H.O. NO. 78-8

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PASSAIC COUNTY BOARD OF FREEHOLDERS,

Public Employer,

-and-	Docket No. RO-77-152

TEAMSTERS LOCAL 11, I.B.T.,

Petitioner,

-and-

PASSAIC COUNCIL #3, NJCSA,

Intervenor.

SYNOPSIS

A Commission Hearing Officer finds that CETA employees are public employees within the meaning of the New Jersey Employer-
Employee Relations Act and may be included in an appropriate unit for collective negotiations. Accordingly, he recommends that challenges to ballots cast by CETA employees be dismissed and the ballots counted.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The Report is submitted to the Director of Representation who reviewed the Report, any exceptions thereto filed by the parties and the record, and issues a decision which may adopt, reject or modify the Hearing Officer's findings of fact and/or conclusions of law. The director's decision is binding upon the parties unless a request for review is filed before the Commission.

H.O. NO. 78-8

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PASSAIC COUNTY BOARD OF FREEHOLDERS,

Public Employer,

-and-	Docket No. RO-77-152

TEAMSTERS LOCAL 11, I.B.T.,

Petitioner,

-and-

PASSAIC COUNCIL #3, NJCSA,

Intervenor.

Appearances:

For the Public Employer

Martin Verp, Passaic County Counsel

(James V. Convery, of Counsel)

For the Petitioner

Schneider, Cohen & Solomon, Esqs.

(Bruce Brafman, of Counsel)

For the Intervenor

William Sala, Esq.

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the "Commission") on March 14, 1977 by Teamsters Local 11, I.B.T. (the "Teamsters") for a unit of all blue collar employees employed by the Passaic County Freeholders (the "County"). It was amended on April 27, 1977 to seek a unit of all employees of the Mosquito Extermination Commission and the Road and Public Building Division of Passaic County (the "County"). By virtue of being the recognized employee representative of the unit sought, Passaic Council #3, NJCSA ("Council #3") was granted intervenor status. A consent agreement for an election for all blue collar employees of the above departments was signed by authorized representatives of all parties and approved by the Director of Representation on May 31, 1977.

On June 8, 1977 the election was conducted. Eighty-four votes were case--38 for the Teamsters, 36 for Council #3, three for neither, and seven votes were challenged. Of the challenges, five were based on the fact that the voters in question were hired under the federation Comprehensive Employment and Training Act ("CETA"). The other two challenges were to voters not on the eligibility list provided by the employer. It was subsequently agreed by the parties that one of the two voters not on the list was eligible--although his vote has not yet been tallied to avoid revealing his choice--and the other was not eligible. Inasmuch as none of the choices on the ballot received a majority of the votes cast, there could be no certification of the results of the election, and the remaining five challenged votes are determinative.

A notice of hearing was issued on July 18, 1977, and a hearing conducted before the undersigned Commission Hearing Officer on October 20, 1977, in Newark. All parties had the opportunity to examine and cross-examine witnesses, present evidence, and argue orally. Briefs were submitted by November 4, 1977, by the County and the Teamsters, but Council #3 chose not to submit a brief.

Upon the entire record herein, the Hearing Officer finds:

1.	The Passaic County Board of Freeholders is a Public Employer within the meaning of the New Jersey Employer-Employee Relations Act (the "Act") and is subject to its provisions.

2.	Teamsters Local 11, I.B.T. and Passaic Council #3, NJCSA, are Employee Organizations within the meaning of the Act and are subject to its provisions.

3.	A Petition for Certification of Public Employee Representative having been filed, and no result being certified for a secret ballot election conducted pursuant thereto, a question concerning representation exists and is properly before the Hearing Officer for a Report and Recommendation.

There is no question as to the appropriateness of the unit sought for which the County entered into a contract for 1975-76 with Council #3. The Teamsters filed a timely petition seeking to replace Council #3 as the exclusive representative of this unit, and all parties entered into a consent agreement for an election. Due to the fact that neither Council #3 nor the Teamsters received a majority of the votes cast -- counting the challenges in the total vote cast but not in either side's total -- no result can be certified and it is necessary to resolve the remaining challenges, all of which were made on the basis that the challenged voters were CETA employees. Whether CETA employees are employees within the meaning of the Act eligible to be in an appropriate unit is by agreement of all parties on the record the sole issue to be decided in resolving the challenges.

It is not disputed that CETA employees working in the departments included in the unit herein perform the same work under the same working conditions as the non-CETA personnel. The Teamsters, arguing for inclusion of CETA employees, point to the federal statute creating the program which states:

[P]ersons employed in public service jobs under this Act shall be paid . . . the prevailing rates of pay for persons employed in similar public occupations by the same employer; . . . 29 U.S.C. 848(a)(2)

Section 848(a)(4) goes on to ensure that CETA people will get workmen's compensation, health insurance, unemployment insurance and other benefits at equal levels as other employees as well as promotional opportunities. The CETA personnel working for the County do get the same benefits as others, except for pension.

In response the County points to the fact that although the CETA employees get County paychecks, the funds are actually coming from the federal government, as well as the fact that they are in no way covered by New Jersey's civil service system. In addition, the County relies heavily on the fact that CETA employees may be transferred from one department to another, and thereby may be taken out of the unit.

At the hearing, the testimony established that one CETA employee has been transferred between jobs both of which would fall within this unit, while another was transferred from Preakness Hospital to a position that would be in this unit leaving the CETA problem aside. Two security guards -- outside of this unit -- have also been transferred to different sites. No examples were presented of CETA employees performing work in jobs falling within this unit being transferred out of the unit.

While the existence of this issue has been recognized as a potential problem by the Director of Representation,1/ it has not yet been adjudicated in New Jersey. However, it has been brought before other state labor relations commissions.

In In re City of Three Rivers, 1977 MERC Lab. Op. 213, the Michigan Employment Relations Commission found that the indefinite status of CETA employees resulting from the possibility of federal funds being cut off should not keep them out of a bargaining unit where they are performing the same work. It was therefore ordered that they be allowed to vote in a representation election for the appropriate unit. This was consistent with several prior Michigan cases including In re Detroit Public Schools, 1976 MERC Lab. Op. 410, In re Fairview Medical Care Facility, 1976 MERC Lab. Op. 160, and In re Davison Community Schools, 1975 MERC Lab. Op. 760. In Davison, emphasis was placed on the afore-cited §848 as well as §846 providing that a labor organization representing employees doing similar work in the same area may submit comments on applicants. These sections, taken together, were deemed to demonstrate that CETA employees are to be treated as much like other employees as possible.

New York's Public Employment Relations Board ("PERB") in Village of Wayland and Wayland Police Benevolent Association, 9 PERB 3148 (1976), flatly stated that a CETA employee is fully entitled to the protections of New York's Taylor Law--the equivalent of New Jersey's Act--even though his salary and benefits are federally funded. Accord, Matter of Amityville Public Schools, 5 PERC 3073 (1972). The same conclusion was reached by New York City's Office of Collective Bargaining ("O.C.B.") in regard to employees hired under the Emergency Employment Act of 1971, a program similar in nature to CETA. District Council 37, AFSCME and the City of New York and Related Public Employers, O.C.B. Decision No. 9-72 (3/20/72).

In a recent arbitration award in California, CETA employees were held to be entitled to all benefits provided for in a contract between the County of Santa Clara and the Service Employees International Union Local 715, GERR, 7/18/77, p. 717:11.

It is the undersigned's conclusion--in agreement with the above-cited decisions in other states--that CETA personnel are public employees within the meaning of the Act, and may be included with non-CETA personnel in a unit that is otherwise appropriate. It seems clear that the federal legislation was intended to enable localities to increase their work force beyond what their own finances might allow. Simply because it is possible that the federal government might cut off funds rendering it financially impossible to retain the CETA employees2/ is insufficient to deny CETA employees the rights guaranteed by the Act.

Remaining is the County's position that because these CETA employees are subject to transfer to assignments that would be outside of the unit in question, they may not be included therein. Suffice it to say that the record reveals no instances of CETA employees having been transferred out of the departments involved herein, and the undersigned does not believe that the mere assertion that it might happen someday warrants banning the CETA people from the unit.

RECOMMENDATION

Upon the entire record herein, and for the above-stated reasons, it is the undersigned's recommendation that the challenges to the ballots cast by CETA employees be dismissed and the ballots counted.

Respectfully submitted,

/s/James F. Schwerin

Hearing Officer

DATED:	November 28, 1077

Trenton, New Jersey