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In re New Jersey

Decided: February 5, 1974.

IN THE MATTER OF STATE OF NEW JERSEY, RESPONDENT, AND PROFESSIONAL ASSOCIATION OF NEW JERSEY DEPARTMENT OF EDUCATION, PETITIONER-APPELLANT. STATE OF NEW JERSEY, RESPONDENT, AND NEW JERSEY INSTITUTIONS AND AGENCIES EDUCATION ASSOCIATION, PETITIONER-APPELLANT. STATE OF NEW JERSEY, APPELLANT, AND THE NEW JERSEY STATE NURSES' ASSOCIATION AND THE JERSEY NURSES' ECONOMIC SECURITY ORGANIZATION, PETITIONERS-RESPONDENTS


For affirmance in educators' case -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. Opposed -- None. For reversal in the nurses' case -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. Opposed -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

[64 NJ Page 235] We have here for consideration an issue of far reaching importance in the construction and application of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.,

as amended by L. 1968, c. 303, in particular relation to determination of public employee negotiating units.

The Public Employment Relations Commission ("PERC"), contrary to separate recommendations of hearing officers in the respective cases, denied unit representational status to statewide organizations of registered nurses, in one case, and to an organization of professional educational employees in the Departments of Education and of Institutions and Agencies, in the other. The decision in the nurses' case was reversed by the Appellate Division on appeal in a short, unreported per curiam opinion, substantially for the reasons set forth in the report of the hearing officer in that case. We granted certification. 63 N.J. 557 (1973).

We also, on our own motion, certified the PERC determination in the educators' case while that was pending on appeal in the Appellate Division, 63 N.J. 562 (1973), and consolidated it for hearing with the appeal in the nurses' case.

This litigation began with the filing by the New Jersey State Nurses' Association (NJSNA) in 1969 of a petition with PERC under the 1968 act for representation of all registered nurses employed by the State Department of Institutions and Agencies. Because of objections by the State based upon the supervisory nature of some of the positions involved, the case was ultimately submitted on amended petitions by Jersey Nurses' Economic Security Organization (JNESO), an affiliate of NJSNA, and by NJSNA itself, for representation, respectively, of all non-supervisory registered nurses employed by the State and all supervisory registered nurses so employed.

At the hearing before a hearing officer the State, acting through the Governor's Employee Relations Office on behalf of the Governor's Employee Relations Policy Council (see Executive Orders 3 and 4, L. 1970, pp. 1230-1234), opposed the petitions on the ground that the best interests of the State and its employees, within the guidelines of the statute, would be served by a representational unit comprising substantially

all professional employees of the State (excluding college faculties) rather than by the many separate units which would presumably ensue from the acceptance of units based solely on distinct professional identity, as in the case of registered nurses. The nurses, on the other hand, stressed their strong "community of interest" in their profession, pointed to the success they had had in previous negotiations with the State, and indicated possible areas of conflict of interest if they should be grouped with professionals generally, e.g., doctors.

The hearing officer found that the two nurses' units petitioned for would involve about 800 persons sharing about 30 job (civil service) titles; that the professional negotiating unit proposed by the State would (of the over 40,000 state employees) comprise some 6,300 persons in a range of about 550 job titles. He referred to the statutory direction that "[t]he negotiating unit shall be defined with due regard for the community of interest among the employees concerned * * *", N.J.S.A. 34:13A-5.3. He found the community of interest factor satisfied by a unit confined to registered nurses in view of "the historical recognition of nursing as a separate and distinct academic discipline, its acceptance as a recognized profession and its maintenance of organizations" such as the petitioner NJSNA, "concerned with internal self-discipline, training and the maintenance of standards and ethics on both a national and statewide basis". He also referred to the licensing requirements of New Jersey law applicable to registered nurses.

The hearing officer felt that the stated factors were sufficient to establish the petitioning units as "appropriate" under the act. He pointed further to the relatively large proportion of the total 6,300 professionals comprised by the nurses and to the history of prior negotiations of the organization with state representatives.

The educators' case began with the filing in June 1970 by the Professional Association of the New Jersey Department of Education of a petition with PERC requesting certification

as the negotiating representative for the professional non-supervisory educational employees in the Department of Education and the Katzenbach School for the Deaf. In October 1970 the New Jersey Institutions and Agencies Education Association similarly petitioned to represent professional, non-supervisory educational employees of the Department of Institutions and Agencies. After the commencement of hearings before a hearing officer (not the one who heard the nurses' case) these petitions were joined to indicate a single petitioner requesting representation of all the personnel covered by both petitions. It was also informally indicated that the petitioner would expand its representation to the professional educational employees in the Department of Higher Education, and to miscellaneous others, so as to achieve statewide coverage of the category. Some of the employees in the proposed unit are teachers but most perform administrative work in overseeing the general public educational system. The total would approximate 1,200 persons.

During the hearings the State took basically the same position in objection to this unit as it had in the nurses' case. The preferable unit was argued to be one of all state-employed professionals, the requisite "community of interest" being reflected by their common status as professionals and the standards, attainments and status inherent therein as such. Stress was laid on the fact that "professionals" are expressly mentioned in the statute, with the implication that this is a permissible unit category. N.J.S.A. 34:13A-6(d). Moreover, the requirements in the Civil Service laws and rules for uniformity in schedules of compensation and regulations as to working conditions were argued to narrow the potential range of negotiability as to working conditions relative to professional employees and therefore to militate in favor of broadly inclusive rather than limited units of representation. The structure of the state government and its bargaining position were contended also to constitute relevant factors.

The hearing officer found that the requested unit was appropriate and should be recommended. He pointed to the community of interest indicated by the fact that all members of the unit were working in the field of education and that almost all were certified to teach. Both departmental groups, moreover, were affiliated with the New Jersey Education Association, a long recognized representative of school teachers. The unit envisaged was regarded as "a logical functional group of such employees", having no conflicts of interest. The hearer thought some six or eight such groups could be constituted out of all the professional employees of the State. The sooner certifications were granted to some groups of professional employees the sooner, it was thought, negotiations on behalf of all such groups could begin, as contemplated by the Legislature. The hearer did not regard a unit of all 6,300 professional employees as an appropriate unit because the diversity of functions and occupations involved would preclude effective and meaningful representation.

After receiving briefs and argument PERC disposed of both sets of applications in one decision. P.E.R.C. No. 68 (May 23, 1972). In dismissing the petitions in both cases the Commission said it was relying on the policy of the statute and the community of interest of the concerned employees. The Commission first reviewed its previous decision in Neuropsychiatric Institute, P.E.R.C. No. 50, that the scope of units of state employees must be statewide, regarding that ruling as a foundation for its decision in the present cases. It said, in reference thereto:

P.E.R.C. No. 68, at 7-8.

The Commission then pointed out that it had found in P.E.R.C. No. 50 that it was appropriate to fashion a unit, statewide in scope, "to encompass all employees sharing a broad occupational objective or description". P.E.R.C. No. 68, at 8. The mutuality of employee interest lay in the nature of the service provided. That proceeding resulted in the establishment of three units of non-professional, nonsupervisory employees, viz: Health, Care and Rehabilitation Services; Operations, Maintenance and Services; and Craft Employees.*fn1

The units here sought, said PERC, conform solely to individual professions. Acceptance of them would require the Commission to recognize the attributes of a particular profession as controlling. The Commission viewed the concept of community of interest more broadly, as containing a number of variable factors, the weight of which in any given case would depend on the facts in the case and "deciding what will best serve the statutory policy" -- one of promoting permanent employer-employee peace and the general welfare of the State. While the registered nurses, for example, do "share an identity" by virtue of their common background, licensure and professional goals, these characteristics "do not necessarily create an exclusive community of interest". The statute even permits professionals to be unitized with non-professionals if the professionals vote therefor. A fortiori the

lines between professions are not necessarily natural barriers. The gravamen of the decision was as follows:

The 1968 statute was designed to implement Article I, Paragraph 19 of the Constitution of 1947 declaring that "Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing." Various aspects of the purpose, policy, limitations and constitutionality of the statute have been considered by this court. Lullo v. Intern. Assoc. of Fire Fighters, 55 N.J. 409 (1970); Burl. Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579 (1970); Bd. of Ed. of West Orange v. Wilton, 57 N.J. 404 (1971); Dunellen Bd. of Ed. v. Dunellen Ed. Assn., 64 N.J. 17 (1973). The matter of fixing negotiating units, however, has not been considered by us at any length except

as to the bearing on the concept of "community of interest" of the inclusion of supervisory employees in a unit, see Bd. of Ed. of West Orange v. Wilton, supra -- a matter not of instant concern.

Our statute is not an isolated phenomenon in the area of labor relations of public employees. New Jersey in common with most of the country has in recent years experienced the pains of the conflict between rising expectations of people in the public employ and the strain of fiscal pressures on government at every level. Some 36 states now have statutes giving at least some public employees the right to organize and negotiate or bargain with government. By executive orders promulgated in 1962 and 1969 such a system, administered by the Secretary of Labor, has also been operative as to federal employees. In almost all of these systems, as in New Jersey, a board or officer is authorized to fix an appropriate unit for negotiations if the parties cannot agree thereon. For a comprehensive history of the development of legislation and administrative procedures dealing with public employee labor relations, see Blair, "State Legislative Control over the Conditions of Public Employment: Defining the Scope of Collective Bargaining for State and Municipal Employees", 26 Vanderbilt L. Rev. 1 (1973).

L. 1968, c. 303 was structured as an amendment of and supplement to the prior Labor Mediation Act, enacted in 1941 (L. 1941, c. 100), which dealt only with conciliation of labor disputes in the private sector. There are several clues to a supervening legislative policy underlying Chapter 303 that the peculiar needs, requirements and interests of the general public and of government as an employer should be accorded attention coordinate with that of employee rights in the interpretation and administration of the act. The legislation creating the study commission whose report and recommendations preceded enactment of Chapter 303 stated in its preamble (L. 1966, c. 170) that the procedure to be developed "must take into consideration the rights and needs of public and school employees as well as a recognition of

the legitimate concerns of the public in the efficient operation of government". It was also stated in the report of that Commission that because of the variety of governmental units involved there was a need for a "flexible, evolutionary approach to legislation". Negotiating units should be determined in accordance with the community of interest among employees "and the structure of the appointing authorities".

The declaration of policy in the Employer-Employee Relations Act itself avers "that the interests and rights of the consumers and the people of the State, while not direct parties thereto [labor disputes], should always be considered, respected and protected * * *." N.J.S.A. 34:13A-2. Further, no provision of the act is to "annul or modify any statute or statutes of this State". N.J.S.A. 34:13A-8.1. The provisions detailing the procedure in collective negotiations specify that "[n]othing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations." N.J.S.A. 34:13A-5.3. And, as we have recently held as to the area of employees in the educational field, mandatory negotiations are precluded as to subject matter "predominantly of ...


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