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In re City of Newark

January 14, 2002

IN THE MATTER OF THE CITY OF NEWARK, PUBLIC EMPLOYER-APPELLANT, AND ASSOCIATION OF GOVERNMENT ATTORNEYS, PETITIONER-RESPONDENT.


On appeal from State of New Jersey, Public Employment Relations Commission, PERC No. 2000-100.

Before Judges Baime, Newman and Fall.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

OPINION CORRECTED 01/23/02

Argued December 12, 2001

The novel question presented by this appeal is whether non-supervisory attorneys employed by the City of Newark in its office of corporation counsel may organize and join a union. Following an election ordered by the Public Employment Relations Commission, the Association of Government Attorneys was certified as the employees' representative. The City appeals, contending: (1) the Commission erred in ordering the election, (2) the Rules of Professional Conduct bar municipal attorneys from joining a union, (3) the Commission's decision intrudes upon the Supreme Court's exclusive jurisdiction to regulate the practice of law, (4) collective negotiations conflict with statutes and ordinances providing that the City's lawyers serve at the pleasure of corporation counsel, and (5) as managerial and confidential employees, the attorneys' overriding duty of loyalty to the City precludes them from organizing for the purpose of collective negotiations. We reject these arguments and affirm the Commission's decision.

I.

On September 3, 1999, the Association filed a petition with the Commission requesting certification to represent twenty-eight attorneys employed by the City. The petition was accompanied by a document signed by over thirty percent of the employees expressing their agreement to have the Association "exclusively represent them in the collective bargaining process." See N.J.A.C. 19:11-1.2(a)(9) (petition for certification shall be accompanied by a "showing of interest . . . of not less than [thirty] percent of the employees in the unit alleged to be appropriate").

On September 10, 1999, twelve of the attorneys who had signed the "showing of interest" requested the Commission to withdraw the petition, claiming that it had been submitted without their knowledge or approval. They asserted that Salvador Simas, an assistant corporation counsel, had misrepresented the nature of the document. In response, the Association filed an unfair practice charge against the City, accusing Newark's corporation counsel of intimidating members of her staff in an attempt to "dissuade" them from joining the union. The unfair practice charge was held in abeyance pending the Commission's disposition of the Association's petition.

Following his investigation of the City's protest, the Commission's Director of Representation advised the parties that he had found no defect in the petition and that he intended to order an election. The Director further apprised the parties of his preliminary decisions respecting the structure of the proposed negotiating unit. After inviting and receiving the parties' responses, the Director issued his formal decision on April 18, 2000, rejecting the City's claims that the petition was defective and that the attorneys had no right to organize because they were managerial executives or confidential employees. With regard to the proposed unit, the Director excluded the two first assistant corporation counsel on the ground that they were managerial and supervisory employees, and the seven section chiefs for the same reason. In addition, the Director excluded the four attorneys assigned to the labor department and one lawyer assigned to the development section, finding that they were confidential employees. The negotiating unit was thus confined to lower level attorneys with essentially no supervisory authority over other lawyers.

The election was conducted on May 17, 2000. Thirteen of the seventeen eligible voters cast ballots, eleven in favor and two against the Association. On May 25, 2000, the Director certified the Association as the unit's representative. The Commission denied the City's request for review the next day. This appeal followed.

II.

Initially, we reject the City's procedural argument that the Association's "showing of interest" was defective. When an organization seeks to represent a group of employees, its petition must be accompanied by a "showing of interest" of not less than thirty percent of the employees. N.J.A.C. 19:11`- 1.2(a)(9). The showing of interest is confidential and may not be furnished to the parties. N.J.A.C. 19:11-2.1. This cloak of secrecy is designed to protect the employees against retaliation.

The point to be stressed is that the petition and the requisite "showing of interest" are preliminary, procedural mechanisms designed to ascertain whether there is sufficient support for the selection of an organization to represent the employees for the purpose of collective negotiations. N.J.A.C. 19:11-2.1 provides that the Director shall determine the adequacy of interest and that his determination shall not be collaterally attacked. Once the Director finds that the "showing of interest" is sufficient and that it meets the regulatory requirements, any question concerning the adequacy of the employees' support for the designated union must be determined by secret ballot election, rather than litigation. N.J.A.C. 19:11-4.1.

Any error made in determining a "showing of interest" will be remedied by the election itself. In this case, for example, the election result - certification of the Association – discloses a strong likelihood that there was sufficient support for the union at the time the petition was filed. We acknowledge, of course, that this is not inevitably true and that employees who cast their ballots in favor of the Association may have been against the union when first confronted by the question. But measured by the election result, any error in the preliminary proceedings would be considered harmless.

We emphasize the limited contours of our holding. There may be instances in which a party's conduct in obtaining or filing a petition is so egregious as to justify judicial intervention notwithstanding the otherwise cleansing results of the election. Our endorsement of the Commission's longstanding practice may not be transmogrified into an open sesame for egregious acts of intimidation or fraud. We, nonetheless, are content to decide the case before us. So posited, we perceive ...


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