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D.R. No. 81-6

Synopsis:

The Director of Representation dismisses a Petition for Certification of Public Employee Representation filed by security officers who desire to be excluded from a countywide negotiations unit and to have Petitioner represent them in their own separate unit for collective negotiations. The Director, agreeing with a Hearing Officer, determines that security officers have not been irresponsibly represented by their current representative and that the existing relationship is not unstable.

PERC Citation:

D.R. No. 81-6, 6 NJPER 426 (¶11214 1980)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

23.26 36.221

Issues:


DecisionsWordPerfectPDF
NJ PERC:.DR 81-006.wpdDR 81-006.pdf - DR 81-006.pdf

Appellate Division:

Supreme Court:



D.R. NO. 81-6 1.
D.R. NO. 81-6
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

COUNTY OF ESSEX,

Public Employer,

-and- Docket No. RO-80-93

LOCAL 1158, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO,

Petitioner,

ESSEX COUNTY EMPLOYEES
ASSOCIATION,

Intervenor.

Appearances:

For the Public Employer
Grotta, Glassman & Hoffman, attorneys
(Thomas J. Savage of counsel)

For the Petitioner,
Robert C. Sarcone, attorney
(Gerald E. Fusella of counsel )

For the Intervenor
Thomas E. Durkin, Jr., attorney
(Thomas E. Durkin, III of counsel)
DECISION

On November 8, 1979, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by Local 1158, International Brotherhood of Electrical Workers, AFL-CIO ( A Local 1158") seeking a collective negotiations unit comprised of all security officers employed by the County of Essex (the A County @ ). These employees are currently represented by the Essex County Employees Association (the A Association @ ) and are included in a unit comprised of all County employees, with certain specified exclusions.
Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer Bruce Leder on April 15, 1980, in Newark, New Jersey, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. No briefs were filed with the Hearing Officer. The Hearing Officer issued his Report and Recommendations on June 20, 1980, a copy of which is attached hereto and made a part hereof. On July 1, 1980, Local 1158 filed exceptions to the Hearing Officer = s Report. Neither the County nor the Association has filed exceptions to the Report, nor have they filed an answer to the exceptions filed by Local 1158.
The Commission Hearing Officer properly noted that in order for the security officers to be removed from the overall unit of County employees and to form their own unit, the evidence must initially demonstrate that the existing relationship is unstable or that the incumbent organization has not provided responsible representation. The Commission stated in In re Jefferson Tp. Bd. of Ed., P.E.R.C. No. 61 (1971):
The underlying question is a policy one: assuming without deciding that a community of interest exists for the unit sought, should that consideration prevail and be permitted to disturb the existing relationship in the absence of a showing that such relationship is unstable or that the incumbent organization has not provided responsible representation. We think not. To hold otherwise would leave every unit open to redefinition simply on a showing that one sub-category of employees enjoyed a community of interest among themselves. Such a course would run counter to the statutory objective and would, for that matter. ignore that the existing relationship may also demonstrate its own community of interest.

The Hearing Officer concluded that the evidence presented did not demonstrate that the Association had provided irresponsible representation to the security officers or that the existing relationship was unstable. Local 1158 states that the Hearing Officer did not consider two areas of testimony in the transcript which, according to Local 1158, would on its face be sufficient to warrant setting aside the initial election.
The undersigned has reviewed the entire record herein including the transcript, the Hearing Officer = s Report and the exceptions and on the basis thereof finds and determines as follows:
1. The County of Essex 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 involved herein, and is subject to the provisions of the Act.
2. Local 1158, International Brotherhood of Electrical Workers, AFL-CIO, and the Essex County Employees Association are employee representatives within the meaning of the Act and are subject to its provisions.
3. Local 1158 seeks to represent a unit comprised of security officers employed by the County. The County and the Association do not consent to an election in this unit asserting that these employees should not be removed from the overall unit comprised of all County employees represented by the Association.
4. The Hearing Officer found that in the negotiation and administration of the collective negotiations agreement the Association responsibly represented the interest of security officers. More specifically, the Hearing Officers found that the Association responded with assistance to those security officers who had received layoff notices in January 1980 and responded to employees concerned about the payments of increments and disputed promotions. The Hearing Officer also concluded that the fact that employee newsletters were not distributed by the Association to non-dues paying members did not constitute irresponsible representation. The undersigned finds that the Hearing Officer properly analyzed the facts presented and adopts the Hearing Officer = s findings and conclusions.
Regarding the exceptions filed by Local 1158, the undersigned observes that the Hearing Officer did consider evidence concerning the processing of grievances by the Association and noted that the Association had proceeded to arbitration concerning certain disputes. Local 1158 cites a statement in the transcript from which it draws the conclusion that the Association refused to process certain grievances because the grievant refused to pay dues to the Association. A full reading of the testimony reveals that the Association does process grievances whether the grievant is a member of the Association or not. Regarding this specific instance, the testimony reveals that the grievant stated that she A had a lot of friends and didn = t need the Association. @ The President of the Association testified that he had advised the grievant to resolve her grievance independently. He further stated that had she returned and formalized her grievance in writing he would have assisted her.
Local 1158 also refers to testimony concerning the refusal of the Association to process the grievance of an individual who was being transferred. The testimony reveals that the President of the Association assessed the grievance and reasoned that its formalization would possibly do more harm than help to the grievant and that, under the circumstances involved, the County could justify the transfer of the particular individual.
From the above the undersigned concludes that the Association did not irresponsibly represent the interests of employees in the processing of grievances. The Association = s determination not to pursue certain grievances under its contract with the County was based upon individual consideration of the merits of the particular grievances. It has not been demonstrated that the Association refused to pursue grievances for the purpose of retaliating against security officers who were not dues paying members of the Association.
Accordingly, the undersigned affirms the Hearing Officer = s conclusions that the Association has not provided irresponsible representation to the employees herein. Further, it has not been demonstrated that the existing relationship is unstable. Therefore, the undersigned dismisses the instant Petition.

BY ORDER OF THE DIRECTOR OF
REPRESENTATION


____________________________
Carl Kurtzman, Director

DATED: August 18, 1980
Trenton, New Jersey
***** End of DR 81-6 *****