D.R. No. 83-2

Synopsis:

The Director of Representation adopts the findings and recommendations of a Hearing Officer that a Petition be dismissed since it was not timely filed. Although the Petition was mailed a day before the close of the contractual "window" period, it was not received until several days later. The Director rejects the Petitioner's claims that the contract bar rules should be relaxed because the employees seek a separate firefighters' unit and would thus be entitled to binding interest arbitration. The Director also rejects requests that the filing deadline be relaxed due to the organization's inexperience, a claimed lack of disruptive effect upon the employer's labor relations, and a restriction upon filing of a new petition for three years.

PERC Citation:

D.R. No. 83-2, 8 NJPER 460 (¶13216 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

32.141

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 83-002.pdf
Appellate Division:
Supreme Court:

D.R. NO. 83-2 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of COUNTY OF ESSEX (ESSEX COUNTY HOSPITAL CENTER), Public Employer, -and- Docket Nos. RO-82-64 & RO-82-139 NEW JERSEY STATE FIREMEN = S MUTUAL BENEVOLENT ASSOCIATION, LOCAL #75, Petitioner, -and- OVERBROOK EMPLOYEES ASSOCIATION, Intervenor. Appearances: For the Public Employer Elaine Hyman, Assistant County Counsel For the Petitioner Rinaldo & Rinaldo, attorneys (Gerald Martin of counsel) For the Intervenor Love & Randall, attorneys (John Love of counsel) DECISION Two Petitions for Certification of Public Employee Representative, each seeking the same result, were filed with the Public Employment Relations Commission ( A Commission @ ) by the New Jersey State Firemen = s Mutual Benevolent Association, Local #75 ( A FMBA @ ) on October 6, 1981 and February 11, 1982, respectively.1/ Through the Petitions, the FMBA seeks to represent assistant fire chiefs and firemen employed by the County of Essex ( A County @ ) at the Essex County Hospital Center. These employees are currently included in a broad-based unit of hospital employees represented by the Overbrook Employees Association ( A OEA @ ). The County asserts that both petitions should be dismissed since they were not filed in accordance with time restrictions set forth in N.J.A.C. 19:11-2.8(c)(2). Subsequent to the filing of the FMBA = s initial petition, the undersigned caused the issuance of a Notice of Hearing. Upon the filing of the second petition, the matters were consolidated before Commission Hearing Officer Mark A. Rosenbaum for hearing and a Report and Recommendation. On May 20, 1982, the Hearing Officer issued his Report and Recommendations, attached hereto and made a part hereof, with regard to the County = s Motions to Dismiss, recommending that the County = s motions be granted. On June 3, 1982, the FMBA filed exceptions to the Hearing Officer = s recommendation.2/ The undersigned has considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the parties = briefs and the Petitioner = s exceptions and finds and determines as follows: 1. The County of Essex is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act. 2. The New Jersey State Firemen = s Mutual Benevolent Association, Local #75 and the Overbrook Employees Association are employee representatives within the meaning of the Act and are subject to its provisions. 3. On October 6, 1981, the FMBA filed a Petition for Certification of Public Employee representative with the Commission seeking to represent assistant fire chiefs and firemen employed by the County and represented by the OEA within a broad- based hospital employees = unit. 4. A collective negotiations agreement between the OEA and the County for the period December 31, 1978 to December 31, 1981, was in effect at the time of the filing and covered the petitioned-for employees. 5. N.J.A.C. 19:11-2.8(c)(2) provides that when a written agreement is in effect covering employees of a County, a Petition for Certification will normally not be considered timely unless it is filed not less than 90 days and not more than 120 days before the expiration or renewal date of the agreement. In the instant matter, for purposes of the contract bar rule the operative expiration date of the contract between the County and the OEA was December 30, 1981,3/ and a petition could not be considered timely filed unless it was filed between September 2, 1981 through October 1, 1981. The instant Petition was not received by the Commission until October 6, 1981.4/ 6. The Hearing Officer noted that although the Commission = s contract bar rule does not afford parties an absolute protection during the term of an agreement,5/ and there may be extreme circumstances which would merit the waiving of the rule in certain instances,6/ no extreme circumstances existed in this matter which warranted an extension of time limits. Citing Atlantic City, supra, n.6, the Hearing Officer also stated that the Commission adheres to a rigid application of the rule. 7. The FMBA has asserted that it placed the Petition in the regular mail on September 30, 1981, and that it has no knowledge as to why it was not received by the Commission until October 6, 1981. It has proffered that it is reasonable to assume that a letter posted September 30, 1981 will reach its destination within one or two days. 8. In its exceptions, the FMBA states that the time bar expressed in N.J.A.C. 19:11-2.8(c) provides for flexibility and that the rule may be relaxed in certain circumstances. The FMBA offers the following reasons as to why it would be appropriate to grant its otherwise nontimely Petition: (a) consideration of the Petition would not disrupt or affect the County = s stable negotiations relationship with the OEA, (b) the FMBA is not an experienced organization and was not represented by an attorney prior to the filing of the instant Petition; (c) if the Petition is dismissed, the next open period for filing will not occur until September 1984;7/ and (d) the petitioned-for employees have no community of interest with the other members in the unit. In considering the issues herein, the undersigned must examine whether the circumstances addressed by the FMBA present the A extreme circumstances @ which would be necessary for the relaxation of the strict timetable set forth in the contract bar rule.8/ No such showing is evident here. The fact that the postal service was A slow @ in delivering the Petition cannot be considered an extreme circumstance. The FMBA must assume the responsibility for assuring timely receipt of the Petition, particularly in the instant circumstance where it was necessary to accomplish a valid filing within 24 hours of its mailing of the Petition. Second, as opposed to the FMBA = s assertions, the petition has the effect of disturbing the stability of the County = s negotiations relationships and employee relations as evidenced by the successor agreement which the County has entered into governing the employment conditions of petitioned-for employees. Third, the contract bar rule does not discriminate with respect to the relative A experience @ of an employee representative, and adoption of such a policy would be unwise. All organizations, regardless of their experience, ought to be held knowledgeable and accountable to the requirements of Commission filing rules which affect their operation. Fourth, the wisdom of applying a three year bar to a subsequent petition is a matter controlled by the Commission = s adoption of a rule permitting a bar for up to three years.9/ Finally, the FMBA claims that the employees involved in its petition are firefighting employees. The FMBA notes that under the Interest Arbitration Act, N.J.S.A. 34:13A-14 et seq., units exclusively comprised of firefighters are treated differently than other public employee units since interest arbitration is available to units of firefighting employees. The FMBA asserts that the five employees involved in its petition A have absolutely no community of interest with the other members in the unit currently represented by the OEA and OEA has expressed their disinterest in the firefighting employees = attempt to sever themselves from the larger unit. @ The undersigned has previously examined the essence of the FMBA = s claim that the contract bar protections can only be available to appropriate units. In re Jersey City Medical Center, D.R. No. 80-11, 5 NJPER 504 ( & 10260 1979). In the cited matter, the petitioner claimed that security guards could not appropriately be included in the existing unit of center personnel because they were guard employees, and, therefore, a contract covering the unit employees could not act as a bar to the filing of a petition. The undersigned stated that even if guard employees were found to be police employees who would normally be entitled to separate unit representation, the Act = s exception of A special circumstances @ at N.J.S.A. 34:13A-5.3 would permit the continued inclusion of the employees in the existing unit until the expiration of the current agreement. Accordingly, the unit was deemed prima facie appropriate until the existing agreement covering the employees expired. Thereafter, a timely petition could be filed in accordance with the timeliness rules for a determination as to whether severance should be permitted on the basis of the appropriate unit claim. In the instant matter, the undersigned notes that there is no claim of a lack of community of interest existing between other county employees and the claimed firefighter employees other than the availability of interest arbitration to firefighting employees when they are in units exclusively comprised of firefighting employees. There is nothing in the Interest Arbitration Statute that compels the exclusion of firefighting employees from units containing other municipal, county, or state employees. Just as claims asserted by any group of employees within a negotiations unit to form a separate unit are limited by the Commission = s timeliness rules, so too the argument of firefighting employees that as a result of interest arbitration availability they may be entitled to a separate appropriate collective negotiations unit, must be asserted in a timely fashion pursuant to N.J.A.C. 19:11-2.8. Assuming for the moment that the OEA does not oppose at this time the severance of the petitioned-for employees from its unit, the employer, nonetheless, is entitled to object to such severance and to assert the contract bar to a petition. See In re Clinton Tp. Bd. of Ed., D.R. No. 82-44, 8 NJPER 206 ( & 13086 1982). Accordingly, the undersigned is satisfied with the conclusion of the Hearing Officer in this matter and does not believe that the circumstances found here warrant a relaxation of the time limitations as set forth in the Commission = s contract bar rule. The Petition in Docket No. RO-82-64, filed October 6, 1981, is dismissed since it was not filed during the applicable A window period. @ The Petition in Docket No. RO-82-139, filed February 11, 1982, is barred by the successor agreement executed September 9, 1981, and effective January 1, 1982. Based upon the foregoing, the undersigned finds that the Petitions for Certification of Public Employee Representative were not timely filed in accordance with N.J.A.C. 19:11-2.8(c) and grants the County = s motion to dismiss. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/ Carl Kurtzman, Director DATED: July 13, 1982 Trenton, New Jersey 1/ The reason for the second filing was to meet claims that the first filing was not timely under Commission rules. 2/ The OEA has not opposed the FMBA = s petitions and it declined to participate in the instant proceedings. 3/ The Commission = s rules allow an agreement to bar the filing of a Petition for up to three years. The relevant agreement was for three years and one day. 4/ N.J.A.C. 19:10-2.1(d) provides that the filing date is the date of receipt by the Commission. 5/ In re East Brunswick Bd. of Ed., D.R. No. 80-39, 6 NJPER 308 ( & 11148 1980). 6/ In re City of Atlantic City, D.R. No. 82-19, 7 NJPER 642 ( & 12289 1981). 7/ On September 9, 1981, the County and OEA executed a three year successor agreement. The timing of this agreement would not have affected the viability of a timely filed petition during the September 1981 A window period @ of the 1978-1981 agreement, but would foreclose a subsequently filed petition until September 1984. 8/ Notwithstanding the FMBA = s attempt to distinguish the Atlantic City A extreme circumstances @ requirement as not relating to petition filing, but rather to showing of interest filing, Atlantic City is squarely on point. A certification petition is not considered validly filed under any circumstances until a full 30% showing of interest is received. Thus, a showing of A extreme circumstances @ is necessary to excuse the lateness of any element necessary to the valid filing of a petition. 9/ The Commission follows the private sector experience of the National Labor Relations Board in this regard. ***** End of DR 83-2 *****