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D.R. No. 82-16

Synopsis:

The Director of Representation determines that certain part-time substitute bus drivers employed by the Board of Education were not eligible to vote in a representation election because they were not employed a sufficient number of hours to gain representation rights. The Director finds under the particular circumstances, that these bus drivers could not have worked at least one-sixth of the average number of hours worked by regular bus drivers. The Director issues an appropriate Certification of Representative for Local No. 11 since the remaining challenged ballots would not be sufficient to affect the results of the election.

PERC Citation:

D.R. No. 82-16, 7 NJPER 636 (¶12286 1981)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

15.15 16.44 33.343 34.392 35.315 35.371 33.35 33.45 35.31

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 82-016.wpdDR 82-016.pdf - DR 82-016.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 82-16 1.
    D.R. NO. 82-16
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    MT. OLIVE BOARD OF EDUCATION,

    Public Employer,

    -and- Docket No. RO-81-203

    TEAMSTERS UNION LOCAL NO. 11,

    Petitioner.

    Appearances:

    For the Public Employer,
    Green & Dzwilewski, attorneys
    (Alan P. Dzwilewski of counsel)

    For the Petitioner,
    Schneider, Cohen, Solomon & DiMarizio, attorneys
    (Bruce D. Leder of counsel)
    DECISION

    On March 20, 1981, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by Teamsters Union Local No.11 (the A Teamsters @ ), seeking to represent a unit of all full time and part time bus drivers employed by the Mt. Olive Board of Education (the A Board @ ). Pursuant to an Agreement for Consent Election entered into by the parties on April 9, 1981, a secret ballot election was conducted among bus drivers on April 28, 1981. The Tally of Ballots indicates that 24 valid ballots were case for Local 11, and 20 valid ballots were cast against representation by any employee representative. Five challenged ballots were challenged by the Teamsters. The five challenged ballots are sufficient in number to affect the results of the election and are the subject of this determination.
    Pursuant to N.J.A.C. 19:11-9.2(k)1/ a hearing was held before Hearing Officer Michael Berman, on June 18, 1981, in Newark, New Jersey. The parties agreed to have the issues decided on the basis of joint stipulations of fact and exhibits, and post-hearing briefs and response briefs which were duly submitted. The record closed August 3, 1981.
    The Hearing Officer thereafter issued his Report and Recommendations on August 21, 1981, a copy of which is attached hereto and made a part hereof. The Hearing Officer concluded that only one of the five challenged voters was an eligible voter.
    On September 1, 1981, the Board filed exceptions to certain of the Hearing Officer = s findings and conclusions. The Teamsters filed a reply to these exceptions on September 14, 1981.
    The undersigned has carefully considered the entire record herein including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits, the Board = s exceptions and the Teamsters = reply and finds and determines as follows:
    1. The Mt. Olive Board of Education 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 A Act @ ), is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act.
    2. Teamsters Union Local No. 11, International Brotherhood of Teamsters is an employee representative within the meaning of the Act and is subject to its provisions.
    3. On March 20, 1981, the Teamsters filed a Petition for Certification of Public Employee Representative within the meaning of the Act and is subject to its provisions.
    4. At the election, on August 28, 1981, the Teamsters challenged the voting eligibility of five substitute bus drivers on the basis of their primary employment in other fields: Three voters are full time police officers of Mt. Olive Township (Brown, Byrne, and Dunster); one voter is a full time firefighter (Auriemma); and one voter is a full time teacher in the Mt. olive School District (Roethke). Specifically as to the police officers, the Teamsters assert that the nature of the police officers = full time employment places those employees in a position of divided loyalty and raises a potential for conflict of interest with other bus drivers. In reply to the Board = s argument that the primary employment of these individuals as police officers does not prohibit their inclusion in a unit of bus drivers, the Teamsters cite a statutory prohibition to the membership of police in employee organizations which also admit nonpolice employees to membership.2/ Additionally, the Teamsters argue that all five challenged voters are casual employees and, therefore, do not share a community of interest with the other regularly employed bus drivers.
    5. The Board = s position is that all the challenged voters are eligible unit employees because they are part time employees who share a sufficient community of interest with the other unit employees in that they are paid under the same salary guide, are subject to the same qualifications for overtime pay and assignment, are subject to the eligibility conditions for medical insurance, seniority credit, most driving assignments, longevity and pension and licensure. The Board argues that any differences in employment which exists do not negate the community of interest between the substitutes and the regular bus drivers. The Board contends that the challenged voters are permanent substitutes and have the requisite regularity and continuity of employment to qualify as public employees within the meaning of the Act. The Board argues that any employment in addition to that of bus driver for the Mt. olive School District does not disqualify the challenged voters from inclusion in the bus drivers unit even where that outside employment is as a police officer.
    6. The Hearing Officer found the following: (a) the Teamsters could assert an additional basis for the challenges (i.e., casual status) other than the basis stated at the election (i.e., other employment); (b) the criteria set forth in In re Bridgewater-Raritan Bd. of Ed., D.R. No. 79-12, 4 NJPER 444 ( & 4201 1978), involving the employee status of substitute teachers, were applicable to this case (In Bridgewater-Raritan, the minimum time worked by per diem substitutes to establish eligibility was 30 says out of a possible 180 days, i.e. one-sixth of the total work year). Thus, applying the Bridgewater-Raritan standard, the Hearing Officer determined that a threshold base of 75 hours of employment per year, exclusive of certain A overtime @ assignments, was the minimum needed to establish part time employee status. On this basis, the Hearing Officer determined that one challenged voter (the teacher) would be excluded from the unit and the four others (one firefighter and three police officers) could potentially be includable in the unit; (c) the fact that the substitute bus drivers were engaged in primary employment in other fields would not necessarily be a basis to exclude them from the bus drivers = unit so long as their primary employment was not in a police status. In the instant matter he recommended that three of the four challenged voters who were otherwise eligible for unit inclusion were police officers, and should be excluded because of the statutory prohibition relating to the membership of police in organizations which admit nonpolice to membership, supra, n.2.3/
    Accordingly, the Hearing Officer recommended that the sole eligible voter among the five challenged substitute bus drivers was Auriemma, who was employed the requisite number of hours and whose primary employment was that of a Township firefighter.
    7. The Board excepts to the Hearing Officer = s report, with the exception of his presentation of the procedural history, stipulations of facts, joint exhibits, and the conclusion that the firefighter is an eligible voter. The Board asserts that N.J.A.C. 19:11-9.2, which requires that the observer challenging voter eligibility state the reason for the challenge, should be further construed to limit the presentation of additional reasons for the challenges after the election. Otherwise, the Board says, a party would have an unfair opportunity to unilaterally increase the number of challenges, raise new challenges and generally broaden the scope of the issues. Additionally, the Board asserts that the appropriate test for part time employment should be based upon the number of days worked, rather then the hours of employment. Further, the Board argues that Bridgewater- Raritan does not stand for a rigid application of a one-sixth of the school year standard. The Board also objects to the Hearing Officer = s conclusion that the three police officers = votes are void because the statutory prohibition of mixed units of police/nonpolice employee applies to an employee = s secondary employment as well as primary employment. It urges that the Hearing Officer erred in characterizing these same three persons as A bus driver/police officer, @ since the Board maintains no such titled position. Lastly, the Board asserts that the A division of loyalty @ analysis presented by the Hearing Officer is purely speculative and inapplicable herein.
    8. In response to the Board = s exceptions the Teamsters submitted a letter brief in support of the Hearing Officer = s Report and Recommendations.
    In considering the issues herein, the undersigned shall first address the Teamsters = claim that the substitute drivers = employment status is casual in nature. As noted above, the Board opposes consideration of the issue of casual employment since the Teamsters did not assert this basis as a ground for challenge at the election. For the reasons that follow, the undersigned determines that consideration of this challenge issue is not foreclosed, notwithstanding the fact that the Teamsters = challenge was originally based upon other grounds.
    N.J.A.C. 19:11-9.2(e) is a procedural rule governing the assertion of challenges by observers at an election, and the method of balloting concerning challenged votes. In order to insure the isolation of ballots of voters whose eligibility is questioned, the Commission requires that a challenge to voting eligibility be asserted before the vote is cast. This procedure prevents the intermingling of questionable ballots with valid ballots and thus protects the integrity of the election process and the finality of the election result. The integrity of the election process is further served by the requirement that a reason be given for the challenge. By so providing, the Commission guards against arbitrary conduct and abuse of its procedures.
    If challenged votes are determinative of the results of the election, as they are here, then a challenge investigation is conducted in accordance with N.J.A.C. 19:11-9.2(k), and a hearing may be conducted, if necessary, pursuant to N.J.A.C. 19:11-6.1 et seq. The purpose of the challenge investigation is to rule upon the question of voting eligibility. At this time, all the parties are entitled to marshal their arguments for or against eligibility. The investigation is designed to provide each party with the knowledge of the other = s position and a full opportunity to respond is provided. Accordingly, there is no surprise or unfairness to any party in their ability to present the Commission with all facts relevant to the determination of voting eligibility.
    Turning to the merits of the Teamsters = challenge, the undersigned has previously observed that employees who serve on an occasional and sporadic basis, as opposed to employees who serve on a regular basis, are casual employees who may not achieve representational rights under the Act. In Bridgewater- Raritan, supra, the undersigned stated:
    The definition of > employees = contained in the Act suggest no basis for the exclusion of less than full-time employees. The Commission, relying on precedents in both the public and private sectors, has distinguished between regularly employed part-time employees and casual employees who perform or serve on an occasional or sporadic basis. Employees in the former group have been granted representation rights while the latter group has been denied these rights on the basis that their contact with the employer is too tenuous to constitute a continuing employer-employee relationship. In distinguishing between these two groups the Commission has considered whether the employees have a fair degree of regularity and continuity of employment.

    The undersigned noted that the measure of regularity and continuity would be derived from the approach developed in In re Rutgers University, E.D. No. 76-35, 2 NJPER 176 (1976), aff = d and modified P.E.R.C. No. 76-49, 2 NJPER 229 (1976), aff = d App. Div. Docket No. A-165276 (1977), certif. den. 76 N.J. 234 (1978), but that the actual determination as to casual status would require that the Rutgers approach be adapted to the requirements of the employment relationship at issue.
    The instant setting is similar to that of Bridgewater- Raritan, which involved substitute teachers, and therefore it was proper for the Hearing Officer to utilize Bridgewater-Raritan as a guide in his recommendation. In Bridgewater-Raritan the undersigned determined that 30 days of service demonstrating regularity of employment for a per diem teaching substitute. This conclusion was premised upon the employment of teaching substitutes on a per diem basis, and their employment for 30 days corresponds to one-sixth of the average teaching year, i.e., 180 days.
    Since the employment of the substitute bus drivers herein is on an hourly basis the hearing Officer appropriately adapted the Bridgewater-Raritan analysis by comparing the number of hours worked, rather than the number of days worked. However, the Hearing Officer compared the substitutes = hours to the number of hours worked by the least employed regular bus driver, whereas the more appropriate measure is a comparison of the substitutes = hours to the average number of hours worked by regular bus drivers. Nevertheless, the data indicates that this figure can be lower than 1,056 hours of employment per year.4/ Accordingly, a substitute driver whose employment is less than 176 hours per year (i.e., one-sixth of 1,056) cannot be found to have a sufficient regularity of employment to qualify for representational rights under the Act.
    In the instant matter, only two of the challenged employees worked in excess of 176 hours; Auriemma (442 hours), and Dunster (199.5 hours). Roethke (121.75 hours),5/ Brown (138 hours) and Byrne (132 hours) worked less than 176 hours, and without question, their employment is casual.
    Based upon the above, the undersigned finds that the ballots of Roethke, Brown and Byrne are void. Accordingly, a revised tally of the ballots indicates that 24 valid ballots have been case for the Teamsters, 20 valid ballots have been case against the participating employee representative, and 2 ballots remain in challenge status. The remaining 2 challenged ballots are not determinative of the results of the election and need not be resolved at this time. A majority of the valid ballots plus remaining challenged ballots has been cast for the Teamsters, and a Certification of Representative, which is attached hereto and made a part hereof, is hereby issued.6/
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION


    __________________________
    Carl Kurtzman, Director

    DATED: [Ocrober] October 22, 1981
    Trenton, New Jersey
    1/ N.J.A.C. 19:11-9.2(k) provides:

    If challenged ballots are sufficient in number of affect the results of an election, the director of representation shall investigate such challenges. All parties to the election shall present documentary and other evidence, as well as statements of position, relating to the challenged ballots. After the administrative processing of the challenged ballots has been completed, or where appropriate, the hearing process has been completed, the director of representation shall render an administrative determination which shall resolve the challenges and contain appropriate administrative direction.
          2/ N.J.S.A. 34:13A-5.3 provides: A ...except where established practice, prior agreement, or special circumstances dictate to the contrary, no policeman shall have the right to join an employee organization that admits employees other than policemen to membership. @
      3/ The Hearing Officer reasoned that placing A bus drivers/police officers @ in the same collective negotiations unit with bus drivers would create a conflict of interest because at some point, the individual would be required to select one duty over the other.
      4/ The information made available to the Commission in the parties = factual stipulations indicates that the district employed 48 regular drivers in the 1980-81 school year. All but two of these drivers qualified for hospitalization benefits by working at least a 30 hour week. Therefore, the total number of hours worked by 46 drivers was at least 49,680 hours. The other two drivers worked 540 and 450 hours, respectively; in sum, the least number of hours worked by all regular bus drivers in 50,670. Accordingly, from the information contained in the record, it appears that the average number of hours worked by a regular bus driver in 1980-81 is not less than 1,056 hours.
      5/ The Board urges that Roethke = s employment should be annualized since she worked solely between October 20 and June 5. Even if the undersigned were to agree with the propriety of annualized hours would still be less than 176 hours.
      6/ The undersigned need not rule upon the question of eligibility based upon outside employment. If the parties are unable to resolve unit placement questions, the undersigned notes the availability of the Commission = s clarification of unit procedure which may be invoked by either party to resolve such dispute.
    ***** End of DR 82-16 *****