D.R. NO. 78-2

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CLEARVIEW REGIONAL HIGH SCHOOL

BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-77-135

CLEARVIEW EDUCATION ASSOCIATION,

Petitioner.

Appearances:

For the Clearview Regional High School

Board of Education

William J. McGinnis, Jr.

For the Clearview Education Association

Greenberg & Mellk, Esqs.

(Mr. Arnold Mellk, of Counsel)

DECISION

The Clearview Education Association (the "Association") is the exclusive representative of employees in a negotiations unit consisting of professional personnel employed by the Clearview Regional High School Board of Education (the "Board"). On February 14, 1977, the Association filed with the Public Employment Relations Commission (the "Commission") a Petition for Certification of Public Employee Representative, accompanied by a valid showing of interest, seeking the addition of approximately 40 non-professional employees to its existing negotiations unit. Specifically, the Association seeks to add secretaries, cafeteria employees, attendance officers, matrons and custodians to its unit. The filing of the Petition raised a question concerning the representation of the employees sought to be included in the unit, and the undersigned, pursuant to N.J.A.C. 19:11-2.6,1/ caused an investigation to be conducted into the Petition.

The investigation has revealed that the Association and Board were, at the time of the filing of the Petition, parties to a collective negotiations agreement with respect to the professional employees in the existing unit. The agreement is effective from July 1, 1976 to June 30, 1978. The Board asserts that the existence of an ongoing agreement between the Petitioner and the Public Employer prevents the Association from seeking to change the composition of its unit at this time, relying upon the Commission's rules pertaining to the timely filing of petitions, embodied in N.J.A.C. 19:11-2.8. The Board also questions the appropriateness of the proposed unit which would contain both the existing professionals and the nonprofessionals sought to be included.

At an informal conference held on March 22, 1977, the parties advised the Commission's staff representative of their mutual desire to resolve the "contract bar" issue in an expeditious manner, inasmuch as a determination of that issue would control the continued processing of the Petition. No factual disputes exist relevant to a determination of the contract bar issue, and the undersigned, pursuant to the discretionary authority granted the Director in N.J.A.C. 19:11-
7.7 has agreed to issue a decision predicated upon the facts and in consideration of the parties' statements of position.

Based upon the facts and the parties' positional statements, the undersigned finds that:

1.	The Clearview Regional High School Board of Education is a public employer within the meaning of the Act, N.J.S.A. 34:13A-1 et seq., and is subject to its provisions.

2.	The Clearview Education Association is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Board and the Association are parties to a collective negotiations agreement, covering professional personnel, effective July 1, 1976 through June 30, 1978. The Association seeks the addition of certain non-professional employees of the Board into its unit of professional employees.

4.	N.J.A.C. 19:11-2.8 provides:2/

"(a) Where there is no recognized or certified [majority] exclusive representative of the employees, a petition for certification of public employee representative will be considered timely filed provided there has been no valid election within the preceding 12 month period in the requested negotiating unit or any subdivision thereof. (b) Where there is a certified or recognized representative, a petition for certification or decertification will not be considered as timely filed if during the preceding 12 months an employee organization has been certified by the [Executive Director or the] Commission as the [majority] exclusive representative of employees in an appropriate unit or an employee organization has been granted recognition by a public employer pursuant to [Sec. 14 of this Subchapter] N.J.A.C. 19:11-
3.1 (Recognition as exclusive representative). (c) during the period of an existing written agreement containing substantive terms and conditions of employment and having a term of three years or less, a petition for certification of public employee representative or a petition for decertification of public employee representative normally will not be considered timely filed unless:

1.	In a case involving employees of the State of New Jersey, any agency thereof, or any State authority, commission or board, the petition is filed not less than 240 days and not more than 270 days before the expiration or renewal date of such agreement;

2.	In a case involving employees of a county or a municipality, any agency thereof, or any county or municipal authority, commission or board, the petition is filed not less than 90 days and not more than 120 days before the expiration or renewal date of such agreement;

3.	In a case involving employees of a school district, the petition is filed during the period between September 1 and October 15, inclusive, within the last 12 months of such agreement.

(d)	For the purpose of determining a timely filing, an agreement for a term in excess of three years will be treated as a three year agreement; an agreement for an indefinite term shall be treated as a one year agreement measured from its effective date."

5.	The Association in its statement of position disputes the applicability of a "contract bar" to the instant Petition, but in the alternative urges strenuously that the Commission treat its certification petition as a request for clarification of unit. Compare N.J.A.C. 19:11-1.2 (Contents of petition for certification) and N.J.A.C. 19:11-1.5 (Petition for clarification of unit). The Commission's rules do not restrict the filing of clarification of unit petitions to limited time periods. The Association places primary reliance upon its request for clarification of unit, stating in relevant part:

"The petition although captioned 'RO' really seeks nothing more than a clarification of the unit. The currently recognized representative, the Clearview Education Association, which is the bargaining unit for the existing professional unit in the school district, requests the secretaries, cafeteria workers, attendance officers and custodians and matrons employed by the Clearview Regional High School District who are not included in any bargaining unit."

The Association justifies its requested clarification on the grounds that the petitioned-for nonprofessional employees cannot be excluded from the unit of professional employees with whom it is claimed they share a community of interest. The Association further argues that the resulting combined unit is a presumptively appropriate unit.

The Association's reliance upon the Commission's clarification of unit procedure as a vehicle to include the non-
professional personnel in the unit with professional personnel, based upon a claim of presumptive appropriateness and a shared community of interest, is entirely misplaced. The Commission's clarification of unit process is intended to resolve confusion concerning the composition of an existing collective negotiations unit. It is clear from the Association's statement about that non-professionals are currently not included within the scope of the Association's collective negotiations unit; hence, there is no need to issue a clarification as to the composition of the existing unit.

The Association is not alone in its misconception of the Commission's representation procedures. The undersigned notes that with increased frequency, public employees, employee representatives, and public employers are invoking the Commission's various representation processes without a clear understanding as to the function served by each representation procedure. The utilization of inappropriate representation procedures has resulted in delay, confusion and frustration, and could lead to a destabilization of the employer-employee relationship. Inasmuch as the Association has requested that its Petition be considered as a petition for certification or in the alternative as a petition for clarification of unit, the undersigned deems it appropriate to set forth clearly the Commission's various representation procedures, their purposes and certain applicable general principles. Understandably, the context of particular cases may present complex and difficult questions. However, it is still possible to speak in terms of principles of general applicability without minimizing the difficulties inherent in applying the specific factual case to the general principle.3/

The Commission's representation proceedings are designed to resolve disputes concerning the representational status of public employees. For the purposes of this discussion, proceedings with respect to these disputes can be divided into two general categories: (1) those proceedings which resolve questions concerning representation by ascertaining the free choice of employees to select or to reject an exclusive negotiations representative in a unit determined appropriate for collective negotiations purposes; and (2) those proceedings which resolve questions concerning the composition of a unit by interpreting the language which defines the existing unit in order to determine whether particular titles are includable or should be excluded from a unit whose representational status is already established.4/

In the first type of proceeding, the exclusive representative, if any, is chosen by a majority of employees voting in an election. Initially, this involves a determination of which unit of employees is appropriate for collective negotiations. Pursuant to N.J.S.A. 34:13A-5.3 and 6(d) these determinations are made with due regard for the employees community of interest and in accordance with the prohibitions set forth therein.

The Commission provides three different petitions which may be filed to resolve a question concerning representation. Each is designed to meet the particular circumstances in which such questions normally arise. The three petitions are: (1) Petition for Certification of Public Employee Representative (Employee Petition); (2) Petition for Certification of Public Employee Representative (Employer Petition); (3) Petition for Decertification of Public Employee Representative.

An employee-filed Petition for Certification of Public Employee Representative ("RO" petition) may be filed by public employees or a public employee representative and must be accompanied by adequate evidence of employee interest. See N.J.A.C. 19:11-1.2. It is utilized in a variety of situations where public employees desire to exercise their statutory right to select an exclusive representative. This petition may be filed in instances, among others, where unrepresented employees seek to form a collective negotiations unit; where unrepresented employees seek to be added to a unit already in existence; where represented employees seek to become part of another unit; where represented employees seek to change their negotiations representative; and where represented employees seek to sever themselves from an existing unit for the purpose of seeking separate representation.

An employer-filed Petition for Certification of Public Employee Representative ("RE" petition) is generally filed where an employer is confronted by competing claims of employee representatives to represent the same employees, or where the employer has received a claim for initial or continued recognition of an employee representative and has a good faith doubt as to the representative's majority status. See N.J.A.C. 19:11-1.4.

A Petition for Decertification of Employee Representative ("RD" petition) may only be filed by employees or an employee representative. It is filed where employees who are currently represented no longer desire to be represented by any employee representative. As with an RO petition, an RD petition must be accompanied by evidence of employee interest. See N.J.A.C. 19:11-1.3.

The raising of a question concerning representation before the Commission may have a disruptive effect on the existing employer-employee relationship. In recognition of the detrimental effect of such disruption the Commission, following the universal approach of other labor relations agencies, has restricted the filing of such petitions in several ways. Certain temporal restrictions are set forth by rule at N.J.A.C. 19:11-2.8 above. These restrictions are intended to strike a balance between the employees' statutory rights to select or refrain from selecting negotiations representatives and the need to maintain and enhance stable employer-employee relationships. See N.J.S.A. 34:13A-2.5/ Under normal circumstances an election bar restricts the employees' choice to one election year. This election bar rule adopted by the Commission strikes a balance between the concern for the stability of the employer-employee relationship and the employees' statutory rights to select or reject a negotiations representative by requiring that once employees have made their choice they should be bound to that choice for a reasonable period of time. A recognition bar and a certification bar provide a period of one year during which the parties to a newly established negotiations relationship may, without challenge, negotiate a collective negotiations agreement.

A contract bar has also been established which limits the filing of petitions during the period in which employees are covered by a written agreement. The adoption of the contract bar rule6/ represents the Commission's concern that the filing of a petition raising a question concerning representation often disrupts the stability and the predictability of the negotiations relationship which the parties sought to create by agreement. While the ability to select or to refrain from selecting an employee representative is a matter within the public interest, so too is the public concern that an existing negotiations relationship not be subject to continuous and untimely disruptions. Therefore, the Commission has constructed a contract bar rule to provide for the protection of both parties during the period of an existing written agreement. The Commission rule limits the filing of petitions seeking to change the negotiations unit or its representative to a prescribed period shortly before the agreement expires. The contract bar rule, because it exists for the protection of the parties, may normally be waived by agreement of both parties to the negotiations relationship. However, the execution of such a waiver or, alternatively, the insistence upon the assertion of the contract bar, is subject to the acceptance or disapproval of the Commission whose mandated responsibility is to ensure that its rules not be utilized for purposes repugnant to the ultimate purpose of the Act.

The undersigned now turns to the second type of proceeding which, as opposed to resolving the question of which organization, if any, shall represent the employees in an appropriate unit, is designed to resolve questions concerning the exact composition of an existing unit of employees for which the exclusive representative has already been selected. The petition utilized to initiate this proceeding is a clarification of unit petition ("CU" petition). Normally, a negotiations unit is described in generic terms e.g. all blue collar employees; all white collar employees; all professional personnel. Not infrequently, however, the unit definition describes the included personnel by job titles. However a unit is described, disputes occasionally arise between the parties to the collective negotiations relationship as to whether a particular title or person is represented in the unit. Disputes may arise during contractual negotiations or during the administration of the parties' agreement. In such cases, the Commission provides a clarification of unit procedure by which questions concerning the composition of a unit may be resolved. See N.J.A.C. 19:11-1.5.

The purpose of a clarification of unit petition is to resolve questions concerning the scope of a collective negotiations unit within the framework of the provisions of the Act, the unit definition contained in a Commission certification, or as set forth in the parties recognition agreement. Normally, it is inappropriate to utilize a clarification of unit petition to enlarge or to diminish the scope of the negotiations unit for reasons other than the above. Typically, a clarification is sought as to whether a particular title is contemplated within the scope of the unit definition and the matter relates primarily to identification. In such cases, for example, the Commission might be asked to determine whether a "road foreman" is a blue collar employee included within the general classification of "blue collar employees" or whether a foreman is a "supervisor," and thereby excluded under the exclusionary terms of a recognition or certification.

Occasionally a change in circumstances has occurred which alters an employee's job functions and may result in the inclusion of such function within the intent of the unit description. Alternatively, a new title may have been created by the employer entailing job functions similar to functions already covered by the unit and therefore warranting inclusion in the unit. In a similar vein, the employer may have created a new operation or opened a new facility, and then staffed the operation or facility with employees who function similarly to currently represented employees. In these circumstances, a clarification of unit proceeding is appropriate.

In other situations, a clarification of unit may result in persons being removed from the unit. This is so because the statutory framework of the Act renders certain negotiations relationships improper. Persons identified as managerial executives and confidential employees are not employees under the Act. In addition, the Act provides that, unless certain exceptions are present, supervisors cannot be in units with non-
supervisors; nor may police be in units with non-police employees. The Act, moreover, inherently embodies restrictions on the inclusion of personnel with conflicts of interests with other personnel. See Wilton, supra, footnote 3. Therefore, clarification of unit petitions are appropriately utilized to seek the exclusion of classifications which may have been included in an existing unit contrary to statutory provisions.

Since a clarification proceeding is concerned with unit definition, and does not involve the selection of a collective negotiations agent, the Commission has not restricted the filing and processing of such cases to prescribed time periods. This practice, however, is not universally followed by all labor relations agencies. Some agencies have restricted the filing of certain clarification of unit petitions to periods shortly before the expiration of a collective negotiations agreement. Those jurisdictions which have adopted filing restrictions have predicated such restrictions upon the theory that a possible change in the unit structure would have a disruptive affect on the existing contractual relationship.7/ This concern about a disruptive affect is founded on the same considerations which have led to the adoption of the contract bar rule where questions concerning representation are involved.

The undersigned has carefully reviewed, analyzed, and examined the Commission's current procedures, and has compared the experience in New Jersey with those jurisdictions employing contract bar limitations with regard to clarification of unit filings. This examination reveals that the concern of other jurisdictions is as much related to the disruption to the stability and predictability of the negotiations relationship as it is to the possible disruption of the parties' contractual relationship. There is much merit to both of these concerns. In the undersigned's opinion the contractual relationship and the negotiations relationship are inextricably intertwined. Therefore, the Commission's clarification of unit procedure should not be utilized in a manner disruptive of either contractual or negotiations responsibilities. Thus, a change in unit composition mandated by a clarification of unit determination should not be permitted to alter the parties' contractual commitments. If the parties have negotiated a contract that includes without reservation certain persons or titles, the Commission must assume that the written agreement is the result of good faith negotiations in which the partes have imparted finality to their give and take. This agreement to include or to exclude certain persons or titles in a contract may have involved concessions by both parties in the negotiation of the final terms and conditions of employment. A party to the agreement should not be permitted to gain additional profit from resort to the Commission's processes after the contract is executed. Thus, the clarification of unit procedure should be designed so as not to encourage avoidance of contractual responsibilities, or to change the benefits and burdens of the bargain. Equally objectionable to the avoidance of contractual responsibilities is an attempt to impose additional negotiations responsibilities upon one party subsequent to the signing of a contract by seeking to include in the unit an additional title whose terms and conditions were not previously negotiated. It would be patently unfair to require negotiations in a vacuum on behalf of a limited group of employees when one of the parties had not been made aware of the existence of the dispute with regard to the title in the earlier negotiations.

The undersigned believes that normal contractual principles protect the stability of the contractual relationship. Nevertheless, the Commission should administer the clarification of unit procedure so as to reinforce this basic concern and provide for additional protections. Thus, a clarification of unit determination should be implemented in a manner which is consistent with the parties joint responsibility to be bound to an agreement until it has terminated. Where certain persons or titles are included or excluded from the contract ay agreement of the parties, the status quo should remain in effect until the contract expires. Negotiations towards a successor agreement, however, must reflect the Commission's clarification of unit determination unless the parties agree otherwise.

The Commission need not adopt contract bars in clarification proceedings to accomplish this result. The Commission's experience indicates, in fact, that limiting the filing of a clarification of unit petition to certain time periods shortly before contract expiration would be impractical and would fail to meet the needs of the parties. The public interest requires that disputes as to the composition of a unit be resolved in as forthright and prompt a manner as possible. Clarification of unit proceedings are often complex and time consuming. Their resolution need not be at the expense of disrupting concurrent contract negotiations. Limiting CU filings to a period shortly before the expiration of a contract would tend to further exacerbate disputes during negotiations and even after the expiration of the contract.

Under the existing procedure, the Commission has always deemed its clarification of unit determinations as prospective. The undersigned, consistent with the above-stated principles, and with the Commission's approach, has elected to implement clarification of unit determinations in the following manner:

(1)	Where the clarification issue involves purely a question of identification, i.e. whether the titles are encompassed within the inclusionary or exclusionary language of the unit description as contained in the contract, the clarification of unit petition may be filed at any time and the determination will be effective immediately;

(2)	The Commission will accept clarification of unit petitions filed by parties at any time during the life of their contract which seek to exclude personnel whom the parties by mutual agreement had previously included in the contract even though, at the time of their inclusion, they were statutory supervisors or police and notwithstanding the existence of substantial, actual conflict or the potentiality for substantial conflict of interest. Where appropriate, the Commission may make determinations to exclude personnel from a unit for the reasons stated above. However, the mutual agreement of the parties to include these categories under the contract has created "special circumstances" which dictate that these categories continue to be included in the unit during the life of the contract.8/ The "special circumstances" which the parties have created would terminate at the conclusion of the contract. Therefore, a Commission determination to exclude personnel from such a mixed unit for the reasons stated above shall become effective upon the expiration of the contract, unless the parties mutually agree otherwise.

(3)	The Commission will accept clarification of unit petitions filed by parties at any time during the life of their contract which seek to include titles whom the parties had previously failed to include in the most recent contract even though, at the time of execution of the most recent contract, such titles already existed. Where appropriate, and where the titles fall within the scope of the unit definition, the Commission may make determinations to include these titles in the unit. However, in view of the failure of the parties to negotiate with regard to these titles in their most recent agreement, the Commission's determination to include these titles in this unit shall become effective upon the expiration of the parties current contract unless the parties mutually agree otherwise.

(4)	Where the clarification determination involves a newly created job title, a change of circumstances, or the creation of an operation or facility any one of which has occurred after the execution of the parties' most recent contract a Commission determination to include these titles in the unit shall be effective immediately;

(5)	In all cases where the clarification of unit question is raised before the Commission prior to the execution of the parties' most recent contract, or where the dispute is reserved and referred to the Commission in the parties' negotiations agreement or other joint written agreement, the clarification of unit determination shall be effectively immediately;

(6)	Where the clarification of unit determination is that a particular employee is a managerial executive or a confidential employee, the clarification of unit determination shall be effective immediately.9/

The above general principles of application express, in basic and plain language, the circumstances under which the Commission will not, absent exceptional circumstances, permit a clarification of unit determination to affect the parties' contractual or negotiations responsibilities until the expiration of their contractual agreement and the circumstances under which the Commission's clarification of unit determinations will be effective immediately. When used above, the term "execution of the parties' most recent contract" means the last act which would formally bind both parties to a negotiations agreement. It should be noted that the above general principles are not meant to be applied mechanically in all cases. In no event will the application of such principles be permitted to reach a result that is internally inconsistent or not consonant with the above-
stated overall policy objectives.

6.	The undersigned now turns to the particular issue at hand i.e. whether N.J.A.C. 19:11-2.8 precludes the filing of the Association's petition to add certain non-professional personnel to its unit.

With respect to the instant issue, N.J.A.C. 19:11-2.8(c) provides in pertinent part as follows:

"(c) During the period of an existing written agreement containing substantive terms and conditions of employment and having a term of three years or less, a petition for certification of public employee representative or a petition for decertification of public employee representative normally will not be considered timely filed unless;

* * *

3.	In a case involving employees of a school district, the petition is filed during the period between September 1 and October 15, inclusive, within the last 12 months of such agreement."

With respect to the contract bar issue, the Association submits: "Since the contract bar doctrine applies only to a union seeking certification while a contract is in force with another union, the contract bar doctrine is inapposite to the present situation." The undersigned does not share such a restricted view.

The contract bar rule is designed to protect the interests of both parties to the collective negotiations relationship. In order to protect both parties' interests it fixes permanency to the parties' negotiations relationship during the protected period of their contract. Just as the contract bar rule emphasizes the importance of protecting the stability and predictability of the negotiations relationship from attack by a third party during the protected period, it is equally important that the stability and predictability of the negotiations relationship be protected from attack by one of the parties to the negotiations relationship during the protected period. This is true whether the petitioning party is the same employee organization or the public employer.

An examination of the language of the timeliness rule reveals that the contract bar rule is not limited solely to a situation where one union seeks certification while a contract is in force with another union. First, N.J.A.C. 19:11-2.8(c) provides a contract bar to a decertification petition where employees who do not desire and further representation at all seek to file a petition to remove their exclusive representative. Second, the rule restricts to a limited period of time a petition filed by a public employer questioning the majority status of the exclusive representative. This limitation on an employer's filing is likewise intended to protect during the term of the agreement the stability and predictability of the parties' negotiations relationship from attack by one of the parties to that relationship. Third, the language of the rule does not support the contention that the Commission sought to limit the contract bar doctrine to instances of inter-union rivalry.

The timeliness rule provides for a contract bar "[d]uring the period of an existing written agreement...." In order to be consistent with the purposes of the Act and the concerns for the stability of the employer-employee relationship, the contract bar rule must apply during the period of an existing written agreement covering any of the employees proposed in the petitioned-for unit.10/ While the voting group sought by the Association herein is limited to the non-professionals, it is nevertheless clear that the unit proposed and claimed to be appropriate by the Association is a unit of non-professionals and professionals. Since the professionals are currently covered by contract, and the Petition has been filed "[d]uring the period of an existing written agreement," the contract bar rule applies and renders the instant Petition untimely.11/

7.	Accordingly, for the aforementioned reasons the instant Petition is barred pursuant to N.J.A.C. 19:11-2.8(c), and the Petition is dismissed.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

of Representation

DATED:	July 21, 1977

Trenton, New Jersey