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D.R. No. 84-6

Synopsis:

The Director of Representation, adopting the recommendations of a Hearing Officer, dismisses a petition filed by District 1199J seeking to represent first grade sanitary inspectors employed by the City of Jersey City. The Director finds that the record did not show that the incumbent intervenor irresponsibly represented the petitioned-for employees and therefore severance of those employees from the established unit is not warranted. The Director also agrees with the Hearing Officer that the petitioned-for unit is inappropriate because it would consist of employees solely in one occupational line.

PERC Citation:

D.R. No. 84-6, 9 NJPER 556 (¶14231 1983)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

33.323 34.43 36.221

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 84-006.wpdDR 84-006.pdf - DR 84-006.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 84-6 1.
    D.R. NO. 84-6
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    CITY OF JERSEY CITY,

    Public Employer,

    -and- Docket No. RO-82-22

    DISTRICT 1199J, NATIONAL UNION OF
    HOSPITAL AND HEALTH CARE EMPLOYEES,
    RWDSU, AFL-CIO,

    Petitioner,

    -and-

    LOCAL 246, JERSEY CITY PUBLIC EMPLOYEES,

    Intervenor.

    Appearances:

    For the Public Employer
    Thomas Fodice, First Assistant Corporation Counsel
    (Paul W. Mackey of counsel)

    For the Petitioner
    Greenberg, Margolis, Ziegler & Schwartz, attorneys
    (Mark Tabenkin of counsel)

    For the Intervenor
    Philip Feintuch, attorney
    DECISION

    On September 3, 1981, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission ( A Commission @ ) by District 1199J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO ( A District 1199J @ ) with respect to a proposed unit consisting of sanitary inspectors (first grade) employed by the City of Jersey City ( A City @ ). The employees are presently represented by Local 246, Jersey City Public Employees ( A Local 246").
    Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer Arnold H. Zudick on January 5 and 6, October 6 and 20, 1982. At the hearing all parties1/ were provided the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally.
    On February 28, 1983, the Hearing Officer issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. No exceptions to the Hearing Officer = s Report have been filed.
    The undersigned has considered the entire record and the Hearing Officer = s Report and Recommendations and on the facts in this case finds and determines as follows:
    1. The City of Jersey City is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), is the employer of the employees involved herein, and is subject to the Act = s provisions.
    2. District 1199J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is an employee representative within the meaning of the Act and is subject to its provisions.
    3. Local 246, Jersey City Public Employees is an employee representative within the meaning of the Act and is subject to its provisions.
    4. Local 246 is the current majority representative of a unit containing all nonsupervisory blue and white collar employees in several departments of the City including the Department of Human Resources, in which the petitioned-for individuals are employed. Local 246 has had a formal contractual relationship with the City covering unit employees since at least 1972.
    5. District 1199J argues that the petitioned-for employees are professional employees within the meaning of N.J.A.C. 19:10- 1.12/ and thus are entitled to a secret ballot election pursuant to N.J.S.A. 34:13A-6(d) through which they would exercise their preference for separate representation. District 1199J also argues that the first grade sanitary inspectors should be severed from the existing unit due to the alleged failure of Local 246 to fairly represent the petitioned-for employees.
    6. The Hearing Officer found that District 1199J did not meet the standards required for severance of employees from an exiting negotiations unit, as set forth by the Commission in In re Jefferson Tp. Bd. of Ed., P.E.R.C. No. 61 (1971). The Hearing Officer found that there was no showing in the record that Local 246 had not responsibly represented the petitioned-for employees, either in negotiations or grievance/contract administration. With respect to District 1199J = s allegation that Local 246 had not supported a discharged employee in his efforts to regain his job, the Hearing Officer found that the discharged employee had not asked Local 246 to file a grievance on his behalf.
    The Hearing Officer also found that the first grade sanitary inspectors were professional employees within the meaning of the Act. He made this recommended finding based on the sanitary inspectors = considerable educational requirements, discretion and the performance of work under minimum supervision. Not withstanding this finding, the Hearing Officer recommended the dismissal of the instant Petition. Applying Commission3/ and judicial precedent4/ to the record herein, the Hearing Officer found that the petitioned-for unit is inappropriate. The Hearing Officer found that a variety of professional titles were contained in the existing unit and outside the unit, and the Petitioner = s failure to seek a broad-based professional unit must result in the dismissal of the Petition.
    The undersigned, pursuant to an independent review of the record, and noting the absence of any exceptions to the Hearing Officer = s Report and Recommendations adopts the Hearing Officer = s findings and conclusions that the record does not demonstrate a finding of irresponsible representation to warrant a severance of sanitary inspectors from the Local 246 unit on the basis of Jefferson, supra.
    Further, assuming, without deciding, that the first grade sanitary inspectors are professional employees within the meaning of the Act, the undersigned agrees with the Hearing Officer = s conclusion that the instant Petition presents an inappropriate unit structure. The petitioned-for unit consists of employees solely in one occupational line, while the record reveals that there are numerous other professional titles existing in the employ of the City, both within and outside the negotiations unit currently represented by Local 246. As the undersigned noted in In re New Jersey State College of Medicine and Dentistry, supra, n.3, a negotiations unit consisting of a single professional line is not normally appropriate when several professional lines may be combined to form a broad-based negotiations unit.
    Having thus found that Local 246 has not irresponsibly represented the sanitary inspectors and that the proposed unit is inappropriate, there is no basis for the establishment of the unit under severance standards or through the exercise of a professional option vote.
    For the reasons stated above, the undersigned finds the petitioned-for unit inappropriate and denies the request for a professional option vote. The Petition is hereby dismissed.
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director

    DATED: August 23, 1983
    Trenton, New Jersey
    1/ After participating in the first two days of hearing, Local 246 advised the Hearing Officer that it would not continue to participate in the proceedings.
      2/ N.J.A.C. 19:10-1.1 provides, inter alia, as follows:

    A Professional employee @ means any employee whose work is predominantly intellectual and varied in character, involves the consistent exercise of discretion and judgment, and requires knowledge of an advanced nature in the field of physical, biological, or social sciences, or in the field of learning. The commission will also consider whether the work is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. The term shall also include any employee who has acquired knowledge of an advanced nature in one of the fields described above, and who is performing related work under the supervision of a professional person to qualify to become a professional employee as defined herein. The term shall include, but not be limited to, attorneys, physicians, nurses, engineers, architects, teachers and the various types of physical, chemical and biological scientists.
          3/ In re State of New Jersey, P.E.R.C. No. 68 (1972); In re N.J. State College of Med. and Dentistry, D.R. No. 77-17, 3 NJPER 178 (1977).
      4/ State of New Jersey v. Prof. Assoc. of N.J. Dept. of Ed., 64 N.J. 231 (1974).
    ***** End of DR 84-6 *****