D.R. NO. 87-31

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF MT. EPHRAIM,

Public Employer,

-and-	Docket No. RO-87-18

I.B.F.O., LOCAL 473, AFL-CIO,

Petitioner.

Appearances:

For the Public Employer

Laskin and Botcheos

(George T. Botcheos, of counsel)

For the Petitioner

Freedman and Lorry

(Mark P. Muller, of counsel)

DECISION AND CERTIFICAION OF REPRESENTATIVE

On August 18, 1986, the I.B.F.O., Local 473, ("Union" or "Local 473"), filed a Petition for Certification of Public Employee Representative with the Public Employment Relations Commission ("Commission"). Local 473 seeks to represent all Highway and Water/Sewer Department employees of the Borough of Mt. Ephraim ("Borough"). The Union and the Borough entered into a Consent Agreement for an election among these employees. We conducted a secret mail ballot election which concluded on October 22, 1986.

The results of the election were as follows: three (3) votes cast for Local 473; one (1) vote cast against the Union, and

there were two (2) challenged ballots.

Local 473 challenged the ballots of Eugene Sheridan and Joseph Seltzer contending that their ballots should not be counted. The Union maintained that Sheridan is a supervisory employee within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act") and not appropriate for inclusion in a non-supervisory unit. It also maintained that Seltzer delivered his ballot in a manner inconsistent with the Commission's rules. The Borough disputes both contentions and argued that the ballots should be counted.

Since the challenged ballots were sufficient in number to affect the results of the election, a hearing was convened to resolve the status of the challenged ballots. Hearing Officer Susan Weinberg conducted the hearing on January 22, 1987. The parties examined and cross-examined witnesses, presented evidence, and submitted post-hearing briefs, the last of which was filed by March 27, 1987.

On May 28, 1987, the Hearing Officer recommended that (1) the challenge to Joseph Seltzer's ballot be upheld and the ballot not be counted and (2) the challenge to Eugene Sheridan's ballot be dismissed and the ballot be counted.

The Hearing Officer informed the parties that exceptions were due by June 10, 1987. Neither party filed exceptions or requested an extension of time.

I have reviewed the record. Hearing Officer Weinberg's

findings of fact (paragraphs 1 through 17) are comprehensive and accurate. I adopt and incorporate them here.

The Hearing Officer found Joseph Seltzer was eligible to vote in the mail ballot election. Seltzer received his ballot by mail but intentionally destroyed the ballot. Robert Choate, the Superintendent of Public Works, and an agent of the Board, asked Seltzer how he voted. Upon learning that Seltzer had destroyed his ballot, Choate convinced Seltzer that his refusal to vote was not a vote for the Borough and urged Seltzer to get another ballot from the Commission so that he could vote.

Seltzer received another ballot from the Commission. On the day before the ballots were due, Seltzer was driven by Choate in a Borough vehicle, and on Borough time, to the Commission's offices in Trenton where he hand-delivered his ballot. The instruction which accompanied the ballot stated that the ballot should be "drop(ped) in the United States Mail before discussing it with anyone....Deposit this envelope, which requires no postage, in the United States mail..."

I also adopt the Hearing Officer's conclusions of law that the Borough's conduct was coercive and that Seltzer materially and substantially departed from the clear directions which accompanied his ballot. The totality of this conduct so departed from proper Commission procedure, that the challenge to Joseph Seltzer's ballot must be upheld. Accordingly, his ballot is void and will not be counted.

The Hearing Officer also properly found that Eugene Sheridan was not a supervisor within the meaning of the Act and was a working foreman. Ewing Tp. Bd. of Ed., D.R. 87-22, 13 NJPER 195 (¶18083 1987). However, since Seltzer's ballot is void, Sheridan's ballot is no longer determinative (the vote was 3 for the Union and 1 for No Union). Opening and counting Sheridan's ballot would serve no purpose. Rather, it would only compromise the confidentiality of Sheridan's vote. Therefore, Sheridan's ballot will not be opened and counted.

Accordingly, IT IS HEREBY CERTIFIED that

I.B.F.O., LOCAL 473, AFL-CIO

has been designated and selected by a majority of the employees of the above-named Public Employer, in the unit described below, as their representative for the purposes of collective negotiations, and that pursuant to the New Jersey Employer-Employee Relations Act, as amended, the said representative is the exclusive representative of all the employees in such unit for the purposes of collective negotiations with respect to terms and conditions of employment. Pursuant to the Act, the said representative shall be responsible for representing the interest of all unit employees without discrimination and without regard to employee organization membership; the said representative and the above-named Public Employer shall meet at reasonable times and negotiate in good faith with respect to grievances and terms and conditions of employment; when an agreement is reached it shall be embodied in writing and

signed by the parties; and written policies setting forth grievance procedures shall be negotiated and shall be included in any agreement.

UNIT: Included: All members of the highway and water/sewer departments including the general foreman--public works employed by the Borough of Mt. Ephraim.

Excluded: All office clerical, guards and supervisors as defined by the Act and all confidential employees and managerial executives employed by the Borough of Mt. Ephraim and all police, fire and craft employees.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Edmund G. Gerber

Director

DATED: June 11, 1987

Trenton, New Jersey