D.R. No. 80-26
The Director of Representation, in agreement with the recommendations of a Hearing Officer, determines that the Overbrook Employees Association does not represent non-medical professional Essex County Hospital employees. The Association is the certified collective negotiations representative of non-professional hospital employees. The certification specifically excludes professional employees from the unit. The Director rejects the claim that professional employees were included in the Association's unit since they voted without challenge in the certification election. The Director notes that if individual employees who were claimed to be professional employees did vote in the election without challenge, these votes may have assisted the Association in establishing its majority status as the representative of nonprofessional employees but would not have established the Association as the negotiations representative for professional employees, contrary to the Commission's determination of the appropriate negotiations unit and the Certification of Representative. The Director further finds that the parties' post-certification conduct confirmed their intent to preserve the unit as defined in the Certification of Representative and that although certain professional employees have designated the Association to process their grievances, the record does not establish that the County recognized the Association as the exclusive representative of non-medical professional employees in a defined collective negotiations unit. The Director remands the proceeding to the Hearing Officer for further hearings on other outstanding factual issues.
D.R. No. 80-26, 6 NJPER 117 (¶11062 1980)
32.141 33.311 33.45 34.16
|NJ PERC:||.|| - DR 80-026.pdf|
D.R. NO. 80-26 1.
D.R. NO. 80-26
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
COUNTY OF ESSEX
(ESSEX COUNTY HOSPITAL),
-and- Docket No. RO-79-52
COUNCIL 52, AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL
OVERBROOK EMPLOYEES ASSOCIATION,
For the Public Employer
Grotta, Glassman & Hoffman, P.A.
(Thomas J. Savage, of Counsel)
For the Petitioner
Rothbard, Harris & Oxfeld, Esqs.
(Nancy Iris Oxfeld, of Counsel)
For the Intervenor
Love & Randall, Esqs.
(John C. Love, of Counsel)
Pursuant to a Notice of Hearing to resolve a question concerning representation, and pursuant to hearings conducted in accordance therewith, Commission Hearing Officer Joan Kane Josephson, on February 1, 1980, issued an interim Hearing Officer = s Report and Recommendations limited to the issue, as agreed by the parties, of whether the Overbrook Employees Association (the A Association @ ) represents non-medical professional employees within a certified negotiations unit comprised of certain employees of the County of Essex at the Essex County Hospital complex (hereinafter, the A County @ or A Essex County Hospital @ ). If the Association represents these claimed professional employees, it is argued that a Petition for Certification of Public Employee Representative filed by Council 52, American Federation of State, County and Municipal Employees, AFL-CIO ( A AFSCME @ ) with respect to a proposed unit comprised of non-medical professional employees at Essex County Hospital, has not been timely filed, pursuant to N.J.A.C. 19:11-2.8(c) and must be dismissed.1/
On May 15, 1970, the Association was certified by the Commission as the majority representative of employees in a unit described as including: A All non-professional employees employed by the County of Essex at Overbrook Hospital at Cedar Grove, Essex County Hospital at Belleville, and the Sanitorium at Verona but excluding . . . professional employees. . . .? The Commission Hearing Officer, after reviewing the relationship between the Association and the County in the periods prior to the certification proceeding, during the certification proceeding, and subsequent to the certification, concluded that the Association does not represent professional employees. The Association has excepted to the Hearing Officer = s conclusions and recommendations. The undersigned, having reviewed the record, including the Hearing Officer = s Report and the exceptions, agrees with the Hearing Officer that the Association does not represent professional employees at the Essex County Hospital.
As noted by the Hearing Officer, the proceedings with respect to the certification petition which ultimately led to an election and certification of the Association as the majority representative of the hospital = s nonprofessional personnel is dispositive of any contention that the Association had any prior negotiations relationship with the County concerning professional personnel or that the certification of the Association included professional personnel in the negotiations unit. See In re County of Essex, P.E.R.C. No. 38 (1970). If, as asserted by the County and the Association, some of the petitioned-for employees voted in the election without challenge by the parties or the Commission, this fact merely establishes that certain employees, whose professional status had not been determined by the Commission, may have assisted the Association in establishing its majority status as the representative of nonprofessional employees. These challenged votes would not establish the Association as the negotiations representative of professional employees, contrary to the Commission = s determination of the appropriate negotiations unit and the certification of representative.
The collective negotiations agreements entered into between the County and the Association subsequent to the certification proceeding confirm the intent of the parties that the unit remain as defined in the Commission = s Certification of Representative. While certain professional employees, on occasion, may have designated the Association or its president to process grievances on their behalf, the record does not establish that the County has recognized the Association as the exclusive representative of non-medical professional employees in a defined collective negotiations unit.2/
For the reasons above, the undersigned concludes in agreement with the Hearing Officer, that the Association does not represent non-medical professional employees at the Essex County Hospital. Inasmuch as this decision is limited to a determination that non-medical professional employees are not currently represented by the Association, the professional status of the petitioned-for employees remains unresolved and is among the issues which are remanded to the Hearing Officer for further disposition in accordance with the previously issued Notice of Hearing.
BY ORDER OF THE DIRECTOR
Carl Kurtzman, Director
DATED: March 4, 1980
Trenton, New Jersey
1/ Among the issues in dispute in this proceeding is the question of whether the petitioned-for employees are, in fact, professional employees. While the limited issue presented herein was framed by the parties as follows: A Were the employees in the list attached as Appendix A [i.e., 18 titles] represented by the Overbrook Employees Association as of the date of filing of the Petition in the instant matter? @ , it is clear from the transcript and the briefs before the Hearing Officer that the parties seek a limited determination at this time on the issue of whether the Association represents professional employees. For the sole purposes thereof, the parties, without prejudice to their later positions, assume the professional status of the petitioned-for employees.
2/ Pursuant to N.J.A.C. 34:13A-5.3, individuals, who are not represented in negotiations units, may process grievances either personally or through a representative of their choice.
***** End of DR 80-26 *****