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D.R. No. 82-11

Synopsis:

The Director of Representation adopts the recommendations of a Hearing Officer that department chairpersons constitute an appropriate collective negotiations unit and directs an election among these employees to ascertain their representational desires. The department chairpersons are supervisors within the meaning of the Act. The Hearing Officer found that although the department chairpersons have been included in a unit with nonsupervisory personnel, the statutory exceptions which might be the basis of continuing the inclusion of department chairpersons in a teachers' unit were not present in this matter. The Director observes that even if a pre-Act negotiations relationship existed between the Board and the Teachers' Association, the substantial increase of supervisory responsibility assigned to department chairpersons since 1968 would vitiate the applicability of any statutory exception which permits, limited circumstances, units which include supervisors and nonsupervisors.

PERC Citation:

D.R. No. 82-11, 7 NJPER 530 (¶12234 1981)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.32 33.312 33.42

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 82-011.wpdDR 82-011.pdf - DR 82-011.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 82-11 1.
    D.R. NO. 82-11
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    DELAWARE VALLEY REGIONAL HIGH
    SCHOOL BOARD OF EDUCATION,

    Public Employer,

    -and- Docket No. RO-81-58

    DELAWARE VALLEY REGIONAL
    SUPERVISORS = ASSOCIATION,

    Petitioner,

    -and-

    DELAWARE VALLEY REGIONAL
    TEACHERS = ASSOCIATION,

    Intervenor.


    Appearances:

    For the Public Employer
    Cassetta, Brandon Associates
    (Raymond Cassetta, Consultant)

    For the Petitioner
    Robert M. Schwartz, attorney

    For the Intervenor
    Delaware Valley Regional Teachers = Association
    (John A. Thornton, UniServ Rep.)

    DECISION AND DIRECTION OF ELECTION

    On September 24, 1980, the Delaware Valley Regional Supervisors = Association ( A Supervisors = Association @ ) filed a Petition for Certification of Public Employee Representative with the Public Employment Relations Commission (the A Commission @ ). The Supervisors = Association seeks to represent a unit of A Supervisors of Educational Departments @ employed by the Delaware Valley Regional High Board of Education (the A Board @ ).
    Pursuant to a notice of hearing, hearings were held before Hearing Officer Robert E. Anderson, Jr., on January 5, 6 and February 6, 1981. At the hearing, the Delaware Valley Regional Teachers = Association ( A Teachers Association @ ) moved, pursuant to the recognition clause of the collective agreement between it and the Board, to intervene on the basis of its current representation of the positions in question. All parties stipulated that the Teachers = Association was the current representative of the positions in question. Accordingly, the Teachers = Association was granted intervenor status in this matter.
    At the hearing, all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Thereafter, on March 16, 1981, the Supervisors = Association filed a post-hearing brief. No other party filed a post-hearing brief. On May 6, 1981, the Hearing Officer issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. No party has excepted to the Hearing Officer = s Report and Recommendations. The undersigned has considered the entire record herein including the Hearing Officer = s Report and Recommendations, the transcripts and the exhibits and on the basis thereof finds and determines as follows:
    1. The Delaware Valley Regional High School Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), is the employer of the employees who are the subject of this proceeding and is subject to the provisions of the Act.
    2. The Delaware Valley Regional Supervisors = Association and the Delaware Valley Regional Teachers = Association are employee representatives within the meaning of the Act and are subject to its provisions.
    3. The Supervisors = Association seeks to represent a unit to be comprised of department chairpersons. Currently the school district employs department chairpersons in the areas of English, Science, Industrial Arts, Business Education, Physical Education, and Math. The Teachers = Association currently represents the department chairpersons within a negotiations unit which includes teaching staff employees.
    4. The Supervisors = Association asserts that department chairpersons are supervisors, that the department chairpersons were not supervisors prior to July 1, 1968, and that the scope of supervisory functions performed by department chairpersons has dramatically increased since 1968. Finally, the Supervisors = Association asserts that there is a conflict of interest between department chairpersons and the teachers, whom they supervise, flowing from their inclusion within the same unit.
    The Teachers = Association disputes the proposed unit which, if found appropriate, would entail the removal of department chairpersons from its unit. The Teachers = Association argues that department chairpersons are not supervisors, that there is no conflict of interest between teachers and department chairpersons, and that the requested unit is, therefore, inappropriate.
    The Board neither disputes nor supports the claim that the proposed unit is appropriate. The Board is willing to recognize a unit of chairpersons if such unit is deemed appropriate by the Commission. If a department chairpersons unit is not found appropriate, the Board intends to continue to negotiate with the Teachers = Association with respect to the department chairpersons within the present unit structure.
    5. The Hearing Officer found that department chairpersons are supervisors within the meaning of the Act, that their supervisory functions had substantially increased since 1968 and that the exercise of their responsibilities would present a substantial conflict of interest vis-a-vis their inclusion in the negotiations unit with teaching staff members whom they supervise. The Hearing Officer found that none of the statutory exceptions, which might permit the continued inclusion of supervisors and nonsupervisors in the same negotiations unit, were applicable because chairpersons were not supervisory personnel prior to July 1, 1968, and because there was no pre-Act negotiations relationship between the Teachers = Association and the Board affecting the distinct interests of department chairpersons.
    6. N.J.S.A. 34:13A-5.3 defines a supervisor as an employee A having the power to hire, discharge, discipline or effectively recommend the same. . . . @ The record herein reveals that department chairpersons are empowered to make recommendations with respect to the hiring of teachers within their own departments. Additionally, department chairpersons have, and exercise, the authority to recommend adverse personnel actions including, but not limited to, discharge and formal discipline against department members. Thus, notwithstanding the principal = s independent performance of his own observation and investigation into any particular problem and his resulting action with respect to such problem, the instant record establishes that department chairpersons play an active and effective role in the administrative decision making process. The department chairpersons, in assuming the role as principal evaluators of teachers, make recommendations concerning teacher performance which are instrumental in determining contract renewal and contract nonrenewal, and the grant or denial of tenure.
    The undersigned finds that there is substantial evidence in the record with respect to the manner in which the department chairpersons function to support the Hearing Officer = s conclusion that department chairpersons are supervisors within the meaning of the Act.
    The Act permits the existence of units comprised of supervisors and nonsupervisors only under exceptional circumstances. These circumstances are set forth in the Act at N.J.S.A. 34:13A-6(d):
    ...Except where dictated by established practice, prior agreement or special circumstances, no unit shall be appropriate which includes (1) both supervisors and non supervisors, ....

    See also N.J.S.A. 34:13A-5.3.
    Accordingly, the unit solely comprised of supervisors proposed by the Supervisors = Association would normally constitute the appropriate unit, unless it is argued and demonstrated that a statutory exception may be invoked as a basis for retaining the present unit structure.
    After a complete review of the record, the undersigned adopts the Hearing Officer = s finding that the conditions permitting a continuation of a mixed unit of supervisors and nonsupervisors in accordance with the statutory exceptions embodied in N.J.S.A. 34:13A-5.3 and 6 (d) are not present herein. To the extent that the record reveals some department chairpersons have performed supervisory or evaluative functions prior to July 1, 1968, the testimony indicates that these functions have, since that time, substantially increased in scope, formality and import. Thus, assuming arguendo that department chairpersons functioned in supervisory capacities prior to July 1, 1968, and were included in a collective negotiations relationship between the Teachers = Association and the Board prior to 1968, the substantial increase in their duties would vitiate the legal significance of that status and operate as a bar against invoking the statutory exception herein. In re Paramus Bd. of Ed., D.R. No. 82-7, 7 NJPER ___ ( & _____ 1981); In re Cinnaminson Tp. Bd. of Ed., D.R. No. 81-39, 7 NJPER 274 ( & 12122 1981); In re Ramapo-Indian Hills Bd. of Ed., D.R. No. 81- 26, 7 NJPER 119 ( & 12048 1981).1/
    Accordingly, the undersigned finds that a question concerning representation exists in an appropriate unit and that an election should be conducted to ascertain the free choice of employees. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: All Department Chairpersons employed by the Delaware Valley Regional High School Board of Education, but excluding teachers, managerial executives, confidential and craft employees, professionals, police and supervisors within the meaning of the Act. The undersigned hereby directs that a secret ballot election shall be conducted among employees in the unit no later than thirty (30) days following the commencement of the school year in September, 1981.
    Those eligible to vote are employees set forth above, who were employed during the payroll period immediately preceding the date below including employees who did not work during that period because they were out ill, or on vacation, or temporarily laid off, including those in the military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who resigned or were discharged for cause following the designated payroll period and who have not been rehired or reinstated prior to the date of the election.
    Pursuant to N.J.A.C. 19:11-9.6, the Board is directed to file with the undersigned and the Supervisors = Association an election eligibility list consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses. In order to be timely filed the eligibility list must be received by the undersigned no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with the Supervisors = Association with statements of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.
    Those eligible to vote shall vote on whether they wish to be represented for purposes of collective negotiations by the Delaware Valley Regional Supervisors = Association. The exclusive representative, if any, shall be determined by the majority of valid ballots cast by the employees voting in the election. The election shall be directed in accordance with the provisions of the Commission = s rules.
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director

    DATED: August 27, 1981
    Trenton, New Jersey
    1/ In Ramapo-Indian Hills Bd. of Ed., the undersigned stated:

    Logically, the statutory exceptions which preserve pre- existing relationships are not applicable where the circumstances underlying the pre-existing relationship no longer exist, as in the instant matter where the scope of the Director = s supervisory responsibilities have been significantly upgraded, thus creating a potential conflict of interest between the Director of Guidance and other unit employees. The circumstances relevant to the narrow statutory exception having been removed, the Act = s policy prohibiting mixed supervisory/nonsupervisory employee units is preeminent.
    ***** End of DR 82-11 *****