D.U.P. NO. 80-7

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BONNIE BRAE,

Respondent,

-and-	Docket No. CO-79-329

BONNIE BRAE CHILD CARE

COUNSELORS ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Apruzzese & McDermott

(Maurice J. Nelligan, of Counsel)

For the Charging Party

Rothbard, Harris & Oxfeld

(Sanford R. Oxfeld, of Counsel)

REFUSAL TO ISSUE COMPLAINT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on June 6, 1979, and amended on July 18, 1979, by the Bonnie Brae Child Care Counselors Association (the "Association") against Bonnie Brae alleging that Bonnie Brae was 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) and (5).1/

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/

Bonnie Brae argues that a complaint should not issue in the instant matter inasmuch as it is not a public employer within the meaning of the Act. Accordingly, the issue presented before the undersigned is whether there is a public employer-employee relationship presented herein upon which a complaint may be issued. For the reasons stated below, the undersigned has determined that Bonnie Brae is not a public employer within the meaning of the Act, that there is not a public employer-employee relationship presented herein, and that a complaint may not issue.5/

The parties have presented factual submissions to the Commission. The information contained in these submissions reveals the following:

1.	Bonnie Brae is a private non-profit corporation organized under the laws of New Jersey. The purpose of Bonnie Brae is primarily to provide treatment for severely emotionally disturbed children. A special education function is provided within the treatment operation of the facility.

2.	Bonnie Brae has its own Board of Trustees who are not employees of any school district within this State. Vacancies within the Board are filled by a majority vote of the trustees. The Board of Trustees appoints the Executive Director who is the chief administrative officer.

3.	The Executive Director and his subordinates (various directors) are responsible for hiring, firing, and directing the work force at Bonnie Brae. When hiring employees who are paid from State funds, Bonnie Brae must adhere to the qualifications and requirements established by the New Jersey Department of Education and the New Jersey Department of Human Resources. The Executive Director and his subordinates also establish the working hours, vacations, sick time and other benefits of Bonnie Brae.

4.	Bonnie Brae is funded primarily from State funds, but does receive additional financial support through various private sources. The budget for the current fiscal year exceeds $2 million, of which approximately $1.3 million is provided by the New Jersey Department of Human Resources, the Division of Youth and Family Services, $.7 million from Beadleston Act funds, and an additional $50,000 is provided by the federal government for the milk and lunch program.

5.	Bonnie Brae owns its own land and buildings, pays for its employees on checks drawn on its own bank accounts, and pays for its employees' insurance coverage as well as all other benefits.

6.	Bonnie Brae provides basic health insurance and major medical coverage to its employees in a plan limited in coverage to its employees, but does not have a private pension system. The employees of Bonnie Brae are not eligible to enter the New Jersey State Pension System.

7.	Bonnie Brae employees are not subject to New Jersey Civil Service statutes or rules. However, Bonnie Brae's employees must meet certain minimum educational requirements as set forth in Title 18 in order to qualify Bonnie Brae for State funding.

8.	There is no interchange of supervision of employment assignments between Bonnie Brae and any public school, and no guarantee that Bonnie Brae employees will receive any credit from a public school for time worked at Bonnie Brae.

9.	Bonnie Brae maintains all the employment records and data of its employees.

10.	Bonnie Brae is a party to a written agreement with the New Jersey Department of Human Resources, Division of Youth and Family Services. One purpose of the agreement is to permit Bonnie Brae to obtain State funds. The Division of Youth and Family Services exercises minimal review of Bonnie Brae, limited to ascertaining that Bonnie Brae employees meet minimum educational requirements.

The above facts reveal that Bonnie Brae is not a public employer within the meaning of the Act. Bonnie Brae is a private, non-profit corporation. Bonnie Brae exercises substantial control over labor relations affecting the employees involved herein, and, furthermore, this control is not subject to Department of Youth and Family Services' review, except to assure that employees meet the qualifications set forth by law as a prerequisite for the disbursement of State funds. Therefore, the undersigned determines that the employment relationship presented is not a public employer-employee relationship as contemplated within the meaning of the Act. See In re Newark Housing Development and Rehabilitation Corp., D.R. No. 80-2, 5 NJPER 328 (¶10175 1979); and In re Cape May County Guidance Center, D.R. No. 78-19, 3 NJPER 350 (1977).

Accordingly, the undersigned declines to issue a complaint herein.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

/s/Carl Kurtzman, Director

DATED:	October 5, 1979

Trenton, New Jersey