D.R. No. 79-25

Synopsis:

The Director of Representation, ruling upon challenges to the eligibility of individuals who cast ballots in a Commission runoff election for County white collar employees, determines that (1) Department of Health employees are ineligible voters and (2) T-80 employees who at the time of the runoff election had worked at least 45 days during one year, who had been offered employment to either another T-80 position or to a permanent position by the County prior to the runoff election, and who had indicated a willingness prior to the runoff election to accept additional employment, were eligible voters. Regarding the Department of Health employees, the Director finds that health employees were terminated and that these employees were, on the date of the election, employed by an autonomous authority, the Ocean County Board of Health. The Director further observes that such employees, on the date of the election, were at best in a transitional stage and would imminently be transferred to a new employer. Under these circumstances, the health employees should not participate in the choice of an exclusive representative of County employees. Regarding the T-80 employees, the Director finds that the employment of T-80 employees for at least one-sixth of a calendar year demonstrates the regularity of employment of such employees and that the offer and acceptance of additional employment, as either T-80 employees or permanent employees, demonstrates a continuity of employment of such employees. Where employees demonstrate a regularity and continuity of employment, they are entitled to representation rights under the Act. The Director orders that the County provide to the Commission the employment records of the challenged T-80 employees in order that their eligibility may be ascertained.

PERC Citation:

D.R. No. 79-25, 5 NJPER 128 (¶10076 1979)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

35.37 35.315 35.37

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 79-025.pdf
Appellate Division:
Supreme Court:

D.R. NO. 79-25 1. D.R. NO. 79-25 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of COUNTY OF OCEAN, Public Employer, -and- Docket No. RO-78-112 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Petitioner, -and- OCEAN COUNCIL #12, NEW JERSEY CIVIL SERVICE ASSOCIATION, Intervenor. Appearances: For the Public Employer Berry, Summeril, Piscal, Kagan & Privetera, Esqs. (John C. Sharadnik, of Counsel) For the Petitioner Kapelsohn, Lerner, Reitman & Maisel, Esqs. (Jesse H. Strauss, of Counsel; Jesse Strauss and Sidney Reitman, on the Brief) For the Intervenor Fox & Fox, Esqs. (Richard H. Greenstein, of Counsel) DECISION Pursuant to an Agreement for Consent Election, elections were conducted by the Public Employment Relations Commission (the A Commission @ ) on March 22, 1978, and on April 3, 1978, to resolve a question concerning representation raised by Petitioner, Communications Workers of America ( A CWA @ ), among non-supervisory white collar employees of the County of Ocean (the A County @ ) who comprise a collective negotiations unit represented by Ocean Council #12, New Jersey Civil Service Association ( A Council #12").1/ The Tally of Ballots cast in the runoff election reveals that 107 valid ballots were cast for Council #12, that 105 valid ballots were cast for CWA, and that 39 ballots were challenged. The challenged ballots are determinative of the results of the election. Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer Arnold H. Zudick on July 7 and 13, August 1 and 2, 1978, in Trenton, New Jersey, with respect to the voting eligibility of the individuals casting the challenged ballots. At the hearing, all parties were given an opportunity to examine and to cross-examine witnesses, to present evidence, and to argue orally. Subsequent to the close of hearing, all parties filed written briefs in this matter by October 17, 1978. The Hearing Officer issued his Report and Recommendations on December 8, 1978, a copy of which is attached hereto and made a part hereof. All parties have filed exceptions and briefs in support thereof with regard to the Hearing Officer = s Report. The Hearing Officer found as follows: 1. Although the County did not appear on the ballot in the runoff election, it nevertheless had standing to challenge the voters in that election. 2. Thomas Coccia was a supervisor within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), on the date of the second election and, therefore, the challenge to his ballot should be sustained. 3. Those employees, who at the time of the first election, had been employed by the County Department of Health were ineligible to vote in the runoff election by virtue of their transfer to a newly created Board of Health. Therefore, on April 3, the 32 voters in question were not employees of the County, but of a separate autonomous employer, the Ocean County Board of Health, and, therefore, the challenges to their ballots should be sustained. See N.J.S.A. 26:3A2-1 et seq. 4. CETA Project Employees are public employees within the meaning of the Act and the ten employees in question would have a community of interest with employees in the petitioned-for unit if they were employed by the County. However, the Hearing Officer found that they were employed by the Board of Health and, therefore, for the above reasons, were not eligible to vote on April 3. 5. Employees employed by the County in the Temporary 80- day ( A T-80") title are public employees within the meaning of the Act and share a community of interest with other employees in the unit. The Hearing Officer recommended, therefore, that ballots cast by six T-80 employees be ruled valid and counted. CWA disagrees with the Hearing Officer = s recommendation regarding the voting ineligibility of the health employees. CWA claims that these employees were County employees on the date of the runoff election and that their votes should be counted. CWA, consistent with its position that the T-80s are eligible voters, does not except to the Hearing Officer = s recommendations regarding T-80 employees. The County and Council #12 except to the Hearing Officer = s recommendation that T-80 employees are eligible voters. The County, additionally, excepts to the Hearing Officer = s conclusion regarding CETA employees. Both the County and Council #12, consistent with their positions that the health employees were not County employees on the date of the runoff election, do not except to the Hearing Officer = s recommendation as to the ineligibility of health employees.2/ The undersigned shall consider the issues relating to the health employees and the T-80 employees in seriatim. The first issue herein, namely whether the aforementioned 32 health employees were eligible to vote on April 3, is one of first impression. An unusual set of circumstances is presented by the instant controversy. The facts are that the County on March 23, 1978, passed resolutions creating the Ocean County Board of Health and appointing its members. The Board conducted its first organizational meeting on March 30. On April 5, the County passed a resolution transferring Health Department employees to the Board, effective April 1, 1978. On April 19, the Board passed a resolution accepting the transfer of these employees. CWA maintains that on April 3, the health employees were still employed by the County and, therefore, were eligible to vote for the representative of County white collar employees. Several legal and factual arguments are presented by CWA in support of this contention. Among these arguments, CWA claims that the Civil Service Commission was not notified of any change in the status of County Department of Health employees prior to April 3. In addition, the Board of Health took no personnel actions such as hiring, firing or disciplining prior to the runoff election which might demonstrate actual or presumed control of employee relations. According to CWA, the County Employee Relations Department continued to provide employee services. CWA also argues that the statute, N.J.S.A. 26:3A2-16, which provides for the transfer of County employees to a newly established Board of Health, requires some further affirmative act by the County to effectuate the transfer of the Health Department employees, and that the County = s A transfer @ resolution was not adopted until April 5 A prov[ing] in law, that the County, on April 3, had not transferred the operation, supervision and control of the County Department of Health to the autonomous Board. @ Finally, CWA contends that the undersigned must restrict this inquiry to events which occurred prior to April 3, 1978. In short, the thrust of CWA = s position is that, notwithstanding the imminent transfer of the Health Department employees to a new employer, the eligibility status of the employees on the date of the election, April 3, 1978, controls. The undersigned, having reviewed the entire record, including the Hearing Officer = s Report and the CWA exceptions, determines that on April 3, 1978, the date of the election, the health employees were employed by the County Board of Health. The undersigned agrees with the Hearing Officer that the significant events which effectuated the transfer of health employees from the status of County employees to Board employees occurred on March 23 and March 30. On March 23, the County created a Board of Health. On March 30, the County Board of Health underwent self-organization, including the establishment within it of a County Health Department in accordance with an organizational chart. Exhibit E-5. See also N.J.S.A. 26:3A2-3. At the March 30, 1978 meeting the following resolution was approved: WHEREAS, the Ocean County Board of Health was duly created by resolution of the Ocean County Board of Chosen Freeholders on March 23, 1978; and WHEREAS, N.J.S.A. 26:3A2-1 et seq., commonly referred to as the Local Public Health Services Act, requires said Board to be operational and provide the required health care services by April 1, 1978; and WHEREAS, in order to accomplish the foregoing, various services will be required to be provided by the Ocean County Board of Chosen Freeholders until such time as the Ocean County Board of Health can make the necessary arrangements to provide said support services in order to completely fulfill its statutory obligations, NOW, THEREFORE, BE IT RESOLVED BY THE OCEAN COUNTY BOARD OF HEALTH, as follows: 1. That said Board expresses its intent to enter into an agreement with the Ocean County Board of Chosen Freeholders to reimburse said Board for direct and indirect cost of services provided to the Ocean County Board of Health during the formation stages of said Board. 2. That a copy of this resolution be forwarded to the Ocean County Board of Freeholders. The undersigned concludes from the above that the County Board of Health intended to, and became operational on April 1, 1978 for the purpose of providing the required health services. Based on the above, the newly created County Board of Health implemented the provisions of N.J.S.A. 26:3A2-4, which required that the existing county health agency be continued as a County Health Department within the County Board of Health. Additionally, the above facts establish that the County Health Department within the County Board of Health assumed the activities and responsibilities of providing health services which had previously been provided by the predecessor local health agency, effective April 1, 1978. Having found that the assumption of the predecessor health agency = s activities and responsibilities occurred on April 1, 1978, pursuant to N.J.S.A. 26:3A2-16,3/ the undersigned concludes that the employment of the County health employees terminated on April 1, 1978. The April 5 resolution by the County transferring employees to the County Board of Health as of April 1, 1978 confirms the assumption by the successor agency of health service responsibilities as of April 1, 1978, the attendant termination of employment of health employees by the County, and the employment of health employees by the successor agency, the County Board of Health, on this date. CWA maintains that the April 5 County resolution was an affirmative act required by the A shall be transferred @ language of N.J.S.A. 26:3A2-16 to effectuate the transfer of these employees. The undersigned determines that the April 5 resolution was the ministerial act by the County which attended to the necessary formalities associated with recording the transfer. The CWA argument, viewed in its most favorable light, concedes that the Board of Health was in a A creative stage @ on the date of the election. However, CWA maintains that the Board of Health had not, as of the date of the election, obtained the requisite A autonomy over labor relations @ to establish it as the public employer. If the above argument is accepted it would nonetheless be clear that the health employees were in a transitional stage on the date of the election, and the extent of the authority of the Board of Health was in question. Under the circumstances, the undersigned must be guided by the purposes of the Act and the concern that employees in an election conducted by the Commission be provided with free choice to effectuate self-determination of their exclusive representative. The undersigned must take into account the fact that during the critical election period the County white collar negotiations unit was undergoing a significant alteration in composition due to the removal of the Health Department employees. CWA = s position, if adopted, would permit an exclusive representative to be selected by employees who imminently would not be unit employees. The undersigned cannot agree. The purposes of the Act are not effectuated solely by a technical and legalistic analysis of the facts as to which entity was, on the precise date of the election, the public employer. Rather, equitable and policy considerations are involved herein which are of overriding importance and cannot be ignored. It would be an abdication of the undersigned = s responsibility to effectuate the purposes of the Act, i.e., to allow technical, legalistic issues to control the outcome of a representation election while ignoring the broad and imposing policy questions which dominate this controversy. A fundamental principle of labor relations is that the employees to be represented make their own selection. To place that power of selection in the hands of employees whose employment status was being altered pursuant to actions instituted prior to the election would abrogate the rights of unit members to self-determination and would undermine the democratic process by which a majority representative should be determined. It is regrettable that the Commission did not receive adequate written advance notice prior to the April 3 election that a change in structure of the proposed unit was occurring. Had the undersigned been so apprised, the election would have been postponed until such time as the unit composition had sufficiently stabilized4/ or until the employee eligibility status had been determined. Under this procedure, the health employees, clearly, would not participate in the determination of the exclusive representative of County employees. Although the Commission was pot provided advance notice of these circumstances, the result herein should be no different. Assuming that the CWA is correct in asserting that the actual transfer of County Health Department employees did not occur until April 5, forty-eight hours after the election, it must be noted that, under the rules of the Commission, the certification of representative could not issue before April 11, 1978, at the earliest. The Certification of Representative would cover white collar employees of the County of Ocean. Accordingly, the health employees, who concededly had in the interim been transferred to an autonomous County Board of Health, and who could not be included within the definition of the unit to be represented by the certified representative, should not play a determinative role in the selection of the exclusive representative. Therefore, the challenge to the 32 ballots in question is hereby sustained,5/ and these 32 ballots are deemed void. T-80 employees are County employees who may work up to a maximum of 80 days in the 12 month period following the date of employment. In the event that a T-80 employee has completed the 80 days of employment, such employee may receive another T-80 appointment during the same year provided that the Civil Service Commission has approved such employment for the individual in a different T-80 position. The Hearing Officer likened the employment relationship of T-80s to per diem school substitute employees, who in In re Bridgewater-Raritan Regional High School Board of Education, D.R. No. 79-12, 4 NJPER 444 ( & 4201 1978), were found by the undersigned to have sufficient regularity and continuity of employment to satisfy the definition of a public employee under the Act. Although the County argues that T-80s are basically on-call personnel, and substitute for sick or vacationing employees, the exhibits in the record relating to their employment demonstrates much more than a sporadic employment pattern. Many T-80s demonstrate a regular schedule of activity. Their utilization appears to be as flexible as the 80 day maximum limit allows. The record further demonstrates that T-80s work full days when employed. The County and Council #12 except to the Hearing Officer = s recommendation that T-80 employees are eligible voters. Both argue that sufficient evidence was presented to demonstrate that all parties to the original consent agreement in fact agreed to exclude T-80s from inclusion in the unit. After thoroughly reviewing the record, the undersigned agrees with the Hearing Officer that the requisite meeting of the minds did not occur at the time the consent agreement was executed and that T-80s cannot be excluded from the unit on this basis. The County and Council #12 maintain that T-80s are not public employees within the meaning of the Act, since they fail to satisfy the standards formulated by the undersigned in Bridgewater-Raritan, supra. There the undersigned found that substitute teachers who work 30 days or more during one school year and who indicate a willingness to serve in the succeeding year demonstrated a sufficient regularity and continuity of employment to qualify them as public employees under the Act and to entitle them to representation thereunder. While the County concedes that five of the six T-80s who cast challenged ballots worked in excess of 30 days, thereby fulfilling the first part of the Bridgewater-Raritan test, the County argues that there is no evidence to establish the existence of a continuing employment relationship beyond the expiration of the initial term of employment. The County maintains that the mere willingness of a T-80 employee to work beyond the term of employment is not an adequate indication of a continuing employment relationship and that valid grounds exist for distinguishing the instant matter from the substitute employment relationship found in Bridgewater- Raritan, supra. Therefore, the County argues that the mere expression of willingness by a T-80 employee to be available for continued employment should not be viewed by the undersigned as dispositive with regard to the continuity of employment requirement. Moreover, the County contends that the appointment of two employees as permanent employees after the runoff election should have no bearing upon the undersigned = s determination of their voting eligibility. Although the undersigned cannot endorse the Hearing Officer = s recommendation that all six T-80s were eligible to vote based on a finding that all T-80s are appropriately unit personnel, the positions advanced by the County and Council #12 for blanket exclusion are also untenable. A determination in this matter that all T-80s should either be included or excluded from the proposed unit would unjustly deny representational rights to some employees who demonstrate significant service and confer rights upon others who would not otherwise be entitled to such rights. The decisions in Bridgewater-Raritan and In re Rutgers University v. Rutgers University College Teachers Association, E.D. No. 76-35, 2 NJPER 176 (1976) aff = d P.E.R.C. No. 76-49, 2 NJPER 229 (1976), D.R. No. 77-5, 3 NJPER 12 (1976) (dismissed election objections), aff = d App. Div. Docket No. A-1652-76 (1977) (unpublished decision), certif. den. 76 N.J. 243 (1978) provide the guidance for determining the status of employees in question herein. In Bridgewater-Raritan, the undersigned stated: To insure consistency in Commission determinations, the undersigned concludes that the approach utilized in In re Rutgers University, supra, should be applied to measure regularity and continuity of employment in similar situations where a determination must be made concerning the status of personnel as either casual or regular part-time employees. The Rutgers, supra, approach will be adapted to meet the requirements of the employment relationship at issue. (footnote omitted) A standard must be devised which gives due consideration to the unique circumstances of the particular employment relationship under scrutiny and in the instant matter, neither the Bridgewater-Raritan nor the Rutgers formulas can be applied without some modification which takes into account the permutations presented by the situation herein. Given that 80 days is the maximum number of days which T-80 employees may work during the term of their employment and given that there exists no minimum, the undersigned deems it necessary to identify a measure of regularity by which employee status under the Act is established. In accordance with Bridgewater- Raritan, service for one-sixth or more of the usual work year establishes a regularity of employment.6/ In the matter herein, a calendar work year is approximately 260 days. Therefore, in the instant matter, 45 days of service is the minimum which would constitute significant service demonstrating regularity of employment for T-80s. However, Bridgewater-Raritan and Rutgers require that the additional factor of continuity of employment be demonstrated. Furthermore, the undersigned agrees with the County that a more rigorous standard than an employee = s willingness to accept re-employment, as utilized in Bridgewater- Raritan, should be imposed herein to judge continuity of employment. The employment relationship herein provides no reasonable basis for an employee to expect continued employment.7/ Therefore, not only must a T-80 employee indicate his or her willingness to accept reappointment to another T-80 or permanent position, but, in addition, the employer must actually extend such an offer. Based on the record evidence the undersigned concludes that 45 days of service during one year constitutes significant service demonstrating regularity of employment and an offer and acceptance of an additional T-80 appointment or permanent appointment satisfies the test of continuity. Accordingly, the undersigned finds that those T-80 employees who meet the above stated standard qualify as public employees within the meaning of the Act, are entitled to representation thereunder, and are appropriately included in the petitioned-for unit. Thus, those T-80 employees who at the time of the runoff election had worked at least 45 days during one year, who had been offered employment to either another T-80 position or to a permanent position by the County prior to the April 3 election, and who had indicated a willingness to the County prior to April 3, 1978, to accept additional employment, were eligible to vote. However, the evidence contained in the record is not adequate to establish which of the six challenged T-80 employees meet the above- mentioned criteria. In order to make such a determination, the undersigned directs the County to file with the Commission no later than ten (10) days from the issuance of this decision, an affidavit containing the following information: (1) the entire employment record to date of each of the six challenged T-80 employees; (2) the date(s), if any, of an offer by the County of additional T-80 employment or a permanent position; and (3) the date(s), if any, on which the employee indicated a willingness to accept the employment offered in item #2 above. Copies of the affidavits shall be simultaneously served upon CWA and Council #12 and to the six challenged employees. There being no exception to the Hearing Officer = s findings with respect to Thomas Coccia, and the undersigned having reviewed the record with respect to the status of Mr. Coccia, the Hearing Officer = s findings and recommendations are accepted for the reasons stated in the Hearing Officer = s Report. Accordingly, this challenge is sustained and the ballot is deemed void. The undersigned directs that, fifteen days from the date set forth below, the previously designated election agent shall open and count the ballots of those T-80 employees determined to be eligible pursuant to the standards enumerated above. Subsequently, a revised tally of ballots will be provided to the parties. In the event that the number of eligible ballots is insufficient to be determinative of the results of the election, the ballots will not be opened and a revised tally of ballots will be provided to the parties. In accordance with the undersigned = s letter of June 7, 1978, the processing of the post-election objections filed by CWA will commence subsequent to the issuance of the revised tally of ballots. The undersigned acknowledges receipt of a request by counsel for CWA for oral argument of the challenge issues involved herein. The undersigned has determined that the issues have been fully litigated. The parties have been presented with ample opportunity to develop the factual record and to advance legal arguments. Accordingly, the request for oral argument is denied. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: March 20, 1979 Trenton, New Jersey 1/ The results of the March 22 election were inconclusive, no ballot position having received a majority of the ballots cast. Pursuant to the Consent Election Agreement and N.J.A.C. 19:11-9.3, the April 3 runoff election was conducted and the position receiving the last votes cast in the March 22 election (in the instant matter, the A neither @ position) was removed from the runoff election ballot. 2/ The parties do not except to the Hearing Officer = s conclusion that the County could rightfully assert challenges at the runoff election. However, this is an issue that does not relate to voter eligibility and is outside the ambit of the instant proceeding. This issue, the standing of the County to assert challenges at the runoff election, is contained in objections to the election filed by CWA and will be considered therein. 3/ N.J.S.A. 26:3A2-16 provides: Each person who shall have been employed as a full-time employee of a local health agency whose employment by such agency was governed by the provisions of the Civil Service law and whose employment by such agency shall have been terminated by reason of the assumption of its activities and responsibilities by another local health agency shall be transferred to such other local agency, shall be assigned duties comparable to those previously performed by him, and shall be entitled to and credited with all rights and privileges accruing to him by reason of his tenure in such previous office or position, the same as if the entire period of such previous employment had been in the position to which he shall have been transferred. His compensation shall be fixed at not less than the amount received by him at the time of transfer. N.J.S.A. 26:3A2-17 concerns transfers of non-Civil Service personnel and is substantially the same with respect to the issues herein affecting non-Civil Service employees. 4/ See, Lullo v. Firefighters Local 1066, 55 N.J. 409 (1970), wherein the Supreme Court held that it was proper for P.E.R.C. to rely upon the National Labor Relations Board = s precedent in formulating policy pertaining to representation matters. The Board = s policy not to conduct an election during a period of instability would be particularly appropriate in the circumstances herein. See In re Specialty Mfg. Co., Inc., 107 NLRB No. 28, 33 LRRM 1067 (1953), where the Board determined that a representation election should not be held until after the occurrence of imminent layoffs of a certain class of employees. 5/ In light of the above determination, the undersigned need not reach the question concerning the voting eligibility of CETA Project Employees whose votes are among the challenged Health Department employee ballots. 6/ The usual work year for teaching personnel is 180 days. 7/ In Rutgers, co-adjutants had already been offered and accepted re-employment for at least a second semester before the willingness to accept re-employment standard came into play. In Bridgewater-Raritan, the pattern of employment of substitutes demonstrated the retention of substitutes, who performed significant service on the master substitute list from year to year. ***** End of DR 79-25 *****