H.E. NO. 84-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BERGEN COUNTY UTILITIES AUTHORITY,

Respondent,

-and-	Docket No. CO-83-133-91

UTILITY WORKERS UNION OF AMERICA,

LOCAL 534, AFL-CIO,

Charging Party.

Appearances:

For the Respondent

Paul J. Giblin, Esq.

For the Charging Party

Thomas O'Hare, President

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on November 22, 1982 by the Utility Workers Union of America, Local 534, AFL-CIO (hereinafter the "Charging Party" or the "Union") alleging that the Bergen County Utilities Authority (hereinafter the "Respondent" or the "Authority") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that four days after the conclusion of the hearing in another case before the Commission involving the same parties (Docket Nos. CO-82-232 and CO-83-5) the Respondent installed a time clock and for the first time required employees in the Clerical and Technical unit, who are represented by the Union, to punch a time clock. This action by the Respondent manifested anti-union animus and was in retaliation against the said employees because they filed a complaint and gave testimony under the Act in the prior proceeding, supra, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3), (4) and (7) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 11, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on September 8, 1983 in Newark, New Jersey, at which time the parties stipulated a complete factual record. The parties argued orally on October 3, 1983 and the Respondent filed a post-hearing brief on the same date.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the oral argument of the parties and the post-hearing brief of the Respondent, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the stipulated record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The Bergen County Utilities Authority is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Utility Workers Union of America, Local 534, AFL-
CIO, is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Charging Party has for several years represented employees of the Respondent in a "blue collar" unit. These employees are hourly and have always punched a time clock.

4.	Since 1981 the Charging Party has represented a unit of "clerical and technical" employees and these employees are currently covered by the same collective negotiations agreement as the "blue collar" unit employees.

5.	The collective negotiations agreement covering the "blue collar" and "clerical and technical" employees is effective during the term January 1, 1982 through December 31, 1984. The negotiations which brought the "clerical and technical" employees under the "blue collar" agreement were consummated in March or April 1982 and the "clerical and technical" employees ratified the said agreement in June 1982.

6.	Prior to being covered by their first collective negotiations agreement the "clerical and technical" employees were compensated at an annual salary. However, when the foregoing agreement became effective, they were converted to an hourly rate. This change was implemented after the ratification of the agreement by the "clerical and technical" employees in June 1982, supra.

7.	The Charging Party also represents a unit of "landfill and solid waste" hourly employees employed by the Authority. These employees are covered by a separate collective negotiations agreement, which is effective during the term January 1, 1983 through December 31, 1984. Further, these employees have always punched a time clock.

8.	Pursuant to Unfair Practice Charges filed by the Charging Party against the Respondent in Docket Nos. CO-82-232 and CO-83-5, hearings were held before Hearing Examiner Charles A. Tadduni on September 29, September 30 and October 14, 1982, at which time three witnesses testified for the Charging Party: Elaine Berg, Rose O'Hagen and Richard Andretta.

9.	On October 18, 1982, four days after the conclusion of the above hearing, the Respondent posted a notice requiring employees in the "clerical and technical" unit to punch a time clock for the first time.

10.	The Respondent's business justification for requiring employees in the "clerical and technical" unit to punch a time clock in the same manner as employees in the "blue collar" and the "landfill and solid waste" units, who have always punched a time clock, is that when the "clerical and technical" employees were changed from compensation at an annual salary to an hourly rate the Respondent's auditors needed a method to verify the hours worked. The time clock was the vehicle decided upon to accomplish this purpose.

11.	Some 14 unrepresented employees, who are neither managerial executives nor supervisors, are not required to punch a time clock (CP-1). It is not entirely clear whether some of these 14 employees are hourly compensated while others are compensated on an annual basis.

THE ISSUE

Did the Respondent violate Subsections (a)(1), (3), (4) and (7) of the Act when, on October 18, 1982, four days after three employees in the "clerical and technical" unit testified on behalf of the Charging Party at a Commission hearing, the Respondent unilaterally installed a time clock and required employees in the "clerical and technical" unit to punch a time clock?

DISCUSSION AND ANALYSIS

The Respondent Did Not Violate The

Act When It Unilaterally Required

Employees In The "Clerical And

Technical" Unit To Punch A Time

Clock On And After October 18, 1982

The Charging Party urges that a violation of the Act be found by reason of the timing of the Respondent's installation of a time clock on October 18, 1982, coming as it did four days after the completion of the Unfair Practice Hearing involving the same Respondent in Docket Nos. CO-82-232 and CO-83-5. The Hearing Examiner is not persuaded that, absent other discriminatory conduct of the Respondent, the Charging Party has proven by a preponderance of the evidence that the Respondent violated the Act, particularly, Subsections (a)(3) and (4).

Other than the fact that the Respondent had been charged in the earlier case, which was heard by Hearing Examiner Tadduni, there is no basis for finding a discriminatory motive on the part of the Respondent in the installation of the time clock on October 18, 1982. Mr. Tadduni has not rendered a decision in that case and, thus, the Hearing Examiner herein cannot speculate as to what findings will be made.

It strains credulity for the Charging Party to contend that merely because three individuals in the "clerical and technical" unit testified in Mr. Tadduni's hearing the Respondent elected to install a time clock four days later. More logical is the business justification advanced by the Respondent, namely, that a time clock was necessary in order to verify the hours worked by the "clerical and technical" employees, who formerly were compensated at an annual salary and have since June 1982 been compensated at an hourly rate. It just makes plain good sense to the Hearing Examiner that the employer was in need of a method of verifying hours worked for purposes of payment of wages and the calculation of fringe benefits. The Hearing Examiner does not attach any weight to the fact that some personnel, not represented by a labor organization, are not required to punch a time clock (CP-1).

Finally, the Hearing Examiner takes note of the obvious fact that a time clock cannot be installed "overnight." The clock or clocks must be ordered and installed. Time cards must be printed. Logistically, this must take more than four days.

The Hearing Examiner concurs with the cases from the private sector, cited by the Respondent, wherein the National Labor Relations Board has sustained an employer's decision to install a time clock: Care Ambulance, Inc., d/b/a/ American Ambulance, 255 NLRB 417, 107 LRRM 1043 (1981) and Rust Craft Broadcasting of New York, Inc., 225 NLRB 327, 92 LRRM 1576 (1976).

Based on the foregoing, the Hearing Examiner will recommend dismissal of the Complaint.

* * *

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1), (3), (4) and (7) when it unilaterally installed a time clock on October 18, 1982 for employees in the "clerical-technical" unit, the Respondent having demonstrated a legitimate business justification for so doing.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	October 6, 1983

Trenton, New Jersey