D.R. NO. 82-39

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CITY OF PLAINFIELD,

Public Employer,

-and-	Docket No. CU-81-37

FIREMEN'S MUTUAL BENEVOLENT

ASSOCIATION, LOCAL NO. 7,

Petitioner.

Appearances:

For the Public Employer

Sachar, Bernstein, Rothbert,

Silora & Mangello, attorneys

(David H. Rothberg of counsel)

For the Petitioner

Osterweil, Wind & Loccke, attorneys

(Manuel A. Correia of counsel)

DECISION AND ORDER

Pursuant to a Petition for Clarification of Unit filed on December 4, 1980, with the Public Employment Relations Commission (the "Commission") by the Firemen's Benevolent Association, Local No. 7 (the "FMBA"), hearings were conducted before Commission Hearing Officer Arnold H. Zudick on the claim raised by the FMBA that employees of the Fire Signal Division of the City of Plainfield (the "City") should be included in the collective negotiations unit represented by the FMBA.

Hearings were held on May 11 and 12, 1981, in Newark, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Briefs were submitted by the parties, the last of which was received by July 28, 1981. The Hearing Officer issued his Report and Recommendations on August 28, 1981, a copy of which is attached hereto and made a part hereof. No exceptions to his Report and Recommendations were filed by either party.

The undersigned has carefully considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, and the exhibits, and finds and determines as follows:

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

2.	Firemen's Mutual Benevolent Association, Local No. 7 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The FMBA seeks a clarification of the collective negotiations unit which it represents. The parties have been unable to agree upon the placement of the titles in question in the FMBA's unit and, therefore, a question concerning the composition of a collective negotiations unit exists, and the matter is appropriately before the undersigned for determination.

4.	The Hearing Officer found and recommended the following: (a) Signal Division employees are not firefighters within the meaning of the Police and Fire Compulsory Interest Arbitration Act because these employees predominantly perform electrical work and their job descriptions, unlike firefighters, do not include any firefighting duties or training requirements; (b) since the Signal Division employees are not firefighters they are not entitled to compulsory interest arbitration; (c) Notwithstanding the aforementioned, the Petition for Clarification of Unit should be dismissed in its entirety since the instant dispute involved a question of representation which requires that a representation petition be filed rather than the Petition for Clarification of Unit filed by the FMBA herein.

The undersigned agrees with the Hearing Officer that questions raised concerning the asserted firefighting status of Signal Division employees need not be resolved in the context of the instant proceeding, since even if this issue were resolved in favor of the FMBA's position, for the reasons cited below, the employees could not be found to be included in the FMBA's negotiations unit. The undersigned, therefore, finds it unnecessary to discuss the issues raised concerning the alleged firefighting status of the disputed employees.

Where a record reveals that the parties, at the inception of their negotiations relationship, did not intend to include certain employee classifications which were then in existence in the negotiations unit or where the petitioning party has for a considerable period of time "slept on its rights" concerning unrepresented titles, the negotiations unit may not be found to include these classifications. See In re Wayne Bd. of Ed., D.R. No. 80-6, 5 NJPER 422 (¶10221 1979), aff'd in relevant part, P.E.R.C. No. 80-94, 6 NJPER 54 (¶11028 1980). The FMBA's Petition to have the Signal Division employees deemed included in its unit falls under both of the above standards.

The testimony provided by Larry Zampella, a firefighter who was instrumental in the formation of the negotiations unit and knowledgeable in the negotiations between the FMBA and the City, reveals that the FMBA did not seek to include the Signal Division employees in the negotiations unit when it was recognized in 1969 or 1970. During this period of "transition" due to a City charter change, the Signal Division was removed from control of the fire chief, and constituted a separate division within the Department of Public Law and Safety along with the Police Division and the Fire Division.

Zampella's testimony further reveals that the FMBA sought to negotiate on behalf of Signal Division employees during the parties' 1972 and 1975 negotiations, but that each time the City refused to negotiate, advising the FMBA that it did not consider these employees to be within the negotiations unit. At no time after these refusals did the FMBA seek to have the matter placed before the Commission for a determination. See In re Bergen Pines Hospital, D.R. No. 80-20, 6 NJPER 61 (¶11034 1980) (failure to identify potential unit employees within an initial contractual period and to seek their inclusion in the negotiations unit through Commission processes constitutes waiver of any future claim to have employees clarified as within negotiations unit.)

There is ample evidence in the record to support the Hearing Officer's determination that the Signal Division employee classifications existed at the time of the creation of the FMBA bargaining unit. The record further supports the Hearing Officer's finding that, pursuant to the Wayne test, at the time the FMBA unit was formed, there was no mutual intent to include the instant disputed titles. Even assuming arguendo that there was, in fact, a mutual intent to include Signal Division employees in the FMBA bargaining unit at the time of its formation, or alternatively that a subsequent City reorganization created a change in circumstances, the record indicates that the FMBA, in 1972 and 1975, attempted to negotiate for Signal Division employees. The resistance to such negotiations by the City and the subsequent abandonment by the FMBA of its attempts to negotiate for the disputed titles coupled with the failure of the FMBA to file a clarification of unit petition in a timely fashion leads to the conclusion that the FMBA's actions constitute a waiver of any future claim that these employees should be clarified into their negotiations unit.

Accordingly, for the above reasons, the undersigned hereby clarifies the firefighters' negotiations unit as not including the Signal Division employees.1/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	February 8, 1982

Trenton, New Jersey