D.R. NO. 83-8

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

COUNTY OF BERGEN (BERGEN PINES

COUNTY HOSPITAL),

Public Employer,

-and-	Docket No. CU-81-74

COUNCIL NO. 5, NEW JERSEY

CIVIL SERVICE ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Ralph W. Kornfeld, Personnel Director

For the Petitioner

Hogan & Palace, attorneys

(Thomas A. Hogan of counsel)

DECISION

On June 5, 1981, Council No. 5, New Jersey Civil Service Association ("Council 5") filed a Petition for Clarification of Unit with the Public Employment Relations Commission ("Commission"), seeking a determination that employees in the titles of Administrative Analyst, Cost Accountant, Chief Medical Technologist, Chief X-Ray Technician, Respiratory Therapy Supervisor, Physical Therapy Supervisor and Senior EEG Technician, were appropriate for inclusion in a unit of professional and nonprofessional supervisory employees employed by the Bergen Pines County Hospital (the "Hospital").1/

Council 5 argues that all the above titles are supervisory. The Hospital alleges that the Chief Respiratory Therapist, Physical Therapy Supervisor, and Radiology Department Manager are managerial executives, and that the Cost Accountant and Administrative Analyst are nonsupervisory clerical employees.2/

Pursuant to a Notice of Hearing issued August 7, 1981, a hearing was held before Commission Hearing Officer Judith E. Mollinger on September 2 and November 9, 1981, at which time all parties were afforded the opportunity to examine and cross-
examine witnesses, to present evidence and to argue orally. Both parties submitted post-hearing briefs prior to January 4, 1982. No reply briefs were submitted. The Hearing Officer issued her Report and Recommendations on March 30, 1982, a copy of which is attached hereto and made a part hereof. Thereafter, on April 26, 1982, the Hospital filed exceptions to the Hearing Officer's Report and Recommendations. Council 5 has not filed any exceptions.

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

1.	The County of Bergen, Bergen Pines County Hospital is a public employer within the meaning of the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act.

2.	Council No. 5, New Jersey Civil Service Association is an employee representative within the meaning of the Act, and is subject to the provisions thereof.

3.	The Hearing Officer identified the following issues: (a) are the Chief Respiratory Therapist, Physical Therapy Supervisor and Radiology Department Manager included in the unit or excluded as managerial executives? (b) are the Cost Accountant and Administrative Analyst included in the unit or excluded as non-supervisory employees?

4.	The Hearing Officer concluded that the positions of Chief Respiratory Therapist, Physical Therapy Supervisor and Radiology Department Manager were supervisors within the meaning of the Act, were not managerial executives, and therefore were appropriate for inclusion in the collective negotiations unit. The Hearing Officer further concluded that the positions of Administrative Analyst and Cost Accountant were non-supervisory positions within the meaning of the Act, and therefore should not be included in the collective negotiations unit.

The Hospital takes exception to the Hearing Officer's Report and Recommendations insofar as it found the Chief Respiratory Therapist, Physical Therapy Supervisor and Radiology Department Manager to be properly included within Council 5's negotiations unit. The Hospital does not except to the finding that these titles are supervisory. It argues instead that they "... participate in making policy . . . as well as setting up the standard for their department and . . . [administering] ... [their respective departments]." Thus, the Hospital argues that these titles are managerial, and not properly includable in Council 5's supervisory unit.3/

The Bergen Pines County Hospital is administered by a Board of Managers, and an Executive Director responsible for day-to-day management. The Hospital is organized into nine major divisions: psychiatric, support services, medical/surgical, long-term care, finance, administrative, personnel and community affairs. Each division is administered by either an Assistant Executive Director (AED),4/ the Administrative Assistant, the Director of Finance or the Personnel Officer, all of whom report directly to the Executive Director. Each division is subdivided into various departments under the direction of department heads, some of whom are responsible for more than one department.

Of initial concern herein are three co-department heads within the medical/surgical division who report to Assistant Executive Director Edward Lewis. The Chief Respiratory Therapist, Physical Therapy Supervisor, and Radiology Department Manager are the non-physician co-department heads of the Department of Respiratory Therapy, Department of Physical Therapy and Rehabilitation (now known as Physical Medicine) and the Department of Radiology, respectively. Each shares departmental responsibility with a physician. Medical matters, including the direction of physicians, are the responsibility of the physician co-department head. Non-medical matters, including the direction of non-physician personnel, are the responsibility of the non-
physician co-department head.

The record reveals that the Chief Respiratory Therapist develops departmental policies and procedures limited to non-
medical methodology. Although he prepares the department budget proposals, they are ultimately submitted to the Assistant Executive Director and the Director of Finance for approval. He is authorized to resolve grievances at level 2 of the grievance procedure in the contracts with non-supervisory clerical and technical employees. Additionally, the latest job description for the Chief Respiratory Therapist indicates that he participates, supervises and coordinates the day-to-day activity of the respiratory therapy program and employees, "under [the] direction of [a] physician."

The Radiology Department Manager has general responsibility for the running of the department, for formulating policies and procedures limited to non-medical matters, preparing budget proposals for submission to the Assistant Executive Director and the Director of Finance for final approval, for writing bid specifications, and for making recommendations concerning actions to increase or decrease the staff of the department. He answers employee grievances at step 2 of the contract grievance procedure for non-supervisory clerical and technical employees. He establishes procedures for processing of patients in his department and makes employee work assignments. The job description for his position, revised August 13, 1981, defines the position as one which works "under the direction of a Radiologist...."

The Physical Therapy Supervisor runs the Department of Physical Therapy and Rehabilitation Services (i.e. Physical Medicine) excluding responsibility for medical decisions. She organizes the department and determines departmental policies and procedures. She reports directly to the Assistant Executive Director unless medical matters are at issue, in which case she consults with the physician co-department head. She prepares the Department's annual budget proposals for submission to the Assistant Executive Director. She writes policies and procedures for her department regarding patient consultations, management of equipment, and safety control for hydrotherapy; however, all policies are submitted to the Assistant Educational Director and the Medical Executive Board for final approval. If policies affect only the internal operation of the department, she may implement changes without prior approval from the Assistant Educational Director or Medical Executive Board, subject to an annual review and approval of the Medical Executive Board. Her job description, revised December 17, 1979, provides for her supervision of the work involved in planning and administering treatment, employing physical therapy modalities and restorative techniques to patients, all under the direction of a physician.

N.J.S.A. 34:13A-3(f) defines managerial executives as those "...persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district." N.J.S.A. 34:13A-5.3 excludes managerial executives from protections and rights afforded by the Act to public employees.

In In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 (¶11259 1980) aff'd D.R. No. 82-32, 6 NJPER 198 (¶11097 1980), the Commission, applying the definition of managerial executive contained in § 3(f), determined:

A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means and extent for reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment sufficient to affect broadly the organization's purposes or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises.

In decisions applying Montvale the undersigned has focused upon the above three factors in determining whether the questioned employees "possess and exercise a level of authority and independent judgment sufficiently to affect broadly the organization's purposes or its means of effectuation of these purposes." In re City of Jersey City, D.R. No. 80-36, 6 NJPER 278 (¶11132 1980), In re Essex Cty. Welfare Bd., D.R. No. 81-5, 6 NJPER 424 (¶11213 1980), In re City of Newark, D.R. No. 82-18, 7 NJPER 640 (¶12288 1981).

With respect to the matter involved herein it is apparent that the governmental unit concerned is the County's Hospital complex. The employees in dispute are neither the chief executive officer nor the assistant chief executive officers of the hospital. Rather, in the employer's overall hierarchy, each of the three titles in question is situated on the fourth tier of the ladder of authority (exclusive of the Board of Freeholders), each subordinate to (1) the Assistant Executive Director, (2) the Executive Director, (3) the Hospital Board of Managers. In addition, the job descriptions indicate that these employees perform their functions under the direction of a physician or a Radiologist, presumably the medical co-department head. Moreover, each of the three employees discussed above possesses authority only at the departmental level and in non-medical matters only. None have the authority to formulate and/or implement medical policies and/or procedures. Additionally, to the extent that each of these titles possesses authority in the area of implementation of policies and procedures, it appears to be reviewable by a higher authority.

Given the above, the undersigned cannot conclude that the disputed employees, who share responsibility in the administration of their departments, exercise a level of authority and independent judgment sufficient to affect broadly the Hospital's purposes or its means of effectuating these purposes.

Additionally, the undersigned's review of the record confirms the Hearing Officer's finding that the Administrative Analyst possesses no responsibility for overseeing the work of other employees. He does not interview applicants for positions, recommend or participate in discipline or in any other way evaluate the work performance of other employees. With respect to the Cost Accountant, although the record reveals some prior input in the areas of hiring, firing, disciplining and evaluation of employees, the level of input falls short of an effective recommendation. Moreover, the record reveals that the Cost Accountant had no recent involvement in any of these areas. Thus, the undersigned concludes that the Administrative Analyst and the Cost Accountant are not supervisors within the meaning of the Act.5/

Accordingly, the undersigned clarifies the supervisory unit to include the Chief Respiratory Therapist, Physical Therapy Supervisor and Radiology Department Manager, effective immediately. The unit is further clarified to exclude the non-
supervisory titles of Administrative Analyst and Cost Accountant, effective immediately.6/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	September 1, 1982

Trenton, New Jersey