D.R. NO. 78-10

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BROOKDALE COMMUNITY COLLEGE,

Public Employer,

-and-	Docket No. RO-1058

BROOKDALE COMMUNITY COLLEGE

ADMINISTRATIVE ASSOCIATION - NJEA,

Petitioner.

Appearances:

For the Public Employer

Murray, Meagher & Granello, Esqs.

(John A. Meagher, of Counsel)

For the Petitioner

Ruhlman & Butrym, Esqs.

(Edward J. Butrym, of Counsel)

DECISION AND DIRECTION OF ELECTION

On June 23, 1975, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the "Commission") by the Brookdale Community College Administrative Association - NJEA (the "Association") with respect to a proposed unit of certain administrative employees of Brookdale Community College (the "College"). The Association seeks to be certified as the exclusive representative of the employees in the proposed unit pursuant to a secret ballot election.

Pursuant to the appropriate notice, hearings were held before Leo M. Rose on October 30, 1975, November 24, 1975, January 23, 1976, March 18, 1976, March 31, 1976 and May 3, 1976 at which all parties were given an opportunity to examine and cross-examine witnesses, present evidence, and argue orally. Both parties filed briefs in support of their respective positions, and the substituted Hearing Officer issued his Report and Recommendations on March 4, 1977.1/ A copy is annexed hereto and made a part hereof. On March 29, 1977, the Public Employer filed exceptions and a supporting brief to the Hearing Officer's Report and Recommendations, and on March 30, 1977, the Public Employer filed a Motion for Rehearing and a supporting brief in the instant matter. No exceptions were filed by the Petitioner.

The undersigned has considered the entire record in this matter including the Hearing Officer's Report and Recommendations, the entire transcript, the exhibits, briefs, exceptions, and the motion for rehearing, and finds and determines as follows:

1.	Brookdale Community College is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (the "Act"), the employer of the employees described herein, and is subject to the Act's provisions.

2.	Brookdale Community College Administrative Association - NJEA is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The College, having objected to the appropriateness of the unit sought in the petition by objecting to the inclusion of numerous titles, a question concerning the representation of administrative personnel exists, and the matter is appropriately before the undersigned for determination.

4.	The parties have agreed to include or exclude personnel in a large number of titles involving the proposed unit, such titles being those enumerated in Appendix A of the Hearing Officer's Report and made a part hereof. Thus, the Association seeks to represent a unit including all administrators employed by the College including, but not limited to, those titles enumerated under inclusions in Appendix A, and specifically excluding those titles listed under exclusions in Appendix A.

The College has objected to the inclusion in the unit of administrators occupying 29 other titles on the basis of either supervisor/conflict of interest, or confidentiality within the meaning of the Act, or on the basis of both of these grounds.

5.	The Hearing Officer found that the employees in twelve (12) specific titles were not supervisors within the meaning of the Act in that they did not "effectively recommend" hire, discharge or discipline as defined in N.J.S.A. 34:13A-5.3,2/ and that there did not exist a substantial conflict of interest, as the College has alleged, between these twelve titles and other titles in the proposed unit. The Hearing Officer therefore recommended the inclusion of the personnel in the following twelve titles in the proposed unit: the Assistant Director of Computer Services for Systems and Programming; Assistant Director of Computer Services for Contract Services; Operations Manager, Computer Services; Manager Data Base; Director of Student Life and Activities; Director of Admissions and Records; Director, Career Services; Associate Dean Community Education; Director Human Resources; Assistant Director, Human Resources; Director, Information Services; Manager, Material Services.

The Hearing Officer also found that nine (9) employees whose duties are generally related to computer functions, four (4) administrative assistants, and employees holding the titles of Chief Accountant, Data Coordinator-Research, and Research Associate, were not, contrary to the College's contentions, confidential employees within the meaning of the Act,3/ and the Hearing Officer therefore recommended the inclusion of all these titles in the proposed unit. The titles held by the computer personnel are as follows: Assistant Director of Computer Services for Systems and Programming; Assistant Director of Computer Services for Contract Services; Production Control Coordinator; Operations Manager; Project Manager, Systems Coordinator; School Coordinator; Manager, Data Base; Coordinator, Data Base. The four administrative assistant titles are: Senior Administrative Assistant to Dean of Natural and Applied Sciences; Senior Administrative Assistant to Dean of Human Affairs; Senior Administrative Assistant to Dean of Applied Humanities; and Administrative Assistant to the Director of the Learning Resources Center.

Finally, the Hearing Officer found that the Director of Informational Services was a confidential employee within the meaning of the Act, and he therefore recommended the exclusion of this title, to which the Petitioner did not except, from the proposed unit.

In its exceptions and supporting brief the College specifically objected to the Hearing Officer's recommended inclusion in the unit of the employees holding the twelve alleged supervisor titles, the nine computer type titles, the four administrative assistant titles, and the Chief Accountant title. Specifically, the College's first exception is related to the Motion for Rehearing filed by the College and shall be discussed herein after the other exceptions have been considered. The second and third exceptions relate to the Hearing Officer's inclusion of the twelve alleged supervisor-type positions in the proposed unit.4/ Exception four relates to the computer personnel; exception five relates to the administrative assistants; and exception six relates to the Chief Accountant.5/

Supervisory Status - Conflict of Interest

6.	In regard to the twelve alleged supervisors, the College argued in its exceptions that the Hearing Officer misconstrued the statutory test for a supervisor within the meaning of the Act, and that he misapplied the applicable law regarding conflict of interest. The College generally maintains that the twelve titles are supervisors because, as the statute provides, they either have the power to hire, discharge, or discipline, or they may effectively recommend the same.6/ Of these enumerated powers, the College specifically contends that the titles in question do have the power to effectively recommend the above.

A review of the transcript reveals that much of the testimony was elicited from Ghislaine Sheehan, the College's Assistant Director of Personnel. Mrs. Sheehan testified, among other matters, concerning the title of Director of Student Life and Activities, one of the twelve alleged supervisors herein.7/ Mrs. Sheehan was intensively questioned about the Director's (Student Life) ability to effectively recommend hiring, discipline and discharge, and his role in evaluating his subordinates.

In regard to hiring, Mrs. Sheehan testified that several standard forms were used by the College in its hiring process, particularly the Personnel Request form8/ and the Employment Recommendation form.9/ Mrs. Sheehan also testified that the Personnel Request form was used by an individual such as the Director of Student Life and Activities when it was necessary to hire additional personnel.10/ This form was not used as a recommendation for hiring, but was used to insure the existence of sufficient funds for the additional personnel. Mrs. Sheehan further testified that the Director (Student Life) would "initiate" the form as part of the hiring process,11/ and that the form then needed the approval of a College officer, in this case the Vice-President of Educational Services.12/ Assuming the Vice-
President approved the form, the form then needed budget approval.13/ Finally, the President of the College had "final approval."14/

Mrs. Sheehan further testified that once the Director (Student Life) had completed interviews or had utilized a committee process for interviewing for an approved position he would initiate the Employment Recommendation form which proceeded through the same level of authority as the Personnel Request form.15/ Although Mrs. Sheehan clearly testified that the Director (Student Life) could very possibly prevent a job candidate from being hired by not recommending the candidate for the position,16/ she also testified that the ultimate staffing of the institution involved a "cumulative process"17/ necessitating the authorization and review of the Vice-President and President.

The parties have generally agreed that the personnel request and employment recommendation procedures were essentially the same for the remaining alleged supervisor of positions.18/ In addition, Steven Seligman, Director of Admissions and Records, and the only alleged supervisor to testify at the hearing, testified that he did use the Employment Recommendation form and he was aware that his recommendation required the approval of two other officials.19/

The undersigned has examined the relevant exhibits and testimony regarding the employees in the 12 titles and their ability to effectively recommend hiring, and concludes that the hiring function and indeed the hiring recommendation itself is a cumulative and cooperative function requiring the participation and authorization of several individuals.

Regarding the areas of discharge and discipline, Mrs. Sheehan testified that the alleged supervisors are required to conduct an annual evaluation of their subordinates regarding the accomplishment of their objectives,20/ and that there is a specific evaluation form for that purpose.21/ Mrs. Sheehan further testified that the evaluation form might be the basis upon which an individual is terminated,22/ but that the form used in the event of discharge would be the Contract Administration form23/ under the section designated "Recommendation for Non-
Renewal of Contract."24/

An examination of the Recommendation for Non-renewal section reveals that two signatures are required, a "supervisor's" (one of the 12 alleged supervisory titles) and a College officer's, usually a Vice-President. Mrs. Sheehan was examined at length concerning the need for both signatures in order to complete the recommendation, and she testified that both signatures were required.25/ Moreover, when asked whether a Director's non-
renewal recommendation would be effective if the College officer (vice-president) did not agree, Mrs. Sheehan responded "[b]ecause the College officer is responsible for that entire area, I think his decision would over-weight (sic) the supervisor. The same would go for the President's decision."26/ The parties have generally agreed that all of the recommendation procedures and forms were essentially the same for the remaining alleged supervisor titles.27/

Based upon the foregoing discussion and also the evidence in its entirety, the undersigned is convinced that the 12 titles in question, acting alone and without the approval of the appropriate college officer, do not have the power to hire, discharge, or discipline their subordinates, or to effectively recommend the same. At best, the Director's participation in the hiring process is at the initial level, and remote from the actual decision and power to hire discharge or discipline. Any level of review from the Director's level can disapprove a Director's recommendation. Under these circumstances, the undersigned can hardly conclude that a recommendation which requires the approval of three additional levels of authority is at all effective.

The College has further argued in its exceptions that the capacity for actual or potential conflict of interest exists between the various alleged supervisors and their subordinates largely due to the Director's role in the hiring and evaluation process. However, the record does not demonstrate that an actual conflict has occurred or that the capacity for a potential conflict of interest is imminent or that any incompatibility is presently foreseeable. Rather, the undersigned must conclude from the record that any potential for the Director being placed in a position of substantial conflict of interest is remote and speculative.

Accordingly, the undersigned finds, based upon the foregoing reasons and in accordance with the Hearing Officer's conclusions, that the 12 titles in question are appropriate for inclusion in the proposed unit.

Computer Type Personnel - Confidentiality

7.	The College also excepted to the Hearing Officer's finding that the nine computer titles were not confidential employees within the meaning of the Act. The College argued in its exception that even assuming that not every contested title is excludable, that a closer examination of the titles would show that at least several titles should be excluded.

The bulk of the testimony concerning the computer titles was derived from Mr. Vincent Gormon, Director of Computer Services at the College.28/ Mr. Gormon was asked several questions concerning the accessability that the nine individuals in those titles would have to negotiations material.29/ Mr. Gormon testified generally that all nine titles would have access to various information stored or produced by the computer center,30/ but later he testified that his department (including the nine instant titles) performed mainly a maintenance, storage and production function regarding the data in question.31/ Moreover, Mr. Gormon's testimony revealed that even he was not entirely certain whether he had ever received a request to process data specifically for negotiations.32/ At the same time, Mr. Gormon testified that he believed he prepared reports used for negotiations purposes. Since Mr. Gormon's testimony reflects uncertainty in his mind with regard to utilization of data he has processed, it is reasonable to conclude that his subordinates, the employees in the nine instant titles, are equally unclear as to the nature and use of the information they are preparing.

Although the College contends that at least several computer titles are confidential employees within the meaning of the Act, the evidence in the record shows that the contested computer personnel would merely have access to and assemble raw data which eventually might be used by the College in negotiations. The Commission in In re Board of Education of the Township of West Milford, P.E.R.C. No. 56 (1971), at p. 5, has found that, "mere knowledge of raw information acquired in this process [assembly of information] would not ordinarily tend to compromise Management's right to confidentiality in matters of policy affecting negotiations or contract administration." Accordingly, and in conformity with the above-cited decision, the undersigned adopts the Hearing Officer's Report and Recommendations regarding the nine computer titles and finds that those titles are not confidential within the meaning of the Act and are appropriate for inclusion in the proposed unit.

Administrative Assistants - Confidentiality

8.	Regarding the four Administrative Assistants, the Hearing Officer concluded - to which the College excepted - that they were not confidential employees within the meaning of the Act. The College alleged in its exception that the Hearing Officer failed to credit the job descriptions of these four titles. However, the College made no other argument relating to the confidentiality of these titles. The undersigned notes that the testimony of two of the four administrative assistants, who clearly testified that they did not have access to or knowledge of any material used in labor negotiations, is not contradicted.33/ Additionally, Mr. Stanley Stein, the College's Director of Personnel testified that to his belief the title of Administrative Assistant - Learning Resource Center (held by Pamela Austin) did have access to confidential information.34/ However, on cross-examination Mr. Stein indicated that he never had a meeting or discussion with this particular Administrative Assistant present, nor had he received any communication directly from her.35/ Moreover, Mr. Stein admitted that he only assumed that Ms. Austin had a hand in confidential information.36/

With respect to the title of Senior Administrative Assistant to the Dean of Human Affairs (held by Cathy McNee), Mr. Stein also testified that Ms. McNee would have access to confidential information,37/ yet on cross-examination Mr. Stein again stated that he assumed that her duties involved confidential information.38/

The undersigned concludes, after a study of the job descriptions of the four titles and the testimony with regard to the actual job functions, that the evidence demonstrates that the Administrative Assistant titles do not have a confidential status within the meaning of the Act. The undersigned therefore adopts the Hearing Officer's Report and Recommendations regarding these four titles and finds that they are not confidential employees, and these titles are therefore appropriate for inclusion in the proposed unit.

Chief Accountant - Confidentiality

9.	In its sixth exception the College specifically excepted to the Hearing Officer's finding that the Chief Accountant was not a confidential employee. The College argued that the Hearing Officer misread the testimony produced at the hearing which indicated that the Chief Accountant worked closely with the Comptroller who was, himself, deeply involved in matters related to negotiations.39/

In his Report and Recommendations the Hearing Officer concluded that the Chief Accountant should be included in the proposed unit because, even though he had knowledge of the College's negotiations proposals, he was unaware of the College's position regarding those proposals.40/ The Hearing Officer thus concluded that the Chief Accountant lacked the kind of knowledge or information that would make him a confidential employee.

An examination of the record reveals that Mr. Stein also testified concerning the Chief Accountant and Comptroller functions.41/ Mr. Stein first testified that the Comptroller exercised managerial functions regarding negotiations,42/ and then testified that the Chief Accountant was required to perform functions used to determine costs for a labor budget and negotiations.43/ Mr. Stein testified that the Chief Accountant "...would be involved in all the levels that the process enjoins. The act of preparing. The act of revising. The act of finalizing. The act of all that is required in terms of budget."44/ Moreover, Mr. Stein further testified that during the course of negotiations the College officials rely on the Chief Accountant as their principal source of information regarding wage and budget proposals.45/

The undersigned has thoroughly reviewed the uncontroverted testimony relating to the Chief Accountant and concludes, contrary to the finding of the Hearing Officer, that the Chief Accountant prepares, revises, and finalizes the precise kind of information that would make him a confidential employee within the meaning of the Act.

Consequently, the College's exception relating to the Chief Accountant is sustained and the undersigned finds that the Chief Accountant is a confidential employee within the meaning of the Act, and the Chief Accountant title is therefore inappropriate for inclusion in any negotiations unit.

The Motion for Rehearing

As previously discussed, the College's first exception deals with the issues raised in its Motion for Rehearing.46/ The College argues that since the Hearing officer often referred to a lack of information or the existence of voids in the record that, therefore, the hearing should be re-opened to obtain the necessary information.

The College argues that because the Hearing Officer believes that certain information is missing from the transcript that, therefore, there is insufficient basis upon which to reach a decision. Such is not the case. The undersigned has reviewed the entire transcript herein and finds that there is more than sufficient evidence to substantiate the findings and conclusions made by the undersigned. The mere fact that some information is not contained within the transcript and is referred to as missing by the Hearing Officer does not, in and of itself, establish that the totality of the evidence obtained at the hearing was insufficient to reach a valid conclusion. The critical variable in considering requests for rehearing is not whether some information is missing, but whether the missing information as a whole makes the record so deficient so as to leave insufficient basis on which to properly and viably conclude, one way or the other, the nature of the dispute.

In the instant matter, despite the lack of information concerning the number of times an alleged supervisor's recommendation is approved, there still remains sufficient information to conclude, as the undersigned has concluded, that the recommendation function herein is a cumulative function participated in by several people and not a singular function exercised by one individual.

Consequently, for the reasons enumerated above, the College's first exception cannot stand and, additionally, its Motion for Rehearing is hereby denied.

10.	With respect to the titles of Director of Information Services, Data Coordinator-Research, and Research Associate, the undersigned notes no exceptions from the Hearing Officer's Report and Recommendations regarding these positions, and the undersigned after an independent review of the record adopts the Hearing Officer's Report and Recommendations regarding these titles. The undersigned therefore finds that the Director of Information Services is a confidential employee within the meaning of the Act, and inappropriate for inclusion in any negotiations unit. The undersigned also finds that the titles of Data Coordinator-Research and Research Associate are appropriate titles for inclusion in the Association's unit.

11.	Accordingly, for the above-stated reasons, the undersigned finds that the appropriate unit is, and he shall direct an election in, a unit of administrators employed by Brookdale Community College including those titles listed under inclusions in Appendix A of the Hearing Officer's Report, and further including the twelve titles contained in paragraph 5, page 3 of this decision, the nine computer-type titles and the four administrative assistant titles contained in paragraph 5, page 4 of this decision, and the Data Coordinator-Research and the Research Assistant titles; but excluding those titles named under exclusions in Appendix A, and further excluding the Director of Information Services and the Chief Accountant.

12.	The undersigned directs that a secret ballot election be conducted in the unit found appropriate. The election shall be conducted no later than thirty (30) days from the date set forth below.

Those eligible to vote are employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during the period because they were out ill, or on vacation, or temporarily laid off, including those in military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who quit 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 Public Employer is directed to file with the undersigned and with the Association an election 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 no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with the Association with State of Service to the undersigned. Failure to comply with the foregoing shall be grounds for setting aside the election upon the filing of proper post-election objections pursuant to the Commission's Rules. 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 or not they desire to be represented for the purposes of collective negotiations by the Brookdale Community College Administrative Association - NJEA.

The exclusive representative shall be determined by a majority of the valid ballots cast. The election directed herein shall be conducted in accordance with the provisions of the Commission's Rules.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

of Representation

DATED:	September 7, 1977

Trenton, New Jersey