H.O. No. 80-18

Synopsis:

A Commission Hearing Officer recommends that an election be directed to ascertain whether registered nurses desire to be represented by the petitioner or the intervenor in a negotiations unit. The employees sought by the petitioner are currently represented in a broad-based county-wide negotiations unit. The Hearing Officer considered Commission policy preferring broad-based negotiations units but found that the nurses had not been provided responsible representation and recommended therefore that the petitioner's unit be severed from the overall county-wide unit. The Hearing Officer also found the nurses shared a distinct community of interest and noted they were professional employees in a non-professional collective negotiations unit who had not been given their statutory right to decide whether they want to be included in a non-professional unit.

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. 80-18, 6 NJPER 280 (¶11133 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

21.7 33.323 33.336 33.391 34.21 36.221

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HO 80-018.pdf
Appellate Division:
Supreme Court:

H.O NO. 80-18 STATE OF NEW JERSEY BEFORE A HEARING OFFICER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS, Public Employer, -and- Docket No. RO-80-56 REGISTERED PROFESSIONAL NURSING UNIT #1, Petitioner, CAMDEN COUNCIL NO. 10, NEW JERSEY CIVIL SERVICE ASSOCIATION, Intervenor. Appearances: For the Public Employer, Vincent Paglione, Esq. Assistant County Counsel For the Petitioner, Tomar, Parks, Seliger, Simonoff & Adourian, Esqs. (Mary L. Crangle, of Counsel) For the Intervenor Joseph A. Carmen, Esq. HEARING OFFICER = S REPORT AND RECOMMENDATIONS On October 3, 1979, the Registered Professional Nursing Unit #1 ( A RPNU @ or A Petitioner @ ) filed a timely position supported by an adequate showing of interest with the Public Employment Relations Commission (the A Commission @ ) seeking a certification as exclusive representative for negotiations of a unit of employees of the Camden County Board of Chosen Freeholders (the A County @ ). The Petitioner sought to represent a unit of all registered nurses employed at the Camden County Health Services Center at Lakeland.1/ The County took the position that it had no objection to the creation of a separate bargaining unit. Camden Council No. 10, New Jersey Civil Service Association ( A Council No. 10") submitted a recently expired agreement with the public employer covering the employees involved and was permitted to intervene in the proceeding. Pursuant to Notice of Hearing, hearings, were held before the undersigned Hearing Officer on January 9 and January 21, 1980, in Trenton, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. The County decided not to participate in the hearing, its position having previously been set out by letter to the Hearing Office (A-5 in Evidence). Briefs were submitted by the RPNU and Council No. 10.2/ Upon the entire record herein, the Hearing Officer finds: 1. The County is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the A Act @ ) and is subject to its provisions. 2. The RPNU and Council No. 10 are employee organizations within the meaning of the Act and are subject to its provisions. 3. A Petition for Certification of Public Employee Representative having been filed with the Commission, a question concerning representation exists and the matter is properly before the Hearing Officer for a Report and Recommendations. FINDINGS OF FACT Background Camden Council No. 10, New Jersey Civil Service Association (Council No. 10) is the majority representative of a broad-based County-wide unit of public employees employed by Camden County which currently includes the registered nurses who are petitioned for herein.3/ Additionally, the registered nurses are members of the Registered Professional Nursing Unit #1 (the A RPNU @ ). Early in 1978 Council No. 10 agreed to allow the RPNU to become a local of Council No. 10 A under the umbrella @ of Council No. 10.4/ The nurses belong to Council No. 10 and have dues deducted from their salaries pursuant to a dues check-off agreement in the collective negotiations agreement between the County and Council No. 10. The nurses pay their own dues directly to the RPNU. Under the RPNU-Council No. 10 arrangement, the registered nurses were to be allowed to negotiate with the County on matters that were unique to the nurses and the results of the negotiations were to be incorporated in Council 10's overall contract (Tr 1-33). The nurses were to be represented by Council 10's attorney but were to hire their own professional negotiator (Tr 1-58). On October 3, 1979, the nurses again filed a petition with the Commission requesting that they be certified as the majority representative for all registered nurses for collective negotiations. There are approximately 100 registered nurses5/ employed at the Lakelands Health Services Center which includes a psychiatric facility, a general hospital for rehabilitation patients and chronically ill patients and a skilled nursing center. They are supervised by an Executive Director of Nursing and an Associate Executive Director of Nursing, who have total authority over the RN = s. RN = s never work outside the Health Services Center. There are also a small number of RN = s who work at a drug and alcohol abuse center called Turning Point who are also being petitioned for herein. Processing of Grievances RPNU shop stewards usually present grievances at step two of the contractual grievance procedure to the hospital = s Executive Director. Processing of grievances beyond the hospital level for disposition by the County requires Council No. 10 assistance apparently directly through the president Mildred DiFante.6/ The RPNU = s attempts to process grievances beyond the hospital level have been quite unsuccessful in spite of repeated attempts for Council No. 10 assistance. Mrs. DiFante rarely answers telephone calls and does not respond to letters (Tr 2-72 and P-11 in Evidence).7/ RPNU #1 Vice President Mark Kunzinger, after having has a grievance pending for over a year and a half, and having contacted Council No. 10 many many times (Tr 2-74) went to Freeholder Sayers and made a personal plea and finally had his grievance resolved by Sayers. The 1978 Negotiations Under the agreement whereby the RPNU was to be a local of Council No. 10, contract negotiations commenced in May of 1978 in order to negotiate terms and conditions of employment relating specifically to the registered nurses, which matters were then to be incorporated in the Council 10 overall contract. The nurses were to negotiate their own concerns separate from Council 10's.8/ Negotiations sessions took place between the County and RPNU-Council 10 Committee from May until November of 1978. The nurses were represented by a professional negotiator, a committee of nurses, the Council No. 10 attorney and the Council No. 10 president. The County was represented by the County Administrator Ronald C. Kerins, his assistant and a representative of the hospital. Not all the same representative attended all sessions on either side. At some time in November of 1978 the parties reached agreement on a contract which was to be typed by Mildred DiFante and the final document was to be approved by the parties. When it was presented to the nurses the typed contract differed materially and substantially from the agreement previously reached. The RPNU nurses attempted to meet with Mildred DiFante on several occasions but were unable to get her to meet with them. This ultimately led to a A job action @ on the part of the nurses (Tr 2-7,16). At that pont in time the Executive Director of the Hospital, Dr. Urban, contacted the Director of the Board of Freeholders, Mr. Simon, who authorized Dr. Urban, together with Freeholder Edward W. Sayers, Chairman of the Freeholders = Hospital Committee, and Michael Shutman, Associate Director of Nursing, to negotiate directly with the RN = s. They met with the RPNU president Anne Henkle and vice president Mark Kunzinger and again reached an agreement (Tr 2-16 and P-10 in Evidence). Council 10 did not participate in these negotiations. A contract was never signed and this was the subject of an unfair practice charge filed by the RPNU on August 20, 1979, against Council 10 and the County.9/ On October 3, 1979, the instant petition to formally sever the RN = s from the Council 10 was filed.10/ THE ISSUE Should an election be directed in a unit of all registered nurses employed by the County of Camden at the Health Services Center, Lakeland, New Jersey, thereby severing these employees from the existing county-wide unit? POSITIONS OF THE PARTIES The public employer has no objection to the creation of a separate bargaining unit for the registered nurses (A-4 and A-5 in Evidence). The Petitioner argues that the RN = s should be severed from Council 10's unit because Council 10 has not provided responsible representation to the nurses as evidenced by their refusal to process grievances and by Council 10's behavior during the nurses = 1978 contract negotiations, and point to recommended findings of Hearing Examiner for further evidence. While the Petitioner acknowledges Commission policy favoring broad-based functional units, they argue that the nurses have actually been for many years a A separate and distinct unit @ under Council 10 by local agreement which the Commission should not disrupt, They point out that the public employer does not feel that a formal severance would create fragmentation of county units. They also argue that the nurses do not share a community of interest with other Council 10 employees since they are the only professional medical personnel in the unit. Council 10 argues that severance of the nurses would be fragmentation because their individual professional interest are not unique. They dispute arguments that they have not provided responsible representation. DISCUSSION AND ANALYSIS The Commission set forth the standards to be applied to petitions seeking severance of employees from an existing appropriate collective negotiations unit in 1971 and those standards remain unchanged. The Commission has a long-standing policy preferring broad-based units at the county level and in only limited circumstances will the Commission permit severance of employees from otherwise appropriate units. (In re County of Somerset, D.R. No. 78-42, 4 NJPER 198 ( & 4099, 1978). In In re Jefferson Township Board of Education, P.E.R.C. No. 61 (1971) the Commission stated that it would not sever employees from an existing appropriate collective negotiations unit merely upon a claim that a community of interest exists within a subgroup of employees in that unit in the absence of a showing that the existing relationship is unstable or that the incumbent organization has not provided responsible representation. (In the Matter of Mercer County Prosecutor, D.R. No. 79-18, 5 NJPER 60 ( & 10039, 1979)). While the undersigned is not convinced that the existing Council 10 unit which includes professional registered nurses is an appropriate unit under the Act, assuming arguendo it is, I do not find that the RPNU has been provided responsible representation, or that there has been a stable relationship between Council No. 10 and the RPNU.11/ The RN = s are professional employees with particular skills and training. They work at a distinct location within their own nursing organizational structure. The licensed professional nurses who fall within the nursing organization structure are not in the unit represented by Council 10 but are in their own collective negotiations unit who have never been given their statutory right to decide whether they want to be included in a non-professional unit. The community of interest shared by the nurses, which is distinct from other employees in the unit, might not be sufficient to convince the undersigned to recommend severance under Commission standards were it not for the history of the relationship between the parties. This is not a stable relationship that should not be upset - - it is anything but stable. The lack of responsible representation on the part of Council No. 10 was exemplified in their course of conduct during 1978 negotiations. While the RPNU was seemingly allowed to negotiate it own agreement, and not permitted any role in the overall Council No. 10 agreement, an RPNU-Council 10 County contract was never executed, even after agreement was reached and re-reached, because Council 10 refused to sign it. It appears that this contract will never be signed unless the Commission orders the signing as recommended by the hearing Examiner in the unfair practice charge. The nurses have encountered continuous problems and frustration with Council 10 in the processing of grievances. While the undersigned would not suggest that an employee has an absolute right to arbitration on grievances, an employee should be able to expect an exclusive majority representative to at least respond to their inquiries as to whether their grievances will be processed. Council 10, the exclusive representative of the petitioned- for employees herein, has not provided responsible representation either in negotiations or with respect to grievance handling. RPNU #1 has had a certain degree of autonomy from Council No. 10 since 1976 and the County has acquiesced in this relationship and had dealt with the nurses directly over the years. They have no objection to the formal creation of a separate unit for the RPNU. One of the concerns about fragmentation is that it imposes on the employer a duty to have a collective negotiations relationship with additional units; however, the County has already been dealing with the RPNU and is willing to continue to do so. A more harmonious relationship between the County and the RPNU will most likely exist with the RPNU as a separate unit out from under Council 10's umbrella. RECOMMENDATION Based on the above, the undersigned recommends therefore an election be conducted among all the registered nurses employed by the County of Camden at the Camden County Health Services Center at Lakeland, New Jersey. Eligible voters shall vote whether or not they desire to be represented for the purposes of collective negotiations by either the Registered Professional Nursing Unit # 1 or Camden Council No. 10, New Jersey Civil Service Association. Respectfully submitted, __________________________ Joan Kane Josephson Hearing Officer DATED: May 9, 1980 Trenton, New Jersey 1/ The Petitioner initially selected as the purpose of the petition A decertification of public employee representative @ ( A RD @ petition) but crossed out the section of the decertification definition that stated A Petitioner does not desire to have any representative. @ The statement accompanying this notice is that the represented employees seek to sever themselves from an existing unit for the purpose of seeking a separate representative. Since it was clear that the purpose of the petition was to allow the employees to exercise their statutory right to select an exclusive representative, the Commission assigned the matter an A RO @ docket number and has considered the matter a certification of public employee representative petition. The Notice to Public Employees that was posted by the employer stated that a petition was filed seeking an election to determine whether the employees want to be represented for collective negotiations. 2/ Counsel for the RPNU requested that the brief submitted by counsel for Council No. 10 be rejected by the Hearing Officer since it was not submitted within one week after receipt of transcript and since a timely request to extend the time in which to file the brief was not made pursuant to N.J.S.A. 19:11-6.12(d) and (e). Counsel for Council No. 10 argued in response that his brief was submitted within one week of receipt of transcript by him and that the transcript was received late because he was in a temporary office. In view of his explanation of the objection, I will accept his brief. 3/ In 1970 the Commission directed elections among certain voting groups of employees of Camden County. Elections were held and units were certified on August 26, 1970, the included (1) blue collar employees employed at the County = s Lakeland Institutions (craft employees were allowed a craft option under the act and voted not to be included with non- craft employees and were certified in a separate unit) and (2) a residual county-wide blue collar and white collar unit of employees (excluding craft employees who were also given a craft option and voted not to be included and were also certified in a separate unit). All four units specifically excluded professional employees. Council No. 10 was certified as the majority representative of the (2) unit which apparently at some later point in time included the registered nurses at Lakeland in spite of the fact professionals were excluded from all units and they were not given a professional option and have never been given a professional option (Tr 1-27, 28). Licensed Professional Nurses at Lakeland Institutions had also been included in Council No. 10 unit but in 1977 there was an agreement for a consent election for a separate unit for LPNs and the Licensed Practical Nurses Association of New Jersey was certified on March 7, 1977, as their majority representative. 4/ Transcript reference of January 9, 1980, will be Tr 1-(page) and of January 21, 1980, Tr-2(page). (Tr 1-56) The nurses had filed a petition on September 9, 1977, for a separate collective negotiations unit severed from Council 10 (RO-78- 43). During the processing of the petition on RPNU Local- Council 10 agreement was reached and the petition was withdrawn on August 15, 1978. The RPNU was formed in 1976 and there is evidence that Council 10 recognized the RPNU as a separate unit under Council 10 in 1976 (P-6 letter from the President of Council 10 to nurses advising the County recognized the RN = s as a separate unit under Council 10; P-8 letter dated May 13, 1977, to Freeholder Director requesting to commence negotiations between the RPNU and the County and listing RPNU representative and negotiating consultants). 5/ The nurses are commonly referred to as registered nurses or RN = s but their Civil Service titles are Graduate Nurse, Head Nurse, Assistant Supervisors of nurses and Supervisors of Nurses. 6/ RPNU witnesses = testimony as to their grievance problems refer primarily to President DiFante as the union representative responsible. In one instance where a Council 10 vice president attempted to help RN = s in grievances, the vice president was reprimanded by Mrs. DiFante for assisting RN = s and prohibited from giving further assistance to RN = s (Tr 2-63). Council 10 called no witnesses to refute this testimony and I conclude that Mrs. DiFante has the sole authority to process grievances. 7/ On cross-examination of the president of the RPNU, Anne Henkle, she recalled Council 10 representing nurses at a A reclassification hearing @ in the spring of 1978 (Tr 1-47). As noted in n.6 above, Council No. 10 called no witnesses at this hearing. Therefore, there was no evidence presented to refute the difficulties the RN = s encountered in their dealings with Council No. 10. 8/ At a general membership meeting in May of 1978 for ratification of the Council 10 contract, the RPNU president, Ms. Henkle, was directed by Mrs. DiFante not to participate in the ratification vote because the contract did not pertain to the registered nurses who were still in negotiations (Tr 1-34). 9/ A Commission Hearing Examiner has recommended among other things that the Commission order that the contract be reduced to writing and the matter is pending before the Commission (H.E. 80-36). 10/ Associate Director of Nursing Shutman testified that after the petition was filed, Mrs. DiFante threatened to remove the nurses from Council 10's contractual health and welfare benefits if they pursued the petition, since their contract was not settled. Under the health and welfare fund the County pays to Council 10 a specified amount for each Council 10 member (around $100 in 1978 and in 1979) and Council 10 provides a benefit (dental clinic) to members of Council 10 only. 11/ N.J.S.A. 34:13A-6 provides that no collective negotiations A unit shall be appropriate which includes ...(2) both professional and non-professional employees unless a majority of such professional employees vote for inclusion in such unit, or, (3) both craft and noncraft employees unless a majority of such craft employees vote for inclusion in such unit. @ Craft employees were given their statutory option in 1970 but the RN = s, who are professional employees, were not and have not since been given their option. The undersigned therefore questions the appropriateness of this unit under the Act. While this factor has been considered in the community of interest discussions below, the severance recommendation is based on the lack of responsible representation and not the statutory inappropriateness of the unit. ***** End of HO 80-18 *****