P.E.R.C. No. 2000-6, NJ Transit

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY TRANSIT, Public Employer, -and- Docket No. CU-H-97-10 PBA Local 304, Petitioner. ¶

AppearancesAppearances: ¶

For the Public Employer, John J. Farmer, Jr., Attorney General (David S. Griffiths, Deputy Attorney General) ¶

For the Petitioner, Klausner, Hunter & Rosenberg, attorneys (Stephen B. Hunter, of counsel) ¶

DECISION ¶

On September 20, 1996 and February 5, 1997, PBA Local 304 filed a clarification of unit petition and an amended petition seeking to add Investigator Russell Crawford and Senior Investigator Robert LaForte to its collective negotiations unit of police officers employed by New Jersey Transit. ¶

On August 26, 1997, a Notice of Hearing issued. On February 27, April 14, and May 27, 1998, Hearing Officer Wendy L. Young conducted a hearing on the threshold procedural issue of whether a clarification of unit petition is the appropriate mechanism to add these two employees to the PBA unit. ¶

The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On April 15, 1999, the Hearing Officer recommended dismissing the petition. H.O. No. 99-1, 25 NJPER 251 (¶30106 1999). She found that although the investigators may share a community of interest with negotiations unit personnel, may share similar duties and responsibilities, and may perform unit work, a unit clarification petition is not the appropriate mechanism to add either investigators and senior investigators as a group, or Investigator Crawford and Senior Investigator LaForte individually, to the PBA unit. She found that the titles have existed for years and circumstances have not changed recently. However, the Hearing Officer added that the PBA may file a representation petition seeking to add these employees to its police unit. ¶

On May 12, 1999, the PBA filed exceptions. The PBA recited its own Statement of Facts, but did not specify any finding of fact to which exception is taken. N.J.A.C . 19:11-7.3. The PBA argues that the petition was timely filed shortly after investigators were first regularly assigned to detect, apprehend and arrest criminals and otherwise regularly perform critical police officer functions. The PBA also argues that the existence of several other employees in investigator titles is irrelevant because those employees do not perform the same generic police duties. ¶

On June 4, 1999, the employer filed an answering brief urging adoption of the Hearing Officer's recommendation. It argues that the PBA has not shown that the assigned duties and functions of Investigators LaForte and Crawford had changed significantly. ¶

We have reviewed the record. We incorporate the Hearing Officer's undisputed findings of fact (H.O. at 2-19). ¶

The Commission's representation proceedings are designed to resolve disputes concerning the representational status of public employees. Disputes can be divided into two categories. In the first type of proceeding, employees choose a majority representative through a representation election. Negotiations units are often described in general terms and sometimes disputes remain as to whether a particular title or person is represented in the unit. The second type of proceeding is unit clarification. The purpose of a clarification of unit petition is to resolve questions concerning the scope of a collective negotiations unit within the framework of the Act or as set forth in the unit definition in a Commission certification or the parties' recognition agreement. Normally, it is inappropriate to use a clarification of unit petition to enlarge or diminish the scope of a negotiations unit for reasons other than the above. Typically, a clarification is sought as to whether a particular title is contemplated within the scope of the unit definition. Clearview Reg. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). If a clarification of unit petition is not appropriate or timely, employees may be added to an existing unit through the filing of a representation petition. See N.J.A.C. 19:11-1.1. ¶

Although the NJ Transit Police Department was formed in 1992, the PBA has had a collective bargaining relationship with NJ Transit since 1983, when the State took over Conrail. Sometime in 1984 or 1985, the titles of investigator and senior investigator were created in the NJT Rail Operations Police Department. Investigators were police officers, but were not represented by the PBA. By 1989, the PBA had filed at least two grievances challenging the exclusion of the investigator titles from its unit. ¶

Shortly after the creation of the NJ Transit Police Department, the Bus Operations Security Department was merged into the police department. In September 1993, LaForte and Crawford, who had been bus security representatives, became police officers and were given, respectively, senior investigator and investigator titles. In September 1993, the PBA filed a grievance asserting that LaForte and Crawford held positions within its police unit. That grievance is pending. ¶

Under these circumstances, a clarification of unit petition is untimely and therefore not the appropriate mechanism for adding the investigator and senior investigator titles to the PBA's unit. See Rutgers, the State Univ., D.R. No. 84-19, 10 NJPER 284 (¶15140 1984) (clarification of unit petition must be filed before execution of second contract). These titles have existed for many years and the PBA has, more than once, sought to include them in its unit. A November 1996 memorandum assigning ¶

LaForte and Crawford new duties did not materially change the duties of investigators or senior investigators sufficient to warrant consideration of a clarification of unit petition. The PBA may pursue its grievance or file a representation petition. ¶

OrderORDER ¶

The petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Madonna abstained from consideration. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶