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D.R. No. 80-33

Synopsis:

The Director of Representation, adopting the recommendations of a Hearing Officer, clarifies a collective negotiations unit comprised of certificated personnel as excluding Department Chairperson, Supervisor of Art, Supervisor of Music and Dean of Student Services. These employees are supervisors within the meaning of the Act and, by statute, may not be included in negotiations units with nonsupervisory personnel unless exceptional circumstances are present. The Director agrees with the Hearing Officer that the Board and the Association had not engaged in a negotiations relationship prior to the enactment of the Act which would warrant the continued inclusion of the supervisory employees in the negotiations unit.

PERC Citation:

D.R. No. 80-33, 6 NJPER 209 (11102 1980)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

33.312 33.42 16.32

Issues:


DecisionsWordPerfectPDF
NJ PERC:.DR 80-033.wpdDR 80-033.pdf - DR 80-033.pdf

Appellate Division:

Supreme Court:



D.R. NO. 80-33
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RIDGEWOOD BOARD OF EDUCATION,

Public Employer-Petitioner,

-and- Docket No. CU-77-39

RIDGEWOOD EDUCATION ASSOCIATION,

Employee Representative

Appearances:

For the Public Employer-Petitioner
Greenwood, Weiss & Shain, attorneys
(Stephen G. Weiss of counsel)

For the Employee Representative
Zazzali, Zazzali & Whipple, attorneys
(Albert Kroll of counsel)

DECISION

On January 7, 1977, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission (the A Commission @ ) by the Ridgewood Board of Education (the A Board @ ) seeking a clarification regarding the composition of a collective negotiations unit comprised of certificated personnel employed by the Board, which unit is represented by the Ridgewood Education Association (the A Association @ ). More specifically, the instant Petition raises the question of whether the Dean of Student Services at Ridgewood High School, the district-wide Supervisor of Music and Supervisor of Art and the subject-matter department chairpersons employed at the high school should be removed from the Association = s unit. The Board maintains that these individuals may not be included in the Association = s unit because they are supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), and that there is no pre-Act negotiations relationship which would mandate the continued inclusion of these titles in this unit. The Association maintains that none of the titles in dispute are supervisors within the meaning of the Act and that a pre-Act negotiations relationship constituted an established practice permitting their continued inclusion in the unit even if found to be supervisors.
Pursuant to a Notice of Hearing, a hearing was held on March 8, April 2 and May 1, 1979, before Commissioner Hearing Officer Arnold H. Zudick. At the hearing, all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The Board submitted a timely post- hearing brief. The Association submitted a statement in lieu of brief that was not considered by the Hearing Officer because it was not timely filed. The Hearing Officer issued his Report and Recommendations on August 2, 1979, a copy of which is attached hereto and made a part hereof. The Association filed exceptions and a brief in support thereof to the Hearing Officer = s Report and Recommendations on August 29, 1979. The Board has not filed exceptions to the Report or an answering brief to the exceptions.
The undersigned has carefully considered the entire record in this proceeding including the Hearing Officer = s Report and Recommendations and the exceptions filed by the Association and determines as follows:
1. The Ridgewood Board of Education is a public employer within the meaning of the Act, is the employer of the employees who are the subject of this proceeding and is subject to its provisions.
2. The Ridgewood Education Association is an employee representative within the meaning of the Act and is subject to its provisions. The Association is the recognized majority representative of employees in a unit comprised of all certificated personnel of the Ridgewood School System excluding members of the Ridgewood Administrators Association or superintendents.
3. The Board originally filed a Petition for Clarification of Unit seeking the exclusion of the Director of English and the Director of Reading from the Association = s unit claiming that the interests of these personnel are more appropriately identified with the interests of administrative personnel due to their supervisory functions. The Petition was subsequently amended to seek the exclusion of certain other employees from the Association = s unit.1/ However, at the time of the hearing the parties stipulated that the sole employee classifications remaining in dispute were the Dean of Student Services at Ridgewood High School, the district-wide Supervisor of Music and Supervisor of Art, and the subject matter Department Chairperson titles employed at the high school.
4. The Board = s position is that the employees in the disputed titles are supervisors within the meaning of the Act and that no statutory exceptional circumstances are present to warrant their continued inclusion in a unit with nonsupervisors.2/
5. On the other hand, the Association maintains that these employees are not supervisors and that there is a pre-Act established practice which would allow their continued inclusion in the unit, even if found to be supervisors. Accordingly, there is a question concerning the composition of a collective negotiations unit and the matter is properly before the undersigned for determination.
6. The Hearing Officer found that: (1) the Department Chairpersons, the Supervisor of Art, and the Supervisor of Music are supervisors within the meaning of the Act and should be removed from the Association = s unit; (2) that the Dean of Student Services is a supervisor and that a potential conflict of interest exists between the Dean and other members of the unit warranting the Dean = s exclusion from the unit; and (3) that the parties = pre-Act relationship would not qualify as an established practice.3/
7. The Association does not except to the Hearing Officer = s recommendation that the Department Chairpersons are supervisors within the meaning of the Act; but does except to his findings that the Dean of Student Services, the Supervisor of Art, and the Supervisor of Music are supervisors. Additionally, the Association excepts to the Hearing Officer = s remaining findings and recommendations that the parties = pre-Act relationship did not qualify as an established practice.
The record amply supports the Hearing Officer = s finding that the Department Chairpersons are supervisors within the meaning of the Act. Accordingly, and in the absence of exceptions, this recommendation is specifically adopted.
The record also establishes that the parties were not involved in a pre-Act negotiations relationship. Discussions concerning salary and fringe benefits that occurred between the Board and the Association prior to 1968 did not rise to the level of collective negotiations. The Association would make a presentation to the full Board, and the Board subsequently moved to consider the presentation in executive sessions. Afterwards the Board would respond generally by advising the Association of its decision to either except or reject the Association = s proposal. Thereafter, although there were discussions in order to clarify the parties = respective positions, the parties did not engage in a mutual effort to resolve differences. Thus, the parties = pre-Act relationship does not evidence A a mutual undertaking for the resolution of differences or an intent to achieve common agreement. @ See In re West Paterson Bd. of Ed., supra, n. 3. Accordingly, the Hearing Officer = s finding that a pre-Act negotiations relationship between the Board and the Association did not exist is hereby adopted.
The undersigned also accepts the Hearing Officer = s recommendation that the Dean of Student Services and the Supervisors of Music and Art should not remain in the Association = s unit. Ridgewood High School does not have an Assistant Principal or Vice Principal. The High School = s administrative staff consists of the Principal, the Dean of Student Services, the Director of Guidance and the Director of Athletics. In the absence of the Principal, the Dean is in charge of the school, in effect the acting principal. The Principal, the Dean and the Director of Guidance make up an Executive Cabinet which may identify specific problems and give direction to Department Chairpersons. The Dean has responsibility for extra-curricular activities as well as certain other duties like hall, cafeteria, grounds, etc. He assigns duty assignments to teachers, oversees and evaluates the teachers = performance of extra-duty assignments. He has issued letters of warning for unsatisfactory performance. He is responsible for finding teachers to fill extra-curricular duties and evaluates their performance therein.
A supervisor is defined in N.J.S.A. 34:13A-5.3 as an individual who has the power to hire, fire or discipline or to effectively recommend the same. Absent the aforementioned exceptional circumstances, supra, n. 2, the Act precludes supervisors and nonsupervisors from being in the same negotiations unit. In addition, the Supreme Court in Bd. of Ed. of West Orange v. Wilton, 57 N.J. 404 (1971) has determined that an employee may have obligations or powers delegated by an employer that can create a substantial conflict between the interests of that individual and other employees in the same negotiations unit. The Court reasoned that these employees should not be placed in a position of choosing at times between loyalties owed to the employer and loyalties owed to fellow members of a negotiations unit.
While the Dean does not have a statutory supervisory role to the extent that Department Chairpersons have, his evaluation of unit members = extra duties plays some part in their overall evaluation. His assignment of extra duties, which is not infrequently appealed to the Principal, and his role in the Executive Cabinet places him in a role where constructive criticism is required of him as well as occasional letters citing unsatisfactory performance. He has significant authority in the High School = s day-to-day chain of operation and, accordingly, there exists sufficient potential for daily conflict as defined in Wilton to bar his inclusion in the existing negotiations unit.
The Supervisors of Music and Art essentially perform on a district-wide basis the same function the Department Chairpersons perform at the high school. Decisions are jointly reached between the Building Principal and the particular supervisor in the area of assignments, hiring, discharge and discipline at the elementary schools. Contrary to the assertion of the Association, the record establishes that the supervisors = evaluation and hiring responsibilities go far beyond the level of initial screening. The principal relies upon the supervisors for their substantial subject area expertise. There is ample evidence to support the Hearing Officer = s findings as to the supervisors and the undersigned specifically adopts these findings.
Therefore, based on the entire record in this matter, the undersigned finds and determines, in agreement with the Hearing Officer and essentially for the reasons cited by him, that the individuals employed in the titles in dispute are supervisors and that their inclusion in a unit with nonsupervisors is inappropriate. Accordingly, the unit is clarified as excluding Department Chairpersons, the Supervisor of Music, the Supervisor of Art, and the Dean of Student Services effective immediately.
BY ORDER OF THE DIRECTOR
OF REPRESENTATION

Carl Kurtzman, Director
DATED: April 8, 1980
Trenton, New Jersey
1/ The Board sought to exclude the following: Junior High School Assistant Principals, Deans, Administrative Assistant to Junior High School Principal, Director of Guidance, Supervisors, Teacher Supervisors, Coordinators, Department Heads, Department Coordinators and the Director of Athletics.
    2/ N.J.S.A. 34:13A-5.3 provides: A ...nor, except where established practice, prior agreement or special circumstance, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership... @
    3/ In In re West Paterson Bd. of Ed., P.E.R.C. No. 77 & 79 (1973), the Commission determined that the established practice and prior agreement exceptions, n. 2, were grandfather provisions intended to preserve pre-Act mixed supervisor/nonsupervisor units.
***** End of DR 80-33 *****