D.R. No. 82-21

Synopsis:

The Director of Representation adopts the recommendation of a Hearing Officer that the Chief of Police and the Deputy Chiefs of Police in the City of Newark are managerial executives within the meaning of the Act and that their inclusion in any negotiations unit would be inappropriate. The Hearing Officer found that the Chief and the Deputy Chiefs possess and exercise a level of authority and independent judgment sufficient to broadly affect the department's policies. The size of the City's workforce was also a factor in the Hearing Officer's recommendation. In reaching this conclusion, reliance was placed on the guidelines established for determining managerial status in In re Borough of Montvale, D.R. No. 80-32, 6 NJPER (¶11097 1980), aff'd P.E.R.C. No. 81-52, 6 NJPER (¶11259 1980).

PERC Citation:

D.R. No. 82-21, 7 NJPER 644 (¶12291 1981)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.12 33.41 32.572 32.86

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 82-021.pdf
Appellate Division:
Supreme Court:

D.R. NO. 82-21 1. D.R. NO. 82-21 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of CITY OF NEWARK, Public Employer-Petitioner, -and- Docket No. CU-80-75 NEWARK SUPERIOR OFFICERS ASSOCIATION, Employee Representative. ___________________________________________ CITY OF NEWARK, Public Employer, -and- Docket No. CU-81-7 NEWARK SUPERIOR OFFICERS ASSOCIATION, Employee Representative- Petitioner. Appearances: For the Public Employer John J. Teare, Corporation Counsel (Brigid Bohan, Assistant Corporation Counsel) For the Employee Representative Whipple, Schneider & Ross, attorneys (Lawrence A. Whipple, Jr. of counsel) DECISION Pursuant to a Petition for Clarification of Unit filed on April 22, 1980, with the Public Employment Relations Commission (the A Commission @ ) by the City of Newark (the A City), hearings were conducted before a designated Commission Hearing Officer on the claim raised by the City that the title of Deputy Chief(s) should be removed from the collective negotiations unit represented by the Newark Superior Officers Association (the A Association @ ) The City based its request for the exclusion of Deputy Chiefs on the claim that the deputy chiefs are managerial executives or confidential employees within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ). In the alternative, the City alleges that a conflict of interest exists between the Deputy Chiefs and the other superior officers in the Association = s unit which would justify the removal of that title from the unit. Subsequently, on August 6, 1980, the Association filed its own Petition for Clarification of Unit seeking the inclusion of the Chief of Police (as well as the Deputy Chiefs) in the Association = s unit. The Association claims that the Chief of Police and the Deputy Chiefs are neither managerial executives nor confidential employees, and that no conflict of interest with other superior officers would result from their inclusion in the unit. The City argues that the Chief is specifically excluded from the recognition clause of the contract and is a managerial executive. The City further argues that a conflict of interest would result if that title were included in the unit. Pursuant to an Order Consolidating Cases and a Notice of Hearing, hearings were held in these matters before Commission Hearing Officer Dennis J. Alessi, on September 17 and 18, 1980 and on December 16, 1980 before Hearing Officer Arnold H. Zudick, who was assigned to this matter by the undersigned, pursuant to N.J.A.C. 19:11-6.4, due to the unavailability of the original Hearing Officer. All parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. A post-hearing brief was submitted by the City on January 12, 1981; the Association did not file a post-hearing brief. The Hearing Officer thereafter issued his Report and Recommendations on May 18, 1981, a copy of which is attached hereto and made a part hereof. Neither party has filed exceptions to the Hearing Officer = s Report and Recommendations. However, the Association has filed an application for a new hearing, or alternatively, other relief, and this request will be dealt with in this decision. The undersigned has carefully considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, and the exhibits and finds and determines as follows. Initially, the issues raised by the Association in its application for a new hearing will be considered. The Association argues that it was incumbent upon the Hearing Officer to ascertain all of the facts necessary to enable him to render a Report and Recommendation and that without hearing testimony from the Police Director as well as each Deputy Chief, it was inappropriate for the Hearing Officer to issue his Report and Recommendation finding that the Police Chief and each Deputy Chief were managerial executives who formulate policy and direct its effectuation. It is the duty of the Hearing Officer to inquire fully into the facts as they relate to the matter under consideration in order to establish a full record upon which a decision can be rendered.1/ The Association asserts that it was led to believe that it would be informed as to whether additional testimony would be needed by the Hearing Officer and that it was under no obligation to file a post-hearing brief until the Hearing Officer ruled upon the necessity for further hearings. The Hearing Officer was apparently satisfied with the adequacy of the record, since he did not order further hearings prior to the issuance of his Report and Recommendations. Having reviewed the record, the undersigned confirms that the Hearing Officer reached the proper conclusion with regard to the adequacy of the record. An examination of the record reveals that the Hearing Officer advised both parties of their opportunity to file post- hearing briefs, and the fixing of the briefing schedule was not conditioned upon the Hearing Officer = s first ruling on the necessity for further hearings. Additionally, four Deputy Chiefs were present at the third hearing, but the Association chose not to call them to testify when given the opportunity by the Hearing Officer, and in fact, elected not to present any direct testimony in support of its Petition or in rebuttal to the City = s Petition.2/ Moreover, a hearing will not be reopened simply because one party states that the record has not been fully established. A party requesting the reopening of a record has the duty not only to disclose who will additionally testify but also how the additional testimony will differ or further add to testimony already on the record and why that evidence was not produced at the time the record was open. No such information was supplied by the Association in its application. Accordingly, the Association = s motion is denied. The Hearing Officer recommended that the Chief and Deputy Chiefs of Police in the City of Newark are managerial executives within the meaning of the Act3/ and are not includable in any negotiations unit. In In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 ( & 11259 1980) aff = g. D.R. No. 80-32, 6 NJPER 198 ( & 11097 1980), the Commission confirmed the guidelines set forth by the undersigned to determine when a person is a managerial executive, stating that: A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment, sufficient to affect broadly the organization = s purposes or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer = s hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. [6 NJPER, at 508] The undersigned, in establishing the standard by which managerial executive status would be measured was guided by the National Labor Relations Board. The Board = s definition of managerial executive was summarized as follows: Managerial employees have been defined as (1) executives who formulate, determine and effectuate management policies by expressing and making operative the decisions of their employer or (2) those employees who have discretion in the performance of their job independent of their employer = s established policy or (3) those employees who are so integrally related to or so closely aligned with management as to place the employee in a position of potential conflict of interest between the employer on the one hand and his fellow workers on the other. [6 NJPER, at 201] The Hearing Officer properly applied the guidelines established in Montvale in concluding that both the Chief and the Deputy Chiefs formulated policies and objectives and directed the effectuation of such throughout the department and the respective divisions. The record confirms the Hearing Officer = s finding that the Newark Chief of Police is in command of over 1,400 employees, issues departmental orders, and has the authority to transfer and deploy men throughout the department; the Deputy Chiefs have the authority and discretion to deploy the men in their respective divisions, discipline subordinates, transfer men within their divisions, participate in budget formulation, purchase equipment, and assist in the development and drafting of departmental policies and orders. The Chief and the Deputy Chiefs possess and exercise a level of authority and independent judgment sufficient to broadly affect the department = s policies. The size of City = s workforce was a factor in the Hearing Officer = s recommendation. The record confirms his conclusion that with a police force of 1,400 employees, a substantial degree of managerial authority is delegated through the Deputy Chief. Accordingly, for the above reasons, the undersigned adopts the findings of fact and conclusions of law of the Hearing Officer and determines that the Chief of Police and the Deputy Chiefs of Police in the City of Newark are managerial executives and are inappropriate for inclusion in any negotiations unit. Therefore, the City = s Petition is granted and the Deputy Chiefs are hereby removed from the Association = s unit. Further, in regard to the Association = s Petition, the undersigned determines that the Chief is not included in the Superior Officer = s unit. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: November 2, 1981 Trenton, New Jersey 1/ N.J.A.C. 19:11-6.3(a). 2/ The Hearing Officer was not in a position to know whether the Police Director or other deputy chiefs would offer testimony which would supplement or contradict the testimony already on the record. It is not the Hearing Officer = s obligation to seek out additional testimony where the record contains adequate testimony concerning the facts. On the other hand, the parties to a representation proceeding, may produce whatever evidence they believe will result in a more complete factual record. 3/ N.J.S.A. 34:13A-3(f) states: A Managerial Executives @ of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district. ***** End of DR 82-21 *****