D.R. NO. 81-34

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

STATE OF NEW JERSEY,

Petitioner,

-and-	Docket Nos. RE-81-2

COMMUNICATIONS WORKERS OF	RE-81-3

AMERICA, AFL-CIO,	RE-81-4

Intervenor,	RE-81-5

-and-

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, AFL-CIO,

Intervenor,

-and-

NEW JERSEY STATE EMPLOYEES ASSOCIATION,

a/w AMERICAN FEDERATION OF TEACHERS,

AFL-CIO,

Intervenor,

-and-

NEW JERSEY CIVIL SERVICE ASSOCIATION,

Employee Representative.

_______________________________________

STATE OF NEW JERSEY,

Petitioner,

-and-	Docket Nos. RO-81-126

COMMUNICATIONS WORKERS OF	RO-81-127

AMERICA, AFL-CIO,	RO-81-128

Intervenor,	RO-81-129

-and-

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, AFL-CIO,

Intervenor,

-and-

NEW JERSEY STATE EMPLOYEES ASSOCIATION,

a/w AMERICAN FEDERATION OF TEACHERS,

AFL-CIO,

Intervenor,

-and-

NEW JERSEY CIVIL SERVICE ASSOCIATION,

Employee Representative.

Appearances:

For the State of New Jersey

Frank A. Mason, Director

For Communications Workers of America, AFL-CIO

Kapelsohn, Lerner, Reitman & Maisel, attorneys

(Sidney Reitman, of counsel)

For the American Federation of State, County

and Municipal Employees, AFL-CIO

Sterns, Herbert & Weinroth, attorneys

(John M. Donnelly, of counsel)

For the New Jersey State Employees Association, AFT

Fox & Fox, attorneys

(David I. Fox, of counsel)

Miller, Cohen, Martens & Sugarman, attorneys

(Nancy Schiffer, of counsel)

DECISION

Pursuant to a decision of the Public Employment Relations Commission (the "Commission"),1/ secret ballot elections were conducted by mail among State of New four negotiations units -- Administrative & Clerical Services Unit; Professional Unit; Primary Level Supervisors Unit; and Higher Level Supervisors Unit -- during a balloting period commencing February 17, 1981 and concluding March 9, 1981. Employees in each unit were provided the opportunity to designate either the Communications Workers of America, AFL-CIO ("CWA"), or the American Federation of State County & Municipal Employees, AFL-CIO ("AFSCME") or the New Jersey State Employees Association, affiliated with American Federation of Teachers, AFL-CIO ("SEA/AFT") (or certain separate supervisory employee affiliates thereof) as their exclusive representative or to choose no representative. Ballots were counted and tallied during the period of March 10 thru March 12, 1981. Pursuant to the New Jersey Employer-Employee relations Act, N.J.S.A. 34:13a-1 et seq. and the rules of the Commission, N.J.A.C. 19:11-1 et seq., such designation must be made by a majority of unit employees voting in an election, and in the absence thereof, a runoff election between the two leading ballot positions is required. N.J.A.C. 19:11-9.3. The election tallies in three of the units -- the Administrative & Clerical Services Unit, Primary Level Supervisors Unit, and the Higher Level Supervisors Unit -- indicate that challenged ballots are sufficient in number to affect the results of the elections.

On March 25, 1981, the undersigned issued a decision with respect to certain challenged ballots.2/ The instant decision is issued with respect to the votes of certain employees whose eligibility was challenged by the State at the count on the basis that these employees were "judiciary employees" and not included within the units in question.

N.J.A.C. 19:11-9.2(k) provides:

If challenged ballots are sufficient in number to affect the results of an election, the director of representation shall investigate such challenges. All parties to the election shall present documentary and other evidence, as well as statements of position, relating to the challenged ballots. After the administrative processing of the challenged ballots has been completed, or where appropriate, the hearing process has been completed, the director of representation shall render an administrative determination which shall resolve the challenges and contain the appropriate administrative direction.

On Monday, March 16, 1981, the parties to the elections attended a conference which was convened at the Commission's offices as part of the Commission's investigation of the outstanding challenged ballots involved in the elections. The parties were advised of their obligations to submit any documentary evidence and briefs or statements of position with respect to the "judiciary employees" by March 23, 1981. An additional period of time, until March 25, 1981, was subsequently granted for the submission of such material.

Positional statements have been provided to the Commission by the Office of Employee Relations ("OER"), SEA/AFT, AFSCME, and a representative of the judiciary. Certain documentary materials were attached to the positions of the OER, SEA/AFT, and the judiciary. Attached hereto and made a part hereof are various memoranda issued by the Administrative Director of the Courts which relate to judicial employees.

The administrative investigation reveals the following:

1.	On January 22, 1973, during the balloting period which eventually concluded in the establishment of the first white collar negotiations unit (Administrative & Clerical Services Unit), the Administrative Director of the Courts issued a memorandum to employees of the Judicial Branch of State Government. This memorandum stated the position of the Court that administrative and clerical employees in the Judicial Branch "are not included within the bargaining unit composed of administrative and clerical employees of the Executive Branch of Government..." On February 27, 1981, during the balloting period for the instant elections in all four white collar units, the Administrative Director advised judiciary employees that its position, enunciated in 1973, remained unchanged.

2.	During the balloting period the OER advised the Commission that it intended to challenge the votes cast by any employee assigned to the Judiciary. At the count, the State did assert challenges to the employees in question based on this ground. Employees so challenged have the payroll identification "750".

This payroll identification number refers to a budgetary account assigned to the Judicial branch and in which employees assigned exclusively to the Judiciary are placed. Although given the opportunity, none of the parties has proffered documentation or legal argument to place in dispute the conclusion that all employees in budgetary account #750 are assigned exclusively to the Judiciary.

3.	The OER and the Judiciary agree that the challenged employees are Judiciary personnel and are not and cannot be included in the negotiations units involved in the elections.

4.	SEA/AFT asserts that the employees in question have in the past been represented by the exclusive representative of the State units, that grievances have been filed for these employees, and that the employees have received the same contractual benefits afforded to all other employees. SEA/AFT maintains that the employees have been included in the negotiations units and that a 1977 memorandum from the Administrative Office of the Courts does not express any intention to remove the employees from the units. SEA/AFT further argues that certain contemporaneous communications with the OER in 1977 "confirmed the understanding with the State that these employees will remain in the units in question...." SEA/AFT states that the employees are not appointed by judges and that their employment is governed by Civil Service. SEA/AFT urges that the Commission conduct an "inquiry as to the precise duties performed by these employees" and extend the inquiry into "the history of the treatment of these employees."

5.	AFSCME has requested that a hearing be conducted in the instant matter and argues that a record of the unit relationship between the courts and these employees should be established so that the "Judiciary can render a decision which will resolve this question."3/

Passaic Cty. Probation Officers' Assn. v. Cty. of Passaic, et al., 73 N.J. 247 (1977), is the touchstone for the analysis of issues relating to judicial employees vis-a-vis rights arising under the New Jersey Employer-Employee Relations Act. In Passaic Cty Probation Officers, the Supreme Court held that the Judicial branch of government "possesses plenary authority with respect to all matters touching the administration of the court system of New Jersey, 73 N.J. at 252; and that this authority "transcends the power of the Legislature to enact statutes governing these public employees properly considered an integral part of the court system." Id. at 255.

That case involved county probation officers. The Court identified probation officers as employees who "come within the regulatory control and superintendence of this Court." Id. at 253. Based upon this initial conclusion the Court held:

Thus we reach the important issue as to whether, while subject to judicial supervision resting upon a constitutional mandate, probation officers can also be subject to N.J.S.A. 34:13A-1 et seq., the New Jersey Employer-Employee Relations Act. Stated more generally, can the control of probation officers and of the whole statewide system of probation, seemingly entrusted to the Judiciary by the terms of the Constitution, be in any way diluted or modified by legislation? Subject to what is set forth below, we think it clear that it cannot.

The Court did go on to note that its practice has been to adopt and implement for the Judiciary and its employees the policies and programs established by the Legislature in its enactments which do not interfere with the Judiciary's constitutional obligation to administer the court system. Civil service, pension and workers' compensation statutes were cited as specific examples of bodies of legislation, and presumably administrative agency implementation, which affect public employees who are part of the court system, which the Judiciary has adopted. Id. at 254. However, the Court clearly states that its acceptance of these legislative arrangements is as a matter of "comity and respect for other branches" and not as a matter of superceding authority. Id. at 255.

The Court then went on to affirm the lower court's holding that a memorandum issued by the Administrative Director of the Courts established that the hours of work of probation officers would be considered a non-negotiable item as a matter of Supreme Court policy. As such, this memorandum superceded the right the employees might have otherwise had under N.J.S.A. 34:13A-5.3 to negotiate their hour as a term and condition of employment. Id. at 255 to 256.4/

The undersigned has reviewed SEA/AFT's position and supporting materials which seek to establish that employees of the Judiciary have been included in the various units in question. However, the undersigned's review of the Administrative Director's memoranda and the other documentation leads to the conclusion that the Judiciary has followed a policy of according to its employees many of the benefits gained by unit members, but has consistently held that these employees are not includable in any of the units in question. The most recent memorandum from the Judiciary confirms its continued position that these employees are not included in the units involved in these elections.

The position statements and documents submitted by the State and the representative of the Administrative Office of the Courts confirm that both the State and the Judiciary maintain that all employees paid from the 750 budgetary account are employees assigned to the administration of the court system and that the Judiciary considers itself to be the employer of these employees. This position is asserted by the Judiciary as part of its mandate to control and supervise the administration of the court system of New Jersey, and the Judiciary does not accept the jurisdiction of PERC to make a unit determination with regard to these employees. This position was confirmed by an oral communication from a representative of the Administrative Office of the Courts after consultation with the Administrative Director of the Courts.

Based on the above, and the holding in Passaic County Probation Officers, the undersigned must conclude that even if the material submitted did present a legitimate question concerning representation as to whether these employees had been within the units in question, which it has not, neither he nor the Commission possesses the authority to dispute the Judiciary's position that it is the employer of these employees and they should not be in these units. Therefore given the unique legal status of these employees, as well as the information submitted, the undersigned orders that the ballots cast by the employees of the judiciary shall be voided.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	April 3, 1981