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H.O. No. 83-5

Synopsis:

A Commission Hearing Officer recommends dismissal of a Petition for Clarification of unit seeking a determination that the title Training Technician is included in the petitioner's professional and nonprofessional clerical, nonsupervisory unit. She found that since the Training Technician trained and evaluated these employees on a daily basis, their inclusion in a unit with these employees would present a conflict of interest as defined in West Orange Bd. Ed. v. Wilton, 57 N.J. 404 (1971).

PERC Citation:

H.O. No. 83-5, 8 NJPER 596 (¶13279 1982)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.32 33.35 33.42

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.HO 83-005.wpdHO 83-005.pdf - HO 83-005.pdf
    Appellate Division:
    Supreme Court:


    H.O. NO. 83-5 1.
    H.O. NO. 83-5
    STATE OF NEW JERSEY
    BEFORE A HEARING OFFICER OF THE
    PUBLIC EMPLOYMENT RELATIONS COMMISSION

    In the Matter of

    MERCER COUNTY WELFARE BOARD,

    Public Employer,

    -and- Docket No. CU-81-14

    LOCAL 2285, AMERICAN FEDERATION
    OF STATE, COUNTY & MUNICIPAL
    EMPLOYEES, AFL-CIO,

    Petitioner.


    Appearances:

    For the Public Employer
    Thomas J. McGann, Esq.

    For the Petitioner
    Carlton Steger, Staff Representative, Local 2285
    American Federation of State, County and Municipal
    Employees, AFL-CIO
    HEARING OFFICER = S REPORT
    AND RECOMMENDATIONS

    On September 18, 1980, Local 2286 of the American Federation of State, County and Municipal Employees, AFL-CIO ( A AFSCME @ ) filed a clarification of unit petition with the Public Employment Relations Commission (the A Commission @ ) seeking a determination that the title of Training Technician is included within the collective negotiations unit they represent. The public employer, the Mercer County Welfare Board (the A Welfare Board @ ) responded that Training Technicians should not be included in the AFSCME unit because they lack a community of interest with the employees in that unit and further that a conflict of interest exists between the Training Technicians and the employees in the petitioner = s unit.
    Pursuant to a notice of hearing issued January 26, 1981 by the Director of Representation, a hearing was held on March 29, 1981. Post-hearing briefs were filed by October 30, 1981. Based on the entire record the Hearing Officer makes the following findings of fact:
    The Mercer County Welfare Board 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 subject to its provisions and is the employer of the employees who are the subject of this proceeding.
    Local 2285, American Federation of State, County and Municipal Employees, AFL-CIO is an employee organization within the meaning of the Act and subject to its provisions.
    AFSCME is the exclusive majority representative for employees described in the recognition clause of the contract between the parties as A non-supervisory and non-professional employees @ of the Mercer County Welfare Board. The basic description of this unit has remained unchanged since at least 1977 (C-3 in Evidence). While the unit is described as non- professional, both Welfare Board Personnel Officer Carl Muehleisen (Tr 122) and Union Chief Steward Frank Sisto (Tr 12) testified that professional employees are included in this collective negotiations unit. Also, the specific titles listed under the recognition clause include titles that are generally considered A professional @ titles, e.g., social worker and income maintenance worker.1/
    In May 1979 the Mercer County Welfare Board created the title of Training Technician. On April 16, 1979 Personnel Officer Muehleisen met with an AFSCME representative and a representative of a unit of supervisors employed at the Welfare Board advising them that the title was being created. At that meeting Muehleisen also advised the union representatives that the employer considered this title to be an A administrative or managerial position @ not to be included in any bargaining unit (Tr. 114). While Muehleisen apparently felt that at that meeting that the representatives did not disagree with the Welfare Board = s placement of the titles, AFSCME felt differently. Union Steward Sisto requested of Director of Welfare Patrick J. Magee that the title be included in the AFSCME unit, but the request was denied.2/ (Tr. 12) The Union did not agree to the exclusion and again requested inclusion of Training Technicians in the AFSCME unit in subsequent contract negotiations in the spring of 1980. Throughout these negotiations the employer would not agree to place the Training Technician title in the recognition clause of the contract. (Tr. 129) On June 20, 1980 an overall agreement on the contract was reached and the Union indicated they would pursue the title dispute through PERC (Tr. 17 and 128).
    Three Training Technicians were appointed. They joined the Staff Development and Training Section headed by the Training Supervisor and an Assistant Training Supervisor (C-5 in Evid.).
    The three Training Technicians, the Training Supervisor and the Welfare Director all testified without contradiction as to the scope of the Training Technicians = duties. Training Technicians conduct orientation, in-service and remedial training. It is an internal staff position devoted exclusively to training functions. The Training Technicians determine the content of the training to be given and evaluate the employee in training.
    All new employees hired by the Welfare Board go through an initial orientation by the training staff. The Welfare Board employs approximately 450 people.
    Length of initial training varies depending on the trainee = s position. Employees in income maintenance receive four to five weeks of training. Since the new employee does not have a staff assignment or line supervisor during this initial training period, the evaluation of that employee which is required after the first 30 days is completed by the Training Technicians (various specialists among the three Training Technicians and two Training Supervisors may contribute to the training and evaluations). The trainer comments on the employee = s performance in training but does not make recommendations as to retention or non-retention of employees. The employee is shown the training evaluation, initials the evaluation and it is placed in the employee = s permanent personnel folder (Tr. 71, 81, 92, 162).
    In orientation training the Training Technician explains to the new employee their terms and conditions of employment which are covered under the negotiations agreement and explains the choice the employee has as to union membership (Tr. 70, 102, 169).
    Training Technicians also conduct remedial training. If a supervisor identifies an employee problem the supervisor may request remedial training. The assigned Training Technician has access to the employee = s personnel file to use in designing a remedial training plan together with the employee = s supervisor. After the training, the Training Technician meets with the employee and goes over the employee = s evaluation. (Tr. 97, 163) The remedial training report is placed in the employee = s personnel file. (Tr. 29)
    Additionally, Training Technicians train employees who are promoted and employees who are reassigned. The Training Supervisor, Noe LaFramboise, testified:
    We = ve been doing ongoing training, which we normally do for each department each month. So we are looking to address problems that we encounter organizationally monthly in each department, too. (Tr. 165)

    Training Technician Janet M. Hughes testified she gave group remedial training in the food stamp area. The technician gave a presentation and the employees then did an exercise. The exercise was evaluated by the technician and discussed by the technician with the employee. The exercise was placed in the employees = personnel files (Tr. 38).
    Article XXX of the collective negotiations agreement between AFSCME and the Welfare Board provides:
    A. A duplicate copy of the evaluation by the immediate Supervisor which is required for probationers shall be given in its entirety to the respective employee. Evaluations are grievable.

    B. Each employee shall be notified of an evaluation of his or her performance and receive a copy of this evaluation and have an opportunity to review such evaluation with his or her Supervisor. Evaluations are grievable.

    C. An employee, by request for appointment and with the approval of the immediate Supervisor, shall have access to examine his or her own personnel file during office hours at reasonable time set by management and may be accompanied by a Union Representative.

    D. The signature of the employee affixed to any document does not indicate in any way that the employee agrees with the contents of the document or the file. Employee = s signature is affixed to show only that the file has been reviewed in accordance with this agreement. The employee shall have the right to respond in writing to any document in the file. Such response shall become part of the personnel file unless as a result of the response, the questioned document is removed and destroyed. The employees reserve the right to grieve any material in this file.

    E. The provisions of Article XXX, Personnel Files and Evaluations, are subject to the grievance procedure up to the third step which is final and binding on all parties. (C-2 in Evidence)

    There have not been any grievances filed concerning training evaluations.
    Discussion and Analysis
    The employer argues that the clarification of unit petition should be dismissed because AFSCME abandoned its claim by not exercising due diligence in filing the CU petition. The union was notified that the position was being created on April 4, 1979 and no petition was filed until September 18, 1980. The undersigned does not agree that the union abandoned its claim. While the clarification of unit petition could have been filed when the position was created, the employer had notice that the employee organization felt the title should have been included within the definition of the AFSCME unit. Prior to filing the petition the Union attempted to resolve the dispute directly with the employer. The Commission does not require the clarification of unit petitions be filed at a particular time upon penalty of waiving the right to file such petition. N.J.A.C. 19:11-1.5 and 19:11-2.8; see also Clearview Reg. H.S. Bd/Ed and Clearview Ed Assn., D.R. No. 78-2, 3 NJPER 248 ( & 10229 1979).3/
    The Union argues that since these employees are neither supervisors within the meaning of the Act nor confidential employees within the meaning of the Act, they should be included in the AFSCME broad-based collective negotiations unit. The employer argues that the nature of their administrative support work associated with personnel functions negates any community of interest that Training Technicians might otherwise share with other members of the bargaining unit. Additionally, the employer argues that given the evaluative nature of their work, membership in the AFSCME unit would create a conflict of interest. The employer relies on Bd/Ed of West Orange v. Wilton, 57 N.J. 404 (1971).
    The undersigned agrees that these employees are not supervisors within the meaning of N.J.S.A. 34:13A-5.3 A having the power to hire, discharge, discipline or effective recommend the same.... @ Nor are they confidential employees under N.J.S.A. 34:13A-3(b) A involved in the collective negotiations process. @ 4/
    The undersigned does feel, however, that the day-to-day duties of the Training Technicians would present a conflict of interest if they were to be included in this negotiations unit.
    The supreme Court in Bd/Ed of West Orange v. Wilton, supra, held that if the good faith performance of the obligation to the employer arising from the authority delegated the employee places that employee in a position of actual or potential conflict of interest with other personnel, that employee may not be included in negotiations units with the employees with whom they have a conflict. The court asked (at p. 417) A Are the duties, authority and actions of the employee in question, vis-a-vis the other employees in the Association, primarily related to the management function? @ See also the Director of Representation = s decision in East Brunswick, supra.
    The Training Technicians, their supervisor and the Director of Welfare all testified they felt their inclusion in this unit would present a conflict with the other personnel in the unit. They have a unique staff role among the Welfare Bureau = s 450 employees. They are developing training, and training and evaluating employees for management on a daily basis. This is their only function, while the other employees of the Welfare Bureau deliver services to the public.5/ This evaluation is not used directly by management in making decisions as to hiring, firing or discipline. The evaluation becomes part of an employee = s overall personnel file which is used by supervisors in making such determinations. The petitioner has embodied in its contract concern over evaluation of employees and items placed in personnel files. Under the contract language quoted above training evaluations may be grieved. While there have been no grievances filed concerning training evaluations, this is the kind of conflict of interest the court was concerned about in Wilton. A [S]he would have to defend against a complaint made by an organization of which she was a member. @ (at p. 286)
    Based on the above the undersigned concludes that inclusion of Training Technicians in a negotiations unit with employees that they train and evaluate at the direction of management would place them in the type of conflict with those employees that the Supreme Court envisioned in Wilton.
    Recommendations
    Accordingly, based on the record and the above finding the undersigned recommends that the negotiations unit represented by AFSCME be clarified to not include the title Training Technician.
    Respectfully submitted,

    Joan Kane Josephson
    Hearing Officer
    DATED: September 30, 1982
    Trenton, New Jersey
    1/ Inclusion of professional titles in this unit was not in question.
      2/ Sisto testified that Magee felt the issue should be discussed at the next negotiations session.
      3/ The Director, commenting on Clearview in In re Twp. of East Brunswick, D.R. No. 82-42, __ NJPER ___ ( & _____ 1982) pointed out that when A one party has properly noticed the other party of a unit composition dispute prior to the execution of a collective negotiations agreement, the appropriate unit configuration may be obtained during the life of the contract. @ The employer was aware of the unit composition dispute herein.
      4/ While the Training Technicians explain in orientation training contractual benefits and advise employees of their option to join or not join the union, I do not consider this to be sufficient involvement in the collective negotiations process to require a finding that these employees are confidential employees.
      5/ Investigators in the unit do not conduct internal investigations as was suggested but rather investigate welfare fraud.
    ***** End of HO 83-5 *****