D.R. NO. 82-18

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CITY OF NEWARK,

Public Employer-Petitioner,

-and-	Docket No. CU-80-76

PROFESSIONAL FIRE OFFICERS ASSOCIATION

LOCAL 1860, IAFF, AFL-CIO,

Employee Representative.

Appearances:

For the Public Employer-Petitioner,

John J. Teare, Corporation Counsel

(Rosalind L. Bressler, Assistant Corporation Counsel, of Counsel)

For the Employee Representative,

Brian C. Doherty, of Counsel

DECISION

Pursuant to a Petition for Clarification of Unit filed on April 22, 1980, with the Public Employment Relations Commission (the "Commission") by the City of Newark (the "City"), hearing were conducted before a designated Commission Hearing Officer on the claim raised by the City that the title of deputy Chief(s) should be removed from the collective negotiations unit represented by the Professional Fire Officers Association, Local 1860, IAFF (the "Association"), which currently includes all superior officers except the Fire Chief. The City based its request for the exclusion of the deputy chiefs on the claim that the deputy chiefs are managerial executives or confidential employees within the meaning of the New Jersey Employer-Employee relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"). The City further alleged that a conflict of interest exists between deputy chiefs and the other superior officers in the Association's unit.

Hearings were held before Commission Hearing officer Dennis J. Alessi on July 8, 1980 and before Commission Hearing Officer Arnold H. Zudick on February 6, 1981, 1/ 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, the last of which was received on June 18, 1981.

The Hearing Officer issued his Report and recommendations on July 22, 1981, a copy of which is attached hereto and made a part hereof. He concluded that the deputy chiefs exhibit a great deal of discretion and independence with respect to policy formulation and effectuation, and thus qualify as managerial executives.

Neither party has filed exceptions to the report of the Hearing Officer. The undersigned has carefully reviewed the entire record in this matter, including the Hearing Officer's Report and Recommendations and adopts the Hearing Officer's findings of fact and conclusions of law for the reasons stated below.

The record reveals that the Newark Fire Department consists of approximately 839 uniformed employees of which approximately 748 are actively engaged in fire fighting. The department is controlled by a Fire Director, a Fire Chief, and 14 Deputy Fire Chiefs, 6 of whom are involved in administrative duties, and 8 of whom are operating deputy chiefs involved in the operations of firefighting functions.

The Deputy Chiefs involved in operations have total discretion in deploying their personnel throughout the divisions under their control and may utilize their personnel to obtain specific forms of additional training. In addition, a deputy chief may have full command of the entire Department when acting as Chief in his absence.

The administrative deputy chiefs possess similar authority. For example, the Fire Prevention Deputy Chief has wide discretion in deploying his personnel and he has the responsibility to determine where inspections will take place, and the Community Relations Deputy Chief chooses and implements the programs he feels are necessary to accomplish his objectives.

Managerial Executives are defined in the Act as follows: "Managerial Executives" of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district. N.J.S.A. 34:13A-3(f).

The Commission has examined the issue of managerial executive status in the context of the statutory definition in In re Borough of Montvale, D.R. No. 80-32, 6 NJPER (¶ 11097 1980), aff'd P.E.R.C. No. 81-52, 6 NJPER 507 (¶ 11259 1980). In Montvale, guidelines were established for determining managerial status and certain factors were analyzed in determining whether an employee possessed the proper level of authority to qualify as a managerial executive.

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 coordinated 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 relative position of that employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. [P.E.R.C. No. 81-52, 7 NJPER at 508-509.]

In Montvale and In re Borough of Avon, P.E.R.C. No. 78-21, 3 NJPER 373 (1977) the titles of chief of police and lifeguard captain, respectively, were deemed not managerial. In Montvale, although the chief exercised a wide range of duties, the record established that the Mayor and the Commissioner exercised almost complete control over departmental operations. Likewise, in Avon where the Captain prepared the budget, authorized certain rules and regulations, changed work scheduled, hired guards in emergencies and directed the guard's work on a day-to-day basis, it was determined that his role was merely supervisory and that his responsibilities did not include the formulation or effectuation of policy.

In the instant matter, there is ample evidence in the record to establish that there is a need for various levels of managerial authority due to the large size of the Newark Fire Department.

The responsibilities of the deputy chiefs, as detailed in the record, demonstrate that they clearly exercise a level of authority and independent judgment to warrant their classification as managerial executives.

On the basis of the position of the deputy chiefs in the City's managerial hierarchy and the level of authority and independent judgment which they exercise in carrying out their functions and responsibilities the undersigned finds the deputy chiefs in the Newark Fire Department function in the type of managerial capacity envisioned in the statutory definition of managerial executives.

Accordingly, for the above reasons and in the absence of exceptions the undersigned adopts the findings of fact and conclusions of law of the Hearing Officer and determines that the Deputy Chiefs of the Newark Fire Department are managerial executives within the meaning of the Act and their inclusion in any negotiations unit would be inappropriate.

BY ORDER OF THE DIRECTOR OF

REPRESENTATION

_____________________________

Carl Kurtzman, Director

DATED: October 23, 1981

Trenton, New Jersey