D.R. NO. 79-4

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF MINE HILL,

Public Employer,

-and-	Docket No. 78-20

TEAMSTERS LOCAL 102,

Petitioner.*

Appearances:

For the Public Employer,

Wiley, Malehorn & Siroto, Esqs.

(Frederic J. Siroto, of Counsel)

For the Petitioner

Richard A. Weinmann, Esq.

(Ben Merker, Secretary-Treasurer)

DECISION AND DIRECTION OF ELECTION

Pursuant to a Notice of Hearing to resolve a question concerning the representation of public employees, a hearing was held on December 28, 1977, before Hearing Officer Arnold H. Zudick at which all parties were given an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. The Township of Mine Hill (the "Township") filed a post-
hearing brief on February 16, 1978. On April 26, 1978, the Hearing Officer issued his Report and Recommendations. A copy is

_________________

*	As amended, infra, para. 8.

annexed hereto and made a part hereof. Exceptions to the Hearing Officer's Report and Recommendations and a brief in support thereof were filed by the Township on May 26, 1978.1/ Teamsters Local 102 has not filed an answering brief to the exceptions; nor has it filed any cross-exceptions.

The undersigned has considered the entire record including the Hearing Officer's Report and Recommendations, the transcript and the exceptions, and on the basis thereof finds as follows:

1.	The Township of Mine Hill is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the "Act"), and is subject to its provisions.

2.	Teamsters Local 102 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Teamsters seek to represent in one proposed unit all blue collar employees employed in the Township's Road and Water Departments, including the Road and Water Department Foreman, the Assistant Road Foreman, and two CETA employees currently assigned to these departments.

4.	The Township has declined to consent to an election claiming that the unit petitioned-for is inappropriate. The Township contends that the Road and Water Department Foreman is a supervisor within the meaning of the Act and may not be included in a unit with non-supervisory employees. Further, the Township states that CETA employees are not public employees within the meaning of the Act, and, therefore, are also inappropriate for inclusion in the proposed unit. Accordingly, a question concerning the appropriateness of a unit for collective negotiations exists and the matter is properly before the undersigned for determination.

5.	At the hearing the Hearing Officer denied the Township's motion to dismiss the Petition on the procedural ground that Teamsters Local 102 was not a proper Petitioner because it failed to follow Commission Rules and Regulations regarding the filing of a representation petition.

6.	The parties stipulated that the Township employs the employees concerned in this Petition; that the two CETA employees are paid primarily through federal funds, although they do receive some additional salary from the Township; that all of the employees in question receive the same benefits; and that the Assistant Road Foreman is not a supervisor within the meaning of the Act.

The parties further stipulated that the two outstanding issues are: whether the Road and Water Department Foreman is a supervisor within the meaning of the Act; and whether CETA employees are public employees within the meaning of the Act.

7.	The Hearing Officer found that the two CETA employees are public employees and are appropriate for inclusion in the proposed unit. Further, although the Hearing Officer found that the Road and Water Department Foreman was a supervisor within the meaning of the Ac, he concluded that special circumstances existed which rendered appropriate the inclusion of this supervisory title with the non-supervisory titles. Finally, having denied a Township motion to dismiss the Petition on the procedural ground that the Teamsters had not complied with the Commission's Rules and Regulations regarding the filing of a representation petition, the Hearing Officer recommended that the appropriate unit for representation include the one supervisory title (the Road and Water Department Foreman), the Assistant Road Foreman, and the two CETA employees.

Accordingly, the Hearing Officer recommended that an election be directed among employees in a unit consisting of all blue collar employees of Township of Mine Hill Road and Water Departments, as described immediately above.

8.	The Township, in its first exception, contends that the Hearing Officer acted incorrectly in refusing to grant its motion to dismiss. The Petition, with the accompanying showing of interest, identified International Brotherhood of Teamsters, Local 37 as the Petitioner. However, subsequent to the filing of this Petition, Local 102 was substituted for Local 37, the latter Local having been merged into the former organization. The Township contended that Local 102 was a different organization which should be required to file its own representation petition, submit a showing of interest in its own name, and otherwise comply with the full petitioning procedure.

The undersigned, in the first instance, votes that under N.J.A.C. 19:11-2.1 the adequacy of the showing of interest is to be determined by the Director of Representation and is not subject to collateral attack at a hearing. Accordingly, the Township's motion before the Hearing Officer was misdirected. Nevertheless, the undersigned agrees with the Hearing Officer's analysis that Local 102 is the successor to Local 37 with which it merged, and, as the successor organization, is not required to submit a new showing of interest even though the initial showing of interest cards were obtained by the union's predecessor -- Local 37 -- and designated this predecessor Local as the desired negotiations representative.2/ As the National Labor Relations Board stated in General Dynamics:

"...Furthermore, despite all of the Employer's arguments, the record leaves little doubt that the showing of interest evinces an underlying substantial employee intent to acquire a bargaining representative or, at the very least, an employee desire of being placed in a position to cast a ballot. The mere existence of the showing of interest is prima facie evidence thereof. We cannot assume, therefore, that these employee intents and desires have been blunted by the wording on the cards. Moreover, since all of the unions involved herein are members of the same International Union, and since Petitioner is, in effect, a successor to Local 1794 and NEPA San Diego chapter and seeks merely to substitute its name for that of its predecessors, it is doubtful that the card subscribers would be affected in their desire for representation simply by the substitution of Petitioner's name on the petition. In any event, the employees will have an opportunity to accept or reject Petitioner in an election. Accordingly, we find that a new showing of interest is not required herein. [87 LRRM at page 1712].

The undersigned, consistent with Board policy, determines that the Petitioner's showing of interest is adequate to support the further processing of this matter.

The Township also excepts to the Hearing Officer's finding that CETA employees are public employees within the meaning of the Act, and are appropriate for inclusion in the proposed unit. This exception is based primarily on the grounds that CETA employment is temporary in nature and that these employees, not being permanently assigned to the specific departments included in this Petition, do not have a community of interest with the other permanent employees. The undersigned rejects this exception and adopts the Hearing Officer's finding.

The factors cited by the Township in its exception have previously been addressed by the undersigned in In re Passaic County Board of Chosen Freeholders, D.R. No. 78-29, 4 NJPER 8 (¶4066 1977), which the Hearing Officer cited as controlling authority for his finding concerning the CETA employees. In Passaic the undersigned determined that as CETA employees perform substantially the same work under the same working conditions as "regular" blue collar employees,3/ and receive equivalent pay and other benefits,4/ they share a community of interest with "regular" employees which is not outweighed by the temporary nature and transferability of CETA employment. The undersigned also determined that CETA employment provided sufficient continuity to entitle CETA personnel to rights under the Act.

The additional fact that the two CETA employees are not permanently assigned to the Road and Water Departments does not negate the finding of a community of interest. The unit petitioned-for consists of blue collar employees and there was testimony that, while CETA employees may perform many different tasks, they are all basically laborers.5/ The Commission's policy is to approve only broad based units including all municipal blue collar employees.6/ Since the proposed unit includes all the Township's blue collar employees, the undersigned finds the unit to be appropriate, and such unit would remain appropriate if CETA employees were given blue collar job assignments which are outside the purview of the Road and Water Departments.7/

In its final exception the Township excepts to the Hearing Officer's finding that special circumstances exist which render appropriate the inclusion of the supervisory title -- Road and Water Department Foreman -- in the proposed unit with non-
supervisory personnel. Since the Department Foreman is the only full-time supervisor, the Township contends that, to insure effective organization and management, it must be able to rely on his independent ability to supervise the physical maintenance of the Township's facilities.

The Hearing Officer's finding of special circumstances was based on three considerations: (1) that a community of interest existed with the other employees since they all receive the same benefits, work the same hours, and perform many of the same functions; (2) there is an absence of any actual or potential conflict of interest between the supervisor and the other employees; (3) since there is no other unit to which the supervisor could belong, a decision which would not allow this employee the opportunity to exercise the rights guaranteed to him would be contrary to the policies of the Act.

After careful consideration of these factors the undersigned finds that they do not constitute special circumstances. In Board of Education of West Orange v. Wilton, 37 N.J. 404 (1971), the Court stated that:

"One underlying concept which emerges from a study of statutes, texts and judicial decisions in employer-employee relations, whether in the public or private employment sector, is that representatives of the employer and the employees cannot sit on both sides of the negotiating table. Good faith negotiating requires that there be two parties confronting each other on opposite sides of the table. Obviously both employer and employee organizations need the undivided loyalty of their representatives and their members, if fair and equitable settlement of problems is to be accomplished. Unless the participation is of that caliber, the effectiveness of both protagonists at the discussion table would be sharply limited."

All of the Township's governing officials devote only part-
time service to the municipality and there is no full-time general supervisory official. Accordingly, if the Department Foreman was included in the unit with non-supervisory personnel the Township's management would have no full-time employee on whom it could rely to represent, with undivided loyalty, the employer's interest in its relations with its employees. The factors cited by the Hearing Officer to justify the inclusion of the supervisory title do not outweigh this basic and overriding need of management.8/ Therefore, the undersigned, contrary to the Hearing Officer's recommendation, determines that special circumstances do not exist which render appropriate the inclusion of this supervisory title with the non-supervisory titles in the proposed unit. Accordingly, the Director concludes that the appropriate unit for representation consists of three non-
supervisory employees: The Assistant Road Foreman, and two CETA employees. An election shall be directed among the employees described immediately above in the proposed unit consisting of all blue collar employees employed in the Road and Water Departments of the Township of Mine Hill.

Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that an election be conducted among the employees described above. The election shall be conducted no later than thirty (30) days from the date set forth below.

Those eligible to vote are employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, or on vacation, or temporarily laid-off, including those in military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who quit or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date.

Pursuant to N.J.A.C. 19:11-9.6, the Township is directed to file with the undersigned and with Teamsters Local 102 an election eligibility list, consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by the undersigned no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with the Teamsters with statement of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.

Those eligible to vote shall vote whether or not they desire to be represented for the purposes of collective negotiations by the Teamsters Local 102.

The exclusive representative shall be determined by a majority of the valid ballots cast. The election directed herein shall be conducted in accordance with the Commission's Rules.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	July 27, 1978

Trenton, New Jersey