H.O. NO. 77-2

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY SOCIETY OF HOSPITAL

PHARMACISTS,

Petitioner,

-and-	Docket No. RO-76-9

NEW JERSEY STATE COLLEGE OF MEDICINE

AND DENTISTRY,

Public Employer.

Appearances:

For the Petitioner

Harper, McCoy and O'Brien, Esqs.

by John J. Harper, Esq.

For the Respondent

William F. Hyland, Esq., Attorney General

of the State of New Jersey

by Guy S. Michael, Esq.

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

Pursuant to Notice of Hearing, a hearing was held in the above-captioned matter on February 10, 1976, March 10, 1976 and March 11, 1976 before the undersigned Hearing Officer of the New Jersey Public Employment Relations Commission (hereinafter "Commission").

All parties had full opportunity to present argument, evidence and testimony, to cross examine and provide rebuttal witnesses. Post hearing briefs were timely filed by opposing counsel.

Upon the entire record in this proceeding including transcripts of the hearings, exhibits and briefs, the Hearing Officer finds:

1.	The New Jersey College of Medicine and Dentistry (hereinafter "College") is a Public Employer within the meaning of the Act and is subject to provisions thereof.

2.	The New Jersey Society of Hospital Pharmacists (hereinafter "Society") is a labor organization within the meaning of the Act.

3.	Request for recognition was made by Petitioner on June 30, 1975 and no reply thereto was received directly, but the Office of Employee Relations advised Petitioner to file with PERC. Thereafter a Petition for Certification was filed with the Commission.

4.	Petitioner seeks a unit of Staff Pharmacists, Chief Pharmacists and Supervisors, Pharmaceutical Services, both full-
time and part-time, employed by the College of Medicine and Dentistry of the State of New Jersey at Martland Hospital, Raritan Valley Hospital and Rutgers Medical School, institute of Mental Health Science (as amended at hearing).

There are three separate locations in which pharmacists are stationed in the College: Martland Hospital (Newark), Raritan Valley Hospital (Green Brook) and Rutgers Medical School Institute of Mental Health (Piscataway).

5.	The College objects to the proposed unit as inappropriate in that there are certain other professional employees who should properly be in any unit containing pharmacists. The list of said employees (Ex. R2) consists of some 94 titles, all allegedly professional. The College also excepts to inclusion of supervisory titles and to part-time employees.

DISCUSSION

Normally, a practitioner of the Commission would look askance at any unit composed of persons bearing a single title, using as analogy the scheme of separation of units developed within the State of New Jersey.

The innate logic of that scheme, both in creation of wieldy units for the employees and also in a manageable number of units for the employer, quite overrides the desiderata of particular skills with a purely parochial interest in representation (PERC No. 68). Traditional such as professionally oriented associations may be, the practicalities of the burden on the public employer must be considered.

Whether or not such thinking can be extended to the microcosm of smaller entitles than the State is essentially the business at hand herein. Were the Respondent to appear here de novo, there is all likelihood of a sympathetic ear. But the record shows that the College now has relations with five different negotiations representatives.1/ Therefore, the usual argument against excessive fragmentation loses some applicability in the face of what the College has already wrought. An all-
professional unit proposed now as a necessity when two existing professional units are already recognized (faculty and house staff) seems to dilute such a position, if based on analogy with the state experience mentioned above.

Recently, a comparable situation, lacking the force of a direct unit (having been resolved by a consent after the Hearing Officer's Report and Recommendations) occurred at Bergen Pines Hospital.2/ There, Petitioner sought a unit of social workers and psychologists and the County countered with a claim that an overall professional unit was the only appropriate unit.

The Hearing Officer there found that the unit was appropriate (as amended at hearing, to include all employees in a "non-medical health unit"). The Hearing Officer therein so found, even in the face of a claim that the unit was inappropriate and could only be deemed if all professional and technical employees were included.

This claim was based on alleged lack of the requisite community of interest specified in the Act and case law. Further objection (pertinent in the instant matter) was based on commonly-held premise that granting of the petition would create the potential for proliferation of numerous small units, to the detriment of the public employer's efficient delivery of the services it was created to offer.

Said proliferation could result in rivalries, bitterness and danger to the health and welfare of patients, it was claimed.

Petitioner in Bergen Pines pointed out that the positions in the requested unit shared the same mission, unrelated to those the employer would include in an overall professional unit, that the unit requested shared different supervision, that interaction occurred between members of the requested unit, that they share the same working conditions as distinguished from those titles the employer would add to the unit, and finally that the requested unit has titles the employer would add to the unit, and finally that the requested unit has similar educational requirements and eligibility to join their professional associations. The unit agreed upon consisted of all professional employees employed by the Bergen Pines County Hospital in the following titles: Clinical Psychologist, Psychiatric Social Worker, Special Education Teacher, Speech and Hearing Therapist, Rehabilitation Counselor, Occupational Therapist, Medical Social Worker Teacher, Physical Therapist, Recreation Therapist and Pharmacist. Said unit was described as a "non-medical professional unit" and the term is self-descriptive. The consent likewise amended the Hearing Officer by placing several senior titles (because of possible supervisory authorities) if the challenged ballots were determinative.

Significantly, for the within matter, one of the titles added by the consent was "pharmacist." Whether the situation described above created a comparable factual pattern to the present matter hinges upon several aspects, such as:

(a)	Fragmentation versus the right to be represented.

(b)	Related to the above is the fact that the Act is more than seven years old and the residual professional group cited as an appropriate unit by the College is not shown in the record to evidence any will to organize itself, therefore may fall within the comment of the Supreme Court in the Professional case,3/ in regard to extent of organization, "if, after rendition of our determination herein there continues for a substantial period to be no movement in that direction (organizing the professional employees en masse) it will be open to any interested organization or group of professional employees to lay the matter of appropriate units before the Commission anew,...nothing in our holding or in the discussion of PERC precludes a later determination, under circumstances then existing authorizing units of less than the total body of professional employees."

As read by the undersigned, the above is applied to favor the larger unit in all cases, except that circumstances surrounding a given situation may reasonably influence, if not control, acceptability of a smaller unit than the larger one presented as the most appropriate. This is especially true, it would seem when no petitioner seeks the larger unit. Whether dangers may exist in too-precipitate adoption of such a doctrine, at the price of obvious discomfiture, expense and dislocation, conceivably caused by multiple units for the public employer, or whether it becomes a matter of balancing of interests, is a delicate matter. As between employees caught in an "extent of organization" bind and their right to the privileges and protection of the Act, versus the right of the employer to pursue without undue distractions the functions for which it was created, persuasive arguments may be advanced for and against.

The Hearing Officer in Bergen Pines, supra, stated on this question of balance, "The Commission has carefully reasoned that if unit parameters were dictated by the desire of certain employees to be represented along occupational lines rather than broad-based functional lines the statute's objective would be jeopardized as a consequence of the multiplicity of units that would thus be organized." (The latter, of course, is an unprovable prediction, in light of previous observations concerning the age of the Act and apparent lack of desire by employees to organize themselves into the larger unit -- or at all).

In this regard, the Hearing Officer in Bergen Pines, supra, commented, "An examination of the Commission files indicated that the Hospital expressed similar concern during the hearings of June, 1969, leading to the direction of an election in a unit of all licensed firemen and engineers."

They contended therein that "the creation of a very large number of bargaining units would render collective negotiations totally unworkable." But the Hearing Officer remarked, "History has shown that the Hospital's concern regarding a multiplicity of bargaining units has not become a reality in experience and, in fact, there were no other bargaining units certified at the Hospital until June 24, 1974, when a majority representative was certified on behalf of the Hospital's blue-collar workers." Thus presumption of disaster following a limited "carve-out" may not necessarily ensue. However, the Act serves as mandate on the Commission in the creation of units in that there will be "due regard for the community of interest among the employees concerned," (Sec. 34:13A-5.3). There is no caveat as to multiplicity of units, but the Commission has consistently held those units not appropriate which represent a fractional part of a larger group, especially when the community of interest in the larger group does to the extent of sharing the same titles and the same general functions as the requested unit (c.f. E.D. No. 38).

The distinction, on the aforementioned balancing of interest, is between a putative inconveniences (at the least) to the public employer and exercise of rights guaranteed to employees in the Act, versus a ceaseless round of negotiations throughout the year (with a consequent loss of time and efficiency) for employers dealing with a multi-unit situation.

However, to the knowledge of the undersigned, no such negotiations morass has ever occurred. In the instant matter, counsel for the Society ably argued that the unit is appropriate in that, because of licensure, the unit comprises a readily distinguishable group, with little or no interaction with all other employees. They are employed by the same employer (College of Medicine and Dentistry of New Jersey) and their work is organized according to strict legal mandate.4/ It is separate from all other departments, and there is no interchange with other personnel, in that no one else, routinely, may administer drugs. (Nurses and doctors have some limited emergency access to the pharmacy).5/

For all of the foregoing reasons, and others, Petitioner argues that the pharmacists have a community of interest "peculiar to themselves."

Refutation of the Employer's argument regarding the college wide professional unit is submitted by the Petitioner, in that such unit does not exist, nor is it proposed. He further claims that the analogy with the State of New Jersey experience is vitiated by the College's acceptance of units of professionals based upon occupational lines (i.e. a unit of teaching faculty and a unit of interns, residents, and fellows), and asserts this position is "inherently inconsistent."6/

Counsel for the college ably argued that the sought unit was inappropriate using as a reference the State experience, specifically the Professional case, referred to above.

There, the Court reviewed P.E.R.C. No. 68 and concurred with the Commission decision therein. This landmark decision established the "more particularized point of common employee interest" in favor of "a broader community of interest." The Court stated even more firmly, "...this statutory standard requires the designation of as small a number of units as possible..."

In regard to benefits (medical and hospital coverage), holidays, pensions, and fringes, those are all standard for the pharmacist and also others similarly situated, according to witness Hagan. The responsibility to a central authority within each institution was shown, as well as a college-wide personnel function to administer the various fringes common to all employees.

In addition, the pharmacists section chiefs report to an administrator, fitting neatly into an administrative structure which is college-wide. Insofar as uniqueness of a given title is concerned, said isolation of a skill, at least on the State level, was given short shrift in PERC No. 68, supra, "...it (i.e. the Commission) found an additional mutuality of employee interest arising from the kind of work performed, not expressed in terms of specific job titles or function, but in terms of the nature of the service provided."

Thus, it would seem, if the State model controls, that the logic of PERC No. 68 is dispositive. But such conclusion raises a disturbing reservation, namely, down to what level of governmental function does the analogy apply?

References have been made to Bergen Pines at the County level. Here, we are concerned with an agency of the State, legislatively founded in 1971 by N.J.S.A. 18A:64 G-1 et seq. (administratively noticed).

Phrased differently, are the real needs of the College the same as the needs of the State, as recognized by the Commission in PERC No. 68, supra? If so, then, by analogy, no unit can be deemed appropriate unless it is college-wide to encompass all employees sharing a broad occupational objective or description. And later, more specifically, "...the purpose of the Act would be better served if, when dealing with professional employees, the individual designations among professions not be regarded as controlling..." (PERC 68, supra).

An inspection of the titles in the proposed professional unit which the College finds appropriate (the residual unit) raises some possibilities that deserve examination. Such inspection of all the titles in Exhibit R-2 in evidence, reveals that setting units by job families alone would yield many units based on single disciplines (e.g. titles such as accountant, senior statistician, plant accountant, all could conceivably be formed into an appropriate unit).

In titles involving the word "nurse" alone there are 17 titles, some of which are presumably occupied by more than one incumbent (...e.g. staff nurse).

Teaching and instruction titles, similarly, could yield ten titles, with the same presumption. In addition, there is a bevy of technical titles and computer-related titles where "more particularized points of common interest might lie."

Based upon the foregoing, therefore, it is the considered conclusion of the undersigned that a finding in favor of the Petitioner herein may well create a chaotic situation. Even though there is an element of the speculative in such a conclusion, it is clear to the undersigned that the purposes of the Act would not be served by setting the stage for such an eventuality. (Reference is made the "Policy Declaration" (C. 34:13A-2) the preamble to the Act: "...that the interests and rights of the consumers and the people of the State, while not direct parties thereto, should always be considered, respected and protected,...").

Within this context, a finding that Petitioner sought an appropriate unit would not serve the larger purposes of the Act, nor create for the College a proper milieu for orderly discourse with the organizations of its employees, but rather risk wasting of its resources among vying organizations intent upon advantage of their separate disciplines.

For it is apparent that all of the professions are needed for the discharge of the duties of the larger organization, the College, and each would be obligated to promote its narrow interests with vigor, to the detriment of the College, and the preservation of good order.

The rivalries in the positions taken and the dangers of seeking advantage based on the particularities of each discipline are so apparent as to diminish the interests of the unit petitioned for, in the name of the broader community the Commission found in PERC No. 68.

Therefore, having considered the entire record, the undersigned finds the facts in this matter, and the established law to be such that he can only recommend that the within petition be dismissed on the grounds that the unit sought is inappropriate.

The foregoing recommendation should not foreclose the Society from access to the same recourse the Court granted in the Professional case (cited above) namely, to apply to the Commission for reconsideration if no movement is made to organize a professional employee unit after a substantial period. Thus, the Court subordinated the unit question under certain circumstances and provided a route for the protections of the Act, absent organization of an overall professional unit, thereby maintaining the balance mentioned above.

There are two other aspects of the within petition which require examination:

1.	The supervisory status, if any, of certain titles in the requested unit as amended;

2.	The propriety of including part-time employees in the requested unit.

In regard to the supervisory status of the titles in question, e.g., Chief Pharmacist and Supervisor, Pharmaceutical Services, ample testimony and evidence were offered. Exhibit P-
10 in evidence is a Position Description of Chief Pharmacist and, except for a designation of "Title and Number of Subordinates," is silent as to the supervisory authorities7/ residing in this title.

However, is the course of cross-examination of Mr. Mitrik, Chief Pharmacist at Raritan Valley Hospital, it was revealed that Mr. Mitrik evaluates personnel within his pharmacy and submits same to Personnel.

Similarly, on hiring of new personnel,8/ he makes recommendations to Personnel as to the salary level of said new employee, and this can be construed as a recommendation to actually hire such employee.9/

In the same vein, in regard to the Supervisor Pharmaceutical Services (Martland Hospital), the Position Description (Exhibit P-11) is devoid of any reference to supervisory authorities, but testimony of witness Hagan contains the flat assertion, speaking of Chief Pharmacist:

A.	Essentially the supervisory duty is the right to hire, fire, make recommendations, positive recommendations. My impression is also much heavy budgetary duties, but the first is significant to us in Personnel.

Q.	Would that be true as well to the title of Pharmacist Supervisor at Martland Hospital?

A.	It would.

The foregoing testimony remained uncontroverted by cross-
examination or rebuttal by subsequent testimony, therefore is accepted by the undersigned as a fact. Further, it would appear to be logical to function in the manner as described above by Witness Hagen.10/

The undersigned therefore finds that the titles of Chief Pharmacist and Supervisor, Pharmaceutical Services to contain authorities of a supervisor as defined in the Act, supra, therefore excluded from a unit of pharmacists, in the event the undersigned is reversed upon review in the finding above that the within petition ought to be dismissed.

Insofar as part-time employees are concerned, precedent exists (c.f. PERC No. 56) to include such employees with the proposed unit. Fringe benefits are already provided on a pro rata basis11/ (and a State-mandated "cut off" on health benefits also already exists), so that employees who work 20 hours or more per week are covered for these benefits12/ and those who work less are not. The community of interest is so self-evident that if a unit is found to be appropriate, part-time employees should be a part thereof and the undersigned so recommends. The use of regular13/ part-time employees, as is the practice here, confirms the inclusion of said employees in any unit of pharmacists created (c.f. E.D. No. 67 - Although the conclusions are inapposite, the reasoning in said decision is pertinent herein, because of the previously emphasized regularity of the part-time employment. The conclusions differ because the facts are different i.e. th regularity of employment is clear in the instant matter and was absent in the decision cited).

In summary, the undersigned finds and concludes that the petition in the within matter seeks an inappropriate unit, therefore, recommends that same be dismissed; that Chief Pharmacist and Supervisor, Pharmaceutical Services are supervisors within the meaning of the Act; and that regular part-
time pharmacists should be included, in the event the foregoing recommendation is reversed.

Respectfully submitted,

/s/Leo M. Rose

Hearing Officer

DATED:	July 28, 1976

Newark, New Jersey