H.E. NO. 80-44

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

ATLANTIC COUNTY SEWERAGE AUTHORITY,

Respondent,

-and-	Docket No. CO-80-18-52

INTERNATIONAL BROTHERHOOD OF FIREMEN

AND OILERS, LOCAL 473,

Charging Party.

Appearances:

For the Respondent

John P. Miraglia, Labor Consultant

For the Charging Party

Freedman and Lorry, Esqs.

(Mark P. Muller, Esq.)

DECISION ON MOTION FOR SUMMARY JUDGMENT

On July 17, 1979, the International Brotherhood of Firemen and Oilers, Local 473, AFL-CO (Local 473) filed a charge with the Public Employment Relations Commission (PERC) alleging that on or about April 16, 1979 and April 30, 1979, the Atlantic County Sewerage Authority (Authority) recognized the Charging Party as the exclusive bargaining agent for all mechanical, electrical, operational, labor and custodial employees of the Authority. The granting of recognition was based upon Charging Party presenting to the Authority signed authorization cards designating Local 473 as the exclusive negotiations agent by a majority of the unit employees.

It was further alleged that on or about June 11, 1979, the Authority notified the Charging Party that it was withdrawing its recognition. On June 19 the Charging Party demanded that the Authority negotiate with it as the exclusive collective negotiations agent for the unit in question. The Authority refused to negotiate and, it was alleged, on July 1, 1979, the Authority unilaterally instituted a wage increase of 10% to all unit employees. It was specifically alleged that the Authority violated N.J.S.A. 34:13A-5.4(a)(1), (5) and (7) of the Act.1/

It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 1, 1980. On March 31, 1980, the Charging Party filed a Motion for Summary Judgment, reiterating the facts in the complaint. The Respondent opposed the motion by letter on April 7, 1980, and filed an answer to the complaint, a brief in opposition to the Motion for Summary Judgment and a request to permit the filing of these documents out of time.2/

N.J.A.C. 19:14-4.8(c) provides that a responding party shall have ten days to file any answering brief and affidavits.

Since the Respondent did file the letter opposing the motion in a timely fashion and did participate in precomplaint conferences regarding this matter, the undersigned will grant the Respondent's request and permit the filing of its answer to the complaint and its brief in opposition to the motion.

The Respondent in its answer admits that recognitions granted to Local 473 on April 16 and April 30 were granted, but alleges that the authorization cards examined were issued six to eight months prior to the date of recognition. It is further alleged that many of the cards presented had been withdrawn but the Respondent did not know that they were withdrawn. Had the Respondent known that they were withdrawn the Respondent would never have granted recognition. It was further alleged that the Charging Party knew that some of the union authorization cards had been withdrawn. Said withdrawn authorization cards brought the number of remaining authorization cards below that required to obtain a majority.

The Respondent admitted that when it learned that authorization cards had been withdrawn it withdrew its recognition. Finally it admitted that it granted a pay raise on July 1, 1979. It alleged that this was a routine pay raise, not related in any way to negotiations or transactions involving the parties to this proceeding.3/

In Grand Union Co., 122 NLRB No. 68, 43 LRRM 1165, the employer committed an unfair labor practice when it granted recognition to a union after a card check when in fact some of the cards submitted were from an earlier union campaign from the year before. The signers of these cards testified that they did not wish the union to represent them when the union relied on these same cards to get recognition. See also, The Garment Workers Union v. NLRB, 280 P.2d 260 (CADC 1960), 46 LRRM 2223.

It follows that the Sewerage Authority here has raised a substantial issue of fact, i.e. the Union did not represent a majority of employees when the demand for recognition was granted. (See N.J.A.C. 19:10-1.1 §25 which provides that authorization cards are "normally" valid only if they were filed within six months of their presentation.)

Accordingly, this matter will be set down for hearing on June 12, 1980, and each day consecutively thereafter until completion of hearing at 10 a.m. at the P.E.R.C. Office, 429 East State Street, Trenton, New Jersey.

/s/Edmund G. Gerber

Hearing Examiner

DATED:	May 8, 1980

Trenton, New Jersey