D.R. No. 82-42

Synopsis:

The Director of Representation, adopting the recommendations of a Hearing Officer, determines that police superior officers (sergeants, lieutenants and captains) be removed from a unit of employees which includes patrolmen. The superior officers exercise significant responsibilities on behalf of the Township which involve substantial authority and control over patrolmen and which create substantial actual or potential conflicts of interest between superior officers and patrolmen. Additionally, the record does not reveal a pre-Act relationship between the PBA and the Township constituting an "established practice" which might constitute a basis for continuing the present unit. The removal of superior officers from the unit is effective immediately.

PERC Citation:

D.R. No. 82-42, 8 NJPER 187 (¶13080 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.32 33.312 33.35 33.42 36.115 36.221

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 82-042.pdf
Appellate Division:
Supreme Court:

D.R. NO. 82-42 1. D.R. NO. 82-42 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of TOWNSHIP OF EAST BRUNSWICK, Public Employer-Petitioner, -and- Docket No. CU-81-38 EAST BRUNSWICK POLICEMEN = S BENEVOLENT ASSOCIATION, LOCAL #145, Employee Representative. Appearances: For the Public Employer-Petitioner Schwartz & Schiappa, attorneys (Joseph P. Schiappa of counsel) For Employee Representative Bosco-McDonnell Associates (William P. McDonnell) DECISION Pursuant to a Petition for Clarification of Unit filed on December 3, 1980 with the Public Employment Relations Commission (the A Commission @ ) by the Township of East Brunswick (the A Township @ ), hearings were conducted before a designated Commission Hearing Officer on the claim raised by the Township that police officers in the rank of sergeant, lieutenant and captain were 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 therefore should be removed from the collective negotiations unit which also includes patrolmen. The collective negotiations unit is currently represented by the East Brunswick Policemen = s Benevolent Association, Local #145 ( A Local 145" or the A PBA @ ). Hearings were held before Commission Hearing Officer Robert E. Anderson, Jr., on June 29 and 30, 1981 in Trenton, New Jersey, 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. Local 145 filed a reply letter and the record was closed October 13, 1981. The Hearing Officer thereafter issued his Report and Recommendations on October 29, 1981, a copy of which is attached hereto and made a part hereof. Local 145 filed exceptions on November 16, 1981. No reply or exceptions were filed by the Township. The undersigned has carefully considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits, Local 145's exceptions and finds and determines as follows: 1. The Township of East Brunswick 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 its provisions. 2. The East Brunswick Policemen = s Benevolent Association, Local #145, is an employee representative within the meaning of the Act and is subject to its provisions. Local 145 is the recognized representative of a unit comprised of patrolmen, sergeants, lieutenants and captains in the East Brunswick Department of Public Safety. 3. The Township argues that sergeants, lieutenants and captains are supervisors within the meaning of the Act and must be excluded from the collective negotiations unit pursuant to N.J.S.A. 34:13A-5.3; that there is no established practice, prior agreement or special circumstances which would sanction the continuation of a mixed supervisor/nonsupervisor unit;1/ that there has been considerable growth in the Police Department and consequently the scope of supervisory duties performed by superior officers drastically expanded between 1960 and 1981; and that there is an actual, or potential substantial conflict of interest between superior officers and patrolmen in the unit. 4. Local 145 argues that: (1) the current collective agreement between the parties which recognizes Local 145 as the majority representative of patrolmen, sergeants, lieutenants, and captains bars the consideration of the Petition at this time; (2) superior officers are not supervisors within the meaning of the Act. Alternatively, if they are found to be supervisors, the statutory exceptions of A established practice @ and A prior agreement @ are applicable to preserve this mixed unit;2/ (3) there is no substantial actual or potential conflict of interest between superior officers and patrolmen as defined in Bd. of Ed. of West Orange v. Wilton, 57 N.J. 404 (1971); and (4) if the unit is to be disturbed, superior officers should not be removed until the current contract expires in December 1983. 5. The Hearing Officer found the following: (a) the Township was not precluded from seeking the removal of superior officers from the unit by reason of its past recognition of the unit, and therefore the Hearing Officer denied Local 145's Motion for Dismissal; (b) the superior officers should be removed from the collective negotiations unit because they exercise significant authority in a quasi-military chain of command operation which produces an inherent conflict of interest. Borough of South Plainfield, D.R. No. 78-18, 3 NJPER 349 (1977), In re City of Union City, P.E.R.C. No. 70 (1972). In this regard, each of the four sections of the Public Safety Department operates pursuant to a strict chain of command headed by either a captain, a lieutenant, or a sergeant. The superior officers assign and directly supervise the patrolmen in the performance of their daily duties, report infractions of rules, impose discipline for minor violations and institute investigations and other disciplinary proceedings. The Hearing Officer thus concluded that the role of superior officers in making recommendations affecting the careers of patrolmen confirms the existence of a substantial actual or potential conflict of interest between them which requires removal of superior officers from the unit. (c) none of the exceptions to the rule of South Plainfield, supra, exist in this case. The department is large and the superior officers perform duties distinctly different from those of the patrolmen. Moreover, there is no established practice, prior agreement or special circumstance which would dictate the continued inclusion of superior officers in a unit which includes patrolmen.3/ (d) Lastly, sergeants, lieutenants, and captains should be removed from the collective negotiations unit represented by Local 145 immediately. 6. Local 145 excepts to certain of the Hearing Officer = s findings of fact. Specifically, it argues that the Hearing Officer, in crediting or not crediting certain testimony, or in improperly weighing certain testimony, engaged in A selective credibility @ judgments. Local 145 excepts to the manner in which the Hearing Officer credited Lieutenant Carroll = s testimony concerning the collective negotiations relationship between the parties, while at the same time not crediting his testimony about the role of superior officers in the discipline of patrolmen. Additionally, Local 145 excepts to the weight given the testimony of the Director of the Police Department concerning the authority of superior officers in personnel matters while not crediting his testimony regarding an alleged sick-out in 1973-74. Also, the Local excepts to the finding of conflict within the meaning of the Act based on what is alleged to be the uncorroborated testimony of the Township Administrator. Further, the Local excepts to the Hearing Officer = s determination that the clarification of unit petition was timely filed and his recommendation that superior officers be immediately removed from the unit. For the reasons which follow, the undersigned adopts the Hearing Officer = s findings and conclusions as set forth in his Report and Recommendations. Initially, the undersigned observes that the filing of the Petition for Clarification of Unit by the Township was not restricted by the existence of a collective negotiations agreement between the parties. In re Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977), makes clear the Commission = s policy of accepting a clarification of unit petition for processing at any time. The Commission = s A contract bar @ rule, N.J.A.C. 19:11-2.8, is applicable solely to petitions which raise a A question concerning representation. @ 4/ Accordingly, the undersigned rejects the PBA = s argument that the instant Petition was not timely filed. Second, the Township is not estopped from seeking the removal of superior officers from the unit because of its earlier recognitions since the Act = s mandates regarding appropriate unit structure are controlling. The analysis which controls the substantive merits of the instant dispute -- i.e., conflict of interest between police superior officers and rank and file officers -- has been set forth by the undersigned in the South Plainfield matter, supra. In South Plainfield, the undersigned reviewed the Commission precedent concerning this issue, and held: There is now a long line of Commission decisions on the question of whether superior officers may be included in negotiations units with patrolmen. The standards utilized by the Commission in reaching these determinations are presented in In re City of Elizabeth, P.E.R.C. No. 71 (1972); In re City of Union City, P.E.R.C. No. 70 (1972); and In re City of Camden, P.E.R.C. No. 52 (1971). Generally these decisions provide that, except in very small departments where any conflict of interest between superior officers and rank and file personnel is de minimis in nature, the quasi-military structure of police departments virtually compels that patrolmen and superior officers be placed in separate units. This is so inasmuch as 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 Bd. of Ed. of West Milford 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 in 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. Moreover, in the South Plainfield matter, the undersigned went on to express the standard by which all such future cases would be determined; namely, that: ...in all cases involving police departments, 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. During the initial processing of the instant matter, the parties were apprised of the South Plainfield decision. The PBA was given an opportunity to present the Commission with an evidentiary proffer indicating the presence of A exceptional circumstances @ which would warrant the continued inclusion of superior officers in the negotiations unit. In its response to this inquiry the PBA asserted that a negotiations relationship predating the passage of the Act existed between the parties. Therefore, the undersigned directed that a hearing be convened to explore the claim that exceptional circumstances existed under the A established practice @ exception embodied in the Act. N.J.S.A. 34:13A-5.3. The record evidence as to this issue supports the Hearing Officer = s conclusion that an A established practice @ has not been demonstrated. In In re West Paterson Bd. of Ed., P.E.R.C. No. 77 (1973), the Commission stated that a relationship evidencing an A established practice @ would necessarily require the following minimum ingredients: ...an organization regularly speaking on behalf of a reasonably well defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations) with an employer who engaged in the process with an intent to reach an agreement. In the instant matter, the record reveals sporadic encounters between PBA representatives and various township officials in 1964 and in 1967. PBA witnesses indicated that the Township officials would hear a PBA presentation concerning pay raises or a particular grievance, but would thereafter announce a decision at a Township meeting without further discussion. The circumstances described in the record parallel many of the circumstances described by the Commission in West Paterson, supra, as typical of a pre-1968 relationship which could not be described as coming within the parameters of the term A established practice @ : ...Based on the Commission = s experience, it appeared that many, perhaps most, employer- employee relationships prior to 1968 were characterized by an organization = s request for improvement of a particular condition or resolution of a particular grievance. Upon submission the matter was considered privately by the employer and his decision was later announced. There was seldom evidenced a sense of a mutual undertaking for the resolution of differences or an intent to achieve common agreement.... The undersigned has further examined the parties = relationship of 1968 in which discussions commencing with a meeting on June 12 led to negotiations which concluded in October with a written agreement. The Hearing Officer has noted that only the June meeting predated the effective date of the Act. Based upon the totality of the evidence, the undersigned concludes that the relationship between the PBA and the Township prior to the effective date of the Act cannot be described as evidencing an A established practice @ as defined by the Act. The undersigned, in this regard, has considered the PBA = s exception that the Hearing Officer did not provide the necessary A latitude @ to the testimony of Lieutenant Carroll. The undersigned is satisfied that the Hearing Officer fairly and properly analyzed the testimony offered by this witness. The parties have thoroughly argued the issue of conflict of interest and have presented testimony in support of their respective positions. Since the Notice of Hearing in the instant matter was issued for the purpose of examining the applicability of the statutory exceptional circumstances to this matter, the examination of whether there exists a conflict of interest between superior officers and rank and file -- which was a presumption applied to this matter under the South Plainfield doctrine -- would appear to have been outside the scope of the investigatory hearing. Nevertheless, as the parties and the Hearing Officer addressed this issue, the undersigned shall consider the merits. In Bd. of Ed. of West Orange v. Wilton, supra, the Supreme Court held that those public employees who exercise significant responsibilities on behalf of an employer are placed in a position of substantial actual or potential conflict of interest with other personnel and therefore may not be included in negotiations units with the employees with whom they have a conflict. In In re City of Camden, supra, the Commission first applied Wilton to units of police and fire personnel. Later, in In re City of Union City, P.E.R.C. No. 70 (1972), the Commission stated: It is readily observable that the military- like approach to organization and administration and the nature of the service provided (which presumably accounts for that approach) set municipal police and fire departments apart from other governmental services. Normally there exist traditions of discipline regimentation and ritual, and conspicuous reliance on a chain of command all of which tend to accentuate and reinforce the presence of superior-subordinate relationships to a degree not expected to be found in other governmental units and which exist quite apart from the exercise of specific, formal authorities vested at various levels of the organization. When the Commission is asked to draw the boundaries of common interest in this class of cases, it cannot ignore this background as it examines for evidence of whether or not a superior exercises any significant authority over a rank and file subordinate which would or could create a conflict of interest between the two. In our view, where these considerations are real rather than merely apparent, it would be difficult indeed to conclude, in contested cases, that a community of interest exists between the lowest ranking subordinate and his superior, absent exceptional circumstances. We do not intend that this observation extend to those cases where the points of division are so few and so insignificant as to be termed de minimis, such as might not unreasonably be expected to exist in a small police or fire department. We are persuaded, however, after almost four years experience with this statute that unless a de minimis situation is clearly established, the distinction between superior officers and the rank and file should be recognized in unit determination by not including the two groups in the same unit. The record herein confirms the Commission = s remarks in Union City and clearly reinforces the presumption applied to this class of case in South Plainfield. The facts establish that superior officers have been entrusted with the task of exercising significant responsibilities on behalf of the Township in providing police services to the community. These responsibilities involve substantial authority and control over patrolmen. The superior officers assign, direct and generally supervise patrolmen on a daily basis. Superior officers report rule infractions, place written reprimands in the files of their subordinates, mete out discipline for minor violations, and institute disciplinary proceedings in more serious matters. On two occasions, superior officers have been responsible for eliciting resignations from subordinates, without the involvement of the Director or other Township officials, where officers were allegedly engaged in flagrant misconduct. Moreover, superior officers have investigated complaints concerning other officers, which have originated from within and from outside the department. The record indicates that patrolmen have approached the Township Administrator complaining about the manner in which superior officers proceeded in these investigations. Additionally, the PBA has embodied its concerns in negotiations proposals which seek increased procedural protections relative to disciplinary investigations. Based upon the above, the undersigned concludes that the instant record points to substantial actual and potential conflicts of interest which require the removal of superior officers from the unit. As noted above, the PBA has excepted to the Hearing Officer = s factual findings in which he sometimes discounted and sometimes credited certain testimony offered by the witnesses. The PBA claims that this has resulted in A selective credibility @ determinations. The PBA = s exceptions, however, are misplaced. Essential to the Hearing Officer = s fact finding mission was the resolution of conflicting record testimony. In so doing, the Hearing Officer accepted certain testimony as factual and rejected certain contradicted testimony. The undersigned = s independent review of the record confirms that the Hearing Officer correctly reviewed the record and made the appropriate factual findings. The Hearing Officer did not make credibility judgments as that term normally connotes. His findings were based upon the totality of the testimony presented. After thoroughly reviewing the record, the undersigned concludes that the PBA = s characterization of the Hearing Officer = s determinations misconstrues the nature of his examination. Finally, the undersigned agrees with the Hearing Officer that, under Clearview, supra, removal of the superior officers from the unit shall be accomplished with the issuance of the within decision. Clearview provides: In all cases where the clarification of unit question is raised before the Commission prior to the execution of the parties = most recent contract, or where the dispute is reserved and referred to the Commission in the parties = negotiations agreement or other joint written agreement, the clarification of unit determination shall be effective immediately. Clearview thus applies the equitable principle that where one party has properly noticed the other party of a unit composition dispute prior to the execution of a collective negotiations agreement, the appropriate unit configuration may be obtained during the lift of the contract. If the dispute is not raised, equitable principles will preclude a party from seeking such alteration during the life of the agreement. Nothing in In re Middlesex County, P.E.R.C. No. 81-129, 7 NJPER 266 ( & 12118 1981) suggests a result that a party waives the right to obtain proper unit structure by consummating a contract before the dispute over unit composition is resolved. Middlesex provides that when a valid question concerning representation is raised by a challenging union, during an appropriate election period, the employer and incumbent representative must cease negotiating. The laboratory conditions essential for a fair election are thus maintained and the Act = s policies are thereby furthered. Were Middlesex applied to the present situation, a question concerning the composition of a collective negotiations unit, the parties would unnecessarily be required to choose between achieving the stability of a collective negotiations agreement or obtaining proper unit structure. Nothing in the Act, however provides that these twin goals may not be contemporaneously sought. The application of Clearview actually facilities negotiations during a period when a dispute over partial unit composition might otherwise result in a complete breakdown of negotiations. The Clearview policy was established precedent when the parties raised and reserved the clarification of unit dispute in their present agreement.5/ Accordingly, since PBA was on notice that the Township reserved its right to seek a unit clarification with the Commission, the within determination is effective immediately. The undersigned therefore determines that the sergeants, lieutenants and captains be removed from the PBA unit at this time. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: February 26, 1982 Trenton, New Jersey 1/ 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 effectively recommend the same, have the right to be represented in collective negotiations by a employee organization that admits non-supervisory personnel to membership . . . 2/ The Commission has determined that the statutory exceptions of established practice and prior agreement, supra, n.1, relate to negotiations relationships which pre-date the Act. See, In re West Paterson Bd. of Ed., P.E.R.C. No. 79 (1973). July 1, 1968 is the effective date of Chapter 303, Laws of 1968, which provided the initial statutory framework for public sector collective negotiations. 3/ The exceptions in South Plainfield allow for the continued inclusion of superior officers in units with rank and file under extraordinary circumstances. In Union City, the Commission determined that the rule against inclusion of superior officers in such units did not necessarily extend to cases where A the points of division are so few and so insignificant as to be termed de minimis, such as might not unreasonably be expected to exist in a small police or fire department. @ At pp. 349-350. The Hearing Officer found the de minimis exception had not been applied by the Commission to Police Department units similar in size to the Township = s police department. South Plainfield also allows for the continued existence of mixed units where the statutory exceptions of ' 5.3 are applicable. 4/ These petitions include Petitions for Certification of Public Employee Representative and Petitions for Decertification of Public Employee representative. 5/ Article I Section B of the existing contract provides: A (t)he Administration reserves the right to seek clarification of the bargaining unit during the term of this contract. @ ***** End of DR 82-42 *****