H.O. No. 81-5

Synopsis:

A Commission Hearing Officer finds that therapists, counsellors and psychologists are professional employees but that occupational therapy assistants are not professional employees within the meaning of the Act and recommends that an election be directed among all non-medical professional employees. The finding was based on the definition of professional employee in N.J.A.C. 19:10-1.1 and further defined in In re Jersey City Medical Center, D.R. No. 80-9, 5 NJPER 4156 (¶10230, 1979). The case had been remanded to her after the Director found that professional employees were not already included in an existing collective negotiations unit represented by the intervenor.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The report is submitted to the Director of Representation who reviews the Report, any exceptions 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. The Director's decision is binding upon the parties unless a request for review is filed before the Commission.

PERC Citation:

H.O. No. 81-5, 6 NJPER 471 (¶11240 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

15.24 33.336 34.16 34.43 33.335 34.16 34.42

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HO 81-005.pdf
Appellate Division:
Supreme Court:

H.O. NO. 81-5 1. H.O. NO. 81-5 STATE OF NEW JERSEY BEFORE A HEARING OFFICER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF ESSEX (ESSEX COUNTY HOSPITAL), Public Employer, -and- Docket No. RO-79-52 COUNCIL 52, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner, -and- OVERBROOK EMPLOYEES ASSOCIATION, Intervenor. Appearances: For the Public Employer Grotta, Glassman & Hoffman, P.A. (Thomas J. Savage, of Counsel) For the Petitioner Rothbard, Harris & Oxfeld, Esqs. (Nancy Iris Oxfeld, of Counsel) For the Intervenor Love and Randall, Esqs. (John C. Love, of Counsel) HEARING OFFICER = S REPORT AND RECOMMENDATIONS Pursuant to a decision of the Director of Representation proceedings on March 4, 1980 that the Overbrook Employees Association (the A Association @ or A OEA @ ) does not represent non- medical professional employees of the County of Essex at the County Hospital complex (the A County @ or A Essex County Hospital @ ), the case was remanded to the undersigned for further hearings to determine the professional status of the petitioned- for employees. (See In re County of Essex (Essex County Hospital), D.R. No. 80-26, 6 NJPER 117 ( & 11062 1980).1/ Pursuant to a Notice of Hearing, a further hearing was held on May 29, 1980 before the undersigned Hearing Officer at which all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally.2/ Parties were allowed one month after receipt of the transcript of proceedings in which to file briefs. The transcript was received on June 25, 1980. No briefs were filed. Upon the entire record, the undersigned finds: 1. The County of Essex is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), is the employer of the employees involved herein, and is subject to the provisions of the Act. 2. Council 52, AFSCME, AFL-CIO and the Overbrook Employees Association are employee representatives within the meaning of the Act and are subject to its provisions. 3. The petitioner has filed a petition to represent all non-medical professional employees employed at the Essex County Hospital. The Intervenor represents non-professional employees at the Hospital. The issue placed before the undersigned is whether or not the petitioned-for employees are professional employees as that term is defined in N.J.A.C. 19:10-1.1. 4. N.J.A.C. 19:10-1.1 defines A Professional employee @ as follows: A Professional employee @ means 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 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. Accordingly, a dispute exists concerning the status of employees for a collective negotiations unit and the matter is properly before the undersigned for determination. Positions of the Parties Council 52, AFSCME, AFL-CIO ( A AFSCME @ ) contends that all the petitioned-for titles are professional employees within the meaning of the Act and that the Commission should direct an election in a unit of Non-Medical Professional Employees including all Music, Art and Dance Creative Art Therapists, (including Seniors), Occupational Therapists (including Seniors), Occupational Therapy Assistants, Horticulture Therapists, Recreational Therapists (including Seniors), Vocational Rehabilitation Counsellors (including Seniors), Physical Therapists (including Seniors) and Staff Clinical Psychologists (including Seniors and Principals). The Overbrook Employees Association ( A OEA @ ) which represents a certified unit of A non-professional @ employees at the Essex County Hospital argues that none of the titles are professional titles and that therefore these titles should be included in the non-professional unit they represent. They do not request Intervenor status in the petitioned-for non-medical professional unit. The County has agreed with AFSCME that the psychologist titles are professional.3/ At the hearing prior to the issuance of the initial report, the County argued that the titles petitioned0-for by AFSCME were already represented by OEA and participated in the hearing subsequent to the issuance of the report without taking a position as to whether or not the remaining titles were professional. Background The public employer, Essex County Hospital, is a psychiatric care facility in Essex County.4/ AFSCME has petitioned to represent all unrepresented non-medical professionals employed at the Hospital. (Social workers employed at the Hospital are represented in a collective negotiations unit and are not part of this petition). They have petitioned for psychologists, rehabilitation counsellors and numerous types of therapists, all of whom work with the Psychiatric patients and treat the patients in the Hospital with a view toward improving their mental health and working out mental conflicts and where return to the community is possible, assist in the transition. They work on staff teams with physicians and social workers to develop treatment plans for patients. Nurses, technicians and aides may also participate in staff meetings. Counsellors and therapists work with patients individually and with groups of patients in their individual specialties or modalities. Psychologists will be discussed below. They develop individual treatment programs and goals within their speciality and evaluate the progress of the patients. For example, a creative art therapist - dance, may work with a group of patients in a specific dance program and thereby treat individual patients with observation of the patient, participation with the patient and explanation to the patient in order to promote the patient = s good health and to free the patient from mental conflict in order that the patient can function in society. While there is group participation, there is an individualized course of treatment. (Tr. III - 15). A music therapist might have a group write their own words to a song, and through this modality administer treatment to patients individually to assist their recovery or adjustment. A horticulture therapist uses the modality of plants and thereby plans and administers treatment for patients using therapy principles and practices to aid patients in their recovery or adjustment. (Tr. III - 47). Physical therapists plan and administer individual programs of physical therapy. They administer treatment to patients using physical therapy modalities and physical restorative techniques in order to assist them in their recovery or adjustment. The occupational therapist assists patients in recovery or adjustment by prescribing a regulated work program to promote recovery or rehabilitation. (See C-2 D & E in Evidence, job descriptions of Occupational Therapist and Senior Occupational Therapist). Using the above-described procedures, creative art therapists - use the modality of art, e.g. sculpture, painting and drama, and recreation therapists use recreation activities like gymnasium classes, playroom activities, sports, outdoor and ward recreation, dances and special entertainment to aid patients in recovery or adjustment. The treatment process and job responsibility is basically the same for the different types of therapists, the modality is different. (Tr. III - 49). Rehabilitation Counsellors test, interview and observe patients in order to develop and put into effect individualized programs of rehabilitation that meet patients = abilities and needs. The counsellors evaluate the patients = vocational choices and qualifications and develop programs designed to help patients become employable. They discuss employment possibilities with prospective employers. (Tr. II - 36). They work with patients who cannot be released to develop work for them within the hospital structure, e.g., the hospital greenhouse. (Tr. II - 52). The therapists and counsellors confer with and make recommendations to physicians and other professional personnel regarding the patients = total treatment. AFSCME has also petitioned for the title of Occupational Therapy Assistant. While there are other therapy assistant titles in the Hospital, they have only petitioned for the occupational therapy assistant. The occupational therapy assistant works under the direction of an occupational therapist in treating patients using the therapist = s planned activities. The work requires a practical but not professional knowledge of the concepts, principles and practices of the specialized therapy and does not involve such A professional functions as evaluating or advising on therapeutic techniques and practices or complex diagnostic testing and evaluation. @ (See C-2 in Evidence - job description of occupational therapy assistant). All the therapist titles require a minimum of graduation from a four year course at an accredited college with specific specialization requirements. Some of the titles require additional professional experience or advanced degrees or professional certification. The senior titles require additional experience in their respective fields. In the fields of rehabilitation, creative art, music and recreation, applicants who do not meet the educational requirement may substitute experience in a therapy program on a year for year basis. There is no college requirement for occupational therapy assistant; only a requirement of one year = s work experience in the field. The Issue Are the petitioned-for employees professional employees within the meaning of the Act? Discussion and Analysis The Overbrook Employees Association was certified as the majority representative of non-professional employees at the Hospital (Commission Docket No. R-62). This certification was issued following a directed election resulting from a Commission hearing in which the OEA and the County Participated. At that hearing all parties stipulated that the titles of (Staff) Clinical Psychologist, Senior Clinical Psychologist and Principal Psychologist were professional employees. I find, therefore, as noted in the record (Tr. III - 2) and in accordance with the stipulation, that the three titles are professional titles within the meaning of the Act.5/ The Act establishes three basic elements in defining professional employees. Those elements are that the work performed is (1) predominantly intellectual and varied in character; (2) requires the consistent exercise of discretion and judgment and (3) requires knowledge of an advanced nature in a particular field.6/ The OEA points out that all hospital employees help patients prepare to function in society. They argue that therapists work under the direction of doctors to help patients recover and that hospital attendants and psychiatric technicians basically do the same thing and that the only difference is the therapists have a college degree. (Tr. III - 77). All hospital employees have a community of interest in that their primary goal is the recovery and adjustment of patients. some of the employees are professional and some are non- professional as well as many other categories of employees in a labor relations context and within the meaning of the Act. OEA raises community of interest arguments that are not dispositive in determining whether or not the employees are professional within the above criteria. OEA does not represent professional employees. AFSCME has petitioned for an appropriate unit consisting of all professional employees employed at the hospital and the appropriateness of that unit has not been questioned. I find that all the therapists and the counsellors are professional employees within the meaning of the Act. All the titles have educational requirements that meet the Act = s requirement that professional employees have A knowledge of an advanced nature in the field of physical, biological or social sciences, or in the field of learning... @ Their work is predominantly intellectual and varied in character in the application of their training and experience to treating patients and evaluating their progress. Their discretion and judgment are called upon in treating patients in a group, in treating patients individually and in dealing with other professionals on their teams. The professional status of therapists and counsellors is particularly clear when their duties are compared and contrasted with the duties of occupational therapy assistants whom I find not to be professional employees within the meaning of the Act. As noted above, the occupational therapy assistants = job description requires the assistant to have a A practical and not professional knowledge of the concepts, principles and practices of the specialized therapy. @ Furthermore, the assistants = duties do not involve such A professional @ functions as evaluation and advising on therapeutic techniques and practices in complex diagnostic testing and evaluation. The job description of the occupational therapy assistant describes the A professional @ duties that the assistant does not perform but that the therapists and counsellors do. Recommendations For the reasons stated above, the undersigned recommends that an election be directed among: all principal clinical psychologists, senior clinical psychologists, staff clinical psychologists, senior music therapist, music therapists, senior creative art therapists - dance and art, creative art therapist - dance and art, occupational therapists, senior occupational therapists, horticultural therapists, recreational therapists, senior recreational therapists, senior rehabilitation counsellors, rehabilitation counsellors, senior physical therapists and physical therapists to determine whether the employees desire to be represented by Petitioner for the purposes of collective negotiations. Respectfully submitted Joan Kane Josephson Hearing Officer DATED: September 4, 1980 Trenton, New Jersey 1/ A Petition for Certification of Public Employee Representative supported by an adequate showing of interest was filed with the Public Employment Relations Commission seeking to represent non-medical professional employees at the Essex County Hospital. After two days of hearings, the parties jointly requested a limited hearing and interim decision as to whether or not the Overbrook Employees Association represented the petitioned-for professional employees. 2/ Prior to the bifurcation of these proceedings a previously assigned Commission Hearing Officer held two days of hearings dealing with the professional status of some of the petitioned-for employees. Because of the unavailability of the previously assigned Hearing Officer, the Commission appointed the undersigned Hearing Officer pursuant to N.J.A.C. 19:11-6.4. All three transcripts will be considered in this report. Transcript references will be as follows: October 24, 1978 hearing I - page reference, October 25, 1978 hearing II - page reference and May 29, 1980 hearing III - page reference. 3/ This position was posited in a brief filed with the undersigned prior to the issuance of the initial report. 4/ There are facilities at three locations: Overbrook Hospital at Cedar Grove, Essex County Hospital at Belleville and the Sanitarium at Verona and they are collectively referred to as A Essex County Hospital. @ 5/ The title of principal clinical psychologist was not included in the original petition; however, that title was added to the petitioned-for titles at the hearing on October 24, 1978 and the job description covering that title was introduced into evidence (C-2P) with the other job descriptions. On November 8, 1978 all parties formally consented to the titles petitioned-for when they agreed to bifurcation of the proceedings. This list included principal clinical psychologist. (See C-3 in Evidence). 6/ See In re Jersey City Medical Center, D.R. No. 80-9 5 NJPER 456 ( & 10230 1979). ***** End of HO 81-5 *****