D.R. NO. 79-19

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF DOVER,

Public Employer,

-and-	Docket No. CU-77-58

DOVER TOWNSHIP MUNICIPAL

EMPLOYEES UNION, LOCAL 2279,

A.F.S.C.M.E.,

Petitioner.

Appearances:

For the Public Employer

Gerald A. Dorf, P.A.

(David A. Wallace, of Counsel)

For the Petitioner

Ralph Head & Raymond J. Tanner, Representatives

(Joseph A. Asbell & Association, P.A., on the Brief)

DECISION

On March 19, 1977, a Clarification of Unit Petition was filed with the Public Employment Relations Commission (the "Commission") by the Dover Township Municipal Employees Union, Local 2279, A.F.S.C.M.E. ("AFSCME") with respect to a question concerning the composition of a collective negotiations unit of employees of the Township of Dover (the "Township") for which AFSCME is the exclusive representative. AFSCME seeks a determination as to whether Mrs. Donna Ruppe, the Secretary to the Chief of Police, is a confidential employee within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act").

Pursuant to a Notice of Hearing, a hearing was held before Hearing Officer Joan Kane Josephson on June 28, 1977, at which all parties were afforded an opportunity to present evidence, to examine and to cross-examine witnesses, and to argue orally. The Township and AFSCME submitted post-hearing briefs.

On May 25, 1978, the Hearing Officer issued her Report and Recommendations, a copy of which is attached hereto and made a part hereof. The Township filed exceptions to the Hearing Officer's Report. AFSCME has not excepted to the report; nor has it filed an answering brief to the Township's exceptions.

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

1.	The Township of Dover is a public employer within the meaning of the Act and is subject to the provisions of the Act.

2.	The Dover Township Municipal Employees Union, Local 2279, A.F.S.C.M.E. is an employee representative within the meaning of the Act and is subject to its provisions.

3.	AFSCME has filed a Petition for Clarification of Unit seeking Commission clarification with respect to the representational status of the Secretary to the Chief of Police. AFSCME is the certified representative of the Township's white collar employees. The Chief's secretary was included in the unit as originally certified. However, the Township has treated the Secretary as excluded from the unit because of alleged confidential status. Accordingly, the Township claims that Mrs. Ruppe's duties as Secretary to the Chief of Police are of such a nature as to render her a confidential employee within the meaning of the Act. There is a question concerning the composition of a collective negotiations unit and the matter is properly before the undersigned for determination.

4.	The Hearing Officer concluded that Mrs. Ruppe was not a confidential employee. First analyzing the duties of the Chief of Police, the Hearing Officer made the following factual findings: he hears grievances at different levels under the contracts between the Township and the PBA, an organization representing police employees, and between the Township and AFSCME, the organization which represents white collar employees;1/ he prepares an annual budget for the police department which contains a flexible salary figure; and although he does not sit on the Township's negotiating team, he does meet with the Township Administrator and the Township's professional negotiator to discuss various negotiations proposals affecting his employees.2/ Second, with regard to Mrs. Ruppe, the Hearing Officer found that she generally types all the Chief's correspondence but that such correspondence does not directly relate to labor relations. The Hearing Officer also found that Mrs. Ruppe was unable to recall ever having typed the Chief's negotiations proposals.

Initially, the undersigned notes that the Commission is statutorily charged with the responsibility of determining the confidential status of public employees based upon the definition which appears at N.J.S.A. 34:13A-3(g).3/ Thus, in reviewing the record herein, the undersigned must consider whether or not Mrs. Ruppe's job functions permit her access to or knowledge of the material involved in the collective negotiations process so as to make her membership in the existing clerical unit, represented by AFSCME, incompatible with her official duties.

A number of factors are material in making such a determination. Where the confidential status of a clerical employee is at issue, the involvement of the individual in the collective negotiations process for whom the clerical duties are performed is highly relevant. Based upon the Hearing Officer's factual findings herein, and an independent review of the record, the undersigned must conclude that the Chief's involvement in labor relations is significant. Uncontraverted testimony demonstrates that the Police Chief submits prior written proposals to and participates in negotiations strategy sessions with the Township Administrator and the Township's professional negotiator with regard to three different negotiations units. In addition, the Chief prepares and administers a three million dollar budget and functions as the Township's representative at the second step of the contractual grievance procedure established by AFSCME. Moreover, the Chief acknowledges that aside from contract negotiations he formulates labor relations policies pertaining to such working conditions as shifts, dress and haircuts. The record demonstrates that the Chief, in the context of a question concerning whether park police should be placed in the AFSCME or PBA unit, discussed the appropriate placement of employees in various grades and steps of the salary guide, work week, and the deployment of manpower personnel. Thus, it is clear that the Chief plays an integral role in labor relations as a representative of management with regard to several negotiations units and is instrumental in formulating certain elements of the Township's labor relations policy. While this evidentiary conclusion is not necessarily dispositive with regard to Mrs. Ruppe's status as a confidential employee, it must be accorded considerable weight in light of the fact that Mrs. Ruppe types virtually all of the Chief's correspondence.4/

Mrs. Ruppe has been the Chief's personal secretary for the past ten years. Both the Chief and Mrs. Ruppe have testified that she is responsible for virtually all of the Chief's typing and filing requirements. The record substantiates that the Chief generates written correspondence and memoranda with regard to grievances which Mrs. Ruppe types. With regard to the typing of negotiations proposals, Mrs. Ruppe's testimony is somewhat ambiguous. Mrs. Ruppe's testimony on this critical point, considered in conjunction with the Chief's testimony that he submits written positions in advance of collective negotiations to the Township Administrator, leads the undersigned to the conclusion that Mrs. Ruppe is involved in the typing of these proposals.

Finally, the Chief testified that minutes of staff meetings and other confidential materials are kept in locked files for which Mrs. Ruppe has a set of keys. Access to such material is another important criteria in judging an employee's confidential status.

Although the record may not conclusively demonstrate a continuous pattern of exposure to the collective negotiations process, the statutory definition does not make confidential status dependent upon regular involvement in labor relations.

The undersigned is satisfied that the extent of Mrs. Ruppe's access and exposure to the collective negotiations process renders her membership in any appropriate negotiating unit incompatible with her official duties.

Accordingly, the undersigned finds and determines that Mrs. Ruppe is a confidential employee, and shall, effective upon the issuance of this decision, be excluded from AFSCME's negotiations unit.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	February 5, 1979

Trenton, New Jersey