D.R. NO. 83-17

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF LAVALLETTE,

Public Employer,

-and-	Docket No. RO-82-110

SUPERIOR OFFICER'S ASSOCIATION

OF LAVALLETTE,

Petitioner.

Appearances:

For the Public Employer

Sim, Sinn, Gunning & Fitzsimmons, attorneys

(Steven A. Pardes of counsel)

For the Petitioner

Stephen A. Pepe, attorney

DECISION AND DIRECTION OF ELECTION

On November 12, 1981, the Superior Officer's Association of Lavallette ("Association") filed a Petition for Certification of Public Employee Representative with the Public Employment Relations Commission ("Commission"),1/ seeking to represent a unit consisting of the Chief of Police and the Captain of Police of the Borough of Lavallette ("Borough"). The Borough disagreed with the request for a negotiations unit and raised the claim that the employees were managerial executives.

Pursuant to a Notice of Hearing issued December 22, 1981, a hearing was held before Commission Hearing Officer Judith E. Mollinger, on February 10, 1982. At the hearing, all the parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Thereafter, on August 16, 1982, the Hearing Officer issued her Report and Recommendations, finding that the petitioned-for unit is an appropriate collective negotiations unit and recommending that an election be directed to determine whether the petitioned-for employees desire to be represented by the Superior Officers Association of Lavallette. A copy of the Hearing Officers' Report and Recommendations is attached hereto and made a part hereof. No exceptions have been filed to the Hearing Officer's Report and Recommendations. The undersigned has considered the entire record herein, 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 Borough of Lavallette 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 proceeding and is subject to the provisions of the Act.

2.	The Superior Officers Association of Lavallette is a public employee representative within the meaning of the Act, and is subject to its provisions.

3.	The Association seeks to represent a unit consisting of the Chief of Police and the Police Captain. The Association is neither a recognized nor certified employee representative at the present time. The employees are not currently represented for collective negotiations purposes.

4.	The Borough argued before the Hearing Officer against the formation of the proposed unit, contending that both the Chief of Police and Police Captain are managerial executives within the meaning of the Act and therefore not public employees entitled to collective negotiations rights under the Act. Alternatively, the Borough argued that even if only the Chief of Police were found to be a managerial executive, the formation of a unit limited to one employee is prohibited.2/

5.	The Hearing Officer found that the Borough's Mayor and Council are vested with complete authority to hire and fire police employees, set the budget and control the operation of the Borough Police Department. The budget for the Police Department is set by the Borough Police Committee and Council. The Police Chief's duties require him to "carry out policies, procedures, directives, etc., as instructed by the Chairman of the Police Committee or in his absence, the other members of the Police Committee." The captain position falls immediately below the Chief of Police in the Police Department hierarchy and his duties relate principally to criminal investigations, crime detection and arrest.

6.	N.J.S.A. 34:13A-5.3 excludes managerial executives from the protections and rights afforded by the Act to public employees. Section 13A-3(f) defines managerial executives as:

... persons who formulate policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in a school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.

In In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 (¶11259 1980), aff'g D.R. No. 80-32, 6 NJPER 198 (¶11097 1980), the Commission endorsed certain guidelines for determining whether an employee is a managerial executives within the meaning of the above definition. The Commission stated:

A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment sufficient to affect broadly the organization's purpose or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises.

6 NJPER at 508, 509.

Based upon an application of the above principles, the Commission concluded in Montvale that the chief of police was a supervisor but not a managerial executive within the meaning of the Act. This result was based on the finding that formulation and implementation of policy for the police department was essentially exercised by the police committee.

In accordance with Montvale, the undersigned focuses primarily upon "(1) the relative position of [the] employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises," in determining whether the questioned employee "possess[es] and exercise[s] a level of authority and independent judgment sufficient to affect broadly the organization's purposes or its means of effectuation of these purposes." In re City of Jersey City, D.R. No. 80-36, 6 NJPER 278 (¶11132 1980); In re Essex Cty. Welfare Bd., D.R. No. 81-5, 6 NJPER 424 (¶11213 1980); In re City of Newark, D.R. No. 82-18, 7 NJPER 640 (¶12288 1981).

In this case, the record reveals that under the hierarchy of the Borough, the Chief of Police and the Police Captain are exceeded by the Mayor, the Borough Council and the Police Committee. The Chief's duties relate primarily to the police functions of crime detection, apprehension and arrest of wanted persons, investigation of complaints and other related duties. The Captain's duties relate to criminal investigations, crime detection and arrests. The Mayor and Council retain complete authority to hire and fire employees, set and control the operation of the Borough Police Department. Neither the Police Chief nor the Captain participate in any labor negotiations. Police Department expenditures are strictly monitored by the Council Finance Committee. The power to discipline Police Department personnel rests exclusively with the Borough Council. The Police Committee has control and responsibility for the day-
to-day direction of police personnel, shift assignments, the number of men assigned per shift, lunch and breaktime rules, work hours, vacation schedules, overtime schedules and approval of bulk overtime, assignment of police vehicles to police officers and civilians, and maintenance of personnel files. Although the Chief of Police functions as the third step of the grievance procedure contained in the rank-and-file (PBA) contract, the record indicates that the Chief has never resolved disputes without consultation with the Police Committee and/or the Borough Council.

Given the above, the undersigned cannot conclude that the Chief of Police and the Police Captain exercise a level of authority and independent judgment sufficient to affect broadly the Police Department's purposes or its means of effectuating these purposes. Accordingly, the undersigned adopts the Hearing Officer's recommendation that the Chief of Police and the Police Captain are not managerial executives but rather are public employees who may constitute a separate and appropriate negotiations unit. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: The Chief of Police and Police Captain, excluding managerial executives, confidential employees, craft employees, professional employees, supervisors within the meaning of the Act.

Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that the election shall be conducted by mail ballot. The election shall be commenced 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. 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 Borough is directed to file with the undersigned and with the Superior Officers Association of Lavallette, an 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 established for ballot issuance. A copy of the eligibility list shall be simultaneously filed with the Superior Officers Association of Lavallette with statements 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 they wish to be represented for purposes of collective negotiations by the Superior Officers Association of Lavallette.

The exclusive representative, if any shall be determined by the majority of valid ballots cast by the employees voting in the election. The election shall e conducted in accordance with the provisions of the Commission's rules.

BY ORDER OF THE DIRECTOR

OF REPRESENTATIONS

Carl Kurtzman, Director

DATED:	October 13, 1982

Trenton, New Jersey