D.R. NO. 82-37

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RAMSEY BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-81-36

RAMSEY SUPERVISORS ASSOCIATION

a/w NJASSPS,

Petitioner,

-and-

RAMSEY TEACHERS ASSOCIATION,

Intervenor.

Appearances:

For the Public Employer

Winne, Banta, Rizzi & Harrington, attorneys

(Robert M. Jacobs of counsel)

For the Petitioner

Robert M. Schwartz, attorney

For the Intervenor

Bucceri & Pincus, attorneys

(Sheldon H. Pincus of counsel)

DECISION AND DIRECTION OF ELECTION

On September 9, 1980, a Petition for Certification of Public Employee Representative, supported by an adequate showing of interest, was timely filed with the Public Employment Relations Commission (the "Commission") by the Ramsey Supervisors Association, affiliated with NJASSPS (the "Petitioner"). Petitioner seeks to represent a unit of approximately ten subject matter Supervisors employed by the Ramsey Board of Education (the "Board"). The petitioned-for employees are currently represented by the Ramsey Teachers Association (the "RTA") in a unit including certified personnel employed by the Board. Pursuant to N.J.A.C. 19:11-2.7, the RTA was granted intervenor status in this matter.

Hearings were held before Commission Hearing Officer Joan Kane Josephson on January 19, 20, and April 29, 1981, in Trenton, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Post-hearing briefs were submitted by the parties, the last of which was received by June 29, 1981. The Hearing Officer thereafter issued her Report and Recommendations on October 7, 1981, a copy of which is attached hereto and made a part hereof.

The RTA filed exceptions to the Hearing Officer's Report and Recommendations on October 19, 1981.

The undersigned has carefully considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, the exhibits and the RTA's exceptions and finds and determines as follows:

1.	The Ramsey 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 "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 Ramsey Supervisors Association, affiliated with NJASSPS and the Ramsey Teachers Association are employee representatives within the meaning of the Act and are subject to its provisions.

3.	The RTA is the recognized representative of a unit comprised of certain Board certificated personnel including "department chairpersons" and teachers.1/

4.	The Ramsey Supervisors Association seeks to represent a unit comprised exclusively of the petitioned-for supervisors.

5.	The Petitioner asserts that subject matter supervisors are supervisors within the meaning of the Act and are therefore inappropriate for inclusion in a unit with nonsupervisors, and that their continued inclusion in the RTA unit causes a conflict of interest between the subject matter supervisors and the teachers whom they supervise. Additionally, the Petitioner asserts that the RTA did not prove a negotiations relationship existed prior to 1968,2/ which would show that an established practice existed under the exception set forth in N.J.S.A. 34:13A-5.3 allowing supervisors to be represented by an employee organization that admits nonsupervisory personnel to membership.

The RTA argues that subject matter supervisors are not supervisors, that there is no conflict of interest between teachers and subject matter supervisors, and that the request to remove the petitioned-for employees from the existing unit is, therefore, inappropriate.

The Board claims that the subject matter supervisors are supervisors and that as a result of the implementation of the new State observation and evaluation requirements the supervisory duties of the petitioned-for employees have dramatically increased. In addition, the Board asserts that the increased duties pose potential and actual conflicts of interest between the supervisors and the nonsupervisors in the existing unit.

6.	The Hearing Officer found that subject matter supervisors are supervisors within the meaning of the Act, that their supervisory functions have substantially increased since 1968 when they were department chairpersons 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 also found that none of the statutory exceptions which might otherwise permit the continued inclusion of supervisors and nonsupervisors in the same negotiations unit were applicable because there was no pre-Act negotiations relationship between the Teachers Association and the Board affecting the distinct interests of department chairpersons. Finally, the Hearing Officer recommended that the subject matter supervisors should be removed from the existing collective negotiations unit and provided with the opportunity to choose separate representation because the substantial increase in their supervisory duties presents potential or actual conflicts of interest between the supervisors and the teachers whom they supervise.

The Association excepts to the Hearing Officer's findings, arguing that: (1) subject matter supervisors do not exercise supervisory power within the meaning of the Act; and (2) no actual or potential conflict of interest exists between subject matter supervisors and other unit members.

After a review of the entire record, the undersigned adopts the Hearing Officer's findings of fact, conclusions of law and recommendation that the subject matter supervisors should be removed from the RTA's collective negotiations unit.

The record reveals that beginning in October 1979, substantial changes occurred in the administrative and supervisory organization of the Ramsey school system. Pursuant to new State Department of Education regulations requiring evaluation of tenured as well as nontenured instructional staff, the Board adopted new evaluation guidelines under which department chairpersons became the primary evaluators responsible for the ultimate recommendation concerning reemployment, tenure or grant of increment for the evaluated teacher. Prior to the October 1979 changes, this evaluation and recommendation function was the responsibility of the school principal.

On the basis of these findings, the Hearing Officer concluded that the petitioned-for employees are supervisors within the meaning of the Act. The undersigned finds ample evidence in the record to support this finding and hereby concludes that the subject matter supervisors are statutory supervisors.

The Hearing Officer also found that a pre-1968 collective negotiations relationship did not exist between the Board and the Association relating to department chairpersons. The undersigned has reviewed the transcript and exhibits carefully and notes that the Staff Manual in existence in 1965 provided for a mechanism which resembles collective negotiations. However, a review of the record indicates a lack of any other substantive evidence to establish that collective negotiations actually occurred or that the parties' practices were consistent with the outline contained in the Staff Manual. Therefore, the undersigned, noting the absence of exceptions with regard to the Hearing Officer's finding of fact and conclusion concerning the nonexistence of a pre-1968 collective negotiations relationship, and noting the absence of evidence establishing a negotiations relationship, determines that the requirements for the finding of the statutory exception of "established practice" have not been met.

Even if an "established practice" existed herein, and even if department chairpersons were found to be supervisors at that time (pre-1968), the undersigned has determined that when an employer has dramatically increased the role of supervisors by giving them substantially greater supervisory authorities, those employees may no longer be included in negotiations units with nonsupervisory employees. See e.g., In re Waldwick Bd. of Ed., D.R. No. 82-5, 7 NJPER 498 (¶12221 1982); In re Ramapo-Indian Hills Reg. H.S. Bd. of Ed., D.R. No. 81-26, 7 NJPER 119 (¶12048 1981); and In re Cinnaminson Tp. Bd. of Ed., D.R. No. 81-39, 7 NJPER 274 (¶12122 1981). In Ramapo 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/non-supervisory employee units is preeminent.

The record in this matter reveals that the Board substantially increased the supervisory role of the petitioned-
for employees over the past two years.

Accordingly, for the above reasons, the undersigned adopts the Hearing Officer's recommendation that subject matter supervisors are supervisors within the meaning of the Act with substantially increased supervisory responsibilities and should be removed from the Ramsey Teachers Association's unit. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: all Supervisors, but excluding managerial executives, confidential employees, police and craft employees, and all other professional employees of the Ramsey Board of Education.

Pursuant to N.J.A.C. 19:11-2.6, the undersigned directs that an election be conducted among the above employees. The election shall be conducted no later than thirty (30) days from the date set forth below.

Those eligible to vote are the subject matter supervisors 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 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 since the designated payroll period and who have not been rehired or reinstated before the election date.

Pursuant to N.J.A.C. 19:11-9.6, the Public Employer shall file with the undersigned and with the Association an election eligibility list consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. 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 Association with statement 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 or not they desire to be represented for the purpose of collective negotiations by the Ramsey 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 directed herein shall be conducted in accordance with the provisions of the Commission's rules.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	January 28, 1982

Trenton, New Jersey