D.R. No. 81-3

Synopsis:

The Director of Representation, agreeing with the recommendations of a Hearing Officer, determines that registered nurses shall be removed from an existing County negotiations unit and may choose a representative through a secret ballot election in a unit comprised of registered nurses. The Director finds that the current majority representative has not provided responsible representation to the nurses and that the intra-union relationship in the circumstances presented is instable.

PERC Citation:

D.R. No. 81-3, 6 NJPER 415 (¶11209 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

21.7 33.323 33.336 33.391 34.21 36.221

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 81-003.pdf
Appellate Division:
Supreme Court:

D.R. NO. 81-3 1. D.R. NO. 81-3 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of COUNTY OF CAMDEN, Public Employer, -and- Docket No. RO-80-56 REGISTERED PROFESSIONAL NURSING UNIT #1, Petitioner, -and- CAMDEN COUNCIL #10, NEW JERSEY CIVIL SERVICE ASSOCIATION, Intervenor. Appearances: For the Public Employer, Vincent Paglione, Assistant County Counsel For the Petitioner, Tomar, Parks, Seliger, Simonoff & Adourian, attorneys (Mary L. Crangle of counsel) For the Intervenor Joseph A. Carmen, attorney DECISION AND DIRECTION OF ELECTION On October 3, 1979, the Registered Professional Nursing Unit # 1 ( A RPNU @ ) filed a Petition for Certification of Public Employee Representative with the Public Employment Relations Commission (the A Commission @ ) with respect to a proposed unit comprised of all registered nurses employed by the County of Camden at the Lakeland Institution Complex. Camden Council #10, New Jersey Civil Service Association ( A Council 10") is currently the recognized representative of a unit of county employees including these registered nurses and has intervened in the instant proceeding. Council 10 objects to the removal of the registered nurses from its collective negotiations unit and opposes a separate unit for such nurses. The County does not object to the creation of a separate negotiations unit for the registered nurses. Pursuant to a Notice of Hearing, hearing were held before the Commission Hearing Officer Joan Kane Josephson, on January 9 and 21, 1980 in Trenton, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. The County did not participate at the hearing. Council 10 and RPNU submitted post hearing briefs and the Hearing Officer issued her Report and Recommendations on May 9, 1980. A copy of the Hearing Officer = s Report and Recommendations is attached hereto and made a part hereof. Council 10 filed exceptions to the Hearing Officer = s Report on May 21, 1980. The undersigned has considered the entire record herein including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits and the exceptions, and on the basis thereof finds and determines as follows: 1. The County of Camden 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 proceeding and is subject to the provisions of the Act. 2. The Registered Professional Nursing Unit #1 and Camden Council #10, New Jersey Civil Service Association are employee representatives within the meaning of the Act and are subject to its provisions. 3. The RPNU seeks to represent a unit of all registered nurses employed by the County at the Camden County Health Services Center at Lakeland. To accomplish such result, the RPNU seeks to sever the registered nurses from their inclusion in the currently recognized broad-based countywide unit represented by Council 10. The RPNU is already recognized by Council 10 and the County as the representative of registered nurses within the Council 10 unit. The recognition clause of the current agreement between the County and Council 10 provides in part that: The Camden County Board of Chosen Freeholders recognizes Camden Council # 10, New Jersey Civil Service Association (Registered Professional Nursing Unit #1, R.P.N.U.), as being the exclusive bargaining agent for the purpose of establishing salaries, wages and hours for all R.N. = s in the classifications listed and attached herein and by reference made a part of this agreement as Appendix B. Under this somewhat unusual arrangement, Council 10 has been responsible for negotiating the major terms and conditions of employment for unit members on a countywide level; however, the RPNU has been permitted to negotiate the A local @ issues concerning registered nurses. By filing the instant Representation Petition, the RPNU desires to terminate the existing relationship and seeks Commission certification as the exclusive representative for the registered nurses. 4. After examining evidence with respect to the processing by Council 10 of grievances filed by registered nurses and with respect to Council 10's [involvment] involvement in negotiations between the County and the RPNU, the Hearing Officer concluded that the instant relationship was not stable and that Council 10 had not provided responsible representation. 5. In excepting to the Hearing Officer = s Report Council 10 argues: The transcript of this matter basically consists of the testimony of two people, Mark Kunzinger and Ann Henkle. For all the hours of hearings in this matter, the Hearing Officer seems to conclude that basically the filing of one grievance by Mr. Kunzinger is tantamount to lack of responsible representation by the Intervenor. In the final analysis, our contention remains the same. The Commission is allowing this case to proceed based upon the action of two people, that is, Kunzinger and Henkle. There has been contentions of instability and lack of responsible representation for years and yet at all hearings it has been the testimony of two people and two people only. In an action where the Petitioner has the burden of proof it is, in our opinion, outrageous that the Commission can be moved by such a transport and absurd A Catch-22" type of argument. In addition, Council 10 excepts to the Hearing Officer = s reference to an unfair practice charge involving the parties which is presently before the Commission. 6. In In re Jefferson Tp. Bd. of Ed., P.E.R.C. No. 61 (1971) the Commission established the standard for severance of employees from appropriate collective negotiations units. The Commission stated: 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 re- definition simply on a showing that one sub- category of employees enjoyed a community of interest among themselves. Such a course would predictable lead to continuous agitation and uncertainty, 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. In W. Milford Bd of Ed., P.E.R.C. No. 56 (1971) the Commission stated: The measure of fair representation is ultimately found to the negotiating table, in the administration of the negotiated agreement and in the processing of grievances. Accordingly, the issue placed before the undersigned is whether Council 10 has met its responsibility in the processing of grievances and in the negotiation of agreement in a manner which would constitute responsible representation of the interest of unit members and/or whether the instant intra-unit relationship is unstable. An examination of the record reveals that Council 10 is responsible for the processing of a grievance in the event that the grievance remains unresolved after the second step, i.e., the Lakeland level. The testimony of RPNU witnesses indicated a frustration on the part of registered nurses with the administration, those grievances which required monetary compensation would nevertheless be denied at the County level. In addition to generalized statements concerning its frustration, the RPNU identified two specific formal grievances illustrative of its frustrating grievance processing experience. In these cases it had requested that Council 10 move the grievances to binding arbitration because of their unsatisfactory resolution. The evidence with respect to one of the grievances is supported by a series of exhibits which document numerous communications with the president of Council 10. The unrefuted testimony reveals that with respect to the first grievance no demand for binding arbitration was made upon the County and neither the grievant nor the RPNU was advised of the refusal by Council 10 to submit the matter the binding arbitration and, attendantly, the reasons for non-pursuit. With respect to the second grievance, which was submitted by the chief negotiator for the RPNU, the testimony reveals that after repeated telephone contacts the President of Council 10 advised the grievant that Council 10 would not move the grievance to binding arbitration and declined to advise the grievant why a demand would not be made for arbitration. The undersigned notes that at the time the grievance was pending, the RPNU, Council 10 and the County were engaged in negotiations toward an agreement for the nurses which would be attached to the master Council 10 collective negotiations toward an agreement for the nurses which would be attached to the master Council 10 collective negotiations agreement. The undersigned further notes that this grievance was eventually successfully resolved after direct meetings between the grievant and a County freeholder which bypassed Council 10. The record reveals that the negotiations concerning the separate agenda of the special concerns of the nurses were difficult negotiations. The negotiations sessions which were attended by County and RPNU representatives and often by the President of Council 10, were sometimes accompanied by disputes between the RPNU and Council 10 over the propriety of certain benefits for nurses proposed by the RPNU for inclusion in the contract. In one case Council 10 objected to leave time for nurses to attend a nurses convention. In another case Council 10 objected to improved vacation benefits for nurses which the County and the RPNU had apparently agreed to. The evidence reveals that agreement was finally reached on an addendum by County and RPNU negotiators at a session which was not attended by Council 10's President. However, the draft of the agreement was submitted to the Council 10 President for typing and for subsequent submission to the RPNU and the County. Upon receipt of the typed verison, the RPNU representatives discovered that certain terms which has been agreed upon by the County and the RPNU had been changed by the Council 10 President. RPNU representatives made repeated efforts to contact the Council 10 President, seeking to discuss these differences. However, it appears that the President of Council 10 was resistant to meeting with the RPNU representatives and purposely avoided attending a meeting when one was finally scheduled. Eventually, the nurses engaged in a job action and were successful in meeting directly with County representatives to resolve those areas that were changed in the draft prepared by Council 10's President. Based upon the above, the undersigned is in agreement with the Hearing Officer = s conclusion that Council 10 has not provided responsible representation to registered nurses and that the existing intra-unit relationship is unstable. An organization which fails to advise employees that formal grievances, wherein requests have been made for binding arbitration, will not be submitted to arbitration and fails to advise employees of the reasons for refusing to submit grievances to arbitration is acting in an arbitrary manner and is not affording responsible representation. Considering that one of the grievances was presented by the chief negotiator for the RPNU and the rejection of the further processing of the grievance occurred at the same time that the parties were engaged in difficult negotiations, leads the undersigned to the reasonable presumption that the individual was being targeted for invidious representation because of the active disagreement that ensued between Council 10 and the RPNU. This circumstances is evidence of the degree of instability in the relationship existing between the RPNU, Council 10 and the County. Furthermore, Council 10 did not provide responsible representation when it changed the agreement, reached between RPNU and the County without advising the RPNU of the changes and without responding to the RPNU = s request to meet with Council 10. The fact that the County and RPNU representatives later succeeded resolving the dispute in the absence of Council 10 participation reflects as well upon the instability of a relationship which includes Council 10, the RPNU and the County. The fact that RPNU = s chief negotiator and a County Freeholder bypassed Council 10 to resolve the former = s grievance also reflects such instability. Accordingly, the undersigned concludes that the RPNU has met its responsibility to demonstrate that Council 10 was not providing responsible representation to registered nurses and that the existing relationship is unstable. Council 10 chose not to present any witnesses to rebut the presentations made by the RPNU. The undersigned concludes that the irresponsible representation provided herein and the instability of the existing relationship are such as to require the extraordinary result of severing the registered nurses from the existing Council 10 unit. Additional factors supports this result. First, the registered nurses are a minority grouping of professional employees in a basically nonprofessional unit. The manner in which they were included in the unit has been placed in question. The Legislature in adopting N.J.S.A. 34:13A-6(d) provided special self-determination privileges to professional employees concerning their inclusion in units with nonprofessional employees, thereby recognizing the unique and separate interests of professional employees. Second, the employer herein has consented to a separate unit of registered nurses. Finally, the undersigned notes that the Hearing Officer below did not improperly refer to an existing unfair practice proceeding before the Commission. Her factual findings and recommendations were solely construed from the record obtained in the representation hearing below. Accordingly, the undersigned determines that the County = s registered nurses at the Lakeland Institution comprise an appropriate unit and may select their exclusive representative, if any, at a secret ballot election conducted by the Commission. Therefore, the undersigned finds that the appropriate unit is: all registered nurses employed by the County of Camden at the Lakeland Institution Complex, but excluding nonprofessionals, managerial executives, confidential and craft employees, police and supervisors within the meaning of the Act. Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that an election be conducted among the employees described above. The election shall be conducted no later than thirty (30) days from the date set forth below. Those eligible to vote are the employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, or on vacation, or temporarily laid off, including those in military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who resigned or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date. Pursuant to N.J.A.C. 19:11-9.6, the Public Employer is directed to file with the undersigned and with the Association an election eligibility list consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by the undersigned no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with the Registered Professional Nursing Unit # 1 and with Camden Council # 10, New Jersey Civil Service Association with statement of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances. Those eligible to vote shall vote on whether or not they desire to be represented for the purpose of collective negotiations by Registered Professional Nursing Unit # 1, Camden Council # 10, New Jersey Civil Service Association, or neither. The exclusive representative, if any, shall be determined by the majority of valid ballots cast be the employees voting in the election. The election directed herein shall be conducted in accordance with the provisions of the Commission = s rules. BY ORDER OF THE DIRECTOR OF REPRESENTATION _________________________ Carl Kurtzman, Director DATED: July 31, 1980 Trenton, New Jersey ***** End of DR 81-3 *****