H.E. NO. 84-24

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SOMERSET COUNTY,

Respondent,

-and-	Docket No. CO-83-246-94

DISTRICT 1199J, NATIONAL UNION OF

HOSPITAL & HEALTH CARE EMPLOYEES,

RWDSU, AFL-CIO,

Charging Party.

Appearances:

For Somerset County

Lanigan, O'Connell & Chazin, Esqs.

(Daniel F. O'Connell, Esq.)

For the Charging Party

Greenberg, Margolis, Ziegler & Schwartz, Esqs.

(Mark S. Tabenkin, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on March 14, 1983 by District 1199J, National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO (hereinafter the "Charging Party" or "1199") alleging that Somerset County (hereinafter the "Respondent" or the "County") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent has now ordered that every Social Worker and Psychologist within the collective negotiations unit represented by the Charging Party must immediately cease and desist from carrying on private practice within Somerset County and must notify the County regarding compliance with the said order, which is alleged to be a unilateral change in terms and conditions of employment of Social Workers and Psychologists who currently carry on private practice within Somerset County, all of which is alleged to be a violation of N.J.S.A. 34:13A-
5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 12, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on July 26, 1983 in Newark, New Jersey, at which time the parties stipulated a complete record upon which a decision might be made by the Hearing Examiner. Oral argument was waived and parties filed post-hearing briefs by October 3, 1983.

An Unfair Practice Charge having been filed with the Commission, a question concerning an alleged violation of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the stipulated record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	Somerset County is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	District 1199J, National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO, is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	On April 20, 1976 the Respondent's Board of Chosen Freeholders adopted a Resolution on "Ethics and Conflicts," which provided, inter alia, that no County officer or employee shall engage in any business transaction or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest; nor shall such officer or employee act in his official capacity or undertake any employment or service in any matter wherein he has a direct or indirect personal financial interest that might reasonably be expected to impair his objectivity or independence of judgment (J-1). Under date of September 30, 1976 a copy of the foregoing Resolution was sent to all County employees with a request to execute a "Conflict of Interest Compliance Report Form." (J-1).

4.	The Charging Party was certified as the collective negotiations representative for all non-supervisory professional employees at Richard Hall Community Mental Center on January 20, 1977 (Docket No. RO-76-78).

5.	Thereafter, in 1977, certain "Private Practice Stipulations" were prepared by the County in order to clarify the Resolution on "Ethics and Conflicts" (J-1) for employees of the Richard Hall Community Health Center, who were represented by 1199. These stipulations (J-2), which were set forth in four paragraphs, provided essentially that the premises of the Center shall not be used for private practice by any employee; that the facilities of the Center shall not be used by any employee to develop, organize or schedule private practice during regular working hours; that the private practice schedule of any employee of the Center shall not conflict with his work schedule; and that no client being seen at the Center shall in any way be transferred to an employee's private practice. These Private Practice Stipulations, supra, provided the working basis for the implementation of the Resolution on "Ethics and Conflicts" (J-1), supra, from 1977 until 1983.

6.	On March 1, 1983 the Board of Chosen Freeholders of Somerset County adopted an additional Resolution establishing off-duty employment restrictions for employees of the Richard Hall Community Mental Health Center (J-3). In this Resolution the Respondent resolved that employees of the Center are restricted and prohibited from having a private practice in the same type of service which they perform for the Center within the confines of the Center's "designated service area." Psychiatrists were exempted from this proscription. This Resolution was adopted without notice to or negotiations with the Charging Party.

7.	A copy of the foregoing Resolution (J-3) was sent to each professional staff member of the Richard Hall Community Mental Health Center on March 7, 1983 together with a

"Compliance Report Form," which inquired as to whether the employee had a private practice and whether the private practice was located outside of the County or within the County (J-4).

8.	It was stipulated by the parties that the March 1, 1983 Resolution (J-3) operates only to prohibit the establishment of an office in Somerset County and in no way prohibits the establishment of an office an any of the counties contiguous to Somerset County, notwithstanding that clients may come from Somerset County to such office outside the County.

THE ISSUE

Did the Respondent violate Subsections (a)(1) and (5) of the Act, when, on March 1, 1983, it unilaterally adopted an additional Resolution on Ethics and Conflicts (J-3), which restricted Social Workers and Psychologists, represented by the Charging Party, from having a private practice in the same type of service which they perform for the Richard Hall Community Mental Health Center within the confines of the Center's "designated service area," which embraces all of the County of Somerset?

DISCUSSION AND ANALYSIS

The Respondent Did Not Violate The

Act When, On March 1, 1983, It

Unilaterally Adopted An Additional

Resolution On Ethics And Conflicts

Establishing Off-Duty Employment

Restrictions For Social Workers

And Psychologists At The Richard

Hall Community Mental Health Center

The Charging Party, after noting that the parties have since 1977 operated under the so-called Private Practice Stipulations (J-2), which set forth certain limitations and proscriptions on the private practice of Social Workers and Psychologists, argues that the instant limitation on outside employment (J-3) is contrary to the decision of the Supreme Court in Association of New Jersey State College Faculties, Inc. v. New Jersey Board of Higher Education, 66 N.J. 72 (1974). The Respondent distinguishes this case and undertakes a detailed exposition of the state of the law vis-a-vis the obligation of a public employer to negotiate in areas of governmental policy and managerial prerogative.

The Hearing Examiner, in determining whether or not the provisions of the Resolution of March 1, 1983 are mandatorily negotiable, will utilize the three-fold test set forth by the New Jersey Supreme Court in IFPTE Local 195 v. State, 88 N.J. 393 (1982). There the Supreme Court, citing three earlier decisions,2/ said that a subject is negotiable only if it "...intimately and directly affect(s) the work and welfare of public employees..." The Court gave as prime examples such subjects as rates of pay and working hours.3/

The second inquiry is whether the subject matter has been preempted by statute or regulation. Negotiation is preempted if a statutory or regulatory provision "...speak(s) in the imperative and leave(s) nothing to the discretion of the public employer...": State Supervisory, supra, 78 N.J. at 80.

The third element of the test holds that a topic that affects the work and welfare of public employees is negotiable only if it is a matter "...on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy..."4/ The Court noted that this principle rests on the assumption that most decisions of a public employer affect the work and welfare of public employees to some extent and that negotiations will always impinge to some extent on the determination of governmental policy. The key word is "significant" which is designed to effect a balance between the interests of public employees and the requirements of democratic decision-making by public employers.

Before proceeding to analyze the instant case in terms of the three-fold test of Local 195, supra, the Hearing Examiner first considers the Association of New Jersey State College Faculties case cited by the Charging Party, supra. It is first noted that the case, having been decided in 1974, antedates the series of Supreme Court decisions commencing in 1978, from which the three-fold test for negotiability has evolved, supra. Secondly, it dealt with teachers and regulations that prohibited all outside employment without permission from the public employer. Further, there was no issue in that case concerning outside employment of teaching personnel in relationship to individuals who might pay a fee for the rendering of professional educational services. Finally, unlike the instant case, the prohibition on outside employment was broad and without limitation whereas the instant Resolution (J-3) restricts outside employment only within the County of Somerset and only in the type of service provided for the Center.

Notwithstanding the argument of the Respondent that the Resolution of March 1st does not intimately and directly affect the work and welfare of the Social Workers and Psychologists represented by the Charging Party, the Hearing Examiner finds that the Charging Party has satisfied the first part of the Local 195 test. While the affected employees may derive income from practice in the counties contiguous to Somerset, their employment opportunities would clearly be enhanced by being permitted to practice within the County. The case of Essex County Sheriff's Department, P.E.R.C. No. 82-129, 8 NJPER 404 (1982), cited by the Respondent, is totally inapposite inasmuch as it is an issue identification decision, which determines only whether or not certain issues are economic or non-economic. It does not go to the question of negotiability. Hence, the first test for negotiability is satisfied.

It appears to the Hearing Examiner that the Respondent has collectively met the second and third parts of the Local 195 test. The Hearing Examiner is impressed by the Respondent's contention that the County acted under the "State Conflict of Interest Law," N.J.S.A. 52:13D-12, in adopting the Resolution of March 1, 1983. Further, the Legislature thereafter on May 23, 1983 enacted an "Act concerning County Codes of Ethics," which provides:

"The Governing body of a county which has promulgated and adopted a code of ethics...may authorize and provide that the members of county authorities shall be subject to the provisions of the County Code of Ethics..." N.J.S.A. 40:23-6.51

The use of the word "shall" in the May 23, 1983 enactment, supra, indicates that the Legislature has spoken in the imperative as to persons covered by a County Code of Ethics. This would appear to leave no room for collective negotiations under State Supervisory, supra. In other words, again following the language and rationale of State Supervisory, the combined effect of the Respondent County's action in adopting the Resolution (J-3) and the Legislature's enactment of May 23rd adds up to the County having "set" a term and condition of employment, namely, a ban on private practice within the County.

Even assuming arguendo that the Respondent has not set a term and condition of employment by adopting its Resolution of March 1, 1983, the Respondent has clearly satisfied the third element of the three-fold test of Local 195, supra. To permit negotiation with respect to the Resolution would significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy. The Respondent County clearly has an inherent managerial prerogative, in the implementation of governmental policy, to adopt a Code of Ethics, which impacts on terms and conditions of employment, particularly those of the Social Workers and Psychologists involved herein. It is noteworthy that the County has not sought to ban all outside employment but, rather, has tailored the limitation. The Respondent makes note of this point in its Brief (pp. 16, 17), with which the Hearing Examiner agrees. The affected employees are not banned from all employment within the County, only the pursuit of private practice "...in the same type of service which they perform..." for the Center. Thus, the scope of the ban is entirely distinguishable from that in State College Faculties, supra, where the ban was total with respect to outside employment. The Respondent has a legitimate interest in preventing the appearance of a conflict of interest among professionals at the Center who derive their primary income in the form of wages or salary from the Center. The County seeks only restrict private practice during non-working hours within the "designated service area," i.e., the County.

* * *

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent County did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) when, on March 1, 1983, it unilaterally adopted an additional Resolution on Ethics and Conflicts, which restricted Social Workers and Psychologists, represented by the Charging Party, from having a private practice in the same type of service which they perform for the Richard Hall Community Mental Health Center within the confines of the Center's "designated service area."

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	October 17, 1983

Trenton, New Jersey