D.R. NO. 77-17

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

NEW JERSEY STATE COLLEGE OF

MEDICINE AND DENTISTRY,

Public Employer,

-and-	Docket No. RO-76-9

NEW JERSEY SOCIETY OF HOSPITAL

PHARMACISTS,

Petitioner.

Appearances:

For the Public Employer, William F. Hyland, Esq.

Attorney General of New Jersey

By: Guy S. Michael

For the Petitioner, Harper, McCoy & O'Brien, Esqs.

By: John J. Harper, Esq.

DECISION

Pursuant to a Notice of Hearing to resolve a question concerning the representation of public employees, a hearing was held on February 10, March 10 and 11, 1976, before Hearing Officer Leo M. Rose, at which all parties were given an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. Post-hearing briefs were filed by both the Petitioner and the Public Employer.

Thereafter, on July 28, 1976, the Hearing Officer issued his Report and Recommendations (H.O. No. 77-2), a copy of which is attached hereto and made a part hereof. On August 18, 1976, the Public Employer, New Jersey State College of Medicine and Dentistry, filed limited exceptions to the Hearing Officer's Report and Recommendations, and on August 20, 1976, the Petitioner, New Jersey Society of Hospital Pharmacists, filed its exceptions to the Hearing Officer's Report and Recommendations. Thereafter, on August 27, 1976, the Public Employer filed its response to the Petitioner's exceptions and supporting brief. The undersigned has carefully considered the entire record in the proceeding including the Hearing Officer's Report and Recommendations and the exceptions, and on the facts in this case finds and determines as follows:

1.	The New Jersey State College of Medicine and Dentistry (hereinafter the "College") is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the "Act"), N.J.S.A. 34:13A-1.1 et seq., as amended, and is subject to its provisions.*

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* The State in its exceptions to the Hearing Officer's Report acknowledges the public employer status of the College, but states in clarification of its position that "The State agrees that the College is a public employer but only to the extent that it comprises a constuent part of the State Department of Higher Education within the Executive Branch of State government." The undersigned need not examine this position for purposes of the instant determination.

2.	The New Jersey Society of Hospital Pharmacists (the "Society") is an employee representative within the meaning of the Act and is subject to its provisions.

3.	A request for recognition was made by the Society on June 30, 1975, and although the College itself did not reply, the State Office of Employee Relations advised the Society to file with this Commission. Thereafter, on July 14, 1975, a Petition for Certification of Public Employee Representative, supported by a valid showing of interest, was filed by the Society.

4.	The Society seeks to represent a unit of 18 full-time and part-time pharmacists including staff pharmacists, chief pharmacists, and a supervisor of pharmaceutical services, who are employed by the College at the College's three facilities: Martland Hospital (Newark), Raritan Valley Hospital (Green Brook), and Rutgers Medical School, Institute of Mental Health Science (Piscataway).

5.	The College objects to the proposed unit as being inappropriate, and argues that the appropriate unit would be a broad-based unit of professionals which would include pharmacists as well as many other professional titles. Moreover, the College objects to the inclusion of supervisory titles and to the inclusion of part-time employees in the proposed unit.

6.	Accordingly, a valid petition for certification of public employee representative having been filed, and there existing a dispute as to the appropriateness of the proposed unit, the matter is appropriately before the undersigned for determination.

The Hearing Officer considered three major issues in this matter. First, the threshold question, is a "college-wide" unit of pharmacists the most appropriate collective negotiations unit within the factual context of this case? Second, assuming the proposed unit is found to be appropriate, are certain titles proposed to be included in the unit actually supervisors within the meaning of the Act? Third, also assuming the proposed unit is found to be appropriate, should certain part-time employees be included in the unit?

The Hearing Officer recommended that the proposed unit was inappropriate because the approval of the instant petition could lead to a proliferation of units among professionals. He further found that the chief pharmacists and the supervisor of pharmaceutical services are supervisors within the meaning of the Act and thus barred from any but a supervisors unit. Finally, he found that the part-time employees should be included in a proposed unit, should the petition eventually be approved.

The Society first excepts to the Hearing Officer's finding that only a college-wide unit of professional employees was appropriate. The Society argues that the Hearing Officer was only speculating that the proposed unit would cause fragmentation in the negotiations process,1/ and that the Hearing Officer had failed to find a sufficient passage of time with no movement toward the organizing of a broad-based professional unit.2/ The Society's second exception is taken to that part of the Hearing Officer's Report wherein he allegedly failed to find that the proposed unit had a requisite community of interest. Lastly, the Society excepts to the Hearing Officer's Report wherein he found that the employees in titles of chief pharmacist and supervisor of pharmaceutical services were supervisors within the meaning of the Act and thereby excluded from the proposed unit, should the same be found appropriate.

The College excepted only to that portion of the Hearing Officer's Report wherein he found that part-time pharmacists should be included in the proposed unit if the unit is found to be appropriate. The College argues that there is insufficient community of interest between full and part time employees, but also argues in the alternative that if a community of interest does exist between them, that only those part-time employees working twenty hours or more should be included in the unit.

After a review of the entire record, including all of the briefs and exceptions, the undersigned adopts the Hearing Officer's Report and Recommendations based on the following analysis.

First, the Society argues that it was improper for the Hearing Officer to speculate about the potentiality for fragmented units of professional employees in the absence of a factual record to demonstrate that the professionals, other than pharmacists, were moving in the direction of organizing along separate occupational lines. The undersigned does not agree. The potentiality for fragmentation was an appropriate and, indeed, necessary consideration for the Hearing Officer to take into account. The Commission need not be confronted with several representation petitions seeking separate and limited units, or a factual record indicating separate organization among groups of employees, to consider the effects of fragmentation. To require such a factual record would, in effect, sanction in the first instance the very type of unit structure which the Commission seeks to avoid. Rather, the concern for a proliferation of negotiations units is an integral factor in determining the threshold question of unit appropriateness, and is part of the consideration relevant to an initial determination pursuant to the statutory community of interest standard.

The undersigned is satisfied that the factual record relevant to the fragmentation issue herein was sufficiently developed. The Hearing Officer properly ascertained the facts, both in the context of the existing unit structure at the College, and in the context of the remaining non-represented professional employees of the College.

A review of the unit structure in existence at the College does not reveal a preference for the small unit. Rather, the units demonstrate a concern for non-fragmentation. As footnoted above, separate units exist for all crafts, and for all security related personnel. Additionally, there is an overall unit of clerical, blue collar, and health care employees including licensed practical nurses. The undersigned does not agree with the Society's assertion that the two separate professional units already in existence open the door to additional units along occupational or disciplinary lines. These units -- Instructional Faculty; and Housestaff consisting of physicians, dentists, interns, residents and fellows -- represent sound and coherent negotiating unit groupings of personnel whose orientation bespeak the very backbone and purpose of a medical-teaching institution, and whose functions and responsibilities are distinct and removed from other professional employees. Ample justification exists in the context of a medical-teaching institution for the separate treatment of faculty and physicians to warrant their exclusion from a broad-based unit of professional personnel.

A review of the currently non-represented professional titles herein supports the College's concern that approving the proposed unit might lead to a proliferation of units. The State's proffered professional title listing3/ includes approximately 90 allegedly professional titles. Even conjecturing that the various employees in the nursing titles (excluding LPN's who are already represented) might seek placement into one unit, and all of the various technicians and lab personnel petitioned for another unit, there would remain approximately 50 titles, other than the pharmacists, in which personnel might desire representation along occupational lines. Although the undersigned is unaware of any apparent move by any of the employees in these titles to organize individual units representing their own professions, the approval of the instant proposed unit could certainly provide the impetus to the remaining professionals to organize their own units along occupational lines and thereby create a chaotic bargaining situation for the College.

In its brief, the Society maintains that because of the pharmacists unique community of interest only three additional units need be formed -- the Society's unit, a nurses unit, and a unit for the remaining professionals.4/ However, the record herein does not establish that the pharmacists' community of interest is so unique as to overcome the fragmentation factor and to necessitate their separation from the remaining professionals. This is not to denigrate the degree of professionalism among the pharmacists. It is, rather, to say that separate treatment does not appear to be warranted.5/

The Society's second major contention herein is that a sufficient amount of time has passed with no movement toward organizing a broad based professional unit.

Preliminarily, the Society's argument requires further examination in the light of the Professional Association matter, previously cited in footnote number 2. In the Professional Association matter the Supreme Court upheld a Commission decision finding an all encompassing professional unit to be the most appropriate unit of professional State employees.

The Society argues that the existing organizational structure of units at the College compels an analysis of the proposed unit different from the analysis applied in the Professional Association matter. It states that the latter matter arose in the context of the State professionals constituting a "virgin" group not previously broken down into separate units along occupational lines (i.e. the professionals were not fragmented). With respect to the instant matter, the Society claims that an already existing Housestaff Unit, consisting of physicians and dentists, exists and was formed after the Supreme court had rendered its decision in the Professional Association matter. According to the Society, the State, through its agency, CMDNJ, "carved out these professionals and consented to their representation in a separate unit with no concern for fragmentation or disharmony." Accordingly, the Society argues that the CMDNJ had imputed knowledge of the Professional Association holding, chose not to follow it, and "cannot now utilize that rationale and arbitrarily and discriminatorily apply it to professionals....CMDNJ's conduct in carving out the Housestaff Organization has created a completely different situation which renders the Nurses [Professional Association] rationale inapplicable to CMDNJ."

Having thus compared the context of the Professional Association matter with the instant matter, and finding them not alike, the Society concludes that the "conduct of CMDNJ bespeaks of no movement in the direction of all encompassing units and the Hearing Officer should have made a determination accordingly. Petitioner submits that the time has come to invoke the mandate in the Nurses case to re-examine the issue of units organized along professional lines." (emphasis added)

The undersigned has previously explored the significance of the two existing units of professional employees as it relates to the issue of the appropriateness of the proposed pharmacists' unit. That need not be reiterated at this juncture. However, the issue as framed speaks specifically to the Supreme court's prescription in Professional Association that an organization may, after its determination, "lay the matter of appropriate units before the Commission anew" (footnote #2, above) if there is no movement for a substantial period of time towards organization of the most appropriate unit.

The undersigned finds that the Supreme Court's prescription for re-examination contained in Professional Association clearly refers to a passage of time subsequent to the initial determination as to the appropriateness unit structure.6/ The Court's concern is not to create a circumstance which would for all effective purposes intolerably preclude the representation of any employees; and it provides for an opportunity to have the appropriate unit determination reviewed in the light of subsequent events. Thus, the Society's request for re-
examination is misapplied. The determination herein is the first formal examination of the appropriate unit structure of the College professionals.7/ Re-examination at this time is premature, and would be contrary to the mandate of the Supreme Court and the public policy it expressed in the Professional Association decision.

Having determined that the proposed unit is inappropriate for collective negotiations, it is not necessary at this time to embark on a lengthy review of the secondary issues in this case regarding the supervisory status of certain titles and whether part-time employees should be included in the unit. The Hearing Officer's conclusions of law with respect to these issues are consistent with established Commission pronouncements on these subjects and his findings of fact are clearly supported by the record. Therefore, the undersigned hereby adopts the Hearing Officer's Report and Recommendations as to those issues.8/

Accordingly, the undersigned for the aforementioned reasons, adopts the Hearing Officer's Report and Recommendations. The instant petition is hereby dismissed and the proposed unit is found to be inappropriate within the context of this case.9/

BY ORDER OF THE DIRECTOR OF

REPRESENTATION PROCEEDINGS

/s/Carl Kurtzman, Director

Representation Proceedings

DATED:	May 12, 1977

Trenton, New Jersey