D.R. No. 79-11

Synopsis:

The Director of Representation dismisses a Petition for Certification of Public Employee Representative filed by Local 892, Teamsters & Warehousemen, seeking a collective negotiations unit limited to non-supervisory employees at the County's Youth House and Youth Shelter. The Director, agreeing with the findings of a Hearing Officer, determines that an existing unit comprised of all County blue and white collar employees would be the most appropriate unit for the representation of the Youth House and Youth Shelter employees. Additionally, the Director, agreeing with the Hearing Officer, determines, contrary to the assertions of the County and Teamsters Local Union 286, that the evidence does not demonstrate that the Youth House and Youth Shelter employees had been accreted into the countywide unit through recognition by the employer. The Director sets forth the procedures by which representation of the Youth House and Youth Shelter employees may be accomplished.

PERC Citation:

D.R. No. 79-11, 4 NJPER 442 (¶4200 1978)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

220.208 430.01

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 79-011.pdf
Appellate Division:
Supreme Court:

D.R. NO. 79-11 1. D.R. NO. 79-11 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of COUNTY OF HUDSON, Public Employer, -and- Docket No. RO-77-125 LOCAL 892, TEAMSTERS & WAREHOUSEMEN, Petitioner, -and- TEAMSTERS LOCAL UNION 286, Intervenor, -and- UNITED NURSES ORGANIZATION, Intervenor. Appearances: For the Public Employer, Murray, Meagher & Granello, Esqs. (John A. Meagher, of Counsel) For the Petitioner, Krieger and Chodash, Esqs. (Stephen E. Klausner, of Counsel and Philip Feintuch, Esq.) For the Intervenor Teamsters Local Union 286 (Pat D. Nardolilli, Business Agent) DECISION Pursuant to a Notice of Hearing to resolve a question concerning the representation of certain employees employed by the County of Hudson (the A County @ ) at the Hudson County Youth House and the Youth Shelter (the A Youth House @ and A Youth Shelter @ ),1/ hearings were held on August 16 and 17, 1977, in Newark, New Jersey, before Commission Hearing Officer Arnold H. Zudick, at which all parties were provided an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. The Petitioner, Local 892, Teamsters and Warehousemen (the A Petitioner @ ) and the County filed timely written briefs after the close of the hearing. The Hearing Officer issued his Report and Recommendations on December 15, 1977, H.O. No. 78-9, a copy of which is attached hereto and made a part hereof. In his report, the Hearing Officer evaluated the respective positions of the County and Teamsters Local Union 286 ( A Local 286"), an intervenor in the proceedings, that the Youth House and Youth Shelter employees are included in Local 286's countywide collective negotiations unit and the Petitioner = s position that the Youth House and Youth Shelter employees are unrepresented. The Hearing Officer also evaluated the County = s additional argument that the only appropriate unit for the petitioned-for employees is the existing countywide unit. He recommended that there was insufficient evidence in the record to find that the employees in question had been accreted into the collective negotiations unit represented by the Intervenor when the Youth House and Youth Shelter were merged into the County Corrections Department on May 1, 1976. However, the Hearing Officer concluded that the approval of a separate unit of Youth House and Youth Shelter employees, requested by the Petitioner, would not be consistent with the Commission = s concept of favoring broad-based negotiations units. He therefore recommended that the petitioned-for unit be found inappropriate and that the Petition be dismissed. Finally, finding that a community of interest exists between employees represented in the Intervenor = s countywide unit and the petitioned-for employees, the Hearing Officer recommended that an election be conducted to allow the employees in question to decide by majority vote whether or not they wished to be represented by Local 286 in the countywide unit. The Petitioner filed exceptions to the Hearing Officer = s Report and Recommendations on January 25, 1978. These exceptions may be summarized as follows: (1) Local 286 was not a proper party to the proceeding and should not have been granted status as an intervenor in the proceeding; (2) Petitioner objects to the Hearing Officer = s characterization of the Petition as an attempt at severance; (3) The countywide unit is not the most appropriate unit for the employees in question and that the applicable statute, N.J.S.A. 34:13A-1 et seq., as amended, only requires an appropriate unit; (4) Petitioner objects to the Hearing Officer = s consideration of a written statement submitted by Local 286, which, it is alleged, was not served upon Petitioner; (5) The Hearing Officer = s finding of a community of interest between the petitioned-for employees and the countywide unit is incorrect; (6) The Hearing Officer incorrectly states that Petitioner seeks a unit of attendants; (7) Local 286 and United Nurses Organization were improperly granted status as intervenor; and (8) the election ordered by the Hearing Officer interfered with the employees = statutory rights of free choice of a majority representative. The County submitted an untimely brief in response to Petitioner = s exceptions. However, the undersigned has accepted the County = s assertion and proofs which tend to show that the Commission = s untimely receipt of its brief was due to a defect in delivery by the Postal Service rather than an untimely submission. The undersigned has, therefore, considered the County = s brief as if it were timely filed pursuant to N.J.A.C. 19:10-3.1. Basically, the County = s brief supports the conclusions of the Hearing Officer and argues, specifically, against the exceptions filed by the Petitioner. The undersigned has considered the entire record herein and the Hearing Officer = s Report and Recommendations and on the facts in this case finds and determines as follows: 1. The County of Hudson 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 A Act @ ), is the employer of the employees involved herein, and is subject to the provisions of the Act. 2. Local 892, Teamsters and Warehousemen, Teamsters Local Union 286 and United Nurses Organization are employee organizations within the meaning of the Act and are subject to its provisions. 3. A Petition for Certification of Public Employee Representative, supported by an adequate showing, has been filed with the Public Employment Relations Commission (the A Commission @ ) by the Petitioner and a dispute exists concerning unit representation and unit definition. Accordingly, a question concerning the representation of public employees has been raised, a dispute exists, and the matter is properly before the undersigned for determination. 4. The undersigned has carefully considered the exceptions to the Hearing Officer = s report filed by Petitioner and finds them to be without merit. Treating Petitioner = s exceptions seriatim, the undersigned finds: (1) The Hearing Officer did not improperly grant intervenor status to Local 286, or to the United Nurses Organization. The undersigned, upon the issuance of a Notice of Hearing, captioned Local 286 and United Nurses Organization, and granted intervenor status to these organizations. Intervention was granted to Local 286 in accordance with then Rule Section 19:11-1.13 on the basis of Local 286 having submitted to the Commission on February 24, 1977 A a current or recently expired agreement with the public employer covering any of the employees involved. @ The recognition clause of the proffered agreement constituted prima facie evidence of the inclusion of employees petitioned-for. Since the Petition has been amended to delete nurses from the proposed unit, there is no need to consider the exception regarding the United Nurses Organization. (2) Petitioner misconstrues Hearing Officer = s finding #4. The Hearing Officer herein framed the issues involved in the proceeding in light of the parties = positions. There is no basis for Petitioner = s assertion of implied bias. (3) Petitioner = s assertion that the Act requires only the establishment of an appropriate, rather than the most appropriate unit is clearly incorrect and, in the face of a dispute as to unit appropriateness, is inconsistent with the decision of the Supreme Court in In re State of New Jersey and Professional Association of New Jersey Department of Education, 64 N.J. 231 (1974). (4) The undersigned finds that the consideration by the Hearing Officer of the written statement submitted by Local 286 worked no injustice upon Petitioner in that it was a statement of position, not a factual submission, and merely restated that position which Local 286 had orally stated on the record. (5) The undersigned finds that the Hearing Officer correctly applied traditional labor relations indicia of community of interest to the facts in this matter and, his findings of a general community of interest in a countywide unit are consistent with Commission precedent.2/ (6) The undersigned finds that the Hearing Officer properly fulfilled his obligation to consider the appropriateness of the unit petitioned for, the unit claimed to be appropriate by the employer, or any other unit which might be most appropriate. See In re State of New Jersey and Professional Association, supra. The Hearing Officer gave special consideration to the title of attendant because of Petitioner = s claim of a lack of community of interest between this title and the titles contained in the countywide unit. The undersigned adopts the Hearing Officer = s finding that the appropriate placement of this title is in the countywide unit. (7) The substance of this exception is similar to first exception is rejected for the reasons stated, supra (8) Owing to the undersigned = s conclusion herein, infra, it is unnecessary to address Petitioner = s final exception which contends that the election recommended by the Hearing Officer would be improper. 5. The undersigned having carefully considered the entire record in this matter, hereby adopts the following findings and conclusions recommended by the Hearing Officer: (1) There is insufficient evidence in the record to find that the employees in question had been accreted into the collective negotiations unit represented by the Intervenor, Local 286, when the Youth House and Shelter were merged into the Hudson County Correction Department on May 1, 1976; and (2) the instant Petition proposes a unit for collective negotiations which is inconsistent with the Commission = s policy favoring broad-based units and is not found to be the most-appropriate unit.3/ Thus, although it is found that the employees in the Youth House and the Youth Shelter have not been included in the countywide unit, the undersigned finds that the most-appropriate unit for their inclusion is the countywide unit currently represented by Intervenor, Local 286. 6. Accordingly, having found that the petitioned-for unit is not the most appropriate unit at this time, the instant Petition is hereby dismissed. The undersigned notes that several procedures are available to add the employees petitioned for herein to the existing unit represented by Local 286 in order to accomplish representation for collective negotiations of those employees within the most appropriate unit structure. Local 286 may request recognition from the County on behalf of the inclusion of these employees in its collective negotiations unit. Failing recognition, Local 286 may at the appropriate time for the filing of a Petition for Certification of Public Employee Representative, petition for the inclusion of the employees here involved in the most appropriate unit.4/ In the event that Local 286 fails to petition for such an inclusion, the Petitioner, or any other employee organization may petition anew for the unrepresented employees; and, the undersigned advises that such Petition will be considered in the context of that portion of the New Jersey Supreme Court decision In re State of New Jersey and Professional Association, supra, which indicates that a later determination may be made, under circumstances then existing, which might allow for the authorization of a unit of less than the total body.5/ BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: October 11, 1978 1/ More specifically, Petitioner seeks to represent a proposed unit which would include all cooks, kitchen aids, switchboard operator-clerk, clerk-typists, clerk-bookkeeper, building maintenance worker and attendants in the Youth House and Youth Shelter. During the course of the hearing, the Hearing Officer accepted the Petitioner = s amendment to its Petition to exclude nurses from the proposed unit. 2/ In re Board of chosen Freeholders of the County of Burlington, P.E.R.C. No. 58 (1971), and In re Bergen County Board of Chosen Freeholders, P.E.R.C. No. 69 (1972). 3/ In re State of New Jersey and Professional Association, supra. 4/ The undersigned notes that at such time any employee representative may file a Petition for Certification of Public Employee Representative in the most appropriate collective negotiations unit. 5/ See, In re Parsippany-Troy Hills Tp. Board of Education, D.R. No. 79-7, 4 NJPER ___ (1978). ***** End of DR 79-11 *****