D.R. No. 84-3

Synopsis:

The Director of Representation determines that the Police Lieutenant of Operations is a supervisor and must be excluded from the PBA'a negotiations unit which includes non-supervisors. The Lieutenant of Operations title is newly created as the result of a reorganization. The Lieutenant of Operations has a greater supervisory role than the Captain title which no longer exists. Although the Captains had been supervisors, their previous inclusion in the PBA unit was permitted under the Employer-Employee Relations Act's "established practice" exception. The facts developed at a hearing did not demonstrate a chain of continuity between the Captain positions and the Lieutenant of Operations position to permit a continued application of the "established practice" exception.

PERC Citation:

D.R. No. 84-3, 9 NJPER 524 (¶14212 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.12 33.41

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 84-003.pdf
Appellate Division:
Supreme Court:

D.R. NO. 84-3 1. D.R. NO. 84-3 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of Borough of Metuchen, Public Employer-Petitioner, -and- Docket No. CU-82-50 Policemen = s Benevolent Association, Local No. 60, Employee Representative. Appearances: For the Public Employer-Petitioner, Martin A. Spritzer, attorney For the Employee Representative, Gary Weingart, Delegate DECISION On January 22, 1983, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission ( A Commission @ ) by the Borough of Metuchen ( A Borough @ ) seeking to determine whether the newly created title of Lieutenant of Operations should be included in the negotiations unit represented by the Policemen = s Benevolent Association, Local No. 60 ( A PBA @ ). The Borough contends that the Lieutenant of Operations should not be included in the unit because the title is supervisory, managerial, and/or that there is a conflict of interest between the Lieutenant of Operations and unit members. The PBA alleges that the title is appropriate for inclusion in the unit and that the Petition should be dismissed. Pursuant to a Notice of Hearing, hearings were conducted before Commission Hearing Officer Mark A. Rosenbaum on August 9, 10, 17 and September 8, 1982, at which all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Thereafter, the Hearing Officer, on March 25, 1983, issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. The Hearing Officer found that the Lieutenant of Operations was a supervisor within the meaning of the Act and that there was no basis for invoking the statutory exceptions which might permit the inclusion of the tile in the PBA unit which includes nonsupervisors. He also found that the Lieutenant of Operations was a managerial executive within the meaning of the Act and that a substantial conflict of interest existed compelling the exclusion of the title from the unit. Neither party has filed exceptions. The undersigned has carefully considered the entire record herein, including the transcripts, the exhibits and the Hearing Officer = s Report and Recommendations, and finds and determines as follows: 1. The Borough of Metuchen is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), is the employer of the employees who are the subject of this Petition, and is subject to the provisions of the Act. 2. The Policemen = s Benevolent Association, Local No. 60 is an employee representative within the meaning of the Act and is subject to its provisions. 3. The Borough has filed a Petition for Clarification of Unit seeking a determination that the Lieutenant of Operations is a supervisor, a managerial executive, and/or that a conflict of interest exists warranting exclusion of that tile from the PBA = s negotiations unit. The PBA, while admitting that the title is supervisory, argues that the Lieutenant of Operations may nevertheless be included in its unit. It claims that the duties of the Lieutenant of Operations are the same as the duties previously performed by two Captains and argues that the Director of Representation, in an earlier decision involving the same parties, D.R. No. 78-27, 3 NJPER 394 (1977), found the Captains to be supervisory personnel but permitted their continued inclusion in the unit because of the A established practice @ exception embodied in N.J.S.A. 34:13A-5.3 and 6(d)1/ and because no actual conflicts of interest were demonstrated in the record. 4. The Hearing Officer found that the duties and responsibilities of the Lieutenant of Operations no longer matched the duties and responsibilities of the two Captains who were the subject of the 1977 decision. The Police Department is comprised of an Investigative Division, a Patrol Division, a Communications Section and a Records Bureau. All sections, with the exception of the Records Bureau, are under the direction of the Lieutenant of Operations, who is second in command to the Chief. In 1977, the Patrol Division and the Investigative Division were supervised, respectively, by Captains. The Captains reported directly to the Chief, and neither Captain had division-wide authority in the manner in which the Lieutenant of Operations functions today. The Hearing Officer found that the Lieutenant of Operations is a key figure in the budgeting process. He prepares the annual budget along with the Chief, and defends the proposal before the Borough Council. He also is involved in the purchasing process and has been responsible for the purchase of many items for the Department. The Lieutenant of Operations = duties also include the deployment of personnel. He not only makes the routine staffing decisions but also has made deployment changes in the Detective Bureau and has designated certain officers for assignment to sub- bureaus. He also has altered the shift schedules for Sergeants within the Patrol Division and altered the weekend hours in the Investigative Division. He also has altered the shift schedules for Sergeants within the Patrol Division and altered the weekend hours in the Investigative Division. He has been responsible for the transfer of one officer from the Patrol Division to the Investigative Division. The Hearing Officer further found that the Lieutenant of Operations also approves the officers = time sheets for court appearances as well as their requests for attendance at training programs, vacation and compensation days, and for overtime pay. The Lieutenant of Operations is also involved in hiring, disciplining and evaluating personnel. It is his direct responsibility to hire the civilian dispatchers and he has hired as well a part-time records clerk. There have been no other employees hired within the Department since the title was created. Although, since the creation of the title, no employees have been dismissed, it is within the authority of either the Chief or the Lieutenant of Operations to bring an officer before the Borough Council on charges leading to dismissal. The Lieutenant has been responsible for issuing warnings to an officer with an alcohol problem, and for relieving that officer of his weapon and enrolling him in an alcohol rehabilitation program. The Lieutenant testified that he would prefer charges against an officer before the Borough Council if the drinking was to reoccur. The Lieutenant also is responsible for conducting semi- annual evaluations of all supervised employees. The evaluation form used is one which was revised by the Lieutenant. To date, no employee has been disciplined as a result of these evaluations. Based upon the foregoing the Hearing Officer concluded that the Lieutenant of Operations was a supervisor and that the scope of his supervisory responsibilities was greater than that previously exercised by the Captains. In re Ramapo-Indian Hills School Dist. Bd. of Ed., D.R. No. 81-26, 7 NJPER 119 ( & 12048 1981). He found that although each Captain may have had supervisory duties within his own division, neither of them had the Department-wide responsibilities now exercised by the Lieutenant of Operations. The Hearing Officer also found significant conflicts of interest between the Lieutenant of Operations and unit members. His role in grievance processing, resulting from the disciplining of unit members, would be in direct conflict with other unit members. 5. The undersigned adopts the above factual findings of the Hearing Officer and his conclusion that the Lieutenant of Operations is a supervisor. The factual record supports this conclusion as well as the conclusion that there has been a significant modification in the scope of supervisory responsibilities exercised by the Lieutenant of Operations as compared with the Captains. This significant increase in supervisory responsibility resulted from the implementation by the Borough of a reorganization plan for the police department recommended by the New Jersey Department of Community Affairs. Moreover, the record does not bear out a chain of continuity between the Captains and the Lieutenant of Operations inasmuch as the Lieutenant of Operations title is newly created under a departmental reorganization and is assigned supervisory responsibilities of greater dimension. For this reason, the PBA = s reliance on the earlier 1977 decision and the statutory exception of A established practice @ is misplaced. Where the underpinnings which justify the application of the statutory exceptions are removed, ordinary principles of supervisor/nonsupervisor conflict of interest prevail and the Act = s normal prohibition against mixed units is applicable. Ramapo, supra. Accordingly, for the above reasons, the undersigned determines that the newly created position of Lieutenant of Operations may not be included in the negotiations unit represented by the PBA.2/ BY ORDER OF THE DIRECTOR OF REPRESENTATION ___________________________ Carl Kurtzman, Director DATED: August 1, 1983 Trenton, New Jersey 1/ N.J.S.A. 34:13A-5.3 provides, in relevant part: ...nor, except where established practice, prior agreement or special circumstances, 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 non-supervisory personnel to membership... N.J.S.A. 34:13A-6(d) repeats this statutory admonition. 2/ The undersigned, having determined that the position of Lieutenant of Operations is supervisory and should not be included in the negotiations unit containing nonsupervisory personnel, need not address the additional question of whether or not the title is managerial. ***** End of DR 84-3 *****