D.R. NO. 81-12

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF CLOSTER,

Public Employer,

-and-	Docket No. RO-80-153

LOCAL 29, R.W.D.S.U., AFL-CIO,

Petitioner.

Appearances:

For the Public Employer

Andora, Palmisano, DeCotiis & Harris, attorneys

(M. Robert DeCotiis of counsel)

(Robert S. Romano,Jr., on the brief

For the Petitioner,

Parsonnet, Dugan & Pykon, attorneys

(Victor J. Parsonnet of counsel)

DECISION

Pursuant to an Agreement for Consent Election entered into by the Borough of Closter (the "Borough") and Local 29, R.W.D.S.U., AFL-CIO ("Local 29"), a secret ballot election was conducted by the Public Employment Relations Commission (the "Commission") on April 16, 1980 among the Borough's blue collar Department of Public Works employees. The Tally of Ballots reveals that of approximately 17 eligible voters, 8 ballots were cast for Local 29, 7 ballots were cast against representation by Local 29 and two ballots were challenged. The challenged ballots are of sufficient number to affect the results of the election.

On June 5, 1980, the undersigned directed the conduct of an investigatory hearing with respect to the voting eligibility of the two individuals whose ballots were challenged. A hearing was held before Commission Hearing Officer Michael B. Berman on June 25, 1980 at which time all parties were afforded the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Post hearing submissions were filed by the Borough and Local 29 on July 14 and 15, 1980, respectively, and the Borough filed an answering statement on July 21, 1980. the Hearing Officer issued his Report and Recommendations on August 21, 1980, which is attached hereto and made a part hereof. Local 29 filed exceptions to the Hearing Officer's Report on September 12, 1980. On September 17, 1980, the Borough filed a reply to Local 29's exceptions.

The undersigned has reviewed the entire record, including the transcript, Local 29's exceptions and the Borough's reply, and on the basis thereof finds and determines as follows:

1. The Borough of Closter is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), is the employer of the employees who are the subject of the Petition, and is subject to the provisions of the Act.

2. Local 29, R.W.D.S.U., AFL-CIO is an employee representative within the meaning of the Act and is subject to its provisions.

3. Two challenged ballots, which were cast in the representation election conducted by the Commission on April 16, 1980, among the Borough's blue collar public works employees, are determinative of the results of the election. The ballot cast by Harvey Lampman was challenged by Local 29, which claims that Lampman is a supervisor within the meaning of the Act and may not be included in the non-supervisory unit. The ballot cast by Anthony Rideout was challenged by the Borough, which asserts that Rideout was terminated for cause on April 7, 1980. The Agreement for Consent Election entered into by the Borough and Local 29 provides that employees terminated for cause and not reinstated prior to an election are not eligible voters.

Accordingly, challenged ballots are determinative of the results of the election and the instant matter is properly before the undersigned for determination.

4. The Hearing Officer found that Harvey Lampman, although denominated by the Borough as the "responsible person" of the sewers and drains section of the Public Works Department, is not a supervisor within the meaning of the Act. Local 29, which challenged Lampman's voting eligibility has not excepted to the Hearing Officer's findings and recommendations. The undersigned, noting the absence of any exceptions with respect to the voting eligibility of Lampman and in agreement with the Hearing Officer that Lampman does not hire, discharge, discipline or effectively recommend the same, adopts the Hearing Officer's findings and conclusions that Lampman is not a supervisor and is an eligible voter.

The Hearing Officer recommended that Anthony Rideout was an ineligible voter and that the ballot which he cast not be counted. The Hearing Officer reasoned that a representation challenge proceeding is not an appropriate forum for a collateral inquiry into the reasons for discharge of Rideout due to the availability of judicial and administrative forums in which Rideout may contest his discharge. The Hearing Officer noted that there was no evidence in the record indicating that Rideout had filed a court proceeding or civil service proceeding or an unfair practice charge before the Commission. Additionally, the Hearing Officer noted that Local 29 had not filed objections to the conduct of the representation election claiming that the Borough sought to influence the election claiming by discharging Rideout.

In excepting the Hearing Officer's Report, Local 29 urges that the challenge forum is appropriate to litigate the "cause" of Rideout's termination. Local 29 states that it has not asked for reinstatement, and is not claiming that there is an unfair practice involved.1/ Rather, Local 29 asserts that it is "merely claiming that Mr. Rideout's discharge was not for cause within the rules of the Commission and that his vote should be counted." Local 29 has not cited to any authority in support of its position.

The issue before the undersigned in the instant challenge proceeding is whether the challenge forum is appropriate for litigating the basis of Rideout's discharge. The undersigned is guided in this regard by the experience and adjudications of the National Labor Relations Board (the "NLRB"). Lullo v. Int'l. Assn. of Fire Fighters, Loc. 1066, 55 N.J. 409 (1970).

The NLRB and the Commission have similar requirements concerning voting eligibility. Like the Commission election agreement, the NLRB election agreement also provides that employees discharge for cause and not reinstated prior to an election are ineligible to vote. The NLRB has determined that pre-election discharges are presumed to be lawful, and a determination that a discharge is improper cannot be made in a representation proceeding. More specifically, in Spray Sales and Sierra Rollers, 225 NLRB No. 157, 93 LRRM 1025 (1976), the Board stated, in the context of a challenge proceeding:

In order for the Petitioner to prevail, it must be shown that the strikers were unlawfully discharged. This is because in challenged ballot cases discharge is presumed to be for cause where no unfair labor practice charge has been filed. That determination, however, cannot be made in a representation proceeding....

Thus, in the present case, the Board must presume that the discharges were lawful. To hold otherwise would place the Board in the position of making unfair labor practice findings in a representation proceeding where no charges have been filed. "The election process may be protected by the timely filing of charges with respect to the conduct in question." [Texas Meat Packers, Inc., 130 NLRB 1214, 47 LRRM 1294 (1961). Since the discharges are presumed to be lawful it follows that whatever voting rights the discharged employees may once have enjoyed have been extinguished. Accordingly, the challenge to their ballots should be sustained and the results of the election certified. (footnotes omitted)

The undersigned sees no reason to deviate from the NLRB's established practice in this area given the Court's instruction in Lullo and the similar proceedings available to Local 29 and Rideout under the Act. Prior to the conduct of the eligibility investigation neither Local 29 nor Rideout filed an unfair practice charge or any other proceeding in a forum established for the purpose of adjudicating the propriety of the discharge. Therefore, in the instant challenge forum Rideout's discharge is presumed valid and the Borough's challenge to his voting eligibility is sustained.

The undersigned, however, is constrained to comment upon the recent filing of the Unfair Practice Charge against the Borough (footnote 1), as it affects the representation proceeding at this juncture. The Commission's policy is to certify the results of a representation election with expedition in order to provide the parties with the certainty of the election results. Where employees have rejected representation, such definitiveness permits the employer to resume his normal personnel functions. Where a representative has been selected, a certification of representative issues and is accompanied by an order directing the employer to engage in negotiations with the majority representative upon demand. Therefore, the Commission requires that post-election representation proceedings be initiated and resolved at the earliest possible time following an election. Accordingly, a Certification of Representative or Certification of Results will always issue immediately after a representation election unless one or both of the following conditions are present: (1) there are election eligibility challenges which are determinative of the election results; or (2) election objections are received within five working days after an election.

The initiation of a unfair practice proceeding, without more, will not delay the issuance of a certification. Thus, where challenges are not determinative of the results of an election and where post-election objections have not been filed, a certification will issue notwithstanding the pendency of an unfair practice proceeding.

Where a charge is filed prior to a challenge or objection investigation, the proceedings may be consolidated, where appropriate. However, where the investigation process inclusive of the investigative hearing has been completed, the filing of a charge will not affect the issuance of the appropriate certification. This procedure provides sufficient opportunity to raise representation claims and unfair practice claims as they affect the representation proceeding, without interfering with the due speed required in certifying the election results.

The undersigned therefore determines that the employer's challenge respecting the voting eligibility of Rideout is upheld. The ballot of Lampman shall be opened and tallied, and the appropriate certification shall issue.2/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

____________________________

Carl Kurtzman, Director

DATED: October 9, 1980

Trenton, New Jersey