D.R. NO. 82-7

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOARD OF EDUCATION OF THE

BOROUGH OF PARAMUS,

Public Employer-Petitioner,

-and-	DOCKET NO. CU-80-38

EDUCATION ASSOCIATION OF PARAMUS

N.J.E.A.,

Employee Representative.

Appearances:

For the Public Employer-Petitioner,

Winne, Banta, Rizzi & Harrington, attorneys

(Robert M. Jacobs of counsel)

For the Employee Representative,

Goldberg & Simon, attorneys

(Theodore M. Simon of counsel)

DECISION

Pursuant to a Petition for Clarification of Unit filed on December 10, 1979 with the Public Employment Relations Commission (the "Commission") by the Board of Education of the Borough of Paramus (the "Board") hearings were conducted before a designated Commission Hearing Officer on the claim raised by the Board that all Department Chairpersons should be removed from the collective negotiations unit represented by the Education Association of Paramus (the "Association"). The Board alleges that Department Chairpersons are supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), and that a potential and actual conflict of interest exists between the supervisory and non-supervisory employees in the mixed unit. Hearings were held before Commission Hearing Officer Arnold H. Zudick, on June 10 and 17, September 8, and October 7, 1980, in Newark, New Jersey, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Both parties submitted post-hearing briefs; the record closed December 1, 1980. The Hearing Officer thereafter issued his Report and Recommendation on January 5, 1981, a copy of which is attached hereto and made a part hereof.

The Association, by letter dated March 11, 1981, and through re-submission of its post-hearing brief, excepted to certain of Hearing Officer's findings. On March 17, 1981, the Board in reply to the Association's objections urged adoption of the Hearing Officer's Report and Recommendations and, in support thereof, resubmitted its post-hearing brief.

The undersigned has carefully considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, the exhibits and the post-
hearing briefs and finds as follows:

1. The Board of Education of the Borough of Paramus is a public employer within the meaning of 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 Education Association of Paramus, N.J.E.A., is an employee representative within the meaning of the Act and is subject to its provisions.

3. The Association is the recognized representative of employees in a negotiations unit comprised of Board personnel including department chairpersons and teachers.

4. The Board agrees with the Association that department chairpersons have been supervisors since 1965. Nevertheless, the Board argues that as a result of substantial increases in the scope of the chairpersons' supervisory duties there is a potential for a substantial conflict of interest between the supervisory and non-supervisory employees in the unit and, in fact, actual conflicts of interest have occurred. Further, the Board argues at hearing that no pre-1968 negotiations relationship existed between it and the Association to justify the continued inclusion of supervisors in the unit.

5. The Association alleges that its collective negotiations history with the Board falls within the statutory "established practice" exception embodied at N.J.S.A. 34:13A-5.3, which permits supervisors to be included in units with non-supervisors. Further, it argues that there is no actual or potential substantial conflict of interest to prohibit the continuation of the mixed supervisory/non-supervisory unit. The Association claimed before the Hearing Officer that the chairpersons' supervisory responsibilities had not increased sufficiently to disturb the "historically proper" mixed unit of supervisors and non-supervisors.

6. The Hearing Officer made the following findings:

a. There was clear and convincing evidence of a pre-
1968 negotiations relationship between the Association and the Board, which meets the standards set out in In re Tp. of West Paterson Bd. of Ed., P.E.R.C. No. 77 (1973)1/ of the statutory "established practice" exception in N.J.S.A. 34:13A-5.3.

b. The Hearing Officer also found that the scope of the chairpersons' supervisory duties had significantly increased since 1979 due to their assumption of responsibilities as primary evaluators of teachers consistent with the requirements of regulations issued by the Commissioner of Education pursuant to "Thorough and Efficient" legislation. The Hearing Officer further found that this increase in responsibility posed a potential for a substantial conflict of interest between chairpersons and teachers.

c. The Hearing Officer found actual instances of conflict when chairpersons failed to include comments on teacher attendance in their evaluations, and failed to attend a particular honor society program.

Based upon the above findings the Hearing Officer recommended that department chairpersons be removed from the Association's negotiations unit.

7. The Association excepts to the Hearing Officer's finding that: (1) there has been an increase in the scope of chairpersons' supervisory duties which has resulted in a substantial change in the nature of the chairpersons' supervisory role; and (2) that actual conflicts have arisen between department chairpersons and teachers. In support of this position the Association resubmitted its post-hearing brief.2/

After review of the entire record the undersigned adopts the Hearing Officer's findings of fact, conclusions of law and recommendation that department chairpersons be removed from the Association's collective negotiations unit.

N.J.S.A. 34:13A-5.3, in relevant part provides:

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... .

The Commission has held that the finding of a pre-1968 "established practice" does not necessarily mandate the continued existence of a mixed supervisory/non-supervisory unit. In W. Paterson, P.E.R.C. No. 79, supra, the Commission considered this argument and stated:

The Association's position, on the other hand, seems unduly narrow. It argues that the prohibition against mixed units falls whenever an established practice or prior agreement is found and that upon either finding, the continuation of such unit is mandated. That approach is fairly mechanical and seems to remove from consideration any evaluation of whether the end result - - the allegedly mandated unit - - is within the overall objectives of the statute. We can conceive of situations where the end result would be demonstably obnoxious to such objective and surely beyond the contemplation of the Legislature when it adopted these exceptions. It also lends itself to a literal application whereby a single, one year, prior agreement would be sufficient to trigger the exceptions with no regard to be given to other substantial considerations. When the Legislature charged the Commission to 'decide in each instance which unit of employees is appropriate', we think it intended a greater degree of discretion and judgment than the Association's approach permits. The status itself suggests that no unit is mandated because of particular findings. It provides that 'except where dictated by [one of the exceptions], 'the mixed unit is forbidden; it does not say the existence of any of the exceptions dictates a particular unit result. Clearly, the sense of it is that an appraisal and judgment is to be made to determine whether exceptional circumstances warrant, indeed require a deviation from the norm. (Emphasis added)

Applying the above precepts, the Commission concluded that the occurrence of actual substantial conflicts would supercede the existence of an "established practice" and require the removal of supervisors from a unit.

In In re Ramapo-Indian Hills Reg. H.S. Dist. Bd. of Ed., D.R. No. 81-26, 7 NJPER 119 (¶ 12048 1981), the undersigned, also applying the precepts of W. Paterson, concluded that an "established practice" exception would be negated by a substantial increase in supervisory duties.

... 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.3/

In the instant matter, the Hearing Officer correctly determined that the increased scope of supervisory duties delegated to the department chairpersons in its implementation of the Commissioner of Education's 1979 regulations resulted in a substantial change and expansion of the chairpersons' supervisory obligations. At that time the Board delegated to department chairpersons the primary responsibility for preparing summary evaluations of teachers, performance observation reports and for follow-up teacher conferences. Embodied in this responsibility was the requirement for recommending to the administration the continued employment of teachers or the grant or withholding of salary increments. Under current practice the department chairpersons have discretion to validate input from the principal and vice principal in preparing the summary evaluation. The chairpersons alone signs the evaluation. Prior to this change, the department chairpersons prepared summary report which were submitted to the principal. The principal prepared the summary evaluations of teachers based upon the summary report and the principal's own observations. Compare, In re Waldwick Bd. of Ed., D.R. No. 82-5, 7 NJPER ___ (¶ ___ 1981). Additionally, the Board, in 1979, issued a new job description which gave department chairpersons a participating role in recruitment, screening, hiring, training and assignment of department personnel, and has since 1977-1978 required chairpersons to have supervisory certificates.

The Supreme Court envisions the likelihood that the performance of the evaluating function would give rise to potential substantial conflict of interest in Bd. of Ed. of W. Orange v. Wilton, 57 N.J. 404 (1971). Concerning the duties of a director of elementary education, the Court stated:

While a conflict of interest which is de minimis or peripheral may in certain circumstances be tolerable any conflict of greater substance may be deemed opposed to the public interest . . .

* * *

...There is no doubt that it was her duty, among other things, to supervise the work of the principals of the nine elementary schools and to evaluate their performance for the purpose of reporting and making recommendations to the Superintendent of Schools with respect to salary increased and tenure for them. In the performance of such tasks she owed undivided loyalty to the Board of Education. If she were joined in an employees unit which included the principals whose work she was duty bound to appraise in the Board's interest, would she be under pressure, real or psychological, to be less faithful to the Board and more responsive to the wishes of her associates in the negotiating unit? 57 N.J., at 425-426.

In the matter herein, the Hearing Officer correctly concluded that the extent of the chairpersons changed evaluative functions have given rise to a potential for substantial conflict of interest between chairpersons and teachers. Further, his finding that an actual conflict of interest in the preparation of evaluations has arisen is borne out in the record. In March 1980, the Board emphasized to department chairpersons the importance of including in the summary evaluations either positive or negative comments concerning teacher attendance. Shortly, prior to the preparation of the summary evaluations the Association sent to department chairpersons copies of a letter addressed to the superintendent in which the Association expressed "deep concern and displeasure with the new procedure you have instructed primary evaluators to use regarding staff evaluation – - namely, including a written statement about attendance on the summary evaluation form." It is reasonable to conclude from the above that chairpersons were well aware of their responsibilities to management when they prepared the evaluations and were well aware of the Association's opposition to this requirement. It would appear that the dual loyalty of department chairpersons to the Association and to management has been called into question in the manner envisioned by the Court in Wilton, supra.

Accordingly, for the above reasons, the undersigned adopts the Hearing Officer's recommendation that department chairpersons should be removed from the Association's unit. Since the contract covering the employees in the Association's unit expired during the processing of the instant Petition, this decision is effective immediately.4/

BY ORDER OF THE DIRECTOR OF

REPRESENTATION

____________________________

`	Carl Kurtzman, Director

DATED: August 18, 1981

Trenton, New Jersey