D.R. NO. 82-10

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF WARREN,

Public Employer,

-and-	Docket No. CU-80-9

COUNCIL #73, AMERICAN FEDERATION

OF STATE, COUNTY & MUNICIPAL

EMPLOYEES, AFL-CIO,

Petitioner,

-and-

WARREN TOWNSHIP PLANNING BOARD,

Party-at-Interest.

Appearances:

For the Public Employer & Party-at-Interest

Appruzzese & McDermott, attorneys

(Frederick T. Danser of counsel)

For the Petitioner

Carlton Steger, Council Representative

DECISION

A Petition for Clarification of Unit was filed on August 17, 1979, with the Public Employment Relations Commission (the "Commission") by Council #73, American Federation of State, County & Municipal Employees, AFL-CIO ("AFSCME"). AFSCME is the exclusive representative of white collar employees employed by the Township of Warren (the "Township") and a dispute has arisen concerning the inclusion of the Clerk of the Warren Township Planning Board (the "Board") in the unit.

Pursuant to a notice of hearing, a hearing was conducted before Hearing Officer Arnold H. Zudick, on October 10, 1980, at which all parties were given an opportunity to examine and cross-
examine witnesses, to present evidence, and to argue orally. Thereafter, the Hearing Officer, on January 9, 1981, issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. On January 22, 1981, AFSCME filed exceptions to the Hearing Officer's Report and Recommendations. Neither the Board nor the Township excepted to the Hearing Officer's Report, nor have they filed a reply to AFSCME's exceptions. The undersigned has carefully considered the entire record herein, including the transcript, the exhibits, the exceptions, and the Hearing Officer's Report and Recommendations, and finds and determines as follows:

1.	The Township of Warren 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 "Act"), and is subject to the provisions of the Act.

2.	Council #73, American Federation of State, County and Municipal Employees, AFL-CIO, is an employee representative within the meaning of the Act and is subject to its provisions.

3.	AFSCME has filed a Petition for Clarification of Unit seeking a determination concerning the composition of the white collar negotiations unit of Township employees which it represents. Specifically, AFSCME asserts that the title of Planning Board Clerk is included in its unit. The Township and the Planning Board asserted that the title in question was not placed in the white collar unit and its formation and object to the inclusion of this position in the unit at this time.

4.	The Hearing Officer found that the disputed title was in existence at the time the unit was formed and that the parties did not intend to include the title in the unit. The Hearing Officer recommended the dismissal of the Petition because a clarification of unit petition was an inappropriate means for adding a title where the parties had previously intended the exclusion of the title.

5.	AFSCME excepted to the Hearing Officer's finding that it was aware of the existence of the title in question at the time of the consent election agreement conference which preceded the election and certification issued in this unit by the Commission. AFSCME also excepted to the Hearing Officer's finding that, at the consent conference, there was a mutual intent to exclude the title in question from the negotiations unit.

In In re Wayne Bd. of Ed., D.R. No. 80-6, 5 NJPER 422 (¶10221 1979), aff'd P.E.R.C. No. 80-94, 6 NJPER 54 (¶11029 1979), the undersigned adopted the National Labor Relations Board precedent which precludes the utilization of a clarification of unit petition in order to include a classification of employees which were in existence at the time the negotiations unit was formed. See also In re Fair Lawn Bd. of Ed., D.R. no. 78-22, 3 NJPER 389 (1977). Normally, where it is found that a particular employee title or group of employees was in existence at the time of the formation of the negotiations unit, a clarification petition should be dismissed unless there is evidence of a mutual intent on the part of the parties to include the classification within the recognition clause of their agreement. Wayne, supra, at 423.

Having reviewed the record herein, the undersigned finds ample evidence to support the Hearing Officer's conclusion that the Planning Board Clerk position was in existence at the time the unit was established, and AFSCME was aware of its existence. The transcript and documentary evidence establish that the Planning Board Clerk title and its occupant was not included among the titles included in the unit. At the consent conference, the Township indicated that it would not consider this title as included in the unit, and AFSCME apparently acquiesced. AFSCME advised its supporters that it would seek the inclusion of the disputed title subsequent to the election by filing a clarification of unit petition. AFSCME received a copy of the eligibility list for the election which was prepared by the Township, and did not raise a disputed concerning the omission of the title and occupant from the list.

The undersigned concludes from the above that the Planning Board Clerk was not intended to be included in the unit at the time unit members were afforded an opportunity to vote for or against representation. If the Commission were to permit a clarification of unit petition under those circumstances, it would be approving a procedure which might lead to the addition of the occupant of the title to the unit in the face of the illegitimate disenfranchisement of that employee's voting rights in the previously conducted representation election.

Accordingly, since the undersigned finds that there was no mutual intent on the part of the parties to include the classification within the recognition clause of their agreement, it follows that the petition raises a question concerning representation. Therefore, the undersigned concludes that the Hearing Officer correctly found the clarification of unit petition to be a procedurally incorrect vehicle to accomplish the inclusion of the title in question in the unit, and hereby dismisses the instant Petition.1/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	August 27, 1981

Trenton, New Jersey