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H.O. No. 80-7
Synopsis:
A Commission Hearing Officer recommends dismissal of a Representation Petition for a unit limited to health inspector supervisors finding that such a small functional unit would not be the most appropriate unit. The Hearing Officer sets forth in her Report and Recommendations the appropriate mechanism by which representation of the non-represented supervisors may be accomplished based upon In re Parsippany-Troy Hills Township Board of Education, D.R. No. 79-7.
The Hearing Officer recommends that the senior, principal and chief sanitary inspectors be excluded from the existing unit of sanitary inspectors because they are supervisors who can discipline employees in the existing negotiating unit and because a conflict of interest exists arising from their day-to-day supervision of the sanitary inspectors. This conflict negates an otherwise existing community of interest.
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. 80-7, 5 NJPER 437 (¶10226 1979)
Appellate History:
Additional:
Miscellaneous:
NJPER Index:
33.35 33.42 33.22 33.323
Issues:
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H.O. NO. 80-14 1.
H.O NO. 80-14
STATE OF NEW JERSEY
BEFORE A HEARING OFFICER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
PASSAIC VALLEY SEWERAGE
COMMISSION,
Public Employer,
-and- Docket NO. RO-80-23
LOCAL 1158, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS,
Petitioner.
Appearances:
For the Public Employer,
Ambrosio & Ambrosio, Esqs.
(Gabriel Ambrosio, of Counsel)
For the Petitioner,
Robert Sarcone, Esq.
(Gerald E. Fusella, of Counsel)
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 August 15, 1979 by Local 1158, International Brotherhood of Electrical Workers, AFL-CIO (the A Petitioner @ ) seeking to represent a unit of employees employed by the Passaic Valley Sewerage Commission ( A PVSC @ ). On September 17, 1979, the parties executed a Consent Election Agreement for two units of employees employed by the PVSC.1/
On October 16, 1979, elections were held in both units of employees and the Tally of Ballots for each unit revealed that the majority of employees who voted in each unit did not wish to be represented by the Petitioner. By letter dated October 18, 1979, the Petitioner raised objections to the results of the above elections by alleging that PVSC circulated pre-election campaign material to the employees which adversely influenced the voters.
Pursuant to a Notice of Hearing dated November 13, 1979, a hearing was held concerning the objections to the elections on December 17, 1979, before the undersigned Hearing Officer in Newark, New Jersey. 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, only the Petitioner filed a written brief in this matter.2/ Upon the entire record in this proceeding, the Hearing Officer finds:
1. That PVSC is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, (the A Act @ )3/ 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 Petitioner has raised timely objections to the results of a Commission conducted representation election which could not be resolved and therefore the matter is appropriately before the undersigned for report and recommendations.
4. That the parties stipulated that the exhibits marked as J-1 through J-14 were documents disseminated by the Petitioner, and that the exhibits marked as J-15, 16 and 17 were documents disseminated by PVSC.
5. That the parties stipulated that the issue herein is A whether the documents labeled J-15, J-16 and J-17 when considered in conjunction with all of the other joint exhibits raise sufficient objections warranting the overturning of the instant election. @
6. That the Petitioner argues that PVSC, by disseminating J-15, J-16 and J-17, unduly interfered with the free choice of the voters which resulted in the Petitioner = s loss of the elections. The Petitioner seeks to have the elections overturned and have itself certified as the majority representative because it alleges in its brief that the laboratory conditions for another election have been destroyed by the employer = s conduct.
7. That PVSC argues that the documents it disseminated were in response to the documents disseminated by the Petitioner, that its documents did not interfere with the free choice of the voters, and that the results of the election should be certified. Factual Background The petition was filed in these matters on August 15, 1979, the consent election agreement was reached on September 17, 1979, and the elections were conducted on October 16, 1979. As early as August 16, 1979, and until approximately October 12, 1979, the Petitioner disseminated to the employees through the mail numerous documents concerning the instant election(s). Exhibits J-1 through J-5, for example, were mailed in regular intervals until just four days prior to the election. The substance of these documents varied from providing general election and campaign information to making comments concerning PVSC leadership.
By letter dated October 18, 1979, the Petitioner set forth objections to the instant elections. The Petitioner alleged that:
1. On September 12, 1979, the Commissioners of Passaic Valley Sewerage Commission adopted a resolution which was hand delivered to all employees. Said resolution stated that the salary scale of all employees would be increased effective January 1, 1980.
Moreover, the Commissioners resolved that individual considerations would be given to certain employees to increase their salaries, and the determination regarding the amount of the increase would be forthcoming to them before November 14, 1979.
2. The Passaic Valley Sewerage Commissioners intentionally misled their employees by circulating a handbill dated October 12, 1979, which stated that if the unions were successful all employees would have to join and pay dues, which would be contra to existing Public Employment Relations Commission Rules.
The first PVSC document that allegedly unduly influenced the voters, Exhibit J-15, was actually a public resolution of the PVSC dated September 12, 1979. The resolution concerned the 1980 salary scale for PVSC employees, and also provided for a review of those PVSC employees who did not receive a salary increase in 1979.4/ Apparently, PVSC mailed a written explanation of J-15 to its employees.
The Petitioner also alleged that Exhibits J-16 and J-17 unduly affected the voters = choice. Those documents were mailed by PVSC on October 9 and October 12, 1979 respectively. Exhibit J-16 also concerned salary increases,5/ and Exhibit J-17 were remarks by PVSC concerning guarantees that allegedly could or could not be made by the Petitioner.6/ Analysis The Commission has established policies and procedures as well as case law regarding objections to an election. N.J.A.C. 19:ll-9.2(j) provides that the Director of Representation has the authority to direct that a hearing be conducted into objections to an election where there are substantial and material factual issues in dispute. N.J.A.C. 19:11-9.2(h) provides in pertinent part that:
[t]he objecting party shall bear the burden of proof regarding all matters alleged in the objections to the conduct of the election or conduct affecting the results of the election and shall produce the specific evidence which that party relies upon in support of the claimed irregularity in the election process.
In In re Jersey City Dept. of Public Works, P.E.R.C. No. 43 (1970), the Commission established a standard to be used in matters concerning objections to an election when it held that it:
presumes that an election conducted under its supervision is a valid expression of employee choice unless there is evidence of conduct which interfered or reasonably tended to interfere with the employee = s freedom of choice. Conduct, seemingly objectionable, which does not establish interference, or the reasonable tendency thereto, is not a sufficient basis to invalidate an election. The foregoing rule requires that there must be a direct relationship between the improper activities and the interference with freedom of choice, established by a preponderance of the evidence. At p. 10.
Shortly thereafter, the Commission was faced with a case, similar to the instant matter, where a union alleged that the employer = s handbill created misrepresentations that affected the outcome of the election. The Commission upheld the Hearing Officer who found against the union and held that:
An election should be set aside only where the alleged misrepresentations involve a substantial departure from the truth and are at a time that prevents the other party from making an effective reply. In re Jersey City Medical Center, P.E.R.C. No. 49, Hearing Officer Report, p. 15 (1970).
In order to determine the validity of the instant objections an examination of exhibits J-15, J-16 and J-17 must be made in light of the above Commission policy and cases.
J-15, (supra, note 4)
On its face J-15 sets forth the amount of increase in the salary scale for 1980, and also provides that PVSC will reconsider granting increases to those employees who did not receive an increase in 1979. The Petitioner = s Business Agent, Gene Sette, testified that his specific objection of J-15 was the final paragraph which indicated that PVSC would review the salaries of certain employees. Sette admitted that this part of J-15 affected only about six employees, but he did not testify on how or whether the document in fact affected the employees in the exercise of their vote in the instant elections. Upon further examination, Sette testified that Exhibit J-16, which was disseminated by the Petitioner to the employees on or above September 20, 1979, specifically addressed the issues raised in J-15.7/ The Petitioner did not produce the testimony of any PVSC employees concerning the effect of any of the relevant exhibits upon their right to vote.8/
Further, testimony concerning J-15 was provided by Carmine Perrapato, PVSC = s Executive Director, who testified that J-15 was adopted to implement the results of a management study which began in 1978 concerning PVSC = s employment practices and policies.9/ Perrapato testified that a management consultant team recommended the adoption and implementation of various policies and programs which included the establishment of job classifications and salary guides which previously did not exist. In February 1978, PVSC adopted a Personnel Policy and Procedure Handbook as an outgrowth of the management study, and in August 1979 PVSC adopted the recommendations of the management study concerning job classifications and salary guides.10/ Perrapato testified that the adoption of the handbook and the job classifications occurred prior to the filing of the instant petition.11/
Regarding J-15, Perrapato testified that that resolution implemented the seven percent raise recommended by the management study and that the last paragraph was only an attempt to equalize the raise for all employees.12/ Perrapato also testified that the last paragraph of J-15 affected only fourteen PVSC employees and only one of those employees to his knowledge was in either unit in question.13/
A review of the evidence concerning J-15 reveals that the Petitioner did not satisfy its burden of proof that J-15 interfered with the employee = s freedom of choice. The Petitioner = s mere allegation that J-15 unduly influenced the voters does not warrant the overturning of a representation election. See In re Jersey City D.P.W., supra. See also In re County of Atlantic, D.R. No. 79-17, 5 NJPER 18 ( & 10010 1079).
Moreover, the evidence shows that J-15 was disseminated one month prior to the election and that the Petitioner did in fact specifically respond to that document. Noting the lack of evidence to substantiate the effect of J-15 upon the employees = freedom of choice, and based upon the above discussion, the undersigned recommends that the objection to the instant elections based upon J-15 be dismissed.
J-16 (supra. note 5)
Exhibit J-16 was a memorandum disseminated by PVSC to the employees on or about October 9, 1978, which essentially promised that salary increases would continue in the future. Although the Petitioner did not object to J-16 either in its letter of objections dated October 18, 1979, or in its post-hearing brief, it did raise an objection to this document at the hearing.
However, despite alleging that J-16 interfered with the voters = free choice, the Petitioner failed to substantiate that allegation as required by N.J.A.C. 19:11-9.2, and as required by In re Jersey City D.P.W., supra. The Petitioner = s business agent only testified that he knew of one employee who actually saw J- 1614/ and that he specifically responded to J-16 by issuing the document marked as exhibit J-12.15/
As previously discussed, a party filing objections in a Commission conducted election has the burden of proving that the conduct complained of affected the results of the election. The mere submission of a document purported to have affected the election is not enough. The objecting party must substantiate through evidence or testimony that the document(s) complained of actually affected the free choice of the voters.
In In re Cty. of Middlesex, E.D. No. 25 (1971), for example, the Executive Director (now referred to as the Director of Representation) overruled certain objections to a Commission conducted election because of a lack of substantiating evidence. One objection concerned remarks by a foreman which allegedly intimidated voters. The Director dismissed that objection and found that the names of voters alleged to be intimidated were not provided. Another objection concerned the allegation of list keeping at the election site. The Director dismissed that objection because the union failed to prove that the results of the election were affected by this conduct.
By applying Middlesex to the instant matter, the undersigned finds that there is insufficient evidence to establish the affect of either J-15 or J-16 on the results of the elections.16/ Accordingly, based upon the above discussion it is recommended that the objection raised at the hearing regarding J-16 be dismissed.
J-17 (supra, n. 6)
The Petitioner raised its strongest objection to exhibit J- 17 which was disseminated to the employees just four days prior to the election. That document itemized several areas which the union could not guarantee or improve upon, and concluded with a statement concerning the payment of union dues.
Business agent Sette testified that the most objectionable part of J-17 was the following phrase: A They can guarantee that you will pay dues. @ 17/ Sette admitted that he only knew of one employee who received that document but later testified that J-17 influenced the vote of six people. However, when pressed further Sette admitted that he did not know whether J-17 influenced anyone.18/ When Sette was questioned on whether the Petitioner made any attempt to respond to J1-7 he testified that there was not enough time to respond to that document by mail B which was his preferred method B and, therefore, he made a conscious decision not to respond to that document.19/
The record reveals that the objectionable language of J-17 actually included the following sentences: THEY CAN GUARANTEE THAT YOU WILL PAY DUES. The dues are now $11.00 each and every month and there is no guarantee that they will not be increased in the future.
The undersigned believes that the language emanates from and is similar to the Petitioner = s document exhibit J-14 which was disseminated to the employees on or about September 20, 1979. The pertinent part of J-14 is as follows:
Speaking of being conned we understand there are also many rumors being spread around about how much dues you will be paying when you join our Union. The dues are currently $11.00 per month, WHICH IS ALL YOU WILL BEGIN PAYNG WHEN WE HAVE AN APPROVED CONTRACT WITH THE PASSAIC VALLEY SEWERAGE COMMISSIONERS.
Although the Petitioner objects to the PVSC language in J-17 on the grounds that it misleads the employees into believing that all of them must pay dues, the undersigned believes that the above language in J-14 is equally misleading. One reasonable reading of the pertinent part of J-14 is that all employees must pay dues once the Petitioner reaches a contract with PVSC. Although one could infer a similar result from reading J-17, it certainly does nothing more than reiterate what the Petitioner has already conveyed.
The National labor Relations Board (the A NLRB @ ) held in Essex Wire Corp., 188 NLRB 397, 77 LRRM 1016 (1971), that the employer did not interfere with a representation election despite inaccuracies that appeared in its handbill, because it was in reply to a handbill previously circulated by the union which was also inaccurate. The NLRB has also held that employers who merely advise their employees of the monthly cost of union dues do not necessarily interfere with the employees = free choice in representation elections. See Coco Palms Resport Hotel (Island Holidays Lts.), 208 NLRB 966, 85 LRRM 1225 (1974); William Carter Co., 208 NLRB 1, 85 LRRM 1017 (1973); TRW Credit Data, 205 NLRB 866, 84 LRRM 1077 (1973).
The undersigned has carefully reviewed the evidence regarding J-17 and is convinced that said document did not interfere with the employees = free choice in the instant elections. The Petitioner failed to satisfy its burden of proof pursuant to N.J.A.C. 19:11-9.2(h) that J-17 actually influenced the employees = free choice. Moreover, exhibit J-14 may have contributed as much B if not more B confusion to the employees concerning the payment of union dues than did J-17. Accordingly, based upon the above discussion, the undersigned recommends that the objection to exhibit J-17 be dismissed. CONCLUSION The leading rule for setting aside representation elections because of employer interference or misrepresentation was reaffirmed by the NLRB in General Knit of Calif., 239 NLRB No. 101, 99 LRRM 1687, 1688 (1978), as follows:
An election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation whether deliberate or not, may reasonably be expected to have a significant impact on the election. Hollywood Ceramics Co., 140 NLRB 221, 224, 51 LRRM 1600, 1601 (1962).
In the instant matter the Petitioner was unable to prove that exhibits J-15, J-16 or J-17 actually impacted upon the free choice of the voters. Moreover, the Petitioner actually responded to exhibits J-15 and J-16, and had the opportunity to respond to exhibit J-17 (except by mail) but did not. The fact that the Petitioner could not respond to J-17 by mail does not negate the opportunity it had to meet with the employees prior to the election and rebut that document. RECOMMENDATIONS Based upon the entire record herein, and for the above stated reasons, the undersigned recommends the following:
1. That the objections to the instant elections, and specifically to exhibits J-15, J-16 and J-17 be dismissed.
2. That an appropriate certification be issued for each election.
Respectfully submitted
________________________
Arnold H. Zudick
Hearing Officer
DATED: March 25, 1980
Trenton, New Jersey
1/ The parties agreed upon two units of employees. First, a unit of all blue collar employees employed by PVSC with certain exclusions; and second, a unit of all craft employees employed by PVSC, excluding all other employees.
2/ Due to the parties = late receipt of the transcript herein an extension of time was granted for the receipt of briefs by the undersigned. The Petitioner delivered its brief on February 13, 1980.
3/ N.J.S.A. 34:13A-1 et seq.
4/ Exhibit J-15 is as follows:
R E S O L U T I O N
WHEREAS: the Commissioners have adopted a salary scale for 1980, and
WHEREAS: said salary scale still leaves certain employees without an increase or a percentage of increase below 7%,
NOW THEREFORE BE IT RESOLVED: that all employees who will not receive a minimum of 7% increase under the new salary scale, are to be paid a bonus for the difference between 7% of their present salary and the amount that they received as an increase under the salary guide. Those employees who would not receive any salary increase are to receive a 7% bonus of their present salary.
BE IT FURTHER RESOLVED: that this bonus is to be paid quarterly - the first payroll in January, the first payroll in April, the first payroll in July and the first payroll in October.
BE IT FINALLY RESOLVED: that the Commissioners are aware that certain employees did not receive an increase in their salary for 1979 and under the present schedule will not receive an increase for 1980. The Commissioners being cognizant of this problem are committed to examine each case on an individual basis to try to resolve the problem for dedicated employees who have unfortunately, according to their salary classification and guide, not received increases. The Commissioners further resolve that they will have a decision on each individual person prior to the November 14, 1979 Commissioners meeting.
Meeting
Date_________________________ _____________________
5/ Exhibit J-16 states: T H E F A C T S
ANOTHER PLEDGE KEPT
We promised earlier this year that all future Salary Increases would be made in advance of the New Year. This pledge was made before any union was involved.
Everyone eligible to make a determination as to whether PVSC should have a Union or not, with the exception of one person, has received an increase for 1980.
Your previous red-circle has been eliminated. None of you will ever be red-circled in the future.
The new Salary Schedule and future increases have eliminated the possibility of any future red-circling.
THIS IS A FACT - we are putting it in PRINT - not just making an off-the-cuff statement.
ALL SALARY INCREASES IN THE FUTURE WILL BE BY INCREASING THE SALARY GUIDE AS WAS DONE FOR 1980.
ALL EMPLOYEES WILL RECEIVE THIS INCREASE PLUS ANY STEP THEY HAVE COMING ACCORDING TO THEIR GUIDE. IN THIS WAY, ALL WILL BE TREATED EQUALLY.
This was part of our commitment to make PVSC a professional organization and these procedures will be followed WITH OR WITHOUT ANY UNION.
IN THE INTEREST OF TRUTH, WE ARE ISSUING FACT SHEETS SO YOU CAN HONESTLY JUDGE WHAT DECISION YOU WANT TO MAKE.
PASSAIC VALLEY SEWERAGE COMMISSION
6/ Exhibit J-17 states: T H E F A C T S Local 1158 International Brotherhood of Electrical Workers does not represent one public agency - (state employees, municipal employees or any public agency such as Passaic Valley). All their experience is in the private sector. Would you hire a gardner to be your pilot?
WHAT CAN THEY GUARANTEE YOU?
1. They CANNOT guarantee you a salary increase.
2. They CANNOT guarantee you a change in your job classification.
3. They CANNOT guarantee you a promotion.
4. They CANNOT improve your Pension Fund.
5. They CANNOT improve your Hospitalization and Major Medical.
6. They CANNOT guarantee you an increase in other benefits.
7. They CANNOT even guarantee you to go out on strike, as it is AGAINST THE LAW for a public agency to strike, especially one like Passaic Valley where a strike would create at tremendous health hazard.
THEY CAN GUARANTEE THAT YOU WILL PAY DUES
The dues are now $11.00 each and every month and there is no guarantee that they will not be increased in the future.
Have they guaranteed to you in writing that there will not be any assessments in the future?
Have they explained to you what benefits you will get from the thousands of dollars they will collect?
THE COMMISSIONERS DO NOT OPPOSE THE UNIONIZATION OF PASSAIC VALLEY, BUT THEY BELIEVE IT SHOULD BE THE DECISION OF EACH EMPLOYEE AFTER HE HAS RECEIVED ALL THE FACTS.
10/12/79 PASSAIC VALLEY SEWERAGE COMMISSIONERS
8/ At the prehearing conference conducted in this matter on December 12, 1979, the undersigned provided the Petitioner- pursuant to its own request - with subpoenas for two PVSC employees to require them to attend the hearing. At the hearing on December 17, the Petitioner returned the subpoenas to the undersigned and advised the undersigned that it had elected not to serve the subpoenas. The Petitioner = s decision not to serve the subpoenas does not relieve it of the burden of proof to establish that the complained of conduct substantially affected the outcome of the election.
9/ T. pp. 79-87.
10/ T. pp. 80-83.
11/ T. p. 85.
12/ T. p. 86.
13/ T. pp. 87-89.
14/ T. p. 42.
15/ T. p. 41.
16/ The undersigned acknowledges that J-16 could be construed as promising a benefit. However, the Petitioner was unable to show that it had any affect on the employees = free choice. In addition, the Petitioner responded to J-16 by issuing J- 12, and it does not appear that J-16 had any real impact on the election.
17/ T. p. 43.
18/ T. p. 51.
19/ T. p. 55
***** End of HO 80-7 ***** |
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