D.R. NO. 2023-9 .
D.R. NO. 2023-9
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
NJ TRANSIT BUS
OPERATIONS, INC.,
Public Employer,
-and- Docket No. RO-2022-045
AMALGAMATED TRANSIT UNION
NEW JERSEY STATE COUNCIL,
Petitioner.
SYNOPSIS
The Director of Representation issues a Certification of Representative to Amalgamated Transit Union (ATU) New Jersey State Council (Council), adding, by way of card check, service monitors to the Council’s existing unit of hourly employees of NJ TRANSIT Bus Operations, Inc. (NJTBO). NJTBO had opposed the petition, arguing that the service monitors did not share a community of interest with the employees in the broad-based hourly employees unit and would be more appropriately placed in their own negotiations unit. NJTBO also raised concerns that the designated negotiations representative was not clear. The Director found that the service monitors shared a community of interest with other employees in the hourly employees unit and that the Commission’s preference for broad-based units favored finding that unit to be more appropriate for the service monitors. The Director also found the authorization cards to be valid indicators of the service monitors’ intent to have the Council, the collective negotiations representative of the hourly employees unit, also be the collective negotiations representative for the service monitors.
D.R. NO. 2023-9 .
D.R. NO. 2023-9
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
NJ TRANSIT BUS
OPERATIONS, INC.,
Public Employer,
-and- Docket No. RO-2022-045
AMALGAMATED TRANSIT UNION
NEW JERSEY STATE COUNCIL,
Petitioner.
Appearances:
For the Public Employer,
McElroy, Deutsch, Mulvaney & Carpenter, LLC, attorneys
(John J. Peirano, of counsel)
For the Petitioner,
(Christopher Bangs, Associate General Counsel)
DECISION
On June 3, 2022, a petition was filed by the representative for the Amalgamated Transit Union (ATU) New Jersey State Council (Council) and Local 819, seeking to add, by way of card check, service monitors, including lead service monitors, to the existing unit of hourly employees of NJ TRANSIT Bus Operations, Inc. (NJTBO).1/1/An earlier petition was filed on February 22, 2022 (RO-2022-033) but was withdrawn as the parties discussed voluntary recognition.2/2/As explained further below, the Council has submitted sufficient authorizations from a majority of the employees sought to be added. N.J.A.C. 19:11-2.6(b).
The parties continued to discuss a possible voluntary recognition agreement with the assistance of a Commission staff agent, and conferences were held on June 10 and August 3, 2022, but disagreements on other issues prevented an agreement. On August 26, 2022, NJTBO filed and served a position statement and a supporting certification from Namecca Parker (“Parker Cert.”), General Manager of NJTBO’s Access Link Division. On September 2, 2022, ATU filed and served its position statement and a supporting certification from Orlando Riley (“Riley Cert.”), Chair of the Council. The certifications do not present any substantial material factual dispute requiring a hearing. N.J.A.C. 19:11-2.6(f). I find the following facts.
The recognition provision of the Hourly Employees Contract refers to the employees in units previously certified by the National Labor Relations Board (NLRB). The parties were only able to provide one NLRB certification from 1970, certifying ATU as the representative for employees in certain field salaried titles of Public Service Coordinated Transport and excluding clerical employees. After NJTBO was formed, there may have been recognition of the Council as the representative of a unit that combined hourly, field salaried, and general office clerical employees, as evidenced by the 1999-2002 collective negotiations agreement. But since at least 2008, NJTBO and the Council have negotiated three separate contracts for hourly employees, field salaried employees, and general office clerical employees and de facto recognized three separate units. Collingswood Bd. of Ed., P.E.R.C. No. 86-50, 11 NJPER 694 (¶16240 1985). These units are fairly broad-based and geographically cover employees across the State. (Riley Cert ¶4). While there are other units represented by other majority representatives, the parties have not identified the existence of any single-title units of NJTBO employees.
I find that there is an existing broad-based “Hourly Employees” unit with the Council as the majority representative.3/3/This understanding was relayed to the parties during the processing of this case. NJTBO’s brief refers to this unit and an email from its counsel to the staff agent on September 18, 2022, acknowledged that NJTBO did not dispute this understanding of the unit and its representative. The Council also agreed with this understanding. The Council represents and negotiates for the hourly employees, field salaried employees, and general office clerical employees units with respect to the collective negotiations agreements covering them. (Riley Cert ¶3). There are nine ATU local unions (also called divisions) that are constituent organizations within the Council and which elect members to the Council on the basis of a formula provided for in the Council’s bylaws and constitution.4/4/There are other ATU locals that are not a part of the Council. (Riley Cert Exhibit B). The bylaws and constitution provide that all contract negotiations are performed by the Council, and its contractual interpretations are binding on the locals. (Id.)
While the Council allows locals to assist in grievance processing for their respective geographic regions through the third step of the grievance procedure, the Council determines whether the grievance will be further processed at the Council or the local’s expense. (Id.) The nine constituent locals and their respective geographic regions are as follows: Local 540 (Trenton), 819 (Newark), 820 (Union City), 821 (Jersey City), 822 (Paterson), 823 (Elizabeth), 824 (New Brunswick), 825 (Oradell), and 880 (Camden).5/5/While the collective negotiations agreement also names the locals, it does not define their geographic region. The actual geographic regions are an internal union matter between the Council and its constituent locals. The parties do not dispute that the Council is the majority representative. (Riley Cert ¶5).
The hourly employees unit covers thousands of employees. (Parker Cert ¶9). As evidenced by the salary guides and other provisions in the hourly employees contract, the hourly employees unit includes hourly-rated employees including operators, seasonal operators, drivers, maintenance employees, repairmen, servicemen, garagemen, floormen, inspectors, utility men, facility maintenance employees, watchmen, project laborers, cleaners, custodians, lead custodians, janitors, lead janitors, mechanics, special mechanics, mechanic leaders, time block mechanics, welders, technicians, terminal employees, DIN crew members, storeroom employees, storeroom specialists, central store clerks, mail clerks, stock clerks, warranty clerks, city subway operators, city subway maintenance employees, city subway technicians, light rail technicians, lead light rail technicians, transit information center employees, telephone information clerks, chief telephone information clerks, data verifiers, communication specialists, and apprentices.
Bus operators and maintenance employees comprise a majority of the hourly employees unit. (Parker Cert ¶9). They work in garages and maintenance facilities and report to garage managers, garage superintendents, and other garage staff, all within the Transportation and Maintenance Departments of NJTBO. (Id.)
Telephone information clerks, who are in the hourly employees unit and work in the Telephone Information Center, answer calls and field customer inquiries. (Parker Cert ¶11).
NJTBO’s Access Link division provides paratransit services for New Jersey residents pursuant to the Americans with Disabilities Act (ADA) and Federal Transit Administration (FTA) requirements that individuals with disabilities be provided with fair and reasonable access to public transportation. (Parker Cert ¶2 and Exhibit A). Access Link is a complementary system providing service comparable to the fixed route service. Where residents cannot travel to a bus stop, easily board an NJTBO vehicle, or otherwise utilize traditional surface transit offerings, Access Link can assist by picking the residents up at their home, workplace, or other location and transporting them to a destination within NJTBO’s service area. (Parker Cert ¶3).
Access Link is a separate department within NJTBO and has its own Director, General Manager, and reporting structure. (Parker Cert ¶4). Access Link vehicles are driven by the employees of a contracted third-party service provider. (Parker Cert ¶5). NJTBO employees do not drive Access Link vehicles, but they do handle most of the other responsibilities associated with Access Link, including vehicle maintenance, scheduling for pick-ups and drop-offs, route determinations, changes to routes and schedules, customer service and outreach for the disabled community, and handling of accidents and incidents involving Access Link vehicles. (Parker Cert ¶5). No Access Link employees are currently in the hourly employees unit. (Parker Cert ¶10).
There are only nine to twelve service monitors. (Parker Cert ¶7). They are responsible for ensuring that NJTBO’s third-party-contracted drivers are complying with the FTA/ADA rules. (Id.) They act as a liaison between the disabled customer and his/her guardian and the third-party driver. (Id.) They provide status information concerning particular routes and pick-ups/drop-offs. (Id.) If a driver is running late, the service monitor can re-route the vehicle, order new or additional vehicles to assist, and, if necessary, communicate with the disabled passenger or his/her guardian. (Id.) If a customer calls to change a scheduled pick-up or drop-off, service
monitors will communicate with the third-party service provider’s dispatchers and adjust schedules and routes as needed. (Id.) If an accident or incident occurs involving an Access Link
vehicle, the service monitor coordinates an appropriate response and investigation. (Id.) The service monitor is also responsible for preparing a report regarding the accident/incident. NJTBO has at least one service monitor on duty 24 hours per day, 7 days per week, 365 days per year. (Id.) NJTBO requires that service monitors undergo extensive internal training regarding the ADA and FTA rules, which includes both classroom and on-the-job elements. (Parker Cert ¶8). Other employees in the hourly employees unit do not receive this training. (Parker Cert ¶9). However, service monitors, like the telephone information clerks in the hourly employees units, also answer calls and field customer inquiries. (Parker Cert ¶11).
Service monitors previously worked on the seventh floor of NJTBO’s Penn Plaza in Newark, but they now work from home. (Parker Cert ¶9). They report to assistant operators supervisors and operators supervisors within the Access Link division. (Id.)
Service monitors earn between $37,773 to $66,428 per year (with leads earning $40,673 to $71,528), comparable to telephone information clerks, who earn between $42,185 to $60,262 per year. (Parker Cert Exhibit B; Riley Cert Exhibit C).ANALYSIS NJTBO contends the most appropriate unit for the service monitors is a separate unit for solely service monitors, not the broad-based hourly employees unit. NJTBO argues that the service monitors do not share a community of interest with employees in the hourly employees unit.6/6/Neither party argues that the field salaried or clerical employees units are more appropriate. NJTBO does not argue that there is a conflict of interest among the service monitors, lead service monitors, and the employees in the hourly employees unit.
The Commission has a broad view of community of interest, and differences in duties and qualifications, and in employee’s terms and conditions, have not precluded a finding of community of interest.7/7/See State of New Jersey, D.R. No. 97-5, 24 NJPER 295, 297 (¶29141 1996) (“Varying degrees of expertise in an area, varying levels of training, and different job duties are traditionally not significant community of interest factors when compared to shared goals, the central authority which controls their working conditions and work environment.”), req. for rev. den. P.E.R.C. No. 97-81, 23 NJPER 115 (¶28055 1997); Essex Cty. College, D.R. No. 93-15, 19 NJPER 131 (¶24064 1993) (noting that occupational differences between professionals and non-professionals, for which the Commission has approved combined units, are at least as great as differences between blue collar and white collar employees, and thus determining that the factors relevant in determining appropriate unit structure were sufficiently in balance to permit the desires of the employees to control); Bergen Community College, D.R. No. 2006-14, 32 NJPER 72 (¶37 2006) (finding community of interest despite differences in educational background, working conditions, funding sources, and contractual provisions, and that differences did not outweigh policy favoring broad-based units); E. Windsor Tp., D.R. No. 97-2, 22 NJPER 348 (¶27180 1996) (community of interest found between dispatchers and EMTs despite differences in hours, schedules, work facilities, uniform requirements, and training; lack of interchange of duties and infrequent interaction; and different immediate supervisors, because both titles worked for the same employer under shared management authority); Morris Cty. Voc. Sch. Bd. of Ed., P.E.R.C. No. 2002-58, 28 NJPER 219 (¶33075 2002) (noting that Director explained why there was community of interest despite Board’s argument that employees had highly-defined and different duties, different training, different work locations, different supervisors, and little to no interaction with each other); Randolph Tp., D.R. No. 97-8, 23 NJPER 145 (¶28070 1997) (“The fact that certain employees are presently receiving health benefits while others are not does not mean they lack a community of interest; nor should it be inferred that unit inclusion automatically entitles any group to receive the benefits of the other unit members. Should the Association prevail in securing representation rights for these employees, the parties must negotiate over terms and conditions of employment for each unit position.”); Somerset Cty., D.R. No. 2009-14, 35 NJPER 170 (¶64 2009) (“Differences in wages and benefits are primarily the result of the negotiated agreement between the County and the previous majority representative. Neither of these factors persuade me that hourly part-time employees do not share a community of interest with all other regularly employed professionals in the unit.”). Cf. Union Cty. College, P.E.R.C. No. 2019-35, 45 NJPER 319 (¶84 2019), aff’d App. Div. Dkt. No. A-3625-18T2 (7/29/20) (“The Commission appropriately exercised its expertise and relied on its own precedent in determining that ‘a community of interest exists among virtually all non-supervisory educational employees’”).
The Commission is responsible for determining the appropriate collective negotiations unit when questions concerning representation of public employees arise. N.J.S.A. 34:13A-6(d). The Act mandates that the Commission define the negotiations unit “with due regard for the community of interest among the employees concerned.” N.J.S.A. 34:13A-5.3. “What is called for on the part of the Commission is ‘due regard for’, not exclusive reliance upon such community of interest.” State v. Prof’l Ass’n of N.J. Dep’t of Educ., 64 N.J. 231, 257 (1974) (State Professional). In State Professional, the Supreme Court upheld the Commission’s use of other policy considerations, including “the interests of the employer and the public at large,” when the Commission determined that it would generally give preference to broad-based units. Id. See also Holmdel Tp. Bd. of Ed. D.R. No. 2020-12, 46 NJPER 285 (¶70 2019) (noting that although clerical employees in the same office may have a stronger community of interest with each other than with other clerical employees in the district, there would still be a community of interest with the latter and the balance of other factors weighed in favor of the broad-based unit). The Commission is reluctant to form units along occupational or departmental lines. Newark State Operated Sch. Dist., P.E.R.C. No. 2018-39, 44 NJPER 383 (¶108 2018).
In New Jersey Turnpike Auth., D.R. No. 2005-14, 31 NJPER 36 (¶18 2005), the Director explained the various factors the Commission has considered when determining whether a narrow unit is appropriate. These factors include the structure and history of existing units; the community or conflict of interest with existing units; the incumbent’s willingness to represent the petitioned-for employees; whether the employees have tried to organize and remained unrepresented for a period of time; whether the employer waived its rights explicitly or implicitly by already accepting other unit structures; and whether the proposed unit structure could lead to an undue number of additional units along similar lines. New Jersey Turnpike Auth; Holmdel Tp. Bd. of Ed. D.R. No. 2020-12, 46 NJPER 285 (¶70 2019). In New Jersey Turnpike Auth, the Director dismissed the petition for a proposed unit of unrepresented Parkway maintenance division managers because the incumbent of an existing broad-based managers unit was willing to represent them, there was a community of interest with the existing unit, other small residual units did not exist, and further proliferation along divisional lines would otherwise be possible. New Jersey Turnpike Auth.
In the instant matter, I find that there is a community of interest between the service monitors and the other employees in the hourly employees unit. Service monitors wages are comparable to telephone information clerks, who are in the unit, and both groups answer calls and field customer inquiries. While it is true that service monitors perform other functions that are not performed by unit members and receive unique and extensive training to ensure Access Link’s compliance with ADA regulations, their work is functionally integrated as the paratransit service standards are set out by reference to the fixed-route service.
Accordingly, while it may be that service monitors have a strong community of interest with each other, they nevertheless have a community of interest with the hourly employees unit and the additional factors of the Commission’s preference for broad-based units and the indicated preference of the employees themselves lead me to conclude that the most appropriate unit for the service monitors is the hourly employees unit. See Hamilton Tp., D.R. No. 2022-4, 49 NJPER 49 (¶10 2022) (“Depending on the posture of the case, some factors have significantly more importance than others, such as the existence of an established unit or the desires of the employees”). I do not find the differences in work locations, training, and supervision, and the lack of interchange to detract from this finding. See Id.; E. Windsor Tp.; Morris Cty. Voc. Sch. Bd. of Ed.8/8/
The hourly employees already work in different garages and locations throughout the State.
I also find the cases cited by NJTBO to be distinguishable. In Town of West New York, D.R. No. 2002-1, 27 NJPER 339 (¶32121 2001), the representative of the broad unit and the employer had historically explicitly excluded the crossing guards in the contract, that representative was still not seeking them, and they were the last group that were unrepresented (minimizing unit proliferation risks). It was noted that the Commission has declined narrow units where the incumbent of a broad unit desires to represent them. Id. at Footnote 4. By contrast in the instant matter, the Council seeks to represent the service monitors in its existing broad-based unit.
Mercer County Welfare Board, D.R. No. 83-28, 9 NJPER 298 (¶14138 1983), req. for rev. den. P.E.R.C. No. 84-56, 9 NJPER 707 (¶14308 1983) was a clarification of unit decision where the sought after title was found not to perform similar functions to other titles in the unit that the Director found was actually defined by the specific titles listed in the recognition clause. Camden Cty. Health Service Center, P.E.R.C. No. 94-102, 20 NJPER 226 (¶25110 1994) was also a clarification of unit case, which required resolution of claims between two competing unions each with a community of interest with the petitioned-for title, with one being found to have a stronger community of interest. By contrast, the instant matter involves a representation petition seeking accretion not because the service monitors are alleged to already be covered by the understood agreed-upon unit definition, but on the basis of a majority showing of interest (indicating employee preference) and where there are no other competing employee organizations seeking to represent them in other existing units.9/9/As this is not a clarification of unit case, the accretion timing noted by NJTBO in Bergen Pines Hospital, D.R. No. 80-20, 6 NJPER 61 (1980) is not applicable.
Although the hearing officer's recommended decision in East Orange Bd. of Ed., H.O. No. 80-20, 6 NJPER 346 (11173 1980), adopted D.R. No. 81-7, 6 NJPER 481 (¶11244 1980) found a lack of community of interest between the daytime supplemental teachers and night school teachers, the recommended decision noted that night school teachers in other school districts could appropriately belong to units of regular day teachers. Before and after East Orange, we have generally found that all non-supervisory professionals, and indeed, all non-supervisory employees of educational employers, share a community of interest, and based our most appropriate unit determinations on other factors. Rancocas Valley Reg. H.S., H.O. No. 76-12, 2 NJPER 68 (1976) (finding community of interest between day school and night school teachers and that the most appropriate unit was one of all professionals), adopted E.D. No. 76-39, 41 NJPER 150 (¶51 1976); Union Cty. College. A finding that the hourly employees unit is more appropriate for the service monitors than a stand-alone unit is more consistent with the Commission’s preference for broad-based units.
Finally, in City of Passaic, D.R. No. 2004-1, 29 NJPER 393 (¶125 2003), an EMT unit was found appropriate where the titles existed before the employer and white collar unit representative agreed to exclude them, they had long been unrepresented, and there was low risk of further proliferation because they were the last unrepresented titles. Notably, in the instant matter, the representative of the broad-based unit, the Council, is the only organization seeking to include the service monitors.
Having found that the petition seeks the placement of the service monitors in the more appropriate unit, I turn to the concern raised by NJTBO regarding the authorization cards. NJTBO expressed the concern that service monitors might have been misled if the cards provided only that they were joining “ATU.”
The cards authorize the Council and Local 819 to act for the signers as collective negotiations representatives. I understand the intent to be to join the existing unit, which is represented for purposes of collective negotiations by the Council, of which Local 819 is a constituent local organization which would assist the Council in administering the contract for the Newark geographic region, per the Council’s constitution. (Riley Cert Exhibit B and C). The cards may alternatively be seen as having designated either organization, leaving it to those organizations to decide which would proceed. In this matter, Local 819 has allowed its affiliated organization, the Council, to proceed alone in seeking to add the service monitors to the unit which the Council already represents.10/10/NJTBO had also objected because it was unclear to NJTBO with which organization it would be negotiating, what contract would be amended (or if there would be a new contract), and what the ratification procedures would be. I note that the representative that NJTBO would be negotiating with is the Council, the hourly employees contract can be amended during normal successor contract negotiations to reference the service monitors (though the negotiations unit will include the service monitors upon certification even if the contract’s terms do not yet apply to them), the parties should negotiate before then regarding the service monitors’ terms and conditions of employment from their status quo (though NJTBO need not agree to any particular proposal, even a proposal to apply the contract’s current terms to the service monitors), and the ratification procedures are an internal union matter.
I find that the cards are valid authorizations for the Council, that the Council is the only organization seeking to represent the service monitors, and that there are adequate valid cards for the Council to be certified without an election for the following unit::11/11/This description is intended to add the service monitors, including lead service monitors, to the hourly employees unit as it currently exists. To alleviate the concerns of the parties, this decision shall not be construed as having added any other employees to the unit or removed any employees who were already included in the unit.
Included: All regularly employed service monitors, including lead service monitors, to be added to the existing "Hourly Employees" negotiations unit of full-time and part-time hourly-rated employees including operators, seasonal operators, drivers, maintenance employees, repairmen, servicemen, garagemen, floormen, inspectors, utility men, facility maintenance employees, watchmen, project laborers, cleaners, custodians, lead custodians, janitors, lead janitors, mechanics, special mechanics, mechanic leaders, time block mechanics, welders, technicians, terminal employees, DIN crew members, storeroom employees, storeroom specialists, central store clerks, mail clerks, stock clerks, warranty clerks, city subway operators, city subway maintenance employees, city subway technicians, light rail technicians, lead light rail technicians, transit information center employees, telephone information clerks, chief telephone information clerks, data verifiers, communication specialists, and apprentices employed by NJ TRANSIT Bus Operations, Inc.
Excluded: Managerial executives, confidential employees, and supervisors within the meaning of the Act; professional employees, police; employees in the existing "General Office Clerical Employees" unit and "Field Salaried Employees" units; employees in other existing collective negotiations units; and all other employees of NJ TRANSIT Bus Operations, Inc.
ORDER I certify Amalgamated Transit Union New Jersey State Council as the exclusive representative of the unit described above.12/12/The formal certification is attached.
/s/ Ryan M. Ottavio
Ryan M. Ottavio
Director of Representation
DATED: February 3, 2023
Trenton, New Jersey
A request for review of this decision by the Commission may be filed pursuant to N.J.A.C. 19:11-8.1. Any request for review must comply with the requirements contained in N.J.A.C. 19:11-8.3.
Any request for review is due by February 13, 2023.***** End of DR 2023-009 ***** |