H.O. No. 87-1

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CAMDEN BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-85-135

CAMDEN CITY SCHOOL PSYCHOLOGIST

ASSOCIATION,

Petitioner.

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CAMDEN BOARD OF EDUCATION

Petitioner,

-and-	Docket No. CU-86-1

CAMDEN EDUCATION ASSOCIATION,

Employee-Representative.

Appearances:

For the Camden Board of Education

Murray & Granello

(Karen Bulsiewicz of counsel)

For the Camden City School Psychologist Assn.

Freeman, Zeller & Bryant

(Allen S. Zeller of counsel)

For the Camden Education Association

Selikoff & Cohen

(Steven R. Cohen of counsel)

HEARING OFFICER'S

REPORT AND RECOMMENDED DECISION

On April 18, 1985, the Camden City School Psychologist Association, N.J.E.A. ("Association") filed a petition seeking

certification as the exclusive representative of all school psychologists employed by the Camden Board of Education ("Board").

On May 6, 1985, the Board filed a statement of position opposing the Association's petition. The Board cited a 1976 decision in which the Executive Director determined that the unit sought by the Association was inappropriate. See Board of Education of the City of Camden and Camden City School Psychologists, 2 NJPER 123 (1976) ("Camden Psychologists") request for review denied 2 NJPER 228 (1976). The Board maintains that the psychologists should be placed in an existing unit of professional employees, which is represented by the Camden Education Association, NJEA ("CEA").

The CEA, however, does not want to represent the psychologists in its professional (or any other) unit.

On July 8, 1985, the Board filed a petition seeking a clarification of the CEA professional unit to include the psychologists . Both the CEA and the Association oppose the Board's petition.

On July 15, 1985, the Director of Representation issued an order consolidating the petitions for hearing.

On July 16, 1985, I issued an order scheduling hearing dates for August 29, September 23 and 30, 1985.

I conducted hearings on September 23 and 30, October 31, November 13 and December 10, 1985. The CEA and Association moved to

dismiss the Board's clarification of unit petition. I reserved.1/ The parties examined witnesses and introduced documents. They waived oral argument but filed briefs, the last of which was received on February 20, 1986.

Based on the entire record, I make the following:

FINDINGS OF FACT

The Board is a public employer within the meaning of the Act and is subject to its provisions. The CEA and the Association are employee organizations within the meaning of the Act and subject to its provisions.

The Board employs approximately 13 school psychologists. The psychologists have never been represented by an employee organization in collective negotiaions. In 1975 the Association filed a petition (RO-76-3) seeking certification as the exclusive representative of school psychologists. The petition was dismissed. The Executive Director found that the unit was inappropriate. He determined that the record in that case suggested that the psychologists should be included in the professional unit represented by the CEA. Camden Psychologists, 2 NJPER at 125.

1/	I conclude that the Board's clarification of unit petition should be dismissed. The issue presented raises a question concerning representation not appropriately resolved through the Commission's clarification of unit process. Clearview Regional High School Board of Education, D.R. No. 78-2, 3 NJPER 248 (1977); Camden Psychologists.

When RO-76-3 was filed, the CEA took the position that it did not desire to represent school psychologists in its professional unit. Camden Psychologists, 2 NJPER 124. The CEA also denied a request by the psychologists in 1981 to consider them for inclusion in the professional unit. The CEA asserts that it does not want to represent psychologists in its professional (or any other) unit because it already represents several titles, the psychologists' salaries are generally higher than other unit members, and the psychologists' work-day and work-year are unique. The main reason appears to be that the CEA is concerned about potential inter-unit problems which may arise from the psychologists' higher salaries. This concern is shared by the psychologists.

CEA represents four collective negotiations units in the Camden school district. The professional unit includes teachers, librarians, nurses, guidance counsellors, social workers, vocational education teachers, child study team leaders, and department chairpersons. The CEA also represents a unit of secretaries and clerks, a unit of instructional assistants, media persons, media assistants and community coordinators, and a unit of school police officers and attendance officers. The Camden Administrators Council (affiliated with the American Federation of School Administrators, AFL-CIO, Local 39) represents a unit of principals, directors, coordinators, supervisors, dean of students, assistant principals, administrative assistants and the chief attendance officer. The Communications Workers of America, Local 1079, AFL-CIO, represents a

unit of the Board's custodial, maintenance and supply department employees.

Psychologists work in teams with speech therapists, social workers and learning disability teaching consultants ("LDTC's"). The latter three titles are included in the CEA's professional unit. The child study team is responsible for the educational placement and program development of special education students. Students are typically referred to the team by a guidance counsellor. The team tests the student to determine if a special program is needed. Psychologists use assessment tools to measure a student's intelligence. The other members of the team also assess the child. Afterwards, the team determines whether to accept the referral and, if it does, develops and monitors a program for the student.

Each child study team selects a leader, who is responsible for relaying information between the administration, other team members, and the parents of special education students. Team leaders also coordinate the efforts of the team and keep team members aware of the progress of their cases. Child study team leaders, which have included psychologists, receive a stipend provided by the contract between the Board and the CEA's professional unit.

Psychologists work a twelve-month year and receive 21 days of vacation. Other child study team members work a ten-month year but may volunteer to work (for compensation) an extra month during the summer. Most of the summer work is student testing.

The psychologists' work day is approximately one hour longer than that of other child study team members.

The minimum education requirements for a psychologist exceed the requirements for other professionals employed by the Board. A psychologist must posses a masters degree with a heavy emphasis in psychology, another 30 credit hours in the use of psychological instruments, and a 450-hour internship.

The salary levels of psychologists are generally higher than those of oher professionals employed by the Board.

Salaries and other terms and conditions of the psychologists' employment have been established by meetings between representatives of the psychologists and the Board. The Association asserts that the manner in which their employment conditions have been established amounts to a de facto recognition of the Association by the Board. The Board disagrees.

The meetings between a Board representative and two or three psychologists (representing the entire group) usually began after the Board had concluded negotiations with the district's recognized negotiations units. The psychologists presented the items they were most concerned about. The Board informed the psychologists of what benefits it was willing to provide. The parties met two or three times and the result was that the

psychologists received essentially what the Board told them they would receive at their first meeting.2/

In 1981 the psychologists presented a list of proposals to the Board covering sick leave buy-back, reimbursement of travel expenses, accumulated sick leave, vacation, insurance benefits and other items (P-1). This list, modified to reflect benefit levels received by other professionals, reappeared in a Board resolution setting the terms and conditions of employment for psychologists for the 1983-84 and 1984-85 school years. The resolution begins with this "whereas" clause:

2/	Following is the testimony of Ray Cordier, a psychologist who has been involved in discussions with the Board about salary and working conditions:

Q. Since you have been a school psychologist in February of 1979, have you ever, on behalf of the other psychologists, told the Board that you don't want what they have given you or offered to give you as psychologists?

A. Yes, we have said those words.

Q. In response to salary?

A. Yes.

Q. And has that ever changed what the Board has given you, first told that it is available and this is what you are going to get, has that ever changed?

A. No, it hasn't changed.

Q. Whatever the Board has told you is available is what the psychologists have end up receiving right?

A. It has within the two times I have been a representative.

This testimony is taken from the transcript of the

September 30, 1985 hearing date at page 89.

WHEREAS, School psychologists employed by the Board of Education of the City of Camden are not represented by any recognized employee representative organization for purposes of negotiation concerning terms and conditions of employment; (J-6).

The resolution was prepared in response to the psychologists' request to reduce their working conditions to writing. A salary guide for the 1983-84 and 1984-85 school years is attached to the resolution and contains the signatures of three school psychologists and three Board representatives.

ANALYSIS

In resolving disputes involving questions of representation, the Commission is guided by the mandate of N.J.S.A. 34:13A-5.3:

The negotiating unit shall be defined with due regard for the community of interest among the employees concerned.

The Commission early adopted a strong policy favoring broad based units and avoiding undue fragmentation. That policy has been endorsed by the New Jersey Supreme Court. State v Prof. Assoc. of New Jersey Dept. of Education, 64 N.J. 231 (1974), aff'g P.E.R.C. No. 68 (May 23, 1972). ("Professional Association"). In Camden Psychologists, the Executive Director relied on this policy and dismissed RO-76-3. The policy has not changed. Bordentown Regional Board of Education, P.E.R.C. No. 84-126, 10 NJPER 276 (¶15136 1984) aff'd App. Div. Dkt. No. A4503-83T6, 4/9/85, 11 NJPER 33 (¶16122 1985); Piscataway Township Board of Education, P.E.R.C. No. 84-124, 10 NJPER 272 (¶15134 2984); Glen Rock Board of Education, P.E.R.C.

No. 84-125, 10 NJPER 275 (¶15135 1984); Bergen County Vocational Schools, P.E.R.C. No. 84-127, 10 NJPER 279 (¶15137 1984); Freehold Township Board of Education, P.E.R.C. No. 84-128, 10 NJPER 280 (¶15138 1984); Barrington Board of Education, P.E.R.C. No. 84-129, 10 NJPER 282 ¶15139 1984). In Camden Psychologists, the Executive Director, reversing the hearing officer, also determined that there was no conflict of interest between psychologists and other professionals that would warrant the psychologists' claim for separate status. 2 NJPER at 125. This also is unchanged. Psychologists work with the Board's other professionals, particularly the other members of the child study team, in identifying and meeting the needs of special education students.

Also unchanged since 1976 are the Board's position that the CEA's professioinal unit is where the psychologists belong, and the CEA's position that it does not want to represent the psychologists.

N.J.S.A. 34:13A-5.3 also provides that, "public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization."

The issue is the appropriateness of the unit sought by the Association in light of the Board's claim that the existing professional unit is more appropriate and the CEA's refusal to represent the psychologists over the past 10 years.

A similar issue was addressed by the Director of Representation in University of Medicine and Dentistry of New

Jersey, D.R. No. 83-27, 9 NJPER 293 (¶14136 1983) ("UMDNJ"), affirmed by P.E.R.C. No. 84-28, 9 NJPER 598 (¶ 14253 1983). In UMDNJ, the Director ordered an election among allied health faculty despite the University's claim that a university-wide unit of instructional employees (represented by a union that did not want to add the allied health faculty to the unit) was more appropriate. The Director reasoned that:

While due regard for the community of interest of the employees is a factor to be considered in such a determination, the community of interest among employees must be examined in the context of all salient factors. State v. Prof. Assoc. of New Jersey Dept. of Education, 64 N.J. 231 (1974), aff'g P.E.R.C. No. 68 (May 23, 1972.

Notwithstanding the Commission's preference for broad-based units which avoid unnecessary fragmentation, factual circumstances may dictate that the most appropriate unit in a given situation be limited in scope and added alongside

an already established structure of negotiations units. Thus, in County of Middlesex and District 1199J, D.R. 81-4, 6 NJPER 423 (¶ 11212 1980), where a public employer participated and consented to the initial establishment of a multiplicity of negotiations units, a residual unit of previously excluded employees was found to constitute the appropriate unit. In residual unit contexts, concern has focused not only on the posture of the employer, but on the positions of the existing majority representative and the petitioning employees seeking the residual unit. Parsipanny-Troy Hills Bd. of Ed., D.R. No. 79-7, 4 NJPER 394 (¶ 4177 1978); Essex Cty. Sheriff's Office, D.R. No. 83-5, 8 NJPER 477 (¶ 13323 1982).

UMDNJ, Id. at 294.

The Director also explained that:

[I]n endorsing the Commission's view that one broad-based professional employee unit was the appropriate employee unit under the

particular facts of Professional Assoc., where no State professional employees enjoyed any prior history of representation, the Court proferred that the question of unit structure would require re-examination if the practical consequences of the decision left employees without representation.

The history of an unrepresented status for the petitioned-for employees, notwithstanding the representation of all other UMDNJ faculty, is a significant concern herein. When UMDNJ, upon creation of this new faculty division did not seek to include the allied health faculty in the AAUP's negotiations unit, it ran the risk that it could not, more than six years later, persuasively argue that those employees rightfully belonged in the overall faculty unit. These employees have sought to enter the overall faculty unit to have twice been advised by the AAUP that it has no interest in representing them. At this juncture it would be fundamentally unfair to deprive the instant employees of representation of their choice by dismissing the within petition. It would appear to be consistent with the Court's instruction in Professional Assoc., supra, to consider at this time the practical consequences of a decision

which would leave these employees without representation.

Id. at 295

Application of the policy set forth in UMDNJ and the cases cited therein leads me to recommend that the Commission order an election among the psychologists to determine whether they desire to be represented in collective negotiations by the Association. I conclude that the psychologists' lack of representation, the CEA's persistence in refusing it, and the lack of any evidence that the formation of another collective negotiations unit would cause an

undue hardship on the Board3/ outweigh, in this case, the policy favoring broad based units. To hold otherwise would deny to the psychologists the representational rights guaranteed by N.J.S.A. 34:13A-5.3 and would ignore the Supreme Court's direction in Professional Association, to consider the practical consequences of a decision involving a question of representation.

RECOMMENDED ORDER

I recommend that the Commission order an election among Camden City School Psychologists to determine whether they desire to be represented in collective negotiaions by the Association.

I also recommend that the Commission dismiss the Board's clarification of unit petition.

Richard C. Gwin

Hearing Officer

DATED: July 24, 1987

Trenton, New Jersey

3/	The record is filled with evidence of the Board's discussions with the psychologists about their working conditions, dating to the mid-1970's. These discussions do not rise to the level of de facto recognition. The give-and-take of negotiations is not demonstrated (see pp. 6-8, supra.) In re Henry Hudson Reg. Bd. Ed., E.D. No. 12 (1970); In re Township of Teaneck, E.D. No. 23 (1971); In re West Paterson Bd. Ed., P.E.R.C. No. 77 (1973); Compare PBA Local 53 v. Town of Montclair, 131 N.J. Super 505 1974) vacated and remanded 70 N.J. 130 (1976); In re Collingswood Bd. Ed., P.E.R.C. No. 86-50, 11 NJPER 694 (¶16240 1985); In re Atlantic County Sewerage Authority, P.E.R.C. No. 81-91, 7 NJPER 99 (¶12041 1981). The Board proferred no evidence, however, that would suggest that it would suffer a hardship by formalizing its discussions with the psychologists into negotiations.