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D.R. No. 80-34

Synopsis:

The Director of Representation resolves challenges to voter eligibility in a Commission representation election conducted among blue-collar road department employees. The Director, agreeing with the recommendations of a hearing officer, finds that (1) the Road Superintendent is a supervisor; (2) the clerk general is a white-collar employee; and (3) the mechanic is a police department employee. Therfore, the ballots of these three employees are void. The Director further determines that the Assistant to the Road Superintendent is not a supervisor and that there is neither an actual or potential substantial conflict of interest to preclude his inclusion in a unit with other blue collar employees. The Director orders that the Assistant Superintendent's ballot be counted.

PERC Citation:

D.R. No. 80-34, 6 NJPER 241 (11117 1980)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.32 33.42 33.333 33.45 34.11 34.22

Issues:


DecisionsWordPerfectPDF
NJ PERC:.DR 80-034.wpdDR 80-034.pdf - DR 80-034.pdf

Appellate Division:

Supreme Court:



D.R. NO. 80-34 1.
D.R. NO. 80-34
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF MANALAPAN,

Public Employer,

-and- Docket No. RO-79-199

NEW JERSEY ORGANIZING COMMITTEE,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO,

Petitioner.

Appearances:

For the Public Employer
Sonnenblick, Parker & Selvers, attorneys
(Gerald N. Sonnenblick of counsel)

For the Petitioner
Max Wolf, Coordinator
DECISION

Pursuant to a Decision and Direction of Election,1/ an election was conducted by the Public Employment Relations Commission (the A Commission @ ) on September 6, 1979, among blue collar employees in the Road Department of the Township of Manalapan (the A Township @ ) to ascertain whether the employees desire to be represented by the New Jersey Organizing Committee, Service Employees International Union, AFL-CIO (the A Petitioner @ ). The Tally of Ballots reveals that four (4) valid ballots were cast for Petitioner, three (3) valid ballots were cast against representation, and four (4) ballots were challenged. The challenged ballots are determinative of the results of the election.
The individuals whose voting eligibility was questioned and whose ballots were challenged occupy the positions of Road Superintendent, Assistant to the Road Superintendent, Clerk General, and Mechanic.
Pursuant to a Notice of Hearing, a hearing was held before Hearing Officer Steven P. Weissman on November 28, 1979, in Trenton, New Jersey to resolve the voting eligibility of the challenged voters. All parties were given an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Because of the unavailability of the original Hearing Officer, the Director of Representation, by letter dated November 28, 1979, transferred this matter, pursuant to N.J.A.C. 19:11-6.4, to Hearing Officer Arnold H. Zudick for the issuance of a Report and Recommendations. The Hearing Officer issued his Report and Recommendations on January 30, 1980, a copy of which is attached hereto and made a part hereof. The Petitioner filed exceptions to the Report on February 26, 1980. The Township has not filed exceptions to the Report, nor has it filed an answer to the Petitioner = s exceptions.
The Hearing Officer recommended that three of the challenged voters were ineligible that one challenged voter was eligible to vote. Accordingly, the Hearing Officer recommended that the ballots cast by the Road Superintendent, the Clerk General and the Mechanic not be counted. The Hearing Officer recommended that the ballot of the Assistant to the Road Superintendent should be counted.
The Hearing Officer found that the Road Superintendent is a supervisor within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 3413A-1 et seq. (the A Act @ ), since he makes effective recommendations concerning hiring and firing of employees. With respect to the Clerk General, the Hearing Officer found that the person holding this title performs clerical functions. Since the Commission directed an election in a unit defined as including all blue collar employees of the Road Department, the Hearing Officer found that the inclusion of the Clerk General in this unit would be inappropriate. Concerning the Mechanic, the Hearing Officer found that he is not an employee of the Road Department. Since the defined collective negotiations unit includes Road Department employees only, the Hearing Officer recommended that the Mechanic was ineligible to vote in the election. Finally, the Hearing Officer found that the Assistant to the Road Superintendent is not a supervisor within the meaning of the Act, nor would his inclusion in the unit create a conflict of interest. Therefore, the Hearing Officer recommended that the ballot cast by the Assistant to the Road Superintendent be counted.
The Petitioner excepts to two of the findings and conclusions of the Hearing Officer. With respect to the eligibility of John Lewis, Assistant to the Road Superintendent, the Petitioner alleges that there is a conflict of interest between the Assistant Superintendent and the other employees in the unit. More specifically, Petitioner asserts that the Assistant to the Road Superintendent can recommend the discipline and hiring of employees, and, in the absence of the Superintendent, the Assistant Superintendent is in full and undisputed charge of the Road Department. With respect to the voting eligibility of James Allen, the Mechanic, the Petitioner urges that this title should be included in the unit.
After an independent review of the entire record in this matter, including the Hearing Officer = s Report and Recommendations, and the exceptions, the undersigned adopts the findings of fact, conclusions of law and recommendations of the Hearing Officer.
The record establishes that the Superintendent of the Road Department is a supervisor and that the Clerk General is a white collar employee. No exceptions were filed concerning the Superintendent and the Clerk General. Accordingly, the undersigned determines that these individuals were not eligible voters in the election and their ballots are void.
With respect to the Assistant to the Road Superintendent, the Petitioner argues that the Hearing Officer was incorrect in finding that he does not effectively recommend the discipline and hiring of employees. Nothing in the record supports a finding that the Assistant to the Road Superintendent plays any part in the hiring, discharge or discipline of employees. While he may be in charge when the Road Superintendent is not present, the record does not establish that a conflict of interest would arise if he was included in the unit. In Bd. of Ed. of West Orange v. Wilton, 57 N.J. 404 (1971), the Supreme Court held:
. . .where the performance of the obligations or the powers delegated by an employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for the inclusion of such supervisor is not present.

at 425.
The undersigned is convinced that the duties of the Assistant to the Road Superintendent, the second person in charge, are not the duties envisioned by the Court which create a substantial conflict of interest. The occasional responsibility of the deployment of personnel by the Assistant to the Road Superintendent is insufficient to find an actual or potential substantial conflict of interest which negates the community of interest which the Assistant shares with the other blue collar employees.
With respect to the Mechanic, the Hearing Officer found that he is, and on the date of the election was, an employee of the Police Department, and not the Road Department. The Petitioner excepts to the Hearing Officer = s recommendation that the Mechanic was not an eligible voter, arguing that: (1) the unit definition which appears on its Petition for Certification of Public Employee Representative was modified by the Commission; and (2) notwithstanding the Mechanic = s transfer from the Road Department payroll to the Police Department payroll before the date of the election, the work location and the work performed by the Mechanic is still the same with the exception that work on police cars is now given greater priority than work on Road Department vehicles. The Petitioner states that the Hearing Officer erred in finding that the Township was not required to advise the Petitioner and the Commission of the Mechanic = s transfer, and the Petitioner suggests that this finding by the Hearing Officer is A very much akin to a collusion effort to deny the rights of an employee to representation. @
Regarding the claim that the language of the direction of election which defined the unit was not consistent with the intent of the Petitioner, the record in the administrative investigation of this matter reveals that the Petitioner originally filed on April 5, 1979, for a unit described as included: A All Blue Collar employees of the Department of Public Works, janitorial staff, repair and maintenance. @ An informal conference was convened among the parties on May 14, 1979, at which disputes concerning the unit eligibility of certain employees were discussed. On July 20, 1979, the undersigned advised the parties of the results of the administrative investigation, and listed among the administrative findings that the Petitioner had filed a Petition seeking a unit comprised of all blue collar employees of the Road Department of the Township. The undersigned stated an intent to direct an election among the employees in that unit in the absence of substantial and material disputed factual issues which might be presented to the undersigned by either or both of the parties. The Petitioner did not advise the undersigned that the definition of the unit which would be involved in the direction of an election was not consistent with the unit for which it petitioned. Accordingly, in the absence of any substantial and material disputed factual issues the undersigned proceeded to direct an election in the unit which the undersigned had previously identified. The parties were served with a decision directing an election and the employer was directed to post a Notice of Election in which the employees were advised that an election would be directed among the employees in the Road Department. The Petitioner did not come forward either subsequent to the direction of election or following the posting of the Notice of Election to dispute the definition of the unit. Accordingly, there is ample evidence to support the Hearing Officer = s finding that the challenged individual was not included in the unit as defined in the direction of election.
Regarding the transfer of the Mechanic to the Police Department payroll, the record amply supports the findings of the Hearing Officer that the Mechanic is not an employee of the Road Department. The Mechanic was transferred to the Police Department orally in July 1979, and by formal resolution on August 8, 1979 retroactive to August 6, 1979. The record supports the Hearing Officer = s conclusion that the Petitioner had ample opportunity to ascertain the status of eligible unit employees prior to the election.2/ The suggestion that the Hearing Officer = s finding that the Township was not specifically required to advise the Petitioner of the transfer may have constituted a collusive effort to deny this employee = s right to choose representation is entirely unfounded. Accordingly, the undersigned concludes that the Mechanic was ineligible to vote in the September 6 election.
Accordingly, for the above reasons the undersigned determines that the ballots cast by the Road Superintendent, the Clerk General and the Mechanic are void since these employees are not eligible for inclusion in the proposed unit. It appears that the sole valid ballot herein is that of the Assistant to the Road Department. In view of the disposition of the challenges herein, and the Tally of Ballots which indicates that four unchallenged ballots were cast in favor of the Petitioner and three unchallenged ballots against representation, the disposition of the ballot cast by the Assistant to the Road Superintendent is determinative of the result of the election.
The undersigned directs that the ballot be opened and that a Revised Tally of Ballots be issued.
BY ORDER OF THE DIRECTOR
OF REPRESENTATION

Carl Kurtzman, Director
DATED: April 11, 1980
Trenton, New Jersey
1/ In re Tp. of Manalapan, D.R. No. 80-5, 5 NJPER 367 ( & 10187 1979).
    2/ The Petitioner did not file timely post-election objections regarding the transfer of the Mechanic prior to the election. See In re Cty. of Ocean, D.R. No. 79-34, 5 NJPER 220 ( & 10121 1979), request for review den. P.E.R.C. No. 80- 12, 5 NJPER 305 ( & 10166 1979). This would have been the appropriate procedure to place before the Commission the issue of what effect, if any, the transfer may have had on the outcome of the election. The issue of whether the Township was required to notify the Petitioner of the transfer has no bearing upon the question presented in the challenge proceeding herein i.e., the Mechanic = s status as a blue collar employee of the Road Department on the date of the election.
***** End of DR 80-34 *****