D.R. NO. 82-35

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

STATE OF NEW JERSEY,

Public Employer,

-and-	Docket No. CU-169

COUNCIL OF NEW JERSEY STATE

COLLEGE LOCALS, NJSFT/AFT/AFL-CIO,

Petitioner.

___________________________________

STATE OF NEW JERSEY,

Public Employer-Petitioner,

-and-	Docket No. CU-172

COUNCIL OF NEW JERSEY STATE

COLLEGE LOCALS, NJSFT/AFT/AFL-CIO,

Employee Representative.

Appearances:

For the State of New Jersey

Honorable John J. Degnan, Attorney General

(Melvin E. Mounts of counsel and on the brief)

For the Council of New Jersey State College Locals

Thomas H. Wirth, Staff Representative

DECISION AND ORDER

On January 21, 1975, two Petitions for Clarification of Unit were filed with the Public Employment Relations Commission (the "Commission") with respect to the status of certain titles listed below.

(1)	Director of Library Services,1/

Trenton State College

(2)	Associate Director of Library Services,

Kean College of New Jersey

(3)	Associate Director of Library Services,

Trenton State College

(4)	Assistant Director of Library Services,

Montclair State College

(5)	Assistant Director of Library Services,

Kean College of New Jersey

(6)	Assistant Director of Library Services,

Jersey City State College

(7)	Assistant Director of Library Services,

Ramapo College of New Jersey

(8)	Assistant Director of Library Services,

Stockton State College

(9)	Assistant Director of Library Services,

Trenton State College

(10)	Assistant Director of Library Services,

Glassboro State College

(11)	Certain Librarians acting as Department Heads,

William Paterson College of New Jersey

The Petition in Docket No. CU-169 was filed by the Council of New Jersey State College Locals, NJSFT/AFT/AFL-CIO (the "Council") and the Petition in Docket No. CU-172 was filed by the State of New Jersey (the "State"). On February 4, 1975, these matters were consolidated by an Order Consolidating Cases.

The State, the public employer of the employees involved in this matter, is seeking to exclude the employees in the above-
listed titles from the collective negotiations unit of State College faculty and nonteaching professional staff represented by the Council. The State contends that all the employees in question are managerial executives and/or supervisors under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"). The Council asserts that the employees at issue are neither managerial executives nor supervisors under the Act, and that accordingly, they should be included in the negotiations unit.

Hearings were held before a designated Hearing Officer, at which time both parties were afforded an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. Both parties filed post-hearing briefs on July 6, 1978. Thereafter, the Hearing Officer issued his Report and Recommendations on March 11, 1980, a copy which is attached hereto and made a part hereof. The Hearing Officer found that the librarians acting as department heads at William Paterson College, and the personnel functioning as Assistant Directors at Montclair State College, Kean College, Jersey City State College, Ramapo College, Glassboro State College, and Trenton State College are not managerial executives or supervisors within the meaning of the Act, and are not involved in a conflict of interest situation within the meaning of West Orange Bd. of Ed. v. Wilton, 57 N.J. 404 (1971) and therefore should be included in the unit in question.2/ The Hearing Officer found the titles of Associate Director of Library Services at Kean College and Trenton State College were supervisors within the meaning of the Act, and therefore, should be excluded from the unit of employees at issue herein; and the title of Director of Library Services at Trenton State College, pursuant to agreement of the parties, should be excluded from the unit of employees at issue herein. Subsequently, the State filed exceptions to the Hearing Officer's Report arguing that the Assistant Directors of Library Services at Montclair State College, Kean College of New Jersey, Jersey City State College, Ramapo College of New Jersey, Stockton State College, Trenton State College and Glassboro State College exercise responsibilities which require their exclusion from the unit in question as managerial executives within the meaning of the Act, or alternatively as supervisors within the meaning of the Act and lastly due to the presence of a conflict of interest within the meaning of West Orange Bd. of Ed. v. Wilton, supra.3/ The Council did not file exceptions to the Hearing Officer's Report.

Upon the entire record of this proceeding, the undersigned finds and determines as follows:

1.	The State of New Jersey is a public employer within the meaning of the Act, is the employer of the employees who are the subject of these Petitions, and is subject to the provisions of the Act.

2.	The Council of New Jersey State College Locals is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The consolidated Petitions for Clarification of Unit having been filed with the Commission, raise an issue as to the status of certain enumerated titles. Specifically, a dispute exists as to whether the employees in such titles are to be excluded from the negotiations unit as managerial executives and/or supervisors under the Act or on the basis of a Wilton conflict.

N.J.S.A. 34:13A-3(f) provides a definition of managerial executive:

'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. . . .

In In re Borough of Montvale, D.R. No. 80-32, 6 NJPER 507 (¶11259

1980), the Commission held:

[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 purposes 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.

With respect to the question of "supervisory status," N.J.S.A. 34:13A-5.3, in relevant part, defines that term and provides:

. . . nor, except where established practice, prior agreement or special circumstances dictate to the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to its membership. . . .

Accordingly, in In re Cinnaminson Tp. Bd. of Ed., D.R. No. 81-39, 7 NJPER 274 (¶12122 1981), the undersigned held certain department chairpersons to be supervisors within the meaning of the Act based upon their responsibilities ". . . for evaluation of non-tenured and marginal tenured teachers, for recommendations on increments and renewals, for screening and rating teacher applicants, for teacher discipline and for grievance administration on behalf of the Board." Thus, the undersigned based his finding of supervisory status upon the individuals' effective power to hire, discharge, discipline or effectively recommend the same, based upon an analysis of their job responsibilities. Id. at 275; accord, In re East Windsor Reg. School District, H.O. No. 80-11, 7 NJPER 277 (¶12124 1981); In re Ramapo-Indian Hills Reg. H.S. Dist. Bd. of Ed., D.R. No. 81-26, 7 NJPER 119 (¶12048 1981); In re Town of Boonton, D.R. No. 81-16, 6 NJPER 604 (¶11299 1980); In re Borough of Closter, D.R. No. 81-
12, 6 NJPER 528 (¶11269 1980); In re Borough of Merchantville, D.R. No. 80-38, 6 NJPER 305 (¶11146 1980); In re N.J. Institute of Technology, D.R. No. 80-37, 6 NJPER 304 (¶11145 1980); In re Tp. of Manalapan, D.R. No. 80-34, 6 NJPER 41 (¶11117 1980); In re Ridgewood Bd. of Ed., D.R. No. 80-33 6 NJPER 209 (¶11102 1980); and In re Borough of Montvale, supra.

Finally, with respect to the conflict of interest issue, the Supreme Court, in Wilton, stated:

Ordinary considerations of employer-employee relations make it sensible to say that if performance of assigned duties by a particular supervisor bespeaks such an intimate relationship with the management and policy-making function as to indicate actual or potential substantial conflict of interest between him and other supervisory personnel in a different or lower echelon of authority, such supervisor should not be admitted to the same negotiating unit. Admission would not be fair even to the other supervisory employees or to the employer. Obviously no man can serve two masters.

. . . Whether the matter under discussion is concerned with the propriety of supervisors joining the same organization as ordinary employees, or the propriety of supervisors in various degrees of managerial proximity in relation to the employer and each other belonging to the same organization, the issue would seem to be substantially the same. Are the duties, authority and actions of the employees in question vis-a-vis the other employees in the Association, primarily related to the management function? To what extent does the reasonable and good faith performance of the obligations a supervisor owes to his employer have capacity, actual or potential, to create a conflict of interest with other supervisors whose work he is obliged to oversee and evaluate for his employer?

57 N.J. at 416-417

Giving due regard to the above standards, the undersigned has carefully reviewed the entire record, including the transcripts, the briefs, the Hearing Officer's Report and the State's exceptions.

ACTING DEPARTMENT HEADS

The record indicates that the individuals in the positions of librarian/acting department head at William Paterson College lack the power to formulate and/or direct management policies, and therefore, fail to satisfy the operative definition of managerial executive. Moreover, the record discloses that these same individuals lack the power to hire, discharge, discipline, or to effectively recommend the same. In point of fact, such determinations are made by a personnel committee which may include but which is not limited to department heads. Any staff member with at least two years experience is eligible to serve on the personnel committee which is elected by the staff. The committee makes recommendations to the Library Director concerning the strength and weakness of applicants. The Library Director, in turn, makes recommendations to the College Administrator with respect to the hiring of personnel. Moreover, a similar independent determination is made by the College Administrator with respect to discipline and nonretention of employees. Accordingly, the undersigned notes the absence of exceptions with regard to this classification and finds that the record adequately supports the Hearing Officer's conclusion that the acting department heads in question fail to satisfy the definition of managerial executive and/or supervisor within the meaning of the Act.

ASSOCIATE DIRECTORS OF LIBRARY SERVICES

With respect to the Associate Director titles at Kean College and Trenton State College, an analysis of the record indicates a lack of any basis for concluding that these positions carry the authority of a managerial executive. The two Associate Directors do not exercise final power over significant, policy-
making activities. Neither Associate Director possesses the requisite authority to formulate and/or direct the implementation of managerial policy.

However, the record adequately supports a finding of supervisory status with respect to these two titles. The Associate Directors specifically possess authority to effectively recommend that hiring, firing, and discipline be implemented on a case-to-case basis. Moreover, the record indicates that Associate Directors acting in place of Directors possess the Director's complete authority, and that this assumption of authority occurs with a great degree of regularity. Since there is ample evidence in the record to establish that the Associate Directors possess the requisite authority to hire, fire, discipline and/or to effectively recommend the same, the undersigned determines that the Associate Director titles should be excluded from the unit on the basis of their supervisory functions.

ASSISTANT DIRECTORS

The State argues that the Assistant Directors of Library Services at Montclair State College, Kean College, Jersey City State College, Ramapo College, Stockton State College, Trenton State College and Glassboro State College are managerial executives based upon their implementation of policy in the limited areas of their appointment and their consultation with and direction of various Department Heads regarding specific management policies and practices in the library. The State further asserts that the Assistant Directors advise the Director and Associate Director on general library policy.

The Hearing Officer found a pattern throughout the State College libraries wherein the Assistant Directors coordinated efforts toward the implementation of policy; however, he also found that the Assistant Directors recommended policy to the Directors with varying degrees of success. In all instances, the ultimate policy determinations were issued by the Director.

To support its position, the State has referred to its brief before the Hearing Officer, which evaluated certain testimony presented at the hearings. The undersigned, having reviewed this testimony in conjunction with the entire factual record developed at the hearings, is satisfied that the Hearing Officer considered this evidence in balance with the entirety of the transcript and correctly concluded that the Assistant Directors could not constitute managerial executives under the Act. Although the Assistant Directors recommend policy to the Directors, they do not occupy a position of authority, nor do they exercise the substantial level of discretion necessary to determine policy or to direct its effectuation. Accordingly, the undersigned adopts the Hearing Officer's findings and conclusion as to non-
managerial executive status for the reasons stated in his report.

The State agues that the Assistant Directors at the State College libraries are supervisors within the meaning of the Act based upon their administration of personnel policy, in general, and based upon their input in hiring, reappointment and discipline determinations. Again, the State's exceptions refer to its brief which was fully considered by the Hearing Officer. His findings and conclusion that the Assistant Directors are not supervisors within the meaning of the Act are adequately supported by the record.

The Act defines a supervisor as an individual with the power to hire, discharge or discipline employees or who can effectively recommend the same. The Hearing Officer properly noted that the Directors exercise the sole authority to make hiring recommendations to the various college administrators. The Assistant Directors provide general input into these recommendations. In some instances the Assistant Directors participate in the interviewing of applicants. The Assistant Directors also make recommendations to the Director concerning staff reappointment. However, in each instance, the Director exercises an independent judgment. Moreover, there is additional collegial participation in reappointment recommendations by staff-elected personnel advisory committees which make direct recommendations to the Directors. The record further reveals an absence of any experience relating to direct discipline of employees by the Assistant Directors.

Under the instant circumstances, in which multiple levels of College administrators and staff -- vice presidents, directors, associate directors, personnel advisory committees -- are involved in the hiring and/or reappointment process, it must be concluded that the Assistant Directors' recommendations become diluted and attenuated by collateral recommendations and independent review. Accordingly, the undersigned finds that the Assistant Directors do not have the power to hire, discharge or discipline or effectively recommend the same.

The undersigned, however, excepts from the above finding the Assistant Directors at Stockton State College. There, the Assistant Directors have exercised the authority to hire employees, albeit non-unit, nonprofessional staff. The undersigned concludes that the Assistant Directors at Stockton exercise the authorities and effective powers which are similar to the authorities and effective powers of the Associate Directors at Kean and Trenton State Colleges. While this condition exists, Assistant Directors at Stockton may not be included in the Council's unit on the basis of their supervisory functions.4/

Finally, although the parties did not specifically identify this issue at the hearing, the Hearing Officer concluded that a conflict of interest, as envisioned by Bd. of Ed. of West Orange v. Wilton, supra, did not exist between Assistant Directors and other unit members. In its exceptions, the State argues that such a conflict exists between the Assistant Directors and the included members of the faculty unit. A Wilton conflict arises when there is an actual or potential substantial conflict of interest due to the split loyalty created by the exercise of an employee's substantial responsibilities owed as an arm of the employer as opposed to the employee's participation in unit activities which often influence, or are influenced by the effectuation of the employer-mandated responsibilities. These conflicts are virtually inherent in a supervisory/nonsupervisory relationship, but as the undersigned has found above, the supervisory function is not applicable to the instant employees. It is also axiomatic that the conflict of interest be examined in the context of the negotiations unit at hand. The questioned individuals' conflict as to employees in other units is not in issue.

In the context presented, the undersigned must take into consideration the multiple levels of administrative authority above the Assistant Directors in the proper balancing of the Assistant Directors' interests. The undersigned notes the overall authority vested in the library directors and college vice presidents. Further, the undersigned takes note of the collegial system in which the State Colleges operate and the professional camaraderie among the various librarian employees. With the above in mind, and based on a review of the record, the undersigned concludes that the Assistant Directors' participation in the above discussed areas of promotion, reappointment, hire and discipline has not involved them in actual substantial conflict nor does there exist potential substantial conflicts of interest. Further, the undersigned cannot find that the Assistant Directors' responsibilities in scheduling, vacation approval, sick-day monitoring, or in transfers has produced substantial conflicts of interest; nor can the undersigned realistically foresee such responsibilities as presenting a potential for substantial conflict of interest.

Accordingly, for the above reasons, the undersigned adopts the findings and recommendations of the Hearing Officer except as to the Assistant Directors at Stockton State College. The undersigned therefore clarifies the instant unit as excluding the Associate Directors at Kean College and Trenton State College, and the Assistant Directors at Stockton State College.5/ The remaining Assistant Directors at the State Colleges and the Department Heads at William Paterson College are included in the unit. The instant clarification is effective with the issuance of this decision.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	January 7, 1982

Trenton, New Jersey