D.R. No. 80-14
The Director of Representation adopts the findings and recommendations of a Hearing Officer that the Chief Sanitary Inspector and Senior Sanitary Inspectors employed by the Middlesex County Health Department are supervisors within the meaning of the Act and should be removed from a unit of Health Department employees including nonsupervisory personnel. The Director further directs an election among the supervisory employees finding that the proposed unit is prima facie appropriate and that there is no dispute between the employer and the petitioner concerning the appropriateness of the proposed unit.
D.R. No. 80-14, 5 NJPER 517 (¶10267 1979)
16.32 33.42 33.1 33.21
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D.R. NO. 80-14 1.
D.R. NO. 80-14
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
COUNT OF MIDDLESEX,
-and- Docket No. RO-79-157
MIDDLESEX COUNTY HEALTH INSPECTORS
MIDDLESEX COUNTY HEALTH INSPECTORS
For the Public Employer
Henry H. Orszulski, Middlesex County
Labor Relations Specialist
For the Petitioner
Mr. David A. Papi and Mr. Don N. Dingler
For the Intervenor
Mr. Dino A. Zarrella
DECISION AND DIRECTION OF ELECTION
On January 4, 1979, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by Middlesex County Health Inspectors Supervisors Association (the A Seniors Association @ ) with respect to a proposed unit of senior sanitary inspectors, principal sanitary inspectors and the chief sanitary inspector employed in the Middlesex County Health Department of Middlesex County (the A County @ ). The Middlesex County Health Inspectors Association (the A Inspectors Association @ ) intervened in the Petition based upon a recently expired collective negotiations agreement covering a unit of Health Department employees including the petitioned-for employees.
Pursuant to Notice of Hearing, a hearing was held before Commission Hearing Officer Joan Kane Josephson on May 14, 1979, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. All parties submitted post-hearing letter briefs and the Hearing Officer issued her Report and Recommendations on September 14, 1979, a copy of which is attached hereto and made a part hereof. No party has filed exceptions to the Hearing Officer = s Report.
The Senior Association claims that the proposed unit is appropriate, and that the employees should be removed from the unit represented by the Inspectors Association since they are supervisors within the meaning of the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), and since their responsibilities place them in a conflict of interest with other Health Department employees. The County agrees that the proposed unit is an appropriate unit and is in essential agreement with the positions of the Senior Association. The Inspectors Association urges the continued inclusion of the petitioned-for employees in the Health Department unit, claiming that any conflict of interest is de minimis in nature.
The Hearing Officer, finding that the Senior Sanitory Inspectors effectively recommend discipline and impose certain discipline, concluded that the Senior Sanitary Inspectors were supervisors within the meaning of the Act.1/ The Hearing Officer further concluded that the Chief Sanitory Inspector, as the next line supervisor above the Senior Sanitary Inspector, a fortiori is a supervisor of Sanitary Inspectors.2/
The undersigned has reviewed the entire record including the transcripts, the exhibits and the Hearing Officer = s Report, and notes the absence of any exceptions to the findings and recommendations of the Hearing Officer that the Chief Sanitary Inspector and Senior Inspectors are supervisors within the meaning of the Act and should be removed from the unit including sanitary Inspectors. A review of the record reveals that there is ample evidence to support the findings and recommendations of the Hearing Officer that the employees in question are supervisors within the meaning of the Act. Accordingly, the undersigned hereby adopts the findings and recommendations of the Hearing Officer for the reasons expressed in her report.
The Hearing Officer, however, recommended that the unit proposed by the Seniors Association, limited to the supervisory employees of the Health Department, be dismissed. The Hearing Officer based this recommendation upon the Commission = s policy of favoring the creation of broad-based functional negotiations units as opposed to the formation of numerous small units, notwithstanding the fact that a community of interest may exist within a smaller, limited unit. The Hearing Officer noted the decision of the Supreme court in State of New Jersey v. Professional Association of New Jersey Department of Education, 64 N.J. 231 (1974) wherein the Court approved the Commission = s broad-based unit concept and further observed that in disputed cases the Commission was obligated to designate the A most appropriate unit. @ Accordingly, the Hearing Officer suggested that the only appropriate unit would be a broad-based unit including the petitioned-for employees and recommended the dismissal of the instant Petition.
Although the Commission favors the creation of broad-based functional units, the Commission also maintains a policy of not intervening in matters concerning unit definition in the absence of a dispute. Where there is no dispute, the Commission has approved agreements of parties which designate prima facie appropriate units of employees who share a community of interest. The Inspectors Association raised a dispute concerning the proposed removal of the petitioned-for employees from its unit and urged the continuation of the unit which exists in its present form. However, since it is determined that the Inspectors Association may not continue to represent supervisors in its unit, or in any other unit, the dispute which the Inspectors Association has raised over the creation of a proposed health inspectors supervisory employees unit is now moot. The County and the Seniors Association agree that the proposed unit is appropriate. The undersigned finds that a unit consisting of all supervisory personnel in the Health Department is prima facie appropriate and, therefore, in the absence of a dispute between the parties at interest, approves the agreement between the County and the Seniors Association as to the formation of such unit.
Accordingly, the undersigned shall direct an election in a unit including: all supervisory employees in the Middlesex Health Department of Middlesex County including the chief sanitary inspector and senior sanitary inspectors, but excluding managerial executives, craft and professional employees, confidential employees, police and nonsupervisory employees.
The undersigned directs that a secret ballot election be conducted among employees in the unit found appropriate no later than thirty (30) days from the date set forth below. Those eligible to vote are employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, or on vacation, or temporarily laid off, including those in military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who resigned or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date.
Pursuant to N.J.A.C. 19:11-9.6, the public employer is directed to file with the undersigned and with Middlesex County Health Inspectors Supervisors Association an election eligibility list, consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by the undersigned no later than ten (10) days prior tot he election. A copy of the eligibility list shall be simultaneously filed with the Middlesex County Health Inspectors Supervisors Association, with statement of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.
Those eligible to vote shall vote on whether or not they desire to be represented for the purpose of collective negotiations by the Middlesex County Health Inspectors Supervisors Association.
The exclusive representative, if any, shall be determined by the majority of valid ballots cast by the employees voting at the election. The election directed herein shall be conducted in accordance with the provisions of the Commission = s rules.
BY ORDER OF THE DIRECTOR
Carl Kurtzman, Director
DATED: November 16, 1979
Trenton, New Jersey
1/ N.J.S.A. 34:13A-5.3 provides that supervisors A having the power to hire, discharge, discipline or effectively recommend the same... @ may not be included in negotiations units with nonsupervisory employees unless certain statutorily designated exceptional circumstances are present.
2/ The record indicates that the position of Principal Sanitary Inspector is a vacant position.
***** End of DR 80-14 *****