The Borough's police department is composed of the Chief of Police, a sergeant (also known as sergeant/detective), and three patrol officers.

The Borough asserts that the position of sergeant was created to provide the police force with a supervisor in the absence of the chief of police. The Borough asserts that in the absence of the chief of police, the sergeant is the commanding officer in charge of the police department and has assumed command in the absence of the chief due to vacation, unavailability, etc. In those instances when the sergeant has allegedly assumed command, the Borough claims that he has authorized overtime and changed schedules when necessary, all without the prior approval of the chief.

The Borough asserts that the supervisory authority of the sergeant is established in the Borough's police manual, which sets forth the sergeant's authority to manage and direct police personnel in fulfilling the objectives of the department. The Borough asserts

that the sergeant has the ability to assign and instruct the patrol officers in adhering to the work standards established by the department. For example, the sergeant supervises the twice-yearly qualification of the patrol officers at the shooting range.

The Borough claims that the sergeant has the authority to effectively recommend disciplinary action, including discharge, directly to the chief of police, and can issue oral reprimands and suspensions until the next business day without the chief's approval. However, the Borough concedes that the sergeant has never had occasion to exercise disciplinary authority, although he would be expected to do so if a situation arose. The Borough further asserts that the fact that the sergeant performs the same patrol duties as the officers is not dispositive, since the chief also performs patrol duties. The Borough asserts that the sergeant possesses supervisory authority and exercises it with sufficient regularity to create a conflict of interest if he were permitted to be in the same unit with patrol officers. The sergeant is paid approximately $1500.00 more annually than a patrol officer. ^1/

The sergeant does not have authority to hire or fire. Since filling the sergeant's position, the Borough has hired two officers. The hiring process has been conducted by a committee

1/ It is not clear whether the sergeant receives a higher salary because of a greater number of years of service in the police department, because of his assignment as a detective or solely because he encumbers the sergeant position.

The PBA submitted affidavits from the sergeant and each of the three patrol officers in support of its position. The PBA asserts that the sergeant and patrol officers work independently on individual shifts. The PBA asserts that the duties of the sergeant are exactly the same as those of the patrol officers, that the sergeant is neither referred to, nor acts as a "shift commander", "supervisor" or "officer in charge." The PBA asserts that the sergeant possesses no supervisory powers and/or training responsibilities. It claims that all supervisory and training responsibilities are handled solely by the chief of police, including scheduling, time off, firearms qualifications, and any disciplinary action.

The employee handbook issued to the sergeant describes him as a non-supervisory, hourly employee, and describes all supervisory and decision-making powers as vested in the chief of police. Specifically, the handbook directs officers to discuss time cards only with the chief. Only the chief can approve an officer's total time worked. According to the handbook, only the chief can change the work schedule. The chief approves paid funeral time off. Officers are directed to advise the chief of changes of address or telephone numbers. All grievances are filed with the chief of

police. ^2/ The PBA presents several examples of written reprimands issued directly to the patrol officers from the chief as proof that the chief alone possesses disciplinary authority. The PBA also presents several policy memoranda concerning scheduling, uniforms, etc. issued to "All Officers" by the chief individually or in conjunction with the public safety director.

In his affidavit, the sergeant attests that the police department is run entirely by the chief; that there are no supervisors other than the chief, and that the sergeant does not have any power or authority to discipline or supervise any other officers of the department. The PBA asserts that the Borough has failed to provide any specific examples of the sergeant's exercise of supervisory authority. The PBA asserts that the sergeant's inclusion in the unit would not compromise his loyalty to the employer and that the "small force" exception clearly applies in this case.

N.J.S.A. 34:13A-5.3 provides that:

except where established practice, prior agreement or special circumstances dictate the contrary, [no 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 membership . . . .

2/ The PBA alleges that the police manual of rules and regulations presented by the Borough in this case has never been seen by, nor given to any members of the Pine Valley police department, and disputes that these rules were ever officially promulgated.

The Commission has consistently held that "the bare possession of supervisory authority without more is insufficient to sustain a claim of status as a supervisor within the meaning of the Act. In the absence of some indication in the record that the power claimed possessed is exercised with some regularity by the employee in question, the mere 'possession' of the authority is a sterile attribute unable to restrain a claim of supervisory status." Somerset County Guidance Center, D.R. No. 77-4, 2 NJPER 358, 360 (1976). It is well established that the Commission will look beyond the title or job description to ascertain the nature of the authority the employee actually exercises. Somerset County Guidance Center . Evidence that the authority is exercised with some degree of regularity is required.

In this matter, the sergeant has no true authority to hire, discharge, discipline or to recommend such action. In the instant case, all activities normally exercised by "supervisors" are exercised by the chief of police. The chief is responsible for any disciplinary action, hiring decisions, all employees' schedules and grievances. While the Borough asserted that the sergeant is responsible for making decisions during the shift, such incidents have never arisen and the chief must be directly consulted as problems arise.

The sole support for the Borough's allegation that the sergeant is a supervisor is its assertion that he substitutes for the chief when the chief is on vacation or otherwise unavailable. However, although the Borough asserts that on occasion the sergeant has been designated acting commanding officer in the chief's absence, no evidence was submitted to support this assertion. Even assuming such substitution has occurred, possession of supervisory authority on a temporary basis when the permanent supervisor is unavailable does not support a claim of supervisory status. See Union Cty Bd. of Social Services, D.R. No. 87-29, 13 NJPER 509 (& 18190 1987). Moreover, the sergeant has not substituted for the chief with respect to any employment matter. Effective recommendation requires more than the "mere rendering of an opinion which is subject to independent analysis by the hiring authority." Tp. of Teaneck, E.D. No. 23, NJPER Supp 465 ( & 114 1971). I find that the sergeant is not a supervisor.

While superior officers do not ordinarily share a community of interest with patrol officers, there are limited exceptions. In Union City, P.E.R.C. No. 70, NJPER Supp 295, 297 ( & 70 1972), the Commission explained:

It is readily observable that the military-like approach to organization and administration and the nature of the service provided (which presumably accounts for that approach) set municipal police and fire departments apart from other governmental services. Normally there exist traditions of discipline, regimentation and ritual, and conspicuous reliance on a chain of command, all of which tend to accentuate and reinforce the presence of superior-subordinate

relationships to a degree not expected to be found in other governmental units and which exist quite apart from the exercise of specific, formal authorities vested at various levels of the organization. When the Commission is asked to draw the boundaries of common interest in this class of cases, it cannot ignore this background as it examines for evidence of whether or not a superior exercises any significant authority over a rank and file subordinate which would or could create a [conflict] ^3/ of interest between the two. In our view, where these considerations are real rather than merely apparent, it would be difficult indeed to conclude, in contested cases, that a community of interest exists between the lowest ranking subordinate and his superior, absent exceptional circumstances. We do not intend that this observation extend to those cases where the points of division are so few and so insignificant as to be termed de minimis, such as might not unreasonably be expected to exist in a small police or fire department. We are persuaded, however, after almost four years experience with this statute that unless a de minimis situation is clearly established, the distinction between superior officers and the rank and file should be recognized in unit determination by not including the two groups in the same unit. [Emphasis added.]

In South Plainfield , D.R. No. 78-l8, 3 NJPER 349, 350 (l977), the Director of Representation said:

Accordingly, in cases involving police department units, superior officers will normally be severed from rank and file personnel unless it is shown that there is an exceptional circumstance dictating a different result. Examples of such are the following: (l) A department in which there is a very small force where superior officers perform virtually the same duties as patrolmen, and where any conflict of interest is de minimis in nature; (2) Where it is determined that superior officers are supervisors, the

3/ The original decision uses the word "community." The decision should read "conflict."

This case, like Merchantville , falls within the small force exception. The entire police department consists of four employees. All employees perform the same work. The sergeant and the patrol officers engage in patrol activity in the same manner. There is no evidence the sergeant exercises any significant authority over the patrol officers on a regular basis. Rather, the sergeant and the patrol officers perform the same work together as peers. There is no indication that their relationship changes if the sergeant substitutes for the chief. There is no evidence that

the sergeant exercises any authority to discipline his fellow officers. All decisions on discharge, discipline or hiring are and have been made by the police chief. Thus, the sergeant's job classification differs from the patrol officers' only in that he earns a slightly higher salary. This difference, in light of all the similarities among the sergeant and patrol officers, is too tenuous to support a finding of conflict of interest.

Therefore, I find that the appropriate unit for collective negotiations is:

Included: All patrol officers and sergeants employed by the Borough of Pine Valley.

Excluded: Managerial executives, confidential employees and supervisors within the meaning of the Act; craft employees, professional employees, non-police employees, casual employees, chief of police, and all other employees.