H.O. No. 80-19

Synopsis:

A Commission Hearing Officer, in a representation proceeding, recommends the dismissal of a petition to sever the security officers and senior security officers from an existing overall County unit. After review of the record, the Hearing Officer concludes that the incumbent Association has not failed to responsibly represent the security personnel.

A Hearing Officer's Report and Recommendations is not a final administrative determination of the Public Employment Relations Commission. The report is submitted to the Director of Representation who reviews the Report, any exceptions thereto filed by the parties and the record, and issues a decision which may adopt, reject or modify the Hearing Officer's findings of fact and/or conclusions of law. The Director's decision is binding upon the parties unless a request for review is filed before the Commission.

PERC Citation:

H.O. No. 80-19, 6 NJPER 336 (¶11168 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

23.26 36.221

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HO 80-019.pdf
Appellate Division:
Supreme Court:

H.O. NO. 80-19 1. H.O NO. 80-19 STATE OF NEW JERSEY BEFORE A HEARING OFFICER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of ESSEX COUNTY, 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 (Thomas J. Savage, Esq.) For the Petitioner , Robert C. Sarcone, Esq. (Gerald E. Fusella, Esq.) For the Intervenor Thomas E. Durkin, Jr. Esq. (Thomas E. Durkin, III, Esq. HEARING OFFICER = S REPORT AND RECOMMENDATIONS On November 8, 1979, Local 1158, International Brotherhood of Electrical Workers, AFL-CIO (the Petitioner) filed a timely Petition for Certification of Public Employer Representative, supported by an adequate showing of interest, with the Public Employment Relations Commission (the Commission) seeking certification as the exclusive representative for collective negotiations of a unit of employees employed by the County of Essex (County). The Petitioner seeks to sever all security officers employed by the County from a unit currently represented by the Essex County Employees Association (the Association). Both the County and the Association maintains that the unit structure should remain unchanged. The existing unit is currently comprised of all County employees with certain specified exclusions. Pursuant to a Notice of Hearing, a hearing was held before the undersigned Hearing Officer on April 15, 1980, in Newark, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. No briefs have been filed in this matter. Upon the entire record, the Hearing Officer finds: (1) The County of Essex is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the Act), is subject to its provisions and is the employer of the employees who are the subject of this petition. (2) Local 1158, IBEW, AFL-CIO and the Essex County Employees Association are employee organizations within the meaning of the Act and are subject to its provisions. (3) The Essex County Employees Association currently represents all security officers in its unit. (4) The Petitioner seeks a unit including all security officers and senior security officers. (5) The County and the Association have refused to consent to a secret ballot among the security officers. Accordingly there is a question concerning representation and the matter is properly before the Hearing Officer. Background The Essex County Employees Association was certified by the Commission in 1969 or 1970 to represent certain employees of the County of Essex.1/ Currently, this unit includes the titles security officers and senior security officers,2/ which are the subject of the instant Petition.3/ There are 55 security officers and 16 or 17 senior security officers.4/ Although disputed by the County, the President of the Association testified that there are 2,500 people in the unit.5/ Issue and Position of the Parties The issue is whether or not the incumbent Association has provided responsible representation for the security officers. The Petitioner alleges that there has not been responsible representation which warrants the severance of the security officers from the overall unit currently represented by the Association. The County and the Association take the position that the unit structure should remain unchanged. Additionally, the County is concerned with overfragmentation of bargaining units in the County.6/ The Association denies it has not provided responsible representation of the security officers. Framework for Analysis The Commission has favored the formation of negotiations units along broad-based, functional lines rather than by district occupational groupings.7/ Particularly, the Commission has applied this policy in making unit determinations for units of county employees.8/ Furthermore, the Commission has established the standards for severance of employees from appropriate collective negotiations units. In In re Jefferson Twp. Board of Education, P.E.R.C. No. 61 (1971), 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 redefinition simply on a showing that one sub-category of employed enjoyed a community of interest among themselves. Such a course would predictably 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. Discussion The instant matter involves the contention by the Petitioner that the incumbent Association has failed to provide responsible representation for security officers. In support thereof, the Petitioner relies on (1) the lack of knowledge by the security officers that the Association was their exclusive representative for collective negotiations, and (2) the Association = s failure to process and/or indifference toward grievances concerning the security officers. Considerable testimony was taken with respect to layoff notices affecting security guards. Regarding the lack of knowledge of the Association, all four witnesses who testified on behalf of the Petitioner claimed that they had never heard of the Association or knew that an association represented them for collective negotiations. Additionally, they had never seen a copy of the agreement between the County and the Association. In response the President of the Association testified that the Association publishes newsletters9/ to advise its unit members of collective negotiations matters. While the newsletter is only sent to dues paying members of the Association, additional free copies are distributed in a few locations around the County for anyone who desires a copy.10/ The newsletters also advise employees of Association meetings and has published copies of collective negotiations agreements. While well-informed unit members may be a laudable goal, the failure to do so is not tantamount to a failure to responsibly represent employees. The majority representative is responsible for representing the interest of all employees without discriminating on the basis of organizational membership. The fact that the newsletter is not distributed to non-members is not discriminatory. This A discriminatory @ conduct is not the type of discrimination which leads to a finding that the incumbent Association has not provided responsible representation. Responsible representation is measured by the conduct of the Association in negotiating collective bargaining agreement and in processing grievances. The Petitioner also attempted to show that the Association has not diligently processed grievances presented by security officers. Specifically, the witnesses for the Petitioner testified that the President of the Association advised them that the Association could do nothing about layoff notices received by security officers in January 1980. Yet the Association presented documents which appear to contradict this testimony.11/ The Association prepared a form letter for those employees who had received layoff notices to send to the Civil Service Commission to perfect their appeal rights. In fact, one of the witnesses who testified that she did not see the form letter12/ admitted that she took some of those letters for distribution to security officers at Geriatrics.13/ The undersigned must credit the testimony of the President of the Association concerning the layoff notices and the response of the Association to those notices. The Petitioner seeks a conclusion that the Association failed to respond adequately to needs of these employees. Yet, it appears that the Association did respond, and certain security officers followed the advise of the Association.14/ The Association cannot be expected to force employees to fill out form letters. The Petitioner also attempted to show a lack of action by the Association concerning incremental and promotional grievances. In both instances, it is alleged that the Association refused to act. Yet the Association did file grievances concerning the failure of the County to pay increments on January 1, 1980. With respect to the disputed promotions, certain security officers were advised that they had a restricted appointment under Civil Service Rules. The Association then advised these security officers that this restriction could be removed by taking an examination. If the restriction was not removed, the security officer would not be eligible for a promotion. The Association could not negotiate a change in Civil Service Laws and Rules.15/ In analyzing the entire record, the undersigned finds that the Association has not failed to provide responsible representation. The Association has processed grievances, has gone to arbitration concerning a dispute involving a security officer16/ and has lent assistance to security officers with disputes involving the Civil Service Commission. It appears that the security officers have been disappointed with the results arising from their problems or grievances. While the results may have been unsatisfactory, it does not lead to the conclusion that inadequate representation was provided by the Association. Recommendation Based upon the entire record, the undersigned recommends that the instant Petition be dismissed. ________________________ Bruce D. Leder Hearing Officer DATED: June 20, 1980 Trenton, New Jersey 1/ Tr. p. 103. 2/ Hereinafter, reference to security officers will include both titles. 3/ Tr. pp. 159-160 4/ Tr. pp. 151-152 5/ Tr. p. 129. On cross-examination, the President of the Association testified that the position of the County in recent negotiations was that the size of the unit was 1800 people. Tr. P. 147. 6/ See exhibit R-8. 7/ In State of N.J. v. Professional Association of New Jersey Department of Education, 64 N.J. 231 (1974), the Supreme Court endorsed the Commission = s adoption of the concept of broad-based, functional negotiating units. See also, In re State of New Jersey (Neuro-Psychiatric Institute, et al), P.E.R.C. No. 50 (1971), In re Board of Chosen Freeholders of the County of Burlington, P.E.R.C. No. 58 (1971), In re Bergen County Board of Chosen Freeholders, P.E.R.C. No. 69 (1972), and In re State of New Jersey (Prof. Association of N.J. Department of Education, et al.) P.E.R.C. No. 68 (1972). 8/ See In re Board of Chosen Freeholders of the County of Burlington, P.E.R.C. No. 49 (1971), and In re Bergen County Board of Chosen Freeholders, P.E.R.C. No. 69 (1972). See also In re Union County Board of Chosen Freeholders, E.D. 49 (1974) and In re Union County Board of Chosen Freeholders, E.D. No. 68 (1975). 9/ See Exhibit I-5. 10/ Tr. p. 117. 11/ See Exhibits I-1, I-2, I-4A, I-4B, I-4C. 12/ Tr. p. 54. 13/ Tr. p. 66. 14/ See Exhibits I-4A, I-4B, I-4C. 15/ State v. Supervisory Employees Association, 78 N.J. 54 (1978). 16/ See Exhibit I-3. ***** End of HO 80-19 *****