D.R. NO. 83-7

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CITY OF BAYONNE,

Public Employer,

-and-	Docket No. RO-82-173

BAYONNE FIRE LIEUTENANTS

ASSOCIATION, FMBA ,

Petitioner,

-and-

BAYONNE FIRE SUPERIORS

ASSOCIATION,

Intervenor.

Appearances:

For the Public Employer,

Apruzzese & McDermott, attorney

(Maurice J. Nelligan of counsel)

For the Petitioner,

Howard Goldberger, attorney

For the Intervenor,

Schneider, Cohen, Solomon & DiMarzio, attorneys

DECISION

On June 7, 1982, a Petition for Certification of Public Employee Representative, supported by a valid showing of interest, was filed with the Public Employment Relations Commission ("Commission") by the Bayonne Fire Lieutenants Association, F.M.B.A. ("Petitioner"), seeking to represent all employees in the rank of lieutenant who are employed by the City of Bayonne Fire Department ("City").

The Bayonne Fire Superiors Association ("Superiors Association") is the current majority representative of fire department superior officers. The Superior Association argues that lieutenants are included in its unit, and it has intervened herein on the basis of the submission of a collective negotiations agreement, effective from January 1, 1980 through December 31, 1982, purportedly covering the petitioned-for employees.

In the face of a claim raised by the City and the Superior Association that the Petition is untimely under N.J.A.C. 19:11-
2.8(c) by virtue of the aforecited agreement, the Petitioner argues that a contract bar does not exist for two reasons:

First, the Petitioner argues that the title and rank of lieutenant did not exist and was not filled at the time the agreement was reached and that said agreement was not intended to cover lieutenants.

Second, the Petitioner indicated that when the agreement was first reached, the Superior Association was affiliated with the FMBA, but that on or about July 1, 1981, the Superiors Association dropped its affiliation with the FMBA. The Petitioner argues that by dropping its FMBA affiliation, a schism was created which prevents the agreement from operating as a bar to the Petition.

Both the City and the Superior Association disagree with the Petitioner and argue that the agreement does include and was intended to cover the rank and title of lieutenant as evidenced by the recognition and wages clauses of their agreement. In addition, the Superiors Association argues that no schism has occurred with respect to its representation of the unit.

In accordance with N.J.A.C. 19:11-2.2(a), the undersigned has caused an administrative investigation to be conducted into the matters and allegations set forth in the Petition in order to determine the facts.

On the basis of the administrative investigation herein, the undersigned finds and determines as follows:

1. The disposition of this matter is properly based upon the administrative investigation herein, it appearing that no substantial and material factual issues exist which may more appropriately be resolved at a hearing. Pursuant to N.J.A.C. 19:11-2.6(b), there is no necessity for a hearing where, as here, no substantial and material factual issues have been placed in dispute by the parties.

2. The City of Bayonne is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-et seq. ("Act"), is the employer of the employees who are the subject of the Petition and is subject to the provisions of the Act.

3. The Bayonne Fire Lieutenants Association, FMBA, and the Bayonne Fire Superiors Association are employee representatives within the meaning of the Act and are subject to its provisions.

4. The instant Petition was filed on June 7, 1982, pursuant to which an informal conference was conducted in this matter on June 22, 1982, at which time a copy of the collective negotiations agreement between the City and the Superiors Association was provided to the Commission. The Preamble and Recognition clause in that agreement reads as follows:

PREAMBLE

This Agreement, effective this 11th day of November, 1980, by and between the City of Bayonne, hereinafter referred to as the "City" or "Employer", and the Bayonne Fire Superior Association holding the rank of Captain (excluding the Drill Master and the [Senior Fire Inspector]), (sic)and above the rank of fire fighter, is designed to maintain and to promote an harmonious relationship between the City of Bayonne and such of its employees who are within the provisions of this Agreement, through collective negotiations, in order that a more efficient and progressive public service may be rendered.

ARTICLE I

RECOGNITION AND AREAS OF NEGOTIATIONS

Section 1. Recognition. The City hereby recognizes the Bayonne Fire Superiors Association as the exclusive representative of all Fire Department employees holding the rank of Captain (excluding the Drill Master [and the Senior Fire Inspector]) (sic) and all uniformed Fire Department employees above the rank of firefighter of the City of Bayonne.

The Wages clause reads as follows:

Section 1. The parties hereto have negotiated the following base salaries covering the positions and periods of time set forth herein as follows:

Effective	Maintenance Repairer	Sr. Fire Inspector UFD

First Pay	Mech. Repairer	Chief's Secretary

Period	Lieutenant	Ass't Training Officer

Senior Mechanic

Fire Captain

___________	_____________________	______________________

January 1980	$19,699	$ 21,607

January 1981	21,274	23,336

January 1982	22,246	24,355

July 1982	23,104	25,296

5. N.J.A.C. 19;11-2.8(c) provides in pertinent part:

During the period of an existing written agreement containing substantive terms and conditions of employment and having a term of three years of less, a petition for certification of public employee representative or a petition for decertification of public employee representative normally will not be considered timely filed unless:

* * *

In a case involving employees of a county or a municipality, any agency thereof, or any county or municipal authority, commission or board, the petition is filed not less than 90 days and not more than 120 days before the expiration or renewal date of such agreement.

6. Both the City and the Superior Association have raised the agreement as a bar to the filing of the Petition at this time. They argue that the petition is untimely pursuant to N.J.A.C. 19:11-2.8 because it was filed more than 120 days prior to the end of the agreement.

The Commission's contract bar rule is well established1/ and is patterned after a similar policy of the National Labor Relations Board ("NLRB").2/ See Lullo v. Int'l. Assn. of Fire Fighters 55 N.J. 409 (1970).

On its face, the agreement is a bar to the processing of this Petition. The Petitioner's argument that the agreement was not intended to include the lieutenants is not substantiated and is at odds with the inclusionary language of the recognition clause of the agreement and the specific reference to lieutenants in the wages provision. In both the Preamble and the Recognition clause of the agreement, the parties include in the unit: "all uniformed Fire Department employees above the rank of firefighter and thus is included in the agreement. In addition, the wages clause clearly provides a salary for the rank of firefighter and thus is included in the agreement. In addition, the wages clause clearly provides a salary for the rank of lieutenant. Even if the lieutenant position was vacant at the time the agreement was reached, the agreement reflects a clear intention to provide coverage for lieutenant upon their appointment.

7. The petitioner has also alleged that the agreement does not bar the Petition because of schism has occurred. The NLRB has held in a leading case Hershey Chocolate Corp., 121 NLRB 901, 42 LRRM 1460 (1958), that under certain limited circumstances a schism in a bargaining representative will render its contract bar policy inoperative. Generally, Hershey requires a finding if basic intra-union conflict at the highest organization levels and a resultant disruption of the local union-management relationship which undermines the stability of the bargaining relationship. However, in the absence of any intra-union disruption, and where the bargaining relationship is stable and the representative is willing and able to represent the employees, any schism that may have occurred will not prevent the agreement from operating as a bar to a petition. See Allied Chem. Corp., 197 NLRB 360, 80 LRRM 1339 (1972).

In the instant matter the Petitioner has alleged that the Superiors Association disaffiliated from the FMBA during the term of the agreement and that such disaffiliation was a schism. However, the mere act of disaffiliation, if it occurred, would not establish that there was an intra-union disruption or that the Superiors Association is unable to represent the employees or that the stability of the existing agreement has been undermined. In addition, neither the Preamble nor the Recognition clause of the agreement show that the FMAB was in any way recognized as the majority representative of the superior officers, or that the Superior Association was affiliated with the FMBA.

On August 5, 1982, the undersigned advised the parties that based upon the investigation to date, it appeared that the existing collective agreement served as a bar to the filing of the Petition and that the Petition was, therefore, untimely. The parties were reminded of their obligations pursuant to N.J.A.C. 19:11-2.6, to present documentary and other evidence as well as briefs and/or statements of position, relating to the instant Petition and were afforded an additional opportunity to proffer an additional opportunity to proffer such material. The parties were further advised that in the absence of any substantial and material disputed factual issues, the undersigned would thereafter issue a decision dismissing the Petition. the undersigned has not received any further evidentiary proffers from the parties.

Accordingly, the undersigned determines that the instant Petition is not timely filed pursuant to the requirements of N.J.A.C. 19:11-2.8(c), and the Petition is hereby dismissed.

BY ORDER OF THE DIRECTOR OF

REPRESENTATION

_____________________________

Carl Kurtzman, Director

DATED: August 26, 1982

Trenton, New Jersey