D.R. No. 79-8

Synopsis:

The Director of Representation dismisses a Petition for Certification of Public Employee Representative seeking the severance of certain Parks Department Foremen and other similar employees from a countywide blue and white collar collective negotiations unit and the creation of a separate collective negotiations unit comprised of these employees. The Director determines, in agreement with the findings and recommendations of the Hearing Officer, that the petitioned-for employees are not supervisors within the meaning of the Act and that the evidence does not demonstrate a substantial potential for conflict of interest with other unit employees to warrant their severance from the certified countywide negotiations unit.

PERC Citation:

D.R. No. 79-8, 4 NJPER 396 (¶4178 1978)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

220.3091 430.25 437.50

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 79-008.pdf
Appellate Division:
Supreme Court:

D.R. NO. 79-8 1. D.R. NO. 79-8 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of COUNTY OF MIDDLESEX, Public Employer, -and- Docket No. RO-77-122 MIDDLESEX COUNTY PARKS AND ROADS DEPARTMENT SUPERVISORS ASSOCIATION, Petitioner, -and- MIDDLESEX COUNCIL #7, NEW JERSEY CIVIL SERVICE ASSOCIATION, Intervenor. Appearances: For the Public Employer Mr. William Jackson, County Personnel Department For the Petitioner, Robert M. Washburn, Esq. For the Intervenor, Fox and Fox, Esqs. (David I. Fox, of Counsel) DECISION A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) on January 25, 1977, by the Middlesex County Parks and Roads Supervisors Association (the A Petitioner @ ) with respect to a proposed collective negotiations unit consisting of all foremen, assistant foremen, the golf course manager and his assistant employed by the County of Middlesex (the A County @ ). Middlesex Council #7, New Jersey Civil Service Association (the A CSA @ ), the certified representative of a collective negotiations unit including the personnel in the unit proposed by the Petitioner, is an intervenor in the instant proceeding. Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer James F. Schwerin, on September 27, October 28 and December 6, 1977, at which all parties were afforded the opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Although a representative appeared on behalf of the County, the County did not state a position in this matter and did not take an active role in the proceedings. Post-hearing briefs were submitted by Petitioner and CSA by February 15, 1978. The Hearing Officer issued his Report and Recommendations on March 16, 1978. Petitioner filed exceptions to the Hearing Officer = s Report on March 29, 1978. The CSA filed a letter response in answer to Petitioner = s exceptions on April 12, 1978. Based upon the entire record in this matter including the transcripts, briefs, exceptions, and the response to the exceptions, the undersigned finds and determines as follows: 1. The County of Middlesex is a Public Employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the A Act @ ), is the employer of the employees involved herein, and is subject to the Act = s provisions. 2. The Middlesex County Parks and Roads Department Supervisors Association and Middlesex Council #7, New Jersey Civil Service Association are employee organizations within the meaning of the Act and subject to its provisions. 3. A petition for Certification of Public Employee Representative having been filed, and the incumbent employee organization having objected to said Petition, there exists a question concerning the representation of public employees and the matter is properly before the undersigned for a determination. 4. Since 1970 CSA has been the certified representative of a unit of all employees in the Parks, Highway and Bridge and Property Departments, to and including road foremen level, but excluding, among others, supervisors within the meaning of the Act. Petitioner seeks to sever from this unit roads and park foremen, assistant foremen, the golf course manager and his assistant on the grounds that employees in these titles are supervisors, or in the alternative, their duties create a substantial potential conflict of interest with other unit members. 5. The Hearing Officer recommended dismissal of the Petition, finding that the titles in question are not supervisors within the meaning of the Act, N.J.S.A. 34:13A-5.3, and finding the absence of any conflict of interest which would warrant a severance under the standards enunciated in Board of Education of West Orange v. Elizabeth Wilton, et al., 57 N.J. 404 (1971). Additionally, the Hearing Officer recommended the rejection of CSA = s claim that A established practice @ , pursuant to N.J.S.A. 34:13A-5.3, warrants continuation of the present unit should the foremen be found to be supervisors. Petitioner = s exceptions dispute the Hearing Officer = s recommended findings that the disputed titles are not supervisors within the meaning of the Act and that there is no conflict of interest as defined in Wilton, supra. The undersigned has reviewed these exceptions and finds them to be without merit. The A supervisory @ duties ascribed to some disputed titles by Petitioner are essentially allegations and unsupported in the record by examples of the regular exercise of such duties.1/ The undersigned agrees with the Hearing Officer and adopts his findings and conclusions as to this issue substantially for the reasons cited by him in his Report. The undersigned also agrees with the Hearing Officer that in light of the successful seven year negotiations relationship between the County and CSA, the Petitioner = s arguments speculating as to a potential for a substantial conflict of interest are too remote to require a determination in favor of severance. Of special significance is the fact that the employer is content with the existing unit composition and does not allege that the unit structure has created a divided loyalty problem, interfering with the proper administration of the department.2/ Based upon the foregoing and having completely reviewed the record and the Petitioner = s exceptions, the undersigned adopts the Hearing Officer = s findings of fact and conclusions of law.3/ Accordingly, the instant Petition for Certification of Public Employee Representative is hereby dismissed. BY ORDER OF THE DIRECTOR /s/Carl Kurtzman, Director DATED: September 14, 1978 Trenton, New Jersey 1/ Testimony on behalf of Petitioner concerning the ability of foremen to recommend the hiring of probationary employees, discipline other employees, etc., was vague in nature and cited few, if any, specific examples citing names, dates, and specific action taken. Further, undisputed testimony shows that such matters are governed by applicable Civil Service procedures in which Petitioner admits no direct role. The record reveals that the Parks Department foreman is not involved in a required formal step in the contractual grievance procedure nor does he play a significant role in the interpretation of the collective negotiations agreement on behalf of the employer. The undersigned finds that these and related matters were properly addressed by the Hearing Officer in his Report. The record evidence in its entirety fails to illustrate real supervisory authority (i.e., the ability to hire, discharge or discipline or effectively recommend same) on the part of the Roads Department Foremen. 2/ The Petitioner = s reference to a claimed unit A sick-out @ in 1974 or 1975 (T. 12/6/77 pp. 78-81) is devoid of any assertion or testimony alleging coercion or intimidation of foremen resulting in a test of loyalty between fellow unit members and the County. 3/ In view of this finding the undersigned finds it unnecessary to address the Intervenor = s additional arguments concerning A established practice. @ ***** End of DR 79-8 *****