D.R. No. 77-13

Synopsis:

The Director of Representation Proceedings determines that a unit of superior officers at the Essex County Corrections Center, consisting of sergeants, lieutenants, can captains, is an appropriate unit for collective negotiations and directs a secret ballot election among the superior officers to determine whether they desire that Petitioner represents them. Affirming the findings of a Hearing Officer, the Director finds that a substantial actual and potential conflict of interest exists between the superior officers and other correction officers which warrants that superior officers and correction officers no longer be included in one unit. The Director excludes the deputy warden from the unit determined to be appropriate insofar as there is also a substantial actual and potential conflict of interest between the deputy warden and the superior officers. In view of this findings, the Director does not consider the argument raised by the County that the deputy warden is a managerial executive.

PERC Citation:

D.R. No. 77-13, 3 NJPER 96 (1977)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

435.36 437.30 437.50

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 77-013.pdf
Appellate Division:
Supreme Court:

D.R. NO. 77-13 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Public Employer, -and- Docket No. RO-1035 ESSEX COUNTY CORRECTIONS CENTER SUPERIOR OFFICERS ASSOCIATION, Petitioner, -and- POLICEMEN = S BENEVOLENT ASSOCIATION OF NEW JERSEY, LOCAL 157, Intervenor. Appearances: For the Public Employer Goldberger, Siegel & Finn, Esqs. (Mr. Howard A. Goldberger, of Counsel) For the Petitioner Lieutenant Thomas C. Thompson For the Intervenor Schwartz, Field & D = Alessio, Esqs. (Mr. Michael D = Alessio, of Counsel) DECISION AND DIRECTION OF ELECTION Pursuant to a Notice of Hearing to resolve a question concerning the representation of certain employees of the Essex County Board of Chosen Freeholders, a hearing was held before Timothy A. Hundley on April 5, 1976, and May 10, 1976 in Newark, New Jersey. At the hearing all parties were given an opportunity to examine witnesses, present evidence, and argue orally. Petitioner filed a brief, and the Hearing Officer issued his Report and Recommendations on October 25, 1976. A copy is annexed 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: 1. The Essex County Board of Chosen Freeholders is a Public Employer within the meaning of the New Jersey Employer- Employee Relations Act (the A Act @ ), as amended, and is subject to its provisions. 2. The Essex County Corrections Center Superior Officers Association and the Patrolman = s Benevolent Association of New Jersey, Local 157, are employee representatives within the meaning of the Act and are subject to its provisions. 3. The Public Employer having refused to recognize the Petitioner as the exclusive representative of certain employees, a question concerning the representation of public employees exists and the matter is appropriately before the undersigned for determination. 4. The Petitioner seeks to represent all correction officers in the titles of sergeant, lieutenant, captain and deputy warden employed by the Essex County Board of Chosen Freeholders at the County Correction Center. Intervenor is currently the recognized representative for all correction officers including the petitioned-for titles with the possible exception of deputy warden. The Hearing Officer found that the captains, lieutenants and sergeants ( A superior officers @ ) are not supervisors within the meaning of the Act; nevertheless, he found that a substantial conflict of interest, both actual and potential exists between superior and other correction officers, thus barring their inclusion in the same negotiating unit. He further found that as to the deputy warden there exists a substantial actual and potential conflict of interest in relation to the interests of the superior officers. It was the Hearing Officer = s recommendation that an election be directed for a unit of superior officers to determine whether they desire to be represented by Petitioner for the purpose of collective negotiations. Due to the conflict of interest found between superior officers and other correction officers, it was recommended that Policemen = s Benevolent Association, Local 157 be precluded from representing the superior officers. 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 findings and conclusions of the Hearing Officer that actual and potential conflicts of interest exist between superior officers and non- superior officers, on one hand, and the deputy warden, on the other, that are of such substantial nature as to warrant that superior officers not be included with these other personnel in a negotiations unit.1/ The Hearing Officer = s conclusions are consistent with past Commission determinations with respect to the issues presented herein. Cf. In re City of Union City, P.E.R.C. No. 70.2/ So too, is the Hearing Officer = s conclusion that P.B.A. Local 157, as representative of non-superior personnel, is precluded from representing the superior officers.3/ 5. Accordingly, the undersigned shall direct an election in the following unit: A All County Correction Captains, Lieutenants and Sergeants employed by the Essex County Board of Chosen Freeholders at the Essex County Correction Center but excluding the Warden, Deputy Warden, County Correction officers, non-police employees, managerial executives, confidential employees, professional employees, craft employees and all other employees. @ 6. The undersigned directs that a secret ballot election be conducted in the unit found appropriate. The election shall be concluded no later than thirty (30) days from the date set forth below. Those eligible to vote ware employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during the 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 quit or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date. Pursuant to Rule Section 19:11-2.7, the public employer is directed to file with the undersigned 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. Such list must be received no later than ten (10) days prior to the date of the election. The undersigned shall make the eligibility list immediately available to all parties to the election. Failure to comply with the foregoing shall be grounds for setting aside the election upon the filing of proper post-election objections pursuant to the Commission = s Rules. Those eligible to vote shall vote on whether or not they desire to be represented for the purposes of collective negotiations by Essex County Corrections Center Superior Officer = s Association. The majority representative shall be determined by a majority of the valid ballots cast. The election directed herein shall be conducted in accordance with the provisions of the Commission = s Rules and Regulations and Statement of Procedure. BY ORDER OF THE DIRECTOR OF REPRESENTATION PROCEEDINGS /s/Carl Kurtzman, Director Representation Proceedings DATED: March 16, 1977 Trenton, New Jersey 1/ Such finding renders it unnecessary to determine whether the deputy warden should be excluded from a unit of superior officers on the basis of the employer = s claim that the deputy warden is a managerial executive. Neither does the undersigned find it necessary to reach the issue as to whether the superior officers are statutory supervisors or whether they have been fairly represented in past negotiations. 2/ In City of Union City, the Commission found the Chief of Police a statutory supervisor and also excluded the Deputy Chief from the superior officer = s unit on the basis that the Deputy substituted for the Chief in his absence. The finding of supervisory status would inherently presuppose a conflict of interest situation encompassing the conflict of interest determination found herein. 3/ See In re City of Camden, P.E.R.C. No. 52. It would appear from the record that P.B.A. Local 157 has not, in fact, requested to appear on the ballot to represent the superior officers, if such a unit were found to be appropriate. ***** End of DR 77-13 *****