D.R. NO. 79-22

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

NEW JERSEY INSTITUTE OF TECHNOLOGY,

Public Employer,

-and-	Docket No. RO-78-109

OFFICE AND PROFESSIONAL EMPLOYEES

INTERNATIONAL UNION, LOCAL 32, AFL-CIO,

Petitioner.

Appearances:

For the Public Employer,

John Metzler, Assistant to President

(Bruce Solomon, Esq.)

For the Petitioner,

John P. Ronches, Business Manager, Local 32

DECISION

On December 12, 1977, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the "Commission") by the Office and Professional Employees International Union, Local 32 (the "Petitioner") proposing a collective negotiations unit consisting of all professional administrative employees employed by the New Jersey Institute of Technology (the "Institute").1/ Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer Arnold H. Zudick on June 30, July 20 and July 21, 1978. All parties were provided an opportunity to examine and to cross-
examine witnesses, to present evidence and to argue orally. Both parties submitted written briefs by September 20, 1978. The Hearing Officer issued his Report and Recommendations on November 6, 1978. Exceptions were filed by the Institute on November 27, 1978. The Petitioner has not filed exceptions; nor has Petitioner filed a response to the Institute's exceptions.

The undersigned has considered the entire record including the Report of the Hearing Officer, the transcript, the briefs and the exceptions and on the basis thereof finds and determines as follows:

1.	The New Jersey Institute of Technology 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"), is the employer of the employees involved in this Petition, and is subject to the Act's provisions.

2.	The Office and Professional Employees International Union, Local 32 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Petitioner seeks to represent a unit consisting of all professional administrative employees employed by the Institute. The Professional Staff Association ("PSA") currently is the exclusive representative of certain personnel sought to be included in the unit which the Petitioner seeks. PSA is the recognized representative of all professional (faculty) and administrative personnel. Though advised of all proceedings, PSA failed to intervene in this proceeding and did not appear at the hearing. The Institute has declined to consent to an election in the unit sought, claiming that the petitioned-for unit is not the most appropriate. Accordingly, there is a question concerning the representation of employees and the matter is properly before the undersigned for determination.

4.	The Hearing Officer found that a community of interest exists among the faculty and the administrative employees. He recommended that the most appropriate unit was the existing unit represented by PSA. The Hearing Officer also found that the evidence did not show a "failure of representation" by PSA to warrant the severing of the administrative titles from the existing PSA unit. However, due to the failure of PSA to intervene, the Hearing Officer recommended that the Director of Representation officially inquire as to whether PSA wished to continue to represent the petitioned-for administrators. The Hearing Officer recommended that the instant Petition be dismissed if PSA responded affirmatively. The Hearing Officer recommended that an election be directed in the petitioned-for unit if PSA responded negatively.

5.	The Institute takes exception solely to the Hearing Officer's recommendation that the Director of Representation inquire whether or not PSA seeks to continue to represent the administrators. In all other respects, the Institute agrees with the findings and recommendations of the Hearing Officer.

The undersigned adopts the findings of the Hearing Officer that there is a community of interest among faculty and administrative employees. Traditional factors of community of interest are present here. The Hearing Officer correctly noted the Commission's policy favoring the creation of broad-based units over fragmented units. The PSA unit is such a broad-based unit and it is an appropriate collective negotiations unit. The undersigned need not consider the most appropriate unit concept when the issues, as presented herein, involve the proposed removal of some employees from an existing larger appropriate collective negotiations unit.

Further, with respect to the issue of the severance of the petitioned-for employees from the existing unit, the undersigned agrees with the Hearing Officer's conclusion that PSA's representation of the instant administrative employees has not been such as to warrant severance under the standards adopted by the Commission in In re Jefferson Township Board of Education, P.E.R.C. No. 61 (1971).2/

Petitioner has alleged that PSA no longer wishes to represent administrators. The undersigned notes that, even if Petitioner's allegation is factual, the lack of desire to represent a group of employees cannot constitute proof of a failure to fairly represent them. The record contains no evidence of any unfair representation of administrators due to the alleged lack of desire by PSA to represent the employees and any conclusion of unfair representation based on this premise alone would be pure conjecture. The Appellate Division of the Superior Court of New Jersey has held:

"Neither the Public Employment Relations Commission nor any other body or agency may today justifiably foretell that this obligation [i.e., the duty to fairly represent] cannot or will not be discharged..."3/

For this reason, the undersigned rejects the recommendation of the Hearing Officer that PSA be polled. As the Hearing Officer notes, the Petitioner, or any other employee representative, is not without ability to raise new facts before the Commission if unfair representation should occur.

Accordingly, for the reasons stated above, the undersigned dismisses the Petition filed by Office and Professional Employees International Union, Local 32.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	March 1, 1979

Trenton, New Jersey