H.O. NO. 78-16

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF MINE HILL,

Public Employer,

-and-	Docket No. RO-78-20

TEAMSTERS LOCAL 102 (LOCAL 37),

Petitioner.

Appearances:

For the Public Employer

Wiley, Malehorn & Sirota, Esqs.

(Frederic J. Sirota, of Counsel)

For the Petitioner

Richard A. Weinmann, Esq.

(Ben Merker, Secretary Treasurer)

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 August 2, 1977, originally by International Brotherhood of Teamsters, Local 37, but subsequently assumed by Teamsters Local 102 (the "Petitioner"), seeking to represent a unit of all blue collar employees employed by the Township of Mine Hill (the "Township") in the Department of Public Works.1/ The Township argues that the proposed unit is inappropriate because it alleges that one of the four employees in question is a supervisor within the meaning of the New Jersey Employer-Employee Relations Act (the "Act")2/ and, therefore, inappropriate for inclusion in a unit with non-supervisory employees. The Township further argues that two of the remaining three employees in question are paid primarily through federal funds provided by the comprehensive Employment and Training Act ("CETA"), and that these employees are, therefore, not employees within the meaning of the (New Jersey) Act.

Pursuant to a Notice of Hearing dated November 14, 1977, a hearing was held before the undersigned Hearing Officer on December 28, 1977 in Newark, New Jersey at which all parties were given an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. At the conclusion of the hearing only the Township elected to file a written brief in this matter. Upon the entire record in this proceeding, the Hearing Officer finds:

1.	That the Township is a public employer within the meaning of the Act and is subject to its provisions.

2.	That the Petitioner is an employee representative within the meaning of the Act and is subject to its provisions.

3.	That the Petitioner is seeking to represent in one unit the employees employed in the Township's Road and Water Departments including the positions of Road and Water Department Foreman, Assistant road Foreman, and the two CETA employees assigned to the Road and Water Department Foreman.3/

4.	That the Township made a motion to dismiss the Petition based on procedural grounds. Furthermore, that the Township believes that the Road and Water Department Foreman is a supervisor within the meaning of the At and inappropriate for inclusion with non-supervisory titles, and, that the CETA employees are not employees within the meaning of the Act and are, therefore, also inappropriate for inclusion in the proposed unit.

5.	That the parties stipulated the following information.

a.	That the township employs the employees concerned in this Petition.

b.	That the two CETA employees are paid primarily through federal funds, but also receive some additional salary from the Township.

c.	That all of the employees in question receive the same benefits.

d.	That the Assistant Road Foreman is not a supervisor within the meaning of the Act.4/

e.	That one issue herein is whether the Road and Water Department Foreman is a supervisor within the meaning of the Act.

f.	That another issue herein is whether CETA employees are employees within the meaning of the Act.5/

BACKGROUND AND ANALYSIS

I.	The Township's Motion to Dismiss

At the beginning of the hearing6/ and in its legal brief filed subsequent to the close of the hearing, the Township made a motion to dismiss the Petition based on procedural grounds. The Township argued that Teamsters Local 102 was not a proper Petitioner herein because it failed to follow certain Commission Rules and Regulations regarding the filing of a representation petition.

The facts in this regard show that on August 2, 1977, the International Brotherhood of Teamsters, Local 37, filed the instant Petition, accompanied by a sufficient showing of interest, to represent the instant employees in one negotiations unit. Thereafter, by letter dated October 24, 1977, an official of Teamsters Local 102 notified the undersigned that the International Union assigned Local 37's responsibilities to Local 102, and that Local 37 had been merged into Local 102.7/ Subsequently, by letter dated October 31, 1977, the President of Teamsters Joint Council No. 73, informed the Director of Representation for the Commission that all public employees previously represented by Local 37 were thereafter to be represented by Local 102.8/ After considering the above mentioned letters, the Director of Representation informed the undersigned that the above letters constituted sufficient notice that Local 102 had been substituted for Local 37 in the instant matter, and the Director directed the undersigned to continue processing the instant Petition. Thereafter, by letter dated November 14, 1977, the undersigned informed the parties of the Director's determination and scheduled the hearing date herein.9/

The Township argued that to permit the substitution herein would be a disregard of Commission procedure. The Township argued that Local 102 was required to begin the petitioning procedure on its own, from the beginning, and submit a showing of interest in its own name. The Township based that argument on its contention that Local 102 was a different "unit" than Local 37 which originally petitioned to represent the employees in question.

In opposition to the Township's motion, Local 102 argued that Local 37 went out of existence as of October 1, 1977 and that it was effectively merged with Local 102 through procedures set forth in the constitution of the International Brotherhood of Teamsters. Moreover, Local 102 argued that letters were submitted on its behalf establishing it as the successor to Local 37.

The undersigned has considered the motion and the position of both parties and recommends that the motion be denied. Commission Rules and Regulations provide the Director of Representation with a certain degree of discretion in the investigation and processing of representation petitions.10/ In a normal situation, the Director, or staff personnel under his direction, will have determined prior to the issuance of a Notice of Hearing whether a Petitioner satisfied the rules and had a sufficient showing of interest.

In the instant matter, the Director considered the effect of the merger of Local 37 into Local 102, and considered the two letters mentioned above, and communicated to the undersigned that the letters adequately established Local 102 as the Petitioner herein, and the undersigned was directed to continue processing the Petition. Moreover, the undersigned notes that although the Township questioned the showing of interest herein, N.J.A.C. 19:11-2.1 specifically provides that the showing of interest shall be determined by the Director and shall not be subject to collateral attack.

Since there is no showing by the Township that Local 102's status as Petitioner would create any additional burdens on itself or the employees in question, and since the dismissal of the Petition at this time would not effectuate the purposes and policies of the Act, then it is the undersigned's recommendation that the motion be denied.

Based upon the foregoing discussion, the undersigned recommends that the Township's motion to dismiss the Petition be denied, and that Teamsters Local 102 be found to be the Petitioner herein.

II.	The CETA Question

Throughout the processing of the instant Petition, the Township argued that CETA employees were not public employees within the meaning of the Act, and that such employees should not be entitled to vote in a representation election. The Township indicated that it took this position because it believed that CETA employees were not permanent employees and could lose their positions any time federal funding was eliminated. Finally, the Township contended that CETA employees were inappropriate for inclusion in the proposed unit because their concerns were different and contrary to that of other employees.

Prior to the commencement of the hearing herein, the undersigned provided both parties with copies of In re Passaic County Board of Chosen Freeholders, D.R. No. 78-29, 4 NJPER 8 (¶4006 1977), wherein the Director of Representation for the Commission found that CETA employees were public employees within the meaning of the Act and were entitled to vote in a representation election. Despite the Director's decision in Passaic, supra, the Township maintained that the instant matter was distinguishable from Passaic and that, therefore, Passaic did not apply.

The Township argued for example, that unlike the Passaic case, the CETA employees in the instant matter do not perform the same work as the other employees proposed to be in the instant unit. However, a review of the transcript herein reveals quite the contrary. Mayor Ryan specifically testified that the CETA employees are assigned to the Road and Water Department Foreman to be used "as he sees fit".11/ The Assistant Road Foreman testified that in the performance of his, and the Foreman's overall duties, the CETA employees would do the same work.12/ In addition, the Road and Water Department Foreman testified that he continues to do the work on a day-to-day basis with the other employees.13/

Having reviewed the Township's legal position on the CETA issue, and after studying the Director's decision in Passaic, supra, the undersigned is convinced that the principals and holdings enunciated in Passaic apply in the instant matter. Although the Township argues that the existence of federal funding eliminates the CETA employees from coverage under the (New Jersey) Act, the Passaic case considered that very issue and found that funding alone does not establish that such employees are not public employees within the meaning of the Act.14/ Moreover, in Passaic and several other recent cases, the Director of Representation has determined that funding is not the only element to be used to decide such labor relations matters.15/

In sum, the CETA employees in question perform substantially the same work, receive substantially the same benefits, and work substantially the same hours as the other employees in question and are otherwise appropriate for inclusion in the petitioned-for unit.

Based upon the foregoing discussion and decisions, the undersigned recommends that the instant CETA employees be found public employees within the meaning of the Act, eligible to vote in a secret ballot election, and appropriate for inclusion in the proposed unit.

III.	Supervisor Issue -- Road and Water Department Foreman

The Township has taken the firm position that the Road and Water Department Foreman is a supervisor within the meaning of the Act.16/ The Township alleged that the foreman can hire, has some role in the possible dismissal of employees, and at least has the authority to effectively recommend either. But the Union, and the Foreman himself, allege that the Foreman cannot hire or fire, and that any one of the employees can recommend any such action.

A review of the transcript on this issue reveals that the Township gives the Foreman wide latitude in the operation of the Road and Water Departments. Mayor Ryan testified that there is little or no direct input from the governing body, and in fact, that in the absence of the governing body, the Road Department would continue to function under the Foreman's control.17/ Moreover, Mayor Ryan testified that the Foreman would have authority to hire any additional manpower needed in his departments for purposes of snow removal and summer employment.18/ Finally, the Mayor testified that the Foreman did provide certain facts to the Township which led to the dismissal of another employee.19/

Contrary to the Mayor's position, the Foreman did not believe that he had the authority to hire or fire an employee, but he did testify that he had assisted in the hiring of summer or part-time employees, and that he knew that he could make recommendations regarding the hiring or firing of employees.20/ In fact, the Foreman admitted that he recommended the hiring of the now Assistant Road Foreman,21/ and he recognized that he did have the opportunity to recommend hiring or firing of other employees.22/

Despite the Foreman's testimony the Petitioner maintains that he is not a supervisor because all employees can make recommendations and the Foreman's is no more effective than the other employees. The facts, however, do not support that contention. The record shows that the Foreman, Bill Baldwin, has been employed by the Township for almost 19 years, that he is well known in the community, and that he has considerable knowledge of the Township's operation. By contrast, the second most senior man to Mr. Baldwin is the Assistant Road Foreman who has only been employed 6 years, and who in fact was hired pursuant to Mr. Baldwin's recommendation. The undersigned believes that it is reasonable to conclude that Mr. Baldwin's recommendation -- the recommendation of the Road and Water Department Foreman -- would be considerably more effective than the other employees in question.

Based upon the foregoing discussion and the testimony as a whole, the undersigned is convinced that the Road and Water Department Foreman has the authority to effectively recommend hiring and firing of employees. Therefore, the undersigned recommends that said title be found to be a supervisor within the meaning of the Act.

IV.	The Appropriate Unit

Having recommended that the instant CETA employees are appropriate for inclusion in the proposed unit, and cognizant of the parties' stipulation that the Assistant Road Foreman is not a supervisor, the undersigned recommends that the appropriate unit includes at least the Assistant Road Foreman and the CETA employees.

The unit placement of the Road and Water Department Foreman, however, remains unresolved. The Township contends that the Foreman, as a supervisor, is inappropriate for inclusion in the proposed unit. The Act at N.J.S.A. 34:13A-5.3 states in pertinent part:

"...(N)or except where established practice, prior agreement or special circumstances, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits non-supervisory personnel to membership..."

The key words for the purpose of these proceedings is "special circumstances". Are there special circumstances which would warrant or justify as appropriate, the Foreman's inclusion in the proposed unit despite his supervisory capacity? The undersigned believes that in order to answer that question it is necessary to examine all of the facts relevant to the appropriate unit concept.

In Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), the New Jersey Supreme court discussed several criteria used in determining the appropriate unit. The Court indicated that there should be a clear and identifiable community of interest among the employees in question; that a determining factor should be whether the inclusion of the title in question would serve and not subvert the purpose of the Act; and, there must not be a substantial actual or potential conflict of interest between a title sought to be included and those titles otherwise included.23/

In considering whether the Foreman has a community of interest with other employees in the proposed unit the record reveals that all employees in question receive the same benefits, work approximately the same hours, and that they perform many of the same functions.24/ Moreover, Mr. Kehoe, the Assistant Road Foreman, testified that he and the Foreman do much of the same work. For example, Kehoe testified that he and the foreman operate the same machinery, that either of them can direct the CETA employees, and that either of them might call additional personnel for snow removal.25/ Although Mr. Baldwin can make a more effective recommendation than Mr. Kehoe, and is thereby a supervisor, in all other respects the Foreman's position substantially parallels the Assistant Foreman's position or vice versa) yet the Township agrees that the Assistant Foreman is not a supervisor and is thereby appropriate for inclusion in a proper unit.

Regarding actual or potential conflict of interest, the record shows no contention by the Township that the inclusion of the foreman into a unit including the other employees would create a conflict of interest. In fact, Mayor Ryan testified that he was not aware of any conflict that might exist between the foreman and the individuals he supervises.26/ Moreover, the Assistant Foreman testified that neither he nor the CETA employees ever had a conflict with the Foreman,27/ and, finally, the Foreman, himself, testified that he feels no conflict or pressure as the Foreman or senior man of the other individuals.28/

The undersigned further believes that Mr. Baldwin's view of his own position is a relevant factor herein. Mr. Baldwin testified that he has never disciplined another employee and could only do so by going to the Township Committee, and that he does not believe he could fire a full time employee.29/ Such information is one factor why no conflict of interest may exist between the Foreman and the other employees.

In considering whether the Foreman is appropriate for inclusion in a unit with the other employees it is further necessary to review the Township's position. Although the Township argued that the Foreman was inappropriate for inclusion because of his supervisory capacity, it never argued or suggested that there might be another unit appropriate for the Foreman's inclusion. In fact, if Mr. Baldwin was not included in the proposed unit he would face the possibility of only having the opportunity to belong to a one person unit. Although this is not the proper time or matter within which to resolve the question of whether a none-person unit is appropriate within the meaning of the Act, the undersigned is aware that the Foreman in the instant matter could be left with no appropriate unit within which to exercise the rights provided in the Act.

The undersigned has considered the positions of the parties and the testimony relevant to this issue, and would recommend that the Foreman be included in the proposed unit. The weight of the evidence established that a community of interest, but no conflict of interest, exists between the Foreman and the other employees in question. It is the undersigned's contention that the purposes and policies of the Act envision that public employees in New Jersey be provided with a reasonable opportunity to exercise the rights guaranteed to them by the Act. In that regard, the undersigned believes that absent an actual or potential conflict of interest between the instant employees, that the Act will be best effectuated by the inclusion of the Foreman in the proposed unit.

Therefore, in answer to the earlier question, the undersigned believes that special circumstances do exist warranting the inclusion of the Foreman in the instant unit. The special circumstances are the sum total of the above discussion, specifically, that despite his supervisory status, the Foreman performs substantially the same work as unit employees, he has a community of interest and no conflict of interest with said employees, and no evidence was presented to show that any other appropriate unit does exist where the Foreman may have the opportunity to exercise his rights under the Act.

In reaching the above conclusion the undersigned also notes that a mechanism exists in Commission Rules and Regulations which would permit the Township to raise anew, at an appropriate time, the issue of the supervisors' appropriateness in the proposed unit based upon new circumstances and/or new evidence. This might be especially important if there was new evidence during the course of the proposed negotiations relationship that an actual or potential conflict of interest existed with the Foreman's inclusion in the proposed negotiations unit.

RECOMMENDATIONS

Based upon the entire record herein, and for the above stated reasons, the undersigned Hearing Officer recommends the following:

1.	That the Township's motion to dismiss the Petition be denied and that Teamsters Local 102 be found to be the Petitioner herein.

2.	That the instant CETA employees be found to be public employees within the meaning of the Act, appropriate for inclusion in the proposed unit, and able to vote in a secret ballot election.

3.	That the Road and Water Department Foreman be found to be a supervisor within the meaning of the Act, but nevertheless be found to be appropriately included -- because of special circumstances -- with non-supervisors in the proposed unit.

4.	That the appropriate unit for representation includes all blue collar employees in the Township of Mine Hill's Road and Water departments including the Road and Water Department Foreman, Assistant Road foreman, and employees paid through CETA funds. Excluding managerial executives, confidential employees, clerical employees, professionals, police and craft employees.

5.	That pursuant to N.J.A.C. 19:11-5.1, an election be directed in the above described appropriate unit, and that those employees eligible to vote shall vote as to whether they desire to be represented for the purpose of collective negotiations in the above unit by Teamsters Local 102, or whether they wish no representation.

Respectfully submitted,

/s/Arnold H. Zudick

Hearing Officer

DATED:	April 24, 1978

Trenton, New Jersey