D.R. NO. 84-8

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

NORTH BERGEN BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-83-40

COUNCIL OF ADMINISTRATORS AND

SUPERVISORS, NJEA,

Petitioner,

-and-

NORTH BERGEN FEDERATION OF

TEACHERS, LOCAL 1060, AFL-CIO,

Intervenor.

Appearances:

For the Public Employer

Greenberg & Covitz, attorneys

(John C. McGlade of counsel)

For the Petitioner

Bucceri & Pincus, attorneys

(Louis P. Bucceri of counsel)

For the Intervenor

Sauer, Boyle, Dwyer & Canellis

(Amy Rudolph of counsel)

DECISION AND DIRECTION OF ELECTION

On October 7, 1982, a Petition for Certification of Public Employee Representative, supported by an adequate showing of interest, was timely filed with the Public Employment Relations Commission ("Commission") by the Council of Administrators and Supervisors, New Jersey Education Association ("Association") seeking to add 11 department chairpersons who are employed by the North Bergen Board of Education ("Board") to a unit of administrators and supervisors which it represents. The department chairpersons are currently represented by the North Bergen Federation of Teachers, Local 1060, AFL-CIO ("Federation") in an existing unit of teachers and other professional staff. Pursuant to N.J.A.C. 19:11-2.7, the Federation requested and was granted intervenor status. Pursuant to a Notice of Hearing dated January 3, 1983, a hearing was held before Commission Hearing Officer Arnold H. Zudick, on March 2, 1983, at which time all parties were given an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. Post-hearing briefs were submitted by the parties, the last of which was received April 7, 1983.1/

The Hearing Officer issued his Report and Recommendations on July 21, 1983, a copy of which is attached. On July 27, 1983, the Association filed exceptions to the Hearing Officer's Report objecting only to certain dicta set forth in footnote 9. Neither the Board nor the Federation filed exceptions.

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

1.	The North Bergen 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. ("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 Council of Administrators and Supervisors, New Jersey Education Association and the North Bergen Federation of Teachers, Local 10-60, AFL-CIO are employee representatives within the meaning of the Act and are subject to its provisions.

3.	The Association seeks a secret ballot election to add department chairpersons to its existing unit of supervisors.2/ It argues the department chairpersons are supervisors within the meaning of the Act and may not appropriately be included in the existing Federation unit of nonsupervisory teachers and other professional staff.3/

The Federation and the Board agree with the Association that department chairpersons are supervisory employees. However, the Board opposed the inclusion of the chairpersons in the Association's unit of administrators and supervisors because, purportedly, an actual or potential substantial conflict of interest exists between chairpersons and the high school principal who is included in the supervisor's unit. According to the Board, the latter is responsible for the preparation of performance evaluations of department chairpersons. The Association agues that a conflict does not exist; the Federation has not taken a position on the issue.

4.	The Hearing Officer did not find the existence of an actual or potential substantial conflict of interest between the high school principal and the department chairpersons. He found that the high school principal, while nominally responsible for evaluating department chairpersons, had not performed this function since the 1979-1980 school year. The evidence, further, did not establish the likelihood that this function would be resumed. The Hearing Officer, noting that the issue presented related to supervisors of fellow supervisors, as opposed to supervisors of nonsupervisors, recognized that the performance of some evaluating function, per se, would not establish the circumstances that would demonstrate the need to separate different levels of supervisors. Bd. of Ed. W. Orange v. Wilton, 57 N.J. 404 (1971); Edison Tp. Bd. of Ed., D.R. No. 82-8, 7 NJPER 560, (¶12248 1981); Lakewood Bd. of Ed., D.R. No. 78-44, 4 NJPER 212 (¶4105 1978).

The Hearing Officer recommended that a secret ballot election be conducted to determine whether the department chairpersons wish to be represented by the Association.

5.	The Association excepts solely to the Hearing Officer's note that if new or additional evidence of conflict arising from the high school principal's evaluative function vis-a-vis department chairpersons were presented in a subsequent Petition, "the Board would be entitled to have the department chairpersons removed from the unit." The Association states that the existence of new facts would require a separate hearing and findings, including appropriate recommendations regarding the composition of the supervisory unit; and that the instant decision cannot be interpreted to limit the recommendations of a fact-finder in a future proceeding on different circumstances.

6.	After a review of the entire record, and noting the absence of any exceptions concerning the substance of the Hearing Officer's Report, the undersigned adopts the Hearing Officer's finding of fact and conclusions of law.

The Supreme Court, in Wilton, supra, stated:

... If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisor is not present. While a conflict of interest which is de minimis or peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest. (Citations omitted) Id. at 425

The record in the instant matter regarding the interrelationship of the concerned supervisory employees does not present a circumstance in which an actual or potential substantial conflict may be discerned. The Hearing Officer properly applied the factual context of the instant matter to the relevant case law.

In Lakewood, supra, in circumstances similar to those of the instant matter, the undersigned found appropriate the inclusion of the principals, assistant principals, and department chairpersons in the same collective negotiations unit.

... The Board's suggestion that the evaluation of Department Chairpersons by Principals produces a conflict of interest is discounted by record evidence that the similar evaluation by Principals of Assistant Principals, who are undisputed unit members, has not evidenced a conflict of interest. Id. at 213

Again, in Edison, supra, the undersigned found appropriate the inclusion of principals and vice principals in a supervisory unit, pointing out that:

... the Board has misperceived the basis of the Hearing Officer's conclusion. The Hearing Officer did not find that the responsibility to evaluate would result only in de minimis conflict; rather, he concluded that the evidence placed in the record concerning the principal's evaluations of vice principals could not support a finding other than that of a de minimis conflict. Had the Court in Wilton believed that the mere finding of a evaluative function would necessarily result in a finding of actual or potential substantial conflict of interest, the Court would not have remanded the Wilton matter to the Commission for a full review of this issue. Id. at 560-562.

Accordingly, for the above reasons, the undersigned adopts the Hearing Officer's recommendation that no actual or potential substantial conflict of interest exists between department chairpersons and other members of the Association's supervisory unit which would prevent them from being represented in the same collective negotiations unit.4/ Therefore, the undersigned shall direct the conduct of an election.

Accordingly, the undersigned finds that the appropriate unit is: all principals, vice principals, school psychologists, reading coordinator, math supervisor, principal special services, director of state compensatory education and department chairpersons employed by the North Bergen Board of Education, but excluding the Superintendent and Assistant Superintendent of Schools, nonadministrative and nonsupervisory professional personnel, confidential employees, managerial executives, police and craft employees, and all other employees.

Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that an election be conducted among the department chairpersons no later than thirty (30) days from the date set forth below.

Those eligible to vote are the employees set forth above 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 North Bergen Board of Education is directed to file with the undersigned and with the Council of Administrators and Supervisors, NJEA, 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 Council of Administrators and Supervisors, NJEA, in its existing negotiations unit.

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

Carl Kurtzman, Director

DATED:	September 2, 1983

Trenton, New Jersey