D.U.P. NO. 80-20

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BERGEN COUNTY PROBATION DEPARTMENT,

Respondent,

-and-	Docket No. CO-80-81

BERGEN COUNTY FREEHOLDER BOARD,

Respondent

-and-

COUNCIL 52, LOCAL 1970, AMERICAN

FEDERATION OF STATE, COUNTY &

MUNICIPAL EMPLOYEES, AFL-CIO,

Charging Party.

Appearances:

For the Respondent Probation Department

Michael Diller, Deputy Attorney General

For the Respondent Freeholder Board

Leon B. Savetsky, attorney

For the Charging Party

Rothbard, Harris & Oxfeld, attorneys

(Barry A. Aisenstock, of counsel)

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on October 2, 1979 by Council 52, Local 1970, American Federation of State, County & Municipal Employees, AFL-CIO (the "Charging Party") against the Bergen County Probation Department and Bergen County Freeholder Board ("Respondents") alleging that the Respondents were engaging in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), specifically, N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (5) and (7).1/

The Charging Party states that it is the negotiations representative of pretrial counselors and other employees employed by the Bergen County Probation Department. Charging Party alleges that an individual assigned to the Department has essentially been performing as a pretrial counselor but has not been treated as a unit employee.

N.J.S.A. 34:13A-5.4(c) sets forth in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to the undersigned and has established a standard upon which an unfair practice complaint may be issued. This standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act.3/ The Commission's rules provide that the undersigned may decline to issue a complaint.4/

For the reasons stated below the undersigned has determined that the Commission's complaint issuance standards have not been met.

The New Jersey Supreme Court in Passaic Cty. Probation Officers Assn. v. Cty. of Passaic, et al., 73 N.J. 247 (1977), held that judicial employees who are necessary and integral to the functioning of the State's court system are not afforded, as a matter of right, the protections of the New Jersey Employer-
Employee Relations Act. Subsequently, in In re Cty. of Ocean, P.E.R.C. No. 78-49, 4 NJPER ___ (¶4042 1978), aff'd App. Div. Docket No. A-2419-77 (Mar. 14, 1979), the Commission held that where the Judiciary asserts Passaic as a defense to an unfair practice charge filed by judicial employees, the Commission will: (1) determine whether the actions challenged concern employees who may be considered to be an "integral and necessary" part of the judiciary; (2) examine whether the Judiciary's constitutional administrative authority was relied upon in taking the actions raised in the charge; (3) consider whether there are pertinent statutory grants of authority over the affected judicial employees involved in the proceeding or whether the Court Rules refer to specific authority that members of the Judiciary have over these employees; and, (4) investigate whether there were any administrative directives that address themselves to issues germane to the unfair practice charge. The Commission further held in Ocean County, supra, that if it were satisfied that the factual and legal circumstances in a charge under review closely parallel those in the Passaic Cty. Probation Officers case, it would seek withdrawal of the matter and, absent withdrawal, it would dismiss the charge for failure to state a claim upon which relief can be granted by the Commission.

On February 19, 1980, the Bergen County Court Administrator, on behalf of the Assignment Judge, declined to consent to the Commission's jurisdiction with respect to the alleged unfair practice. Thereafter, on March 6, 1980, the undersigned advised the parties of the apparent applicability of the Ocean County standards to this matter, and advised the Charging Party that absent a withdrawal of the Charge, the undersigned would be required to decline to issue a complaint.

Initially, the undersigned determines that pretrial counselors employed in the Probation Department are employees who are "integral and necessary" to the functioning of the judiciary. Passaic Cty. Probation Officers Assn., supra.5/ Second, the judiciary has relied upon its constitutional administrative authority to appoint individuals to judicial department positions, and the Assignment Judge is provided specific appointing authority for his employees pursuant to Court Rules.

The Assignment Judge has declined to consent to the Commission's jurisdiction. AFSCME has not withdrawn its Charge nor has it provided the undersigned with reasons why a complaint should issue.

Therefore, the undersigned must at this time decline to issue a complaint for failure to state a claim upon which relief may be granted by the Commission. Accordingly, for the reasons set forth above, the undersigned declines to issue a complaint in the instant matter.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	April 1, 1980

Trenton, New Jersey