Back

D.R. No. 84-11

Synopsis:

The Director of Representation determines that the Senior Bookkeeping Machine Operator and the Bookkeeping Machine Operator have access and exposure to confidential labor relations material and are confidential employees within the meaning of the Act. These employees are excluded from a negotiations unit of clerical employees.

PERC Citation:

D.R. No. 84-11, 9 NJPER 632 (¶14270 1983)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.22 33.43

Issues:


DecisionsWordPerfectPDF
NJ PERC:.DR 84-011.wpdDR 84-011.pdf - DR 84-011.pdf

Appellate Division:

Supreme Court:



D.R. NO. 84-11
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

TOWNSHIP OF SCOTCH PLAINS,

Public Employer-Petitioner,

-and- Docket No. CU-82-68

UNION COUNCIL NO. 8, NEW JERSEY
CIVIL SERVICE ASSOCIATION,

Employee Organization.


Appearances:

For the Public Employer-Petitioner
Aron, Till & Salsberg, attorneys
(Richard M. Salsberg, of counsel)

For the Employee Organization
Fox & Fox, attorneys
(Richard H. Greenstein, of counsel)

DECISION

On March 29, 1982, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission ( A Commission @ ) by the Township of Scotch Plains ( A Township @ ) seeking the removal of employees in two titles, Senior Bookkeeping Machine Operator and Bookkeeping Machine Operator, from the collective negotiations unit of all white collar and clerical employees of the Township, represented by Union Council No. 8, New Jersey Civil Service Association ( A Council 8"), allegedly because they are confidential employees within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ).1/
Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer Judith E. Mollinger, on October 29, 1982 in Newark, New Jersey. All parties were afforded the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The Hearing Officer submitted her Report and Recommendations on May 19, 1983, a copy of which is attached hereto and made a part hereof. The Hearing Officer found that both the Senior Bookkeeping Machine Operator and the Bookkeeping Machine Operator handled, prepared and had knowledge of negotiations material, and thus concluded that they were confidential employees within the meaning of the Act. She therefore recommended that they be removed from the Council 8 unit.
Council 8 filed exceptions to the Hearing Officer = s Report and Recommendations by June 2, 1983. The Township responded to those exceptions by June 21, 1983. In its exceptions Council 8 argues that (1) even though the Bookkeeping Machine Operator may have prepared certain negotiations material for the last negotiations, that work was not part of her normal job responsibilities and does not require a finding of confidentiality, and (2) in a small negotiations unit setting, a public employer should not be able simply to assign some confidential responsibilities to employees and thus cause their removal from negotiations units unless the facts and circumstances require those employees to engage in confidential duties as a regular part of their work. Council 8 did not raise any specific exceptions to the finding that the Senior Bookkeeping Machine Operator was a confidential employee.
The undersigned has carefully considered the entire record herein, including the transcript, exhibits, the Hearing Officer = s Report and Recommendations and the exceptions thereto, and finds and determines as follows:
1. The Township of Scotch Plains is a public employer within the meaning of 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. Council 8, N.J.C.S.A. is an employee representative within the meaning of the Act and is subject to its provisions.
Council 8 is currently the exclusive representative of all clerical employees employed by the Township.
3. The Township seeks the exclusion of two employees, the Senior Bookkeeping Machine Operator and the Bookkeeping Machine Operator, from the Council 8 unit allegedly because these employees are confidential within the meaning of the Act. Council 8 opposes the Petition, asserting that the employees holding the above titles are not confidential and that even if the Bookkeeping Machine Operator prepared negotiations material for a particular negotiations, that was not a sufficient reason to exclude her from the negotiations unit on the basis of confidentiality.
4. The Act, at N.J.S.A. 34:13A-3(g), defines confidential employees as individuals
...whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties.

The record reveals that the Senior Bookkeeping Machine Operator = s duties include a wide range of budget related responsibilities including preparing financial work sheets for salaries and benefits upon request for use by the Township during contract negotiations. In particular, the individual holding that title, Rosemarie Cerritto, in the course of performing her duties, was actually aware of the Township = s final negotiations position regarding salary and benefits for Council 8's unit in the last round of negotiations.
Council 8 has not raised any specific exceptions to the Hearing Officer = s factual findings with respect to the Senior Bookkeeping Machine Operator. Cerritto = s preparation of work sheets and salaries and benefits for use by the Township during negotiations is a regular part of her job responsibilities.
It is obvious that Cerritto = s preparation of negotiations material and knowledge of the Township = s negotiations positions prior to the presentation at negotiations sessions makes her membership in Council 8's unit, or any other unit, incompatible with her official duties. See In re Old Bridge Twp. Bd. of Ed., D.R. No. 82-17, 7 NJPER 639 ( & 12287 1981) and In re Linden Free Public Library, D.R. No. 82-32, 8 NJPER 76 ( & 13031 1981).
The duties of the Bookkeeping Machine Operator, Regina Iaione, including doing most of the Township = s payroll work, and doing the calculations and work sheets for the Township for its use in negotiations with the police unit. As the result of the performance of her assigned duties, Iaione has had advance knowledge of the Township = s negotiations position for both the police and clerical units.
With respect to the Bookkeeping Machine Operator, Council 8 has not disputed that Iaione actually performed certain confidential functions. Rather, it alleges that since those duties were not a normal part of her overall responsibilities they should not be considered. This argument has been advanced, and rejected, in previous decisions. The Act does not require that the assignment of duties of a confidential nature be regular and continuous as a condition for finding an employee to be confidential. In In re Township of Dover, D.R. No. 79-19, 5 NJPER 61 ( & 10040 1979), the undersigned held:
Although the record may not conclusively demonstrate a continuous pattern of exposure to the collective negotiations process, the statutory definition does not make confidential status dependent upon regular involvement in labor relations. 5 NJPER at p. 62.

There is no question that Iaione was exposed to confidential material concerning negotiations for both the police and clerical units, and that she was expected to pay attention to that material, and in fact work with that material, in order to perform her job function. See, In re River Dell Reg. Bd. of Ed., D.R. No. 83-21, 9 NJPER 180 ( & 14084 1983), note 2.
Council 8 argues that these functions need not have been assigned by the Township to Iaione, and that in a small negotiations unit an employer, by dispersing such assignments, could vitiate the composition of a negotiations unit. As the Hearing Officer correctly noted these arguments are not properly the subject of a representation proceeding. The wisdom or the legality of the motivation of a management assignment decision cannot be attacked in a representation proceeding.
Accordingly, for the above stated reasons the undersigned finds that both Cerritto and Iaione are confidential employees within the meaning of the Act and therefore must be excluded from Council 8's negotiations unit. The instant determination is effective immediately. In re Clearview Reg. H.S. District Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977).2/
BY ORDER OF THE DIRECTOR
OF REPRESENTATION

Carl Kurtzman, Director

DATED: October 5, 1983
Trenton, New Jersey
1/ In addition to the two bookkeeping titles the Township also petitioned for the removal of the Engineering Aide title from the unit but not on the basis of confidentiality. However, the parties subsequently stipulated at hearing that said title was appropriate for continued inclusion in the Council 8 unit. Consequently, the decision herein is limited to the two bookkeeping titles.
    2/ The within determination as to confidentiality, however, does not foreclose a reexamination of an employee = s continued confidential status in any future proceeding which may be filed after a reasonable period of time if the employee, who would otherwise be expected to exercise a confidential function, no longer exercised confidential duties.
***** End of DR 84-11 *****