D.R. NO. 82-51

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

PARSIPPANY-TROY HILLS

BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-81-56

PARSIPPANY-TROY HILLS

SUPERVISORS ASSOCIATION,

Petitioner,

-and-

PARSIPPANY-TROY HILLS

EDUCATION ASSOCIATION,

Intervenor.

Appearances:

For the Public Employer

Dillon, Bitar & Luther, attorneys

(John W. Adams of counsel)

For the Petitioner

Newman, Herman & Saltman, attorneys

(Robert M. Schwartz of counsel)

For the Intervenor

Katzenbach, Gildea & Rudner, attorneys

(Arnold M. Mellk of counsel)

DECISION AND DIRECTION OF ELECTION

On September 24, 1980, a Petition for Certification of Public Employee Representative, supported by an adequate showing of interest, was timely filed with the Public Employment Relations Commission ("Commission") by the Parsippany-Troy Hills Supervisors Association ("Petitioner") seeking to represent in a separate negotiations unit all area chairpersons employed by the Parsippany-Troy Hills Board of Education ("Board"). The area chairpersons are currently represented by the Parsippany-Troy Hills Education Association ("Association") and are included in a unit which also includes teachers and other professional staff. Pursuant to N.J.A.C. 19:11-2.7, the Association was granted intervenor status in this matter.

Hearings were held before Commission Hearing Officer Arnold H. Zudick on October 26 and 27, 1981, in Newark, New Jersey, 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 by January 4, 1982. The Hearing Officer thereafter issued his Report and Recommendations on February 23, 1982, a copy of which is attached hereto and made a part hereof.

The Association filed exceptions to the Hearing Officer's Report and Recommendations on March 3, 1982.

The undersigned has carefully considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, the exhibits and the Association's exceptions and finds and determines as follows:

1.	The Parsippany-Troy Hills 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. (the "Act"), is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act.

2.	The Parsippany-Troy Hills Supervisors Association and the Parsippany-Troy Hills Education Association are employee representatives within the meaning of the Act and are subject to its provisions.

3.	The Association is the exclusive representative of a unit of professional employees employed by the Board which includes teachers, coordinators, area chairpersons and several other professional titles.

4.	The Petitioner seeks a separate negotiations unit of area chairpersons. It argues that area chairpersons are supervisors and therefore may not be included in a unit which includes nonsupervisors. The Board agrees that area chairpersons are supervisors. It does not oppose a separate unit. The Association argues that the area chairpersons are not supervisors, and that their inclusion in the negotiations unit with teachers does not present a conflict of interest.

5.	The Hearing Officer found that the area chairpersons are supervisors within the meaning of the Act, that their supervisory functions have substantially increased since their initial inclusion in the unit, and that the exercise of their supervisory responsibilities would present a substantial conflict of interest vis-a-vis their inclusion in the negotiations unit with teaching staff members whom they supervise. The Hearing Officer also found that none of the statutory exceptions which might otherwise permit the continued inclusion of supervisors and nonsupervisors in the same negotiations unit were applicable because there was no pre-Act negotiations relationship between the Association and the Board. Finally, the Hearing Officer recommended that area chairpersons should be removed from the existing collective negotiations unit and provided with the opportunity to choose separate representation.

The Association excepts to the Hearing Officer's findings, arguing that area chairpersons are not supervisors within the meaning of the Act and that there is no actual or potential conflict of interest between area chairpersons and other unit members. The Association submits that even if area chairpersons are supervisors, their inclusion in the negotiations unit predated the passage of the Act and they therefore may continue to be included in the present unit based upon the statutory exception of "established practice."

After a review of the entire record, the undersigned substantially adopts the Hearing Officer's findings of fact, conclusions of law, and his recommendation that an election be provided to resolve the question concerning representation in the unit of area chairpersons.

N.J.S.A. 34:13A-5.3 defines a supervisor as one having the power or effective power to hire, discharge or discipline employees. The record reveals that area chairpersons screen applicants for teaching positions and make hiring recommendations. The high school principal described their role as "paramount and decisive," and, in this regard, stated that he would not hire a teacher without the approval of the area chairperson. In addition, area chairpersons initiate effective recommendations concerning teacher nonrenewal, and the grant and denial of increments. The high school principal, vice principal and the area chairperson comprise an administrative team to evaluate teachers. The area chairpersons, all of whom hold supervisory certificates, sign evaluations.

Although the Act provides that supervisors shall not be included in units with nonsupervisors, it also provides for certain exceptions which may permit the continuation of a mixed unit structure. N.J.S.A. 34:13A-5.3 provides:

...nor, except where established practice, prior agreement or special circumstances, dictate to the contrary, shall any supervisor...have the right to be represented in collective negotiations by an employee organization that admits non-supervisory personnel to membership . . .

In In re West Paterson Bd. of Ed., P.E.R.C. No. 79 (1973), the Commission held that the statutory exception of established practice relates solely to pre-Act (1968) relationships). In reviewing the record, the Hearing Officer found that an established practice, pre-dating the Act, had not been demonstrated. The Association excepts to the Hearing Officer's finding, noting that there was testimony offered to the effect that there was, in fact, a pre-1968 collective negotiations relationship.

The Commission, in addressing the issue of established practice, has determined that evidence in support of this exception must be clear and convincing. In re Tp. of Teaneck, E.D. No. 23 (1971). Further, the Commission has held that such a relationship requires:

An organization regularly speaking on behalf of a reasonably well-defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations) with an employer who engaged in the process with the intent to reach agreement.1/

In examining the evidence with regard to the pre-1968 relationship int his matter, the undersigned determines that the requirements for the finding of the statutory exception of "established practice" have not been met. The evidence is far from clear and convincing that the Board dealt with "an organization regularly speaking on behalf of a reasonably well-
defined group of employees," including area chairpersons,2/ and that the employer met with an intent to reach agreement.

Having determined that area chairpersons are supervisors within the meaning of the Act and that there is no "established practice" which falls within the statutory exception noted above, the undersigned need not examine in detail the additional circumstances found by the Hearing Officer to constitute conflict of interest. The Hearing Officer's analysis of the facts and the law is consistent with previous Commission decisions in those areas. As the Commission observed in West Paterson, supra, n.1, unless a supervisor has a paper title and hollow authority, there seems to be no way to eliminate a potential for conflict. The term supervisor denotes it.3/

Accordingly, for the above reasons, the undersigned adopts the Hearing Officer's recommendation that area chairpersons are supervisors within the meaning of the Act and should be removed from the Parsippany-Troy Hills Education Association's unit. The petitioned-for unit is prima facie appropriate. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: all area chairpersons, but excluding managerial executives, confidential employees, police and craft employees, and all other professional employees of the Parsippany-Troy Hills Board of Education.

Pursuant to N.J.A.C. 19:11-2.6, the undersigned directs that an election be conducted among the above employees. The election shall be conducted no later than thirty (30) days from the date set forth below.

Those eligible to vote are the area chairpersons who were employed during the payroll period immediately preceding the date below, including employees who did not work during that 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 resigned 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 shall file with the undersigned and with the Petitioner 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 by the undersigned 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 statement of service to the undersigned. 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 purpose of collective negotiations by the Parsippany-Troy Hills Supervisors Association.

The exclusive representative, if any, shall be determined by the majority of valid ballots cast by the employees voting in the

election. 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

DATED:	April 29, 1982

Trenton, New Jersey