D.R. No. 82-17

Synopsis:

The Director of Representation adopts the recommendation of a Hearing Officer that the Research Assistant to the Assistant Superintendents for Personnel/Educational Sciences and Curriculum Instruction is a confidential employee within the meaning of the Act and determines that this position be removed from the negotiations unit effective the date of this decision. Noting the absence of exceptions, the Director confirms the findings of the Hearing Officer that the Research Assistant has significant functional responsibilities and advance knowledge of the Board's positions in matters of grievance processing and collective negotiations.

PERC Citation:

D.R. No. 82-17, 7 NJPER 639 (¶12287 1981)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.22 33.43

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 82-017.pdf
Appellate Division:
Supreme Court:

D.R. NO. 82-17 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of OLD BRIDGE TOWNSHIP BOARD OF EDUCATION, Public Employer-Petitioner, -and- Docket No. CU-81-23 OLD BRIDGE EDUCATION ASSOCIATION, Employee Representative. Appearances: For the Public Employer-Petitioner Wilentz, Goldman & Spitzer, attorneys (Gordon Golum of counsel) For the Employee Representative Rothbard, Harris & Oxfeld, attorneys (Sanford R. Oxfeld of counsel) DECISION On October 15, 1980, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission (the A Commission @ ) by the Old Bridge Township Board of Education (the A Board @ ) seeking a determination that the positions of State Compensatory Education/Title I Coordinator and Research Assistant are not in the negotiations unit represented by the Old Bridge Education Association (the A Association @ ). The Board relies on the following factors in support of its Petition: (1) The parties never agreed that these positions were included in the unit and never negotiated the terms and conditions of employment for individuals in these two positions; and (2) both positions are supervisory in nature. In addition, the Board has asserted that the Research Assistant is a confidential employee. Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer Robert E. Anderson, Jr., on April 14, 1981, at which all parties were given the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Both parties filed post-hearing briefs by May 12, 1981. In its brief the Association stipulated that the State Compensatory Education/Title I Coordinator is a supervisory employee and, accordingly, agree to his exclusion from the negotiations unit. The Association, however, maintained a position that the Research Assistant was and should continue to be a member of its unit because she is neither a supervisory nor a confidential employee. The Board and the Association have advised the Commission that the Board intended to rewrite the job description of the Research Assistant to exclude supervisory duties. As a result, the Board = s request for the exclusion of the Research Assistant is based solely on the claim of confidential status. The Hearing Officer issued his Report and Recommendations on July 6, 1981, a copy of which is attached hereto and made a part hereof. No party has filed exceptions to the Hearing Officer = s Report. The undersigned has considered the entire record including the Hearing Officer = s Report and Recommendations, the transcript, and the exhibits, and on the basis thereof finds and determines as follows: 1. The Old Bridge Township 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 A Act @ ), is the employer of the employees who are the subject of the Petition, and is subject to the provisions of the Act. 2. The Old Bridge Education Association is an employee representative within the meaning of the Act, and is subject to its provisions. 3. The Board has filed the instant Petition for Clarification of Unit seeking the exclusion of two titles from the negotiations unit represented by the Association; the parties subsequently resolved their difference with respect to one of the titles; and the only issue remaining in dispute involves the Board = s contention that the Research Assistant title be excluded from the unit as a confidential employee within the meaning of the Act. The Association disputes this contention. Accordingly, there is a question concerning the composition of the collective negotiations unit and the matter is properly before the undersigned for determination. The Hearing Officer recommended that the Research Assistant be deemed a confidential employee and removed from the Association = s collective negotiations unit. The Hearing Officer based his recommendation upon factual findings which, in part, indicate that the Research Assistant possesses advanced knowledge of the Board = s position on collective negotiations matters, and also is intimately involved, on behalf of management, in the parties = grievance procedure. The undersigned = s review of the record herein confirms the findings of the Hearing Officer, and his recommendation that the Research Assistant is a confidential employee is adopted. N.J.S.A. 34:13A-3(g) provides: A Confidential employees @ of a public employer means employees whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties. The record reveals the following: (a) The Research Assistant reports to and works for the Assistant Superintendent for Personnel/Educational Services and the Assistant Superintendent for Curriculum Instruction. The Assistant Superintendent for Personnel/Educational Services is involved in the process of hiring, observing and evaluating staff personnel. He makes decisions at the second step of the grievance procedure, is a member of the Board = s negotiating team and recommends personnel policies. (b) The Research Assistant assists the Assistant Superintendent for Personnel/Educational Services in the performance of his various labor-relations functions, including collective negotiations and grievance processing. (c) In the area of collective negotiations, the Research Assistant plays a significant role in developing an initial evaluation of the Association = s contract proposals and in the preparation of the detailed initial Board negotiations proposal. (d) In the area of grievance processing, the Research Assistant keeps records of the status of grievances, prepares the information needed for the processing of the grievances and assists in the development of the Assistant Superintendent = s position at the second step of the grievance procedure. (e) The Research Assistant is aware of the Board = s negotiations proposals and strategy. For example, the Research Assistant had knowledge of the maximum percentage of salary increase the Board was prepared to eventually offer to unit members. The Research Assistant has advance knowledge of the Board = s position and tactics with regard to grievance processing. The undersigned is satisfied that the above activities are sufficient to establish that the Research Assistant has significant functional responsibilities and knowledge dealing with the issues involved in the collective negotiations process, the possession of which renders her membership in any appropriate negotiating unit incompatible with her official duties. The decision herein is consistent with prior decisions concerning confidential status which have consistently sought to distinguish between low-level employees who merely assemble raw data which may be used in the future in developing negotiations proposals and those employees who have access to or are involved in the preparation of negotiations proposals and grievance resolution which provide them with confidential information which form the basis for management policy affecting negotiations or contract administration. Therefore, on the basis of the record herein, and noting the absence of exceptions to the Hearing Officer = s Report and Recommendations, the undersigned finds that the Research Assistant is a confidential employee within the meaning of the Act and determines that the Research Assistant shall be removed from the instant negotiations unit immediately. BY ORDER OF THE DIRECTOR OF REPRESENTATION Carl Kurtzman, Director DATED: October 23, 1981 Trenton, New Jersey ***** End of DR 82-17 *****