D.R. No. 82-36

Synopsis:

The Director of Representation determines that the Authority's clerk is a confidential employee based upon her functional responsibility and knowledge in connection with the issues involved in the collective negotiations process, and sustains the challenge of the ballot cast by her in a representation election. The Director therefore voids the ballot, and finding that the Petitioner has received a majority of valid ballots issues a Certification of Representative.

PERC Citation:

D.R. No. 82-36, 8 NJPER 140 (¶13061 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.22 33.43 35.37

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 82-036.pdf
Appellate Division:
Supreme Court:

D.R. NO. 82-36 1. D.R. NO. 82-36 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of WESTERN MONMOUTH UTILITIES AUTHORITY, Public Employer, -and- Docket No. RO-81-251 HIGHWAY AND LOCAL MOTOR FREIGHT DRIVERS, DOCKMEN AND HELPERS, LOCAL UNION NO. 701, Petitioner. Appearances: For the Public Employer Kramer & Micheletti, P.A. (E. Benn Micheletti of counsel) For the Petitioner Joseph Palughi, Organizer DECISION On June 3, 1981, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by Highway and Local Motor Freight Drivers, Dockmen and Helpers, Local Union No. 701 (the A Local @ ), seeking to represent clerical employees of the Western Monmouth Utilities Authority (the A Authority @ ). Pursuant to an Agreement for Consent Election entered into by the parties on June 23, 1981, a secret ballot election was conducted among the clerical employees on July 17, 1981. The Tally of Ballots indicated that three valid ballots were cast for the Local, and two valid ballots were cast against representation by the participating employee representative. The ballot of one voter was challenged by the Authority.1/ The disposition of this challenge ballot is sufficient to affect the results of the election and is the subject of this determination. Pursuant to N.J.A.C. 19:11-9.2(k), a hearing was held before Commission Hearing Officer Mark A. Rosenbaum, on September 14, 1981, in Trenton, New Jersey. At the hearing, all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and argue orally. Both parties waived the right to file post-hearing briefs. The Hearing Officer thereafter issued his Report and Recommendations on November 6, 1981, a copy of which is attached hereto and made a part hereof. The Hearing Officer recommended that the challenge to the ballot, cast by the clerk to the Authority, be sustained and that the employee be found to be ineligible to vote in any representation election by reason of her confidential status. Neither party has filed exceptions to the report of the Hearing Officer. The undersigned has carefully considered the entire record herein including the Hearing Officer = s Report and Recommendations, the transcript, and the exhibits and finds and determines as follows: 1. The Western Monmouth Utilities Authority is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), and is subject to its provisions. 2. Highway and Local Motor Freight Drivers, Dockmen and Helpers, Local Union No. 701 is an employee representative within the meaning of the Act and is subject to its provisions. 3. On June 3, 1981, the Local filed a Petition for Certification of Public Employee Representative with the Commission seeking an election for the purpose of representing a collective negotiations unit of clerical employees, including the titles of secretary, clerk, bookkeeper and assistant bookkeeper employed by the Authority and an election was held among employees in this unit on July 17, 1981. The unit composition excludes confidential employees.2/ 4. At the election, the Authority challenged the ballot of Arlene Schwartz, the clerk to the Authority, asserting that she was a confidential employee, and may not be included in the collective negotiations unit. The Local disputes the contention of the Authority. 5. N.J.S.A. 34:13A-3(g) defines A confidential employees @ as those A . . . employees whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties. @ In her position as clerk to the Authority, Arlene Schwartz is responsible for maintaining the official records of the Authority = s public meetings and for performing various clerical and bookkeeping tasks. She frequently attends Authority executive sessions which are private and in which negotiations proposals involving the Authority = s two negotiations units are substantively discussed by the Authority = s Commissioners. She transcribes and types the notes of these sessions and even when she is not in attendance she still may be asked to transcribe the minutes, as taken by another person. All of the minutes to every executive session are kept in her stenographic notebook. In light of these facts, the undersigned agrees with the Hearing Officer that the Authority = s clerk is a confidential employee. The undersigned has found similarly situated employees to be confidential employees in In re Gloucester Cty. College, D.R. No. 78-47, 4 NJPER 233 ( & 4116 1978); and In re Orange Bd. of Ed., D.R. No. 78-28, 4 NJPER 1 ( & 4001 1977). The undersigned therefore finds that Ms. Schwartz = s functional responsibilities and knowledge in connection with the issues involved in the collective negotiations process make her membership in any appropriate negotiating unit incompatible with her official duties. Accordingly, for the above reasons and noting the absence of exceptions, the undersigned adopts the findings of fact and conclusions of law of the Hearing Officer and determines that the clerk to the Authority is a confidential employee within the meaning of the Act and is ineligible to vote in any representation election. The challenge to the ballot cast by Arlene Schwartz in the representation election held on July 17, 1981 is sustained. Accordingly, having received a majority of valid ballots cast in the election, the undersigned shall issue the appropriate Certification of Representative (attached hereto and made a part hereof), to Highway and Local Motor Freight Drivers, Dockmen and Helpers, Local Union No. 701. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: January 26, 1981 Trenton, New Jersey 1/ The Authority claims that this voter is a confidential employee. 2/ See N.J.S.A. 34:13A-3(d) ***** End of DR 82-36 *****