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D.R. No. 82-2

Synopsis:

The Director of Representation, based upon stipulations of fact, dismisses a Petition for Certification of Public Employee Representative with respect to employees of Bergen County CETA Incorporated, finding that the Employer is not a public employer within the meaning of the Act. Although the Employer receives federal funds through the County of Bergen which is the prime sponsor of CETA funds in the County, neither the County nor any other public entity is the employer of the affected employees because the Employer alone maintains substantial control of labor relations affecting its employees. The Employer is chartered as a private non-profit Corporation, designates its own directors, and hires and fires its own employees.

PERC Citation:

D.R. No. 82-2, 7 NJPER 422 (¶12187 1981)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

11.61

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 82-002.wpdDR 82-002.pdf - DR 82-002.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 82-2 1.
    D.R. NO. 82-2
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    BERGEN COUNTY CETA INCORPORATED,

    Employer,

    -and- Docket No. RO-81-173

    COMMUNICATION WORKERS OF AMERICA,
    AFL-CIO,

    Petitioner.

    Appearances:

    For the Employer,
    Leon B. Savetsky, Esq.

    For the Petitioner,
    Ronald Smith, CWA Representative
    DECISION

    On January 21, 1981, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by the Communications Workers of America (the A CWA @ ) seeking to represent certain employees employed by Bergen County CETA, Inc., (the A Employer @ or the A Corporation @ ). The Employer claims that it is not a 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 @ ), and is therefore not subject to the jurisdiction of the Commission.1/
    The undersigned, on January 22, 1981, directed that an administrative investigation be conducted herein to determine the facts. Thereafter, a meeting was conducted on February 24, 1981 at which time, the parties agreed to exchange certain information with respect to the Petition. Subsequently, however, the parties were unable to agree upon the facts and could not agree upon a mutual resolution of the matter.
    Pursuant to a Notice of Hearing dated April 9, 1981, the undersigned assigned this matter to a Commission Hearing Officer to conduct a hearing to determine the facts. A pre-hearing conference was held on May 13, 1981, at which time the parties informed the Hearing Officer that they were prepared to stipulate the facts and waive a hearing and submit the matter directly to the undersigned for a decision. The stipulations of fact were signed on May 19, 1981, and the Employer submitted a brief herein which was received by May 20, 1981. The CWA did not file a brief.
    Based upon the entire record herein, which includes the Petition and Notice of hearing, the stipulated facts and the attachments, and the Employer = s brief,2/ the undersigned finds and determines as follows:
    1. The Bergen County CETA, Inc., is the employer of the employees sought to be represented by the CWA.
    2. CWA is an employee representative within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ) and is subject to the provisions thereof.
    3. CWA has filed a Petition for Certification of Public Employee Representative with respect to a proposed unit consisting of certain employees of the Corporation.
    4. The Employer asserts that it is not a public employer within the meaning of the Act and therefore the Commission lacks jurisdiction in this matter. CWA asserts that the Employer is a public employer because it receives public funds for its operation. Since a petition raising a question concerning representation has been filed, and since a dispute exists between the parties, the matter is properly before the undersigned for determination.
    5. Pursuant to N.J.A.C. 19:11-6.7, the parties have waived a hearing and a hearing officer = s report and recommendations with respect to the jurisdictional issue and have agreed to submit this matter directly to the undersigned for determination based upon the petition, the stipulations of fact and the attachments, and the briefs and those attachments. The stipulations, which are summarized infra, are attached hereto in their entirety and are made a part hereof.
    6. The Employer was incorporated as a non-profit corporation on September 22, 1980, pursuant to the Corporation and Associations Not For Profit Act, N.J.S.A. 15:1-1 et seq., for the purpose of operating and administering the Comprehensive Employment and Training Act in Bergen County. The original corporate Board of Trustees, as well as any changes in the membership of the Board, are appointed by Resolution of the County Freeholders. However, none of the Employer = s trustees are employees of Bergen County and none are County Freeholders.3/
    7. The Board of Trustees, without control or consent of the County, hires the Executive Director of the Corporation who in turn hires the other corporate employees.
    8. The Corporation, through the Executive Director, controls the labor relations of the Employer including hiring, evaluation, supervision, discipline, promotions, and discharge of employees without any input from Bergen County.
    9. The Employer is funded exclusively through Federal funds from the U.S. Department of Labor. The Employer formulates and controls its own operating budget without County participation or approval and it maintains a checking account in its own name through which the employees are paid.
    10. The Employer pays rent out of its own funds to the private owner of the building it occupies.
    11. The Employer has its own personnel and records department separate from the County, and it creates its own job titles and duties without County assistance. Unlike the County, the Employer is not subject to the rules and polices of the N.J. Department of Civil Service.
    12. The Employer, and not the County, fixes the salaries of the employees and sets the work hours and benefits of its employees without County participation. Clerical and supervisory employees of the Employer work a 40-hour week while County clerical and supervisory employees work a 32 1/2 hour week.
    13. County employees are part of the State Public Employees Retirement System whereas the corporate employees are not members of any pension plan. The Employer offers a less comprehensive medical and hospital insurance plan for its employees than the one provided for County employees. In addition, the Employer provides less life insurance than the County, and unlike the County, provides no dental plan for its employees. Finally, the Employer officers fewer vacation days to its employees as compared to County employees.
    14. There is no interchange of supervision and no transferability of employees between the County and the Employer.
    The Commission = s jurisdiction is limited by the Act to matters of public employment.4/ Accordingly, Petitions and Unfair Practice Charges have been dismissed for want of jurisdiction where the employer was not a public employer within the meaning of the Act.5/ Those matters were dismissed even though the employer received some or all of its funds through public sources, because funding alone does not determine public employer status.
    The undersigned has considered all of the instant facts and concludes that the Employer is not a public employer within the meaning of the Act. Neither Bergen County nor any other public entity has any control over the operation or labor relations of the Employer. The County has no authority over the Employer = s budget, cannot hire, fire, discipline or supervise corporate employees, and lack control over corporate operations. Further, the Employer is a private, non-profit corporation chartered under the Corporations and Associations Not for Profit Act.
    Accordingly, for the reasons stated above, the undersigned determines that Bergen County CETA, Inc., is not a public employer within the meaning of N.J.S.A. 34:13A-3(c), and the instant Petition is hereby dismissed.
    BY ORDER OF THE DIRECTOR OF
    REPRESENTATION

    _______________________________
    Carl Kurtzman, Director

    DATED: July 10, 1981
    Trenton, New Jersey
    1/ The Act defines public employers at N.J.S.A. 34:13A-3(c): The term A employer @ includes an employer and any person acting, directly or indirectly, on behalf of or in the interest of an employer with the employer = s knowledge or ratification, but a labor organization, or any officer or agent thereof, shall be considered an employer only with respect to individuals employed by such organization. This term shall include A public employers @ and shall mean the State of New Jersey, or several subdivision of the State, or a school district, or any special district, or any authority, commission, or board, or any branch or agency of the public service.
      2/ The Employer = s brief received on May 20, 1981 specifically incorporates its brief and statement of position dated March 6, 1981.
      3/ The Freeholder Director of Bergen County does serve as an ex-officio member of the Employer = s Board of Trustees.
      4/ See In re Cape May County Guidance Center, D.R. No. 78-19, 3 NJPER 350 (1977).
      5/ In re Bonnie Brae, D.U.P. No. 80-7, 5 NJPER 457 ( & 10231 1979); In re Newark Housing Development and Rehab. Corp., D.R. No. 80-2, 5 NJPER 328 ( & 10175 1979); In re Cape May County Guidance Center, D.R. No. 78-19, 3 NJPER 350 (1977); In re ARA Services, Inc., E.D. No. 75-13, 2 NJPER 112 (1976).
    ***** End of DR 82-2 *****