D.R. NO. 78-30

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWN OF KEARNY,

Public Employer-Petitioner,

-and-	Docket No. CU-77-26

KEARNY P.B.A., LOCAL 21,

Employee Representative.

Appearances:

For the Public Employer-Petitioner

Norman A. Doyle, Jr., Esq.

For the Employee Representative

Schneider, Cohen & Solomon, Esqs.

(David I. Solomon, Of Counsel)

DECISION

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a negotiations unit represented by the Kearny P.B.A. Local 21 (the "PBA"), a hearing was held before Hearing Officer James F. Schwerin on May 16, 1977 in Newark, New Jersey. At the hearing all parties were given an opportunity to examine and cross-examine witnesses, present evidence and argue orally. Briefs were filed by both parties by June 28, 1977. The Hearing Officer issued his Report and Recommendations on July 12, 1977, a copy of which is annexed hereto and made a part hereof. The PBA filed exceptions to the Hearing Officer's Report and Recommendations on July 27, 1977. The Town of Kearny (the "Town") has not filed any exceptions to the Report; nor has it filed an answering brief to the exceptions.

The undersigned has carefully considered the entire record in this proceeding and on the facts in the case finds and determines as follows:

1.	The Town of Kearny is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1.1 et seq., as amended (the "Act"), is the employer of the employees who are the subject of this proceeding, and is subject to the provisions of the Act.

2.	Kearny P.B.A. Local 21 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Town has filed a Petition for Clarification of Unit seeking the exclusion of police sergeants, lieutenants and captains from the unit represented by the PBA. The PBA asserts that it represents all policemen employed by the Town, excluding the Chief and Deputy Chiefs, and does not agree to the exclusion of the superior officers from its unit. Accordingly, there is a question concerning the composition of a collective negotiations unit and the matter is appropriately before the undersigned for determination.

The Hearing Officer concluded that the superior officers are supervisors within the meaning of the Act. In the alternative, if the superior officers were not found to be supervisors, the Hearing Officer found that a conflict of interest exists herein sufficient to warrant the exclusion of superior officers from a negotiations unit containing rank and file police officers. Finally, the Hearing Officer found that the PBA's claim of established practice has not been substantiated.

In its exceptions, the PBA disputes the findings of the Hearing Officer and, citing passages from the transcript, contends (1) that the superior officers are not supervisors within the meaning of the Act as they neither hire, discharge, discipline nor effectively recommend the same; (2) that no conflict of interest has been shown to exist between superior officers and rank and file officers, and if such conflict exists, it is only de minimis in nature; and (3) that there exists an established practice which warrants the continuance of the mixed unit.

There are now numerous Commission decisions which address the issue of whether superior officers, even in the absence of supervisory status, may be included in the same collective negotiations unit with rank and file police officers.1/ The rationale which the Commission has utilized in making such determinations has been analyzed in In re City of Union City, P.E.R.C. No. 70 (1972). This rationale has been applied to all subsequent instances wherein the conflict of interest issue has arisen in the context of police and firefighting departments of a public employer.2/ The Commission has held that in a departmental structure formed along para-military lines there is an inherent conflict of interest between superior officers and rank and file personnel which compels unit separation unless exceptional circumstances dictate a different result.

In a case similar to the instant matter, the undersigned has recently observed:

"...the exercise of significant authority in a chain of command operation produces an inherent conflict of interest within the New Jersey Supreme Court's definition of that concept in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971). The existence of an inherent conflict of interest in these circumstances must lead to a determination that separates superior officers from rank and file notwithstanding a previous history of collective negotiations is a combined unit. Moreover, the finding of such conflict is not contingent upon a finding that the superior officers are supervisors within the meaning of N.J.S.A. 34:13A-5.3...Accordingly, in cases involving police department units, superior officers will normally be severed from rank and file personnel unless it is shown that there is an exceptional circumstance dictating a different result. Examples of such are the following: (1) A department in which there is a very small force, where superior officers perform virtually the same duties as patrolmen, and where any conflict of interest is de minimis in nature; (2) Where it is determined that superior officers are supervisors, the existence of established practice, prior agreement or special circumstances dictate the continued inclusion of superior officers in a unit of rank and file personnel."3/

After reviewing the entire record in the instant matter, the undersigned adopts the findings of fact and the recommendations of the Hearing Officer and rejects the exceptions filed by the PBA. The record herein shows that the Kearny Police Department is comprised of approximately 130 officers. It is a para-
military operation which functions pursuant to a fairly well-
defined chain of command. Superior officers exercise significant authority and assume responsibilities which are integral and important factors in the proper functioning of the department. Accordingly, based upon the foregoing discussion and the record in this matter, the undersigned concludes that actual and potential substantial conflicts of interest are generated by the inclusion of sergeants, lieutenants and captains in the same negotiations unit with rank and file police officers. Further, the undersigned concludes that the record evidence fails to meet the standards adopted by the Commission for a finding of established practice.4/

Based upon the foregoing conclusions, the undersigned deems it unnecessary to pass upon the issue of supervisory status of the superior officers.

Accordingly, for the aforementioned reasons, the undersigned clarifies the negotiations unit represented by the PBA to exclude sergeants, lieutenants and captains. Inasmuch as the instant Clarification of Unit Petition was filed during the course of negotiations for a successor agreement this determination shall be effective immediately.5/

By Order of the Director

of Representation

/s/Carl Kurtzman, Director

DATED:	December 28, 1977

Trenton, New Jersey