D.R. No. 80-19
The Director of Representation directs an election among clerical employees of the Baord of Education to ascertain their representational desires. The Director determines that the secretary to the Board Secretary/Business Administrator is a confidential employee and may not be included in the proposed negotiations unit. However, the Director finds that the secretary to the Superintendent has not been utilized in a confidential capacity and may be included in the proposed unit.
D.R. No. 80-19, 6 NJPER 59 (¶11033 1980)
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D.R. NO. 80-19 1.
D.R. NO. 80-19
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION
In the Matter of
LITTLE FERRY BOARD OF EDUCATION,
-and- Docket No. RO-79-118
LITTLE FERRY SECRETARIAL ASSOCIATION,
For the Public Employer
William DeLorenzo, Jr., Esq.
For the Petitioner
Goldberg & Simon, Esqs.
(Louis P. Bucceri, of Counsel)
DECISION AND DIRECTION OF ELECTION
On October 18, 1978, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the A Commission @ ) by the Little Ferry Secretarial Association (the A Association @ ) with respect to a proposed collective negotiations unit of clerical employees employed by the Little Ferry Board of Education (the A Board @ ). The Board disputes the appropriateness of the inclusion within the proposed unit of the secretary to the Board Secretary/Business Administrator and the secretary to the Superintendent claiming that these individuals are confidential employees within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ).
Pursuant to a Notice of Hearing, a hearing was held before Hearing Officer Steven P. Weissman on May 14, 1979, at which all parties were afforded an opportunity to present evidence, to examine and cross-examine witnesses, and to argue orally. The Board and the Association both submitted post-hearing briefs.
On August 16, 1979, the Hearing Officer issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. The Association filed exceptions to the Hearing Officer = s Report and the Board has filed a brief in opposition to the Association = s exceptions.
The undersigned has considered the entire record, including the Hearing Officer = s Report and Recommendations, the transcript, the exceptions, and the brief in opposition thereto, and on the basis thereof finds and determines as follows:
1. The Little Ferry Board of Education 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. The Little Ferry Secretarial Association is an employee representative within the meaning of the Act and is subject to its provisions.
The Association filed a Petition for Certification of Public Employee Representative seeking to represent a collective negotiations unit comprised of approximately five clerical employees employed by the Board. The Board claims that two of the employees petitioned-for, the secretary to the Superintendent and the secretary to the Board Secretary/Business Administrator are confidential employees within the meaning of the Act and not appropriately includable in the unit petitioned-for by the Association. Accordingly, there is a question concerning the representation of employees, a dispute exists, and the matter is properly before the undersigned for determination.
4. The Hearing Officer recommended that Mrs. Rizzo, the secretary to the Board Secretary/Business Administrator, be classified as a confidential employee. Neither party has excepted to this recommendation. The Board Secretary is instrumental in developing and reviewing the Board = s negotiations proposals. The Hearing Officer found, and the undersigned = s review of the record confirms, that among her duties the secretary to the Board Secretary/Business Administrator types the recommended Board budgets; has access to files containing negotiations and grievance information; opens and sorts the Board Secretary = s mail; and assists the Board Secretary in costing out negotiations proposals. Significantly, Mrs. Rizzo also has costed out the Board Secretary = s alternative negotiations proposals for consideration by the Board, and has typed the Board Secretary = s negotiations proposals submitted to the Board. The undersigned, having reviewed the record in its entirety, concludes and determines that Mrs. Rizzo = s functional responsibilities and knowledge in connection with the issues involved in the collective negotiations process makes her membership in any appropriate negotiations unit incompatible with her official duties.
5. The Hearing Officer recommended that Mrs. Kaulfers, the Superintendent = s secretary, be classified as a confidential employee. The Superintendent, in addition to the Board Secretary, plays some role in developing and reviewing the Board = s negotiations proposals. The Hearing Officer found that Mrs. Kaulfers has sporadically typed confidential negotiations memoranda, has typed memoranda concerning personnel policy, has access to files containing confidential material. The Hearing Officer acknowledged that he reached some findings of facts based on inferences from the record evidence. Regarding the typing proposals, the Superintendent testified that although the majority of his proposals were handwritten he had, on past occasions, requested his secretary to type some material. The Hearing Officer noted that evidence concerning the typing of negotiations strategy material required an inference that Mrs. Kaulfers typed a letter from the Superintendent to the Board member suggesting that Board proposals be communicated directly to all teachers at a general meeting. With one exception, noted below, Mrs. Kaulfers denied knowledge of typing any material concerning negotiations proposals or strategy. Mrs. Kaulfers = testimony was not contested by the Board.
The one instance in which the Superintendent and Mrs. Kaulfers agree that Mrs. Kaulfers typed a memorandum relating to negotiations proposals occurred on November 1, 1978, shortly after the filing of the instant Petition. This one instance, additionally, is the sole specific example identified by the Board in support of its claim that Mrs. Kaulfers typed negotiations related material. The Association vigorously argues that A this one instance was not a legitimate example of confidential work @ since the typing of this material was assigned only to those secretaries who, two weeks before, were the signatories to the representation petition.1/
The undersigned has carefully reviewed the record2/ concerning the November 1, 1978 memorandum and concludes that the assignment performed by Mrs. Kaulfers did not involve an element of confidentiality. Pursuant to a request from the Board for A clarification of language and some clean up of language, @ the Board attorney reviewed the previous collective negotiations agreement with the teachers and submitted a reply to the Superintendent. The Superintendent reviewed this reply before submitting it to the Board, and sought to A paraphrase @ certain language. Examples of the paraphrasing involved his changing some references from A I @ to A we @ .
Mrs. Kaulfers = testimony indicates that she typed a memorandum limited to deletions and additions, based on the attorney = s letter.3/ She further testified, without contradiction, that the memorandum had no meaning to her since she did not have the original document.
The undersigned concludes from the above that Mrs. Kaulfers did not function in a confidential capacity in typing the November 1 memorandum. Additionally, the record fails to establish any specific example where Mrs. Kaulfers was utilized or exposed to confidential labor relations material. The grievance responses she has typed to have been those directed from the Superintendent to the teachers association = s grievance committee. Her activities regarding the Board = s canvassing of other school districts = salary guides purely involve the collection of raw, nonconfidential data. Mrs. Kaulfers = access to locked files which contain some confidential labor relations notes, as well as other materials, is not, absent additional significant factors, sufficient to render her a confidential employee.
In conclusion, the Superintendent = s secretary is not an employee whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make her membership in any appropriate negotiating unit incompatible with her official duties.4/
Therefore, the undersigned determines that the secretary to the Board Secretary/Business Administrator is a confidential employee within the meaning of the Act and the secretary to the Superintendent is not a confidential employee.
Accordingly, the undersigned finds that the appropriate unit for collective negotiation is: All clerical employees of the Lower Ferry Board of Education, excluding managerial executives, confidential employees, professional and craft employees, police and supervisors within the meaning of the Act. The Superintendent = s secretary is not a confidential employee and is eligible to vote in an election among unit employees to ascertain their representational desires. The secretary to the Board Secretary/Business Administrator is a confidential employee, is excluded from the proposed unit, and is ineligible to vote.
Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that an election be conducted among the employees described above. The election shall be conducted no later than thirty (30) days from the date set forth below.
Those eligible to vote are the employees set forth above 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 Board 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 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 Little Ferry Secretarial 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
Carl Kurtzman, Director
DATED: January 8, 1980
Trenton, New Jersey
1/ The record does not support the Association = s claim that the Board purposely assigned this work to create self-serving testimony.
2/ Mrs. Kaulfers = actual work product was not submitted as documentary evidence.
3/ T. 132, line 11 A A. The one November document? I did type that, I recall that, and that = s one that said paragraph two, you know, line three delete this word. @
4/ Should the Superintendent = s secretary = s function change, the Board is not precluded from filing a clarification petition at a subsequent date raising the confidentiality issue anew for consideration based on the change in circumstances.
***** End of DR 80-19 *****