H.O. No. 80-11

Synopsis:

A Commission Hearing Officer, considering the challenge to four voters in a Commission conducted election in a blue collar unit limited to employees of the road department recommends that the challenge to three voters be sustained and that the challenge to the remaining voter be overruled and the vote counted. Of the sustained challenges one voter was found to be a supervisor within the meaning of the Act and inappropriate for inclusion in the unit; another voter was found to be a "white collar" employee and not appropriate for inclusion in a unit limited to "blue collar" employees; and a third voter was found not to be an employee of the petitioned-for department.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The report is submitted to the Director of Representation who reviews the Report, any exceptions thereto filed by the parties and the record, and issues a decision which may adopt, reject or modify the Hearing Officer's findings of fact and/or conclusions of law. The Director's decision is binding upon the parties unless a request for review is filed before the Commission.

PERC Citation:

H.O. No. 80-11, 6 NJPER 74 (¶11038 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.32 33.42 33.333 33.45 34.11 34.22 33.342

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HO 80-011.pdf
Appellate Division:
Supreme Court:

H.O. NO. 80-11 1. H.O. NO. 80-11 STATE OF NEW JERSEY BEFORE A HEARING OFFICER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MANALAPAN TOWNSHIP, Public Employer, -and- Docket No. RO-79-199 N.J. ORGANIZING COMMITTEE, S.E.I.U., AFL-CIO, Petitioner. Appearances: For the Public Employer Sonnenblick, Parker and Selvers, Esqs. (Renee Ferretti, of Counsel) For the Petitioner Max Wolf, Coordinator S.E.I.U. HEARING OFFICER = S REPORT AND RECOMMENDATIONS A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) on April 5, 1979, by the New Jersey Organizing Committee, Service Employees International Union (the A Petitioner @ ) for a unit of all blue collar employees of the department of public works employed by Manalapan Township (the A Township @ ). After the Township refused to enter into a consent election agreement in this matter, the Director of Representation by a decision and order dated August 9, 19791/ directed an election in the following unit: A [A]ll blue collar employees of the Road Department employed by the Township of Manalapan, but excluding managerial executives, confidential employees, professional employees, craft employees, police and supervisors within the meaning of the Act. @ [The New Jersey Employer-Employee Relations Act]. On September 6, 1979, an election was conducted in this matter and the results of the election as set forth in the Tally of Ballots indicated that the Petitioner received 4 votes, that 3 votes were cast against representation, and 4 votes were challenged. Therefore, the challenged ballots were determinative of the outcome of the election. Thereafter, pursuant to a letter and a Notice of Hearing from the Director of Representation dated October 17, 1979, a hearing was held before Hearing Officer Steven P. Weissman on November 28, 1979, in Trenton, New Jersey, only on the issues relevant to the instant challenges. All parties were given an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Subsequent to the close of the hearing the Petitioner submitted a written brief in this matter which was received on December 27, 1979. The transcript was received on January 3, 1980. Because of the unavailability of the original Hearing Officer, the Director of Representation by letter dated November 28, 1979 and pursuant to N.J.A.C. 19:11-6.4, transferred this matter to the undersigned Hearing Officer for the issuance of the Report and Recommendations. Upon the entire record in this proceeding, the undersigned Hearing Officer finds: 1. That the Township is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the A Act @ ) and is subject to its provisions. 2. That the Petitioner is an employee representative within the meaning of the Act and is subject to its provisions. 3. That the parties to a Commission conduct secret ballot election are unable to resolve challenges which are determinative of the outcome of the election resulting in the continued existence of a question concerning representation. This matter is therefore appropriately before the undersigned for report and recommendations concerning the challenges to the election. 4. That the results of the election indicate that the Petitioner challenged 3 voters, Robert Paulsen, Barbara Paulsen and John Lewis; and the Township challenged one voter, James Allen. The Petitioner alleged that Robert Paulsen and John Lewis were supervisors within the meaning of the Act and therefore not appropriate for inclusion in the unit, and that Barbara Paulsen was not a blue collar employee and therefore could not be included in the unit. The Township alleged that James Allen had been transferred to the Police Department and was not an employee of the Road Department and was therefore ineligible to vote in the election. 5. The parties stipulated that the issues relevant to the instant challenges are: a. Whether Robert Paulsen and John Lewis are supervisors within the meaning of the Act. b. Whether Barbara Paulsen is a blue collar employee, and, c. Whether James Allen should be included in the unit as petitioned for. ANALYSIS Robert Paulsen Robert Paulsen holds the position of Superintendent of the Road Department. He is charged with the overall responsibility of the Road Department including directing and assigning work, and he is considered a department head. Although the evidence produced at hearing supports the Township = s contention that Mr. Paulsen does not directly hire or fire employees of the department, the undersigned is convinced that the evidence supports the Petitioner = s contention that Mr. Paulsen does have the authority to effectively recommend hiring and firing. Since the Act defines supervisors as those employees who hire, fire or effectively recommend the same, Mr. Paulsen = s duties and responsibilities present a noticeable conflict of interest with other employees thereby justifying his exclusion from the unit. Arnold Grill, Township Administrator, provided significant testimony regarding Mr. Paulsen = s position. He testified that generally a department head can recommend disciplinary action,2/ that Mr. Paulsen has actually interviewed individuals and made recommendations concerning hiring,3/ and that Mr. Paulsen has on occasion provided written evaluations concerning employees in his department.4/ Moreover, Mr. Grill testified that Mr. Paulsen has recently made a recommendation concerning disciplinary action.5/ Mr. Paulsen testified that in the past he has prepared written evaluations,6/ and he also testified that he has suspended or at least sent home an employee who was acting improperly on the job.7/ Although the evidence produced at hearing does not concentrate on the effectiveness of Mr. Paulsen = s actions, the evidence clearly establishes that Mr. Paulsen = s inclusion in the unit would create an actual conflict of interest with other employees and therefore his exclusion from the unit is justified.8/ Based upon the foregoing discussion, the undersigned recommends that the challenge to Robert Paulsen = s vote be sustained. John Lewis John Lewis holds the position of Assistant to the Road Superintendent and is generally responsible for assisting Robert Paulsen in assigning work. Lewis testified that he does not discipline or evaluate employees nor does he make recommendations concerning hiring or firing.9/ The Petitioner has alleged that Lewis performs essentially the same duties as Robert Paulsen and therefore is a supervisor within the meaning of the Act. However, as evidenced by Lewis = own testimony and by a review of the entire record, it is clear that Lewis does not normally make recommendations or evaluations. Moreover, the evidence does not support a find that Lewis = inclusion in the unit would establish a conflict of interest nor does it justify finding that there are two supervisors in such a small unit. After reviewing the entire record and based upon the foregoing discussion, the undersigned recommends that the challenge to John Lewis be overruled and his vote counted. Barbara Paulsen Barbara Paulsen holds the position of Clerk General to the Road Department. She keeps the same hours and works in the same location as other Road Department employees, and her duties are different than other clerical employees who work for the Township.10/ The Petitioner maintains that Mrs. Paulsen = s duties are of a clerical nature and that her duties do not include functions that would justify her inclusion in a blue collar unit. The Township argues that Mrs. Paulsen = s duties go beyond clerical functions and that she has a community of interest with the instant unit. The evidence to some degree supports the contentions of both parties. By her own testimony Mrs. Paulsen acknowledged that she does general secretarial work, and answers the phone and the radio.11/ However, Mr. Grill = s and Mrs. Paulsen = s testimony also clearly establish that Mrs. Paulsen performs radio dispatching functions for the Road Department separate and apart from her normal clerical duties.12/ The issue concerning Mrs. Paulsen however is not whether her job is similar to those of other clerical employees in the Township, rather it must be determined whether her overall duties justify her classification as a A blue collar @ employee. In that regard the evidence shows that Mrs. Paulsen = s primary duties include clerical and dispatching functions. Although she performs these functions in the road department garage office, that does not prevent a finding that her work is inherently A white collar @ in nature. White collar positions are generally defined as those which include clerical, administrative and professional work, whereas blue collar positions are generally manual labor positions that involve only a very minimum of clerical work. In the instant matter Mrs. Paulsen = s duties are clearly predominantly white collar. Although she occasionally drives and washes trucks, she testified that she does not do that often and that it was her own idea and was not assigned work.13/ Since Mrs. Paulsen is actually a A white collar @ employee, and since the unit as described in the direction of election includes only A blue collar @ employees of the Road Department, then Mrs. Paulsen cannot be included in the instant unit. Based upon the foregoing discussion it is recommended that the challenge to Barbara Paulsen = s vote be sustained. James Allen James Allen is a mechanic employed by the Township. Prior to July 7, 1979 he was a mechanic in the Road Department and predominantly serviced Road Department vehicles although he occasionally worked on police and other vehicles. On July 7, 1979,14/ Allen was verbally transferred to the Police Department to work predominantly on police vehicles. The transfer was made official on August 8, 1979. On August 9, 1979, the Director of Representation issued his direction of election in this matter15/ and ordered that the Township provide an eligibility list of employees in the unit. The Township was required to include on its list all employees who were employed in the Road Department as of the last payroll prior to August 9 which was August 3, 1979. By letter dated August 17, 1979, the Township complied with the Director = s request and submitted an eligibility list which included the name of James Allen. However, in its August 17 correspondence the Township clearly advised the Director that Mr. Allen had been transferred to the Police Department by resolution of August 8, retroactive to August 6, 1979 and therefore his vote in the election would be challenged. The Petitioner acknowledges that Mr. Allen was transferred to the Police Department but contends that he still performs the same work, he works in the same location (the road department garage), and that he occasionally still reports to Mr. Paulsen for additional work. The Petitioner further contends that it was not provided sufficient notice of Mr. Allen = s transfer in August 1979 to afford it the opportunity to amend its petition to include his new position. For all of these reasons the Petitioner argues that Mr. Allen is appropriate for inclusion in the petitioned-for unit. The evidence produced at hearing substantiates the Township = s argument that Mr. Allen was transferred to the Police Department in July/August 1979. Mr. Allen actually acknowledged the transfer16/ and testified that he now reports to the policy duty commander and takes direction from the police captain or lieutenant.17/ Mr. Grill testified that Mr. Allen was transferred because the Police Department needed a full-time mechanic for its own vehicles.18/ Mr. Grill also testified that Mr. Allen = s salary had to be transferred from the road department budget to the police department budget.19/ Despite the fact that Mr. Allen still works in the same location with the same duties and with the same hours, it is clear that he performs his work as a Police Department employee. Since Mr. Allen is not a Road Department employee he does not fit the definition of the unit as set forth in the direction of election and therefore cannot be included in the petitioned- for unit. Moreover, the Petitioner = s argument that it failed to receive notice of Mr. Allen = s transfer does not now justify his inclusion in the unit. The facts show that the transfer actually occurred in July 1979 which was prior to the direction of election herein, and that Mr. Allen, Mr. Paulsen, Mr. Grill, and the Police Department were aware of the transfer. The Petitioner had adequate time prior to the direction of election to ascertain the status of the employees in the proposed unit. Furthermore, it must be noted that the township had no actual duty to advise the Petitioner of Mr. Allen = s transfer. The Township complied with the Director = s request for an eligibility list and properly advised the Director of its intent to challenge Mr. Allen. Under these circumstances the Township acted in an appropriate manner. Based upon the foregoing the undersigned recommends that the challenge to James Allen = s vote be sustained and his vote not counted. RECOMMENDATIONS Accordingly, upon the entire record herein and for the above stated reasons the undersigned Hearing Officer recommends the following: 1. That Robert Paulsen is a supervisor within the meaning of the Act and is not appropriate for inclusion in the petitioned-for unit therefore the challenge to his vote should be sustained. 2. That Barbara Paulsen is not a A blue collar @ employee and cannot be included in a unit limited to blue collar employees therefore the challenge to her vote should be sustained. 3. That James Allen is not an employee of the Road Department and cannot be included in a unit limited to Road Department employees therefore the challenge to his vote should be sustained. 4. That John Lewis is not a supervisor within the meaning of the Act and is otherwise appropriate for inclusion in the petitioned-for unit therefore the challenge to his vote should be overruled and his vote counted. Respectfully submitted Arnold H. Zudick Hearing Officer DATED: January 30, 1980 Trenton, New Jersey 1/ See In re Township of Manalapan, D.R. No. 80-5, 5 NJPER 367 ( & 10187 1979). 2/ Transcript ( A T @ ) pp 48-49. 3/ T. pp 55, 80. 4/ T. p 55. 5/ T. p 84-85. 6/ T. p 105. 7/ T. pp 101-102. 8/ See Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971). 9/ T. pp 96-97. 10/ T. p. 59. 11/ T. p 90. 12/ T. pp 57-59, 90-93. 13/ T. pp 94-95. 14/ T. p 29. 15/ See note 1, supra. 16/ T. p. 29. 17/ T. pp 32, 38. 18/ T. pp 64-65. 19/ T. pp 54-55. ***** End of HO 80-11 *****