D.R. NO. 78-41

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

FREEHOLD REGIONAL HIGH SCHOOL

BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. CU-77-55

FREEHOLD REGIONAL HIGH SCHOOL

EDUCATION ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Murray, Meagher & Granello, Esqs.

(Robert Emmet Murray, of Counsel)

For the Petitioner

Chamlin, Schottland, Rosen & Cavanagh, Esqs.

(Michael Schottland, of Counsel)

DECISION

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a negotiations unit represented by the Freehold Regional High School Education Association (the "Association"), hearings were held before J. Sheldon Cohen, a Commission Hearing Officer on August 11, August 18, and September 12, 1977.1/ At the hearings all parties were given an opportunity to examine and cross-examine witnesses, present evidence and to argue orally. Both parties submitted post-
hearing briefs. On October 31, 1977, the undersigned substituted Bruce Leder as Hearing Officer pursuant to N.J.A.C. 19:11-6.4. The Hearing Officer issued his Report and Recommendations on January 23, 1978, a copy of which is attached hereto and made a part hereof. The Association filed combined exceptions and supporting brief to the Hearing Officer's Report and Recommendations on February 8, 1978. The Freehold Regional High School Board of Education (the "Board") has not filed exceptions to the report; and has not filed an answering brief to the exceptions.

The undersigned has carefully considered the entire record in this proceeding and on the facts in this case finds and determines as follows:

1.	The Freehold Regional High School 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., as amended (the "Act"), is the employer of the employees who are the subject of this proceeding, and is subject to its provisions.

2.	The Freehold Regional High School Education Association is an employee representative within the meaning of the Act and is subject to its provisions. The Association is the recognized exclusive majority representative of a unit of employees, employed by the Board, which includes the following: teachers, media specialists, secretaries, nurses, attendance officers, security guards, head guidance counselors, special service personnel, and guidance counselors.

3.	On March 2, 1977, the Association filed a Petition for Clarification of Unit seeking a determination that the titles of building department supervisor, district supervisor, and lead building department supervisor, created pursuant to the Board's December 20, 1976 reorganization decision, should be included in the Association's negotiations unit. It is undisputed that the duties of the aforementioned titles include, but are not limited to, teaching (with the exception of district supervisors) and evaluating the performance of teachers. Uncontroverted evidence, adduced at the hearings, indicates that the evaluations that are conducted by the employees holding the above titles include an effective recommendation concerning the retention or non-
retention of non-tenured teachers.

4.	The Board's position in this matter is that the employees holding the above titles are supervisors within the meaning of the Act (N.J.S.A. 34:13A-5.3). In the alternative, the Board argues that the doctrine of "conflict of interest", enunciated in Board of West Orange v. Elizabeth Wilton, et al., 57 N.J. 404 (1974), precludes the inclusion of these employees in the Association's unit.

5.	The Hearing Officer concluded that the employees are supervisors within the meaning of the Act, and, in the alternative, concluded that there exists a sufficient conflict of interest to bar the inclusion of the employees in the Association's collective negotiations unit. The Hearing Officer based his recommended conclusions on the record evidence that said employees effectively recommend the hiring of teaching personnel, and, through the evaluation process, effectively recommend the continuation or non-continuation of non-tenured teachers. Further, the Hearing Officer stated that a Clarification of Unit Petition is not the appropriate vehicle to challenge the propriety of the Board's decision to reorganize. Finally, the Hearing Officer found it unnecessary to rule upon the Board's motion for summary judgment, as the recommended decision was consistent with the relief requested by the motion.

6.	The Association excepts to the Hearing Officer's Report and Recommendations on two grounds. First, the Association excepts to the undersigned's substitution of a Hearing Officer at the close of hearing. It is alleged that this substitution is a denial of administrative due process, since the substituted Hearing Officer did not have the opportunity to observe the demeanor of the witnesses. Additionally, the Association proffers that the Hearing Officer unduly restricted the meaning of the statutory exceptions of "prior agreement" and "special circumstances", N.J.S.A. 34:13A-5.3 and (6)(d). The Association asserts that the collective negotiations agreement between the parties recognizes the Association as the exclusive representative of all "teachers." The Association argues that the creation of titles with hybrid status (i.e., teacher/supervisor), coupled with the aforementioned contractual language, satisfies the requirements of "prior agreement" and "special circumstances" within the intendment of the Act.

7.	The undersigned has carefully considered the exceptions filed by the Association. With regard to the substitution of a Hearing Officer, the undersigned notes that this action was taken in strict accordance with N.J.A.C. 19:11-6.4. The claimed denial of due process is without foundation. At no point, either in the brief or in the exceptions, does the Association object to any of the factual conclusions reached by the Hearing Officer. Additionally, the Hearing Officer did not render any credibility determinations. In fact, a review of the entire record reveals that the parties to this matter do not dispute the essential facts; rather, they are arguing the legal conclusions that are to be drawn from the facts.

In its second exception, the Association claims that "prior agreement" or "special circumstances" are applicable to the matter herein for the following reasons:

"It is submitted that in the instant matter not only does the prior agreement dictate the contrary, but also there exists special circumstances. The recognition clause of the Collective Bargaining Agreement between these parties recognizes the association as the exclusive bargaining agent for all teachers within the district. The testimony before the hearing examiner was uncontradicted that the individuals involved will spend approximately one-half of their working day performing teaching functions. Thus, it is submitted that the agreement satisfies the exceptions to the statutory bar set forth above.

Moreover, the type of hybrid position created in this district amounts to the special circumstances which also are exceptions to the non-inclusion rule. The vast majority of individuals involved have been in the past represented by the association, and, in fact, are the subject of the present Collective Bargaining Agreement. They continue to perform many of the functions that they performed prior to the reorganization; yet, because their duties have been glossed with additional functions that are facially supervisory in nature, they have been unilaterally deprived of the rights and benefits afforded by their membership in that unit."

N.J.S.A. 34:13A-5.3 provides that no unit containing supervisors and non-supervisors may be appropriate for collective negotiations unless there exists established practice, prior agreement or special circumstances. The Commission has interpreted the term "prior agreement" as referring to the existence of a written executed agreement between the public employer and employee organization, which includes both supervisors and non-supervisors, and which was entered into prior to the passage of the Act in 1968. In re West Paterson Board of Education, P.E.R.C. Nos. 77 and 79 (1973).

"Special circumstances" has rarely been found. In re New Jersey Turnpike Authority, P.E.R.C. No. 24 (1969), the Commission found that special circumstances were present to warrant the inclusion of craft personnel in a unit including non-craft maintenance personnel. The history of the parties' pre-1968 negotiations relationship indicated that the craft employees and non-craft employees in the maintenance department negotiated as a mixed unit with the Turnpike from 1961 to 1964, until the parties were prohibited from engaging in collective negotiations by court injunction. The Commission was satisfied that had there not been an injunction, the relationship would have been continued. Recently, the undersigned has found that where a clarification dispute is raised after the execution of a collective negotiations agreement and the clarification concerns titles existing prior to the agreement, the situation may present a special circumstance which would warrant, at least until the expiration of the agreement, the temporary continued inclusion of personnel who should rightfully be removed from the unit. In re Clearview Regional High School Board of Education, D.R. No. 78-2, 3 NJPER 248 (1977). In the appropriate context, the existence of a contract covering the affected personnel would present a special circumstance needed to preserve the stability of the parties' negotiations relationship during the existence and administration of the agreement.

It is apparent that the application of "prior agreement" or "special circumstances" suggested by the Association is at variance with the interpretation and application accorded to the statutory exceptions by the Commission. As noted above, the Commission has determined that the term "prior agreement" was intended by the legislature to preserve the composition of a pre-
Act negotiations unit which, if formed subsequent to the date of the Act, would otherwise be inappropriate. The facts herein do not reveal, nor does the Association allege, the existence of a written executed collective negotiations agreement between the parties, prior to 1968, in which the Association was recognized as the representative of both non-supervisory and supervisory personnel. To the contrary, the record reveals that the Association has never represented supervisors in its unit. Further, the Commission has found the existence of a "special circumstance" only in a situation of unusual nature and the undersigned has expanded the use of that term only in limited situations as described in the Clearview matter supra. It is not unusual for supervisors to perform non-supervisory tasks among their other duties. Nor is it unusual to find that a particular employee's duties are primarily non-supervisory in nature and that only a certain portion of those duties are supervisory. In determining the status of employees performing both supervisory and non-supervisory functions, the Commission has adopted a policy of excluding the employee from the unit as a supervisor within the meaning of the Act, unless other circumstances present in the case meet the standards of established practice, prior agreement of special circumstances. See In re River Dell Regional High School Board of Education, P.E.R.C. No. 77-10, 2 NJPER 286 (1976), aff'g E.D. No. 76-28, 2 NJPER 89 (1976); In re Montville Township Board of Education, E.D. No. 76-43 (1976). This is not the case herein. Therefore, the undersigned finds that the exceptions filed by the Association are without merit.

8.	Based on the entire record in this matter, the undersigned finds and determines in agreement with the Hearing Officer and essentially for the reasons cited by him, that the titles in dispute are supervisors within the meaning of the Act and that their inclusion in a unit with non-supervisors is inappropriate. Accordingly, building department supervisors, lead building department supervisors, and district supervisors may not be included in the Petitioner's negotiations unit.2/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

DATED:	May 1, 1978

Trenton, New Jersey