relief can be granted by the Commission.

Accordingly, for the reasons set forth above, the undersigned declines to issue a complaint in the instant matter.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	August 18, 1978

Trenton, New Jersey