D.R. NO. 79-12

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BRIDGEWATER-RARITAN REGIONAL

BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-77-145

BRIDGEWATER-RARITAN SUBSTITUTE

EDUCATORS ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer,

Daniel C. Soriano, Jr., Esq.

For the Petitioner,

John Thornton, NJEA Field Representative

DECISION AND DIRECTION OF ELECTION

Pursuant to a Notice of Hearing to resolve a question concerning the representation of certain employees in a collective negotiations unit proposed by the Bridgewater-Raritan Substitute Educators Association (the "Association"), a hearing was held before Commission Hearing Officer Arnold H. Zudick on November 14, 1977, in Trenton, New Jersey. All parties were provided an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Subsequent to the close of the hearing, written briefs were filed by the Association and the Bridgewater-Raritan Regional Board of Education (the "Board") on February 27, 1978 and February 23, 1978, respectively. The Hearing Officer issued his Report and Recommendations on June 9, 1978, a copy of which is annexed hereto and made a part hereof. Exceptions were filed by the Board on June 26, 1978, to which the Association has not responded.

The undersigned has considered the entire record including the Hearing Officer's Report, the transcript, briefs, and exceptions and on the basis thereof finds and determines as follows:

1.	The Bridgewater-Raritan Regional Board of Education is a public employer within the meaning of the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the "Act"), and is subject to its provisions.

2.	The Bridgewater-Raritan Substitute Educators Association is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Association seeks to represent a unit consisting of substitute teachers and nurses employed by the Board. These substitutes are paid on a per diem basis. The Board has declined to consent to an election in the unit sought, claiming that the petitioned-for individuals are not "public employees." Accordingly, there is a question concerning representation and the matter is properly before the undersigned for determination.

4.	The parties have stipulated that the sole issue to be determined is whether or not the substitute teachers and nurses are "public employees" within the meaning of the New Jersey Employer-Employee Relations Act, and have agreed that if they are found to be public employees, they are appropriate for representation in the petitioned-for unit.

Therefore, this decision is limited by the agreement of the parties and with the approval of the undersigned to the above-
stated issue: whether the petitioned-for substitutes are public employees and, therefore, entitled to representation. There is no dispute regarding the appropriateness of the unit sought by the Association.

Therefore, the question of whether an election is to be directed in this matter turns upon the status of the petitioned-
for individuals.

5.	The Hearing Officer, applying a test of regularity and continuity of employment, found that some per diem substitutes were public employees within the meaning of the Act and that others were not. Therefore, he found that a unit containing both public employees and non-public employees would be inappropriate. The Hearing Officer recommended a two prong test for determining regularity and continuity of employment which would establish public employee status. Under this recommended test those per diem substitutes who had been employed for 90 days or more during one school year, or those who had been employed for 30 days or more during one school year, or those who had been employed for 30 days or more during two previous school years, and who had expressed their availability and willingness to be employed as substitutes for the next succeeding school year, would be considered public employees within the meaning of the Act.

The Hearing Officer recommended that those substitutes who were public employees under the proposed test be entitled to vote in a Commission election to select or reject a collective negotiations representative.

6.	The Board takes exception to the Hearing Officer's failure to recommend dismissal of the Association's Petition upon the initial finding that a unit comprised of all of the per diem substitutes employed by the Board would be inappropriate. The Board requests that the Director limit his consideration to this initial finding, and that the Petition be dismissed.

7.	Based upon the stipulation of the parties, the undersigned determines that the petitioned-for unit, "substitute certified teachers and nurses,"1/ is a prima facie appropriate unit. The Association claims that all of the substitute teachers and nurses employed by the Board are public employees. The Board maintains that none of the per diem substitutes have established a sufficient regularity and continuity of employment to qualify as public employees. The Hearing Officer, based upon certain tests of regularity and continuity of employment, has found that some of the substitute teachers and nurses are public employees and that others are not and has recommended that substitute teachers and nurses who are public employees vote in an election to determine their collective negotiations representative, if any, in the unit agreed upon as appropriate.

There is no support for the Board's position -- either in the record or in Commission policy -- that the Commission's inquiry into a question concerning representation should be discontinued where it is found that certain personnel, proposed by a Petitioner for inclusion in a unit, are not identifiably within the definition of the collective negotiations unit. A determination which identifies non-public employees and which excludes non-public employees from a proposed unit does not alter the definition of the proposed unit nor does it establish a sub-
group or sub-unit. Accordingly, the undersigned must reject the Board's contention that "Neither the Board nor the Association addressed itself to the question of whether any subdivision of the whole class of per diem substitute teachers and nurses qualifies as public employees within the meaning of the Act."

8.	The definition of "employees" contained in the Act2/ suggests no basis for the exclusion of less than full-time employees. The Commission, relying on precedents in both the public and private sectors, has distinguished between regularly employed part-time employees and casual employees who perform or serve on an occasional or sporadic basis. Employees in the former group have been granted representation rights while the latter group has been denied these rights on the basis that their contact with the employer is too tenuous to constitute a continuing employer-employee relationship. In distinguishing between these two groups the Commission has considered whether the employees have a fair degree of regularity and continuity of employment. Considering these factors, the Commission, in In re Rutgers University, P.E.R.C. No. 76-49, 2 NJPER 229 (1976), found that coadjutant faculty exhibited the minimal level of employment which would constitute a fair degree of regularity and continuity by teaching at least two college semesters and indicating a willingness to be rehired for at least one semester during the next academic year.

In the instant matter, there is sufficient record evidence to support a finding that certain substitute teachers and nurses evidence a sufficient regularity and continuity of employment to qualify as public employees while the nature of employment of other substitute teachers and nurses is so casual as to render these personnel non-public employees within the intendment of the Act. The undersigned adopts the recommendation of the Hearing Officer that those employees who fail to meet a test of regularity and continuity are not public employees and, therefore, not includable in the proposed unit.

9.	To insure consistency in Commission determinations, the undersigned concludes that the approach utilized in In re Rutgers University, supra, should be applied to measure regularity and continuity of employment in similar situations where a determination must be made concerning the status of personnel as either casual or regular part-time employees. The Rutgers, supra, approach3/ will be adapted to meet the requirements of the employment relationship at issue.

The undersigned finds that the Hearing Officer's adoption of the Rutgers approach and his attempt to fashion a similar test in this matter was proper. However, in the undersigned's judgment, the test recommended by the Hearing Officer is too restrictive. In Rutgers the Commission determined that an adequate demonstration of regularity and continuity of employment was made where an employee served during two semesters (the equivalent of one full academic year) and was available for service in the succeeding year. In the instant matter, there is a need for the demonstration of significant service for one year and the indication of availability for service the succeeding year. Based on the record evidence, the undersigned concludes that 30 days of service during one school year constitutes significant service demonstrating regularity of employment and the indication of willingness by the employee to serve in the succeeding year will satisfy the test of continuity.

Accordingly, the undersigned finds that those per diem substitute teachers and nurses who meet the above stated standard qualify as public employees under the Act and are entitled to representation thereunder.

Based upon the above findings, the undersigned hereby directs that a secret ballot election be conducted among the employees in a unit composed of "all substitute teachers and nurses who have worked in that capacity for at least thirty (30) days during a given school year, and express a willingness to accept employment as a substitute teacher or nurse for the next succeeding school year, but excluding all other employees, managerial executives, confidential employees, craft employees, non-professional employees, policemen and supervisors within the meaning of the Act."

The undersigned directs that a secret ballot election be conducted in the unit found appropriate no later than thirty (30) days from the date set forth below.

Those eligible to vote are employees set forth above who were employed as a substitute teacher or nurse for at least thirty (30) days during school year 1977-1978 and who indicate a willingness to accept employment as a substitute teacher or nurse during school year 1978-1979. Employees must appear in person at the polls in order to be eligible to vote.

Pursuant to N.J.A.C. 19:11-9.6 the Board is directed to file simultaneously with the undersigned and with the Association, 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 with a statement of service to the undersigned. 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 they desire to be represented for the purposes of collective negotiations by Bridgewater-Raritan Substitute Educators 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

/s/Carl Kurtzman, Director

DATED:	October 19, 1978

Trenton, New Jersey