H.O. NO. 83-4

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF LAVALLETTE,

Public Employer,

-and-	Docket No. RO-82-110

SUPERIOR OFFICERS ASSOCIATION

OF LAVALLETTE,

Petitioner.

Appearances:

For the Public Employer

Sim, Sinn, Gunning & Fitzsimmons, Esqs.

(Steven A. Pardes, of Counsel)

For the Petitioner

Stephen A. Pepe, Esq.

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

On November 12, 1981, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission ("Commission") by the Superior Officers Association of Lavallette ("Association") seeking a unit comprised of the Police Chief and the Police Captain employed by the Borough of Lavallette ("Borough") (C-1).1/

In its response filed November 23, 1981, the Borough objected to the unit comprised of the Police Chief and Captain as they are managerial executives as defined by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act") and therefore are excluded from its protections and benefits. In the alternative, the Borough contends that if the Captain is found not to be a managerial executive, a unit of one would not be an appropriate unit.

Pursuant to a Notice of Hearing issued December 22, 1981, by the Director of Representation, a hearing was held February 10, 1982, at which the parties were given the opportunity to examine and cross-examine witnesses and to present evidence. The parties waived their rights to argue orally and to file post-hearing briefs. The record was closed at the end of the hearing, February 10, 1982.

The issue is whether the proposed unit is an appropriate unit within the meaning of the Act.

FINDINGS OF FACT

Based on the entire record in these proceedings, the Hearing Officer makes the following findings of fact:

1.	The Borough of Lavallette is a public employer within the meaning of the Act, is subject to its provisions and is the employer of the employees who are the subject of this proceeding (TR 5).2/

2.	The Superior Officers Association of Lavallette is a public employee organization within the meaning of the Act and is subject to its provisions.

3.	The Association asserts that the Chief and Captain are employees within the meaning of the Act and these titles together constitute an appropriate unit.

4.	The Borough disputes the proposed unit because the employees are managerial executives within the meaning of the Act and therefore the proposed unit is inappropriate.

5.	The Borough (population of approximately 2100) functions under a Mayor and Council form of government, all elected officials who serve on a part-time basis. Council members serve for a three-year term during which each may be appointed by the Mayor to one of several committees for a one-
year term as a member or as a chairperson (TR 117). Committee Chairpersons serve as liaison between the Mayor and Council and the various Borough departments which they oversee. The Police Committee oversees the general operation of the Borough Police Department, setting the budget, establishing policy, and promulgating rules and regulations (TR 78). The Police Committee Chairperson meets regularly, often weekly, with the Police Chief or Captain to discuss department operations, problems, the budget and planning (TR 8). Charles Kogge, who was the Committee Chairman during 1981, is currently serving as Co-Chairman with Harold Paul in a one-year term which began January 1, 1982 (TR 8).

6.	Pursuant to the Borough ordinance which establishes the Police Department (J-1), the Police Chief is designated "as the active executive officer of the Police department" (J-1, section 57-2); the Captain is designated therein as the "Assistant to the Chief of Police" and serves "as the active executive officer" in the Chief's absence (J-1, section 52-3).

The department consists of 14 sworn police officers including the Chief, the Captain and 4 Sergeants (TR 117). Other borough employees serve as dispatchers, part-time matrons, crossing guards and special officers within the Police Department.

7.	The Mayor and Council are vested with complete authority to hire and fire employees, set the budget and control the operations of the Borough Police Department (TR 15). The Police Committee Chairperson takes a regular and active role in the daily operation of the police dispatch activities (TR 13, 192; P-53).

8.	The budget for the police department is set by the Police Committee and Council (TR 15). Each year, the Chief submits to the Police Committee Chairperson, a detailed budget request form which outlines the anticipated expenses for the coming year (TR 26). This initial budget proposal is reviewed by the Committee Chairperson who has authority to reject, accept or revise the entire proposal or any substantial part, without consulting the Police Chief (TR 56, 126, 175). For fiscal year 81-82, the police budget was cut by Borough Council without discussion with the Police Committee or the Chief (TR 127).

9.	Police Officers and Sergeants are included within a collective negotiations unit represented by the Policemen's Benevolent Association ("PBA") (TR 114). Borough Council is represented during collective negotiations with the PBA by a negotiating team comprised of several Council members. Neither the Police Chief nor the Captain are members of this negotiating team nor do they participate in any team meetings concerning contract negotiations (TR 44). On one occasion during the period of contract negotiations with the PBA, Council asked the Captain to supply it with information regarding Police Officers' salaries and years of service and to cost out, for the one-year period, the PBA proposed raises (TR 153). This task amounted to a simple procedure of adding together for each officer the base salary and longevity raise to determine a final salary amount (TR 154). On one other occasion the Captain was asked by the Council whether a certain proposal would require overtime expenditures (TR 154).

10.	Expenditures in all Borough departments are strictly monitored by the Finance Department and Councilman Jerry Skinner of the Council Finance Committee (TR 126). Purchases by any department for service, supplies or equipment in excess of $25 must be preauthorized by securing a signed purchase order from the respective Committee Chairperson (TR 57, 130). For purchases up to and including $25, which do not require preauthorization, Council imposes other limits on expenditures by restricting employee discretion and allowing only purchases for "line items" already approved in the departments' budget for the year (TR 57).

Both the Police Chief and Captain are strictly held to these procedures by the Police Committee (TR 57; P-23A, P-24); little discretion is allowed for expenditures necessary to the operation of the department including these expenses necessary for car repairs (P-28), equipment (TR 63), or office supplies, including typewriter ribbons at $1.83 each (TR 161). Failure by the Captain to follow these procedures for an emergency purchase of tires for the department jeep, resulted in his oral discipline at a public Council meeting (TR 161).

11.	Regular and special police and other personnel in the police department are hired by the Borough Council or Police Committee Chairperson (TR 13, 46-47; P-6) without input from the Chief or Captain (TR 147) and sometimes contrary to recommendations they may have made (TR 17, 147). The Chief has no power to hire or promote or fill existing vacancies (TR 47-
49).

Applicants for current or future department openings are requested to complete an application form and are then interviewed by either the Chief or Captain (TR 14, 179). All applications are retained in department files for review if job openings occur. When Council determines a position is to be filled (TR 181), the Chief or Captain review all applications of eligibles (those whose application forms indicate the candidate meets the minimum job requirements and is currently available for employment) and then forwards them to the Police Committee Chairperson and Council for review (TR 182). When the hiring decision is made by Borough Council (TR 183), the Committee Chairperson notifies both the Police Chief and Borough Treasurer (TR 46; P-46); the Chief then contacts the person, tells them of their selection and elicits the person's acceptance or rejection of the job offer (TR 138). This procedure is followed for hiring all Police department, civilian and sworn personnel (TR 47-53; P-
17).

The number and identification of individuals to be promoted are determined exclusively by Borough Council without input or recommendation from the Police Chief (TR 46; P-6). This is clearly illustrated by the recent Council decision to appoint a fourth Sergeant in the department and subsequent notification to the Police Chief of the person selected to fill this position (TR 17, 47, 142, 178).

12.	The power to discipline police department personnel rests solely with Council. The Chief has been and may be required to investigate personnel activities at the Council's request and make periodic reports (TR 10-12, 37; P-9) but he is not authorized to impose discipline for rule infractions without conferring with the Police Committee (TR 37, 177-178, 187; P-11) except to orally reprimand Police Officers for rule infractions committed in the performance in their duties connected with criminal investigations (TR 167-170). In one recent incident, the Chief attempted to recommend the dismissal of a Police Officer for a serious rule infraction (TR 171, 187). This recommendation is pending Council action. Additionally, neither the Chief nor Captain have any training or evaluative functions vis-a-vis the job performance of Police Officers.

13.	The Police Committee, through its Chairperson, has control and responsibility for the day-to-day direction of Police personnel, including the Chief and Captain (TR 44; P-40), for all matters including the following: shift assignments (TR 20, 22; P-1-E, J); the number of men assigned per shift (TR 23, 30; P-5); daily duty assignments (TR 27), including the direction to the Captain to conduct dog canvas (P-4); lunch and break time rules (TR 53; P-7); where and when breaks and lunch may be taken (TR 72; P-30); work hours (TR 72; P-3); vacation schedules (TR 25; P-
1, P-8B); overtime schedules and approval of overtime (TR 17, 25, 26, 166; P-2); assignment of police vehicles to Police Officers and civilians (TR 32, 33, 73, 86, 96; P-6, P-34, P-36, P-41, P-
46); and maintenance of personnel files (TR 87; P-13).

The Police Committee monitors arrest and summons activity by requiring monthly reports from the Chief (P-39, P-42; TR 87) and immediate personal telephone calls to Council in the event of an emergency or major disturbance (TR 92; P-50).

14.	Criminal apprehension and law enforcement procedures have been promulgated by the Police Committee (TR 92; P-50), including periodic reports reporting investigations initiated by the Committee, or Borough Council (TR 99-103; P-46), and those initiated as the result of matters reported by individual citizens. Investigations of intra-department matters are monitored by the Committee and Council regularly (TR 105-107).

15.	Work rules established by the Police Training Commission (TR 41), as modified by the Chief for local use, have not been implemented pending approval and adoption by Council (TR 16, 37). Department rules and regulations established by the Police Committee (TR 13) currently include detailed guidelines for a dress code (TR 8, 41, 66, 76; P-11), and rules governing establishments approved for lunch and breaks for Police Officers (TR 114-117, 133-139; P-33).

In a 1981 memo (P-52) the then Police Committee Chairman Kogge, outlined the duties of the Chief which require him to "carry out policies, procedures, directives, etc., as instructed by the Chairman of the Police Committee or in his absence, the other member of the Police Committee" (P-52).

16.	Included in the contract between the PBA and the Borough, is a grievance procedure. At the third step of this procedure, the Chief is vested with responsibility to attempt to resolve disputes but has not done so without consultation with the Police Committee and/or Council (TR 107).

17.	The Chief's duties relate primarily to the police functions of crime detection, apprehension and arrest of wanted persons, investigation of complaints and other related duties (TR 185). The Captain's duties relate to criminal investigations, crime detection and arrests (TR 141).

ANALYSIS

I - Managerial Executives

N.J.S.A. 34:13A-5.3 excludes managerial executives from the protections and rights afforded by the Act to public employees. Section 13A-3(f), added in 1974, defines managerial executives as those "persons who formulate management policies and practice, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district."3/

The Director of Representation applied this definition of managerial executive in In re Borough of Montvale, D.R. No. 82-
32, 6 NJPER 198 (¶11097 1980), affm'd P.E.R.C. No. 81-52, 6 NJPER 507 (¶11259 1980) where he established guidelines for determining whether an employee is a managerial executive within the meaning of the Act. In affirming the Director, the Commission determined that an employee is a managerial executive when he/she formulates policy and directs its effectuation. The Commission held that

A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment sufficient to affect broadly the organization's purposes or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. 6 NJPER at 508-509.

In Montvale, supra, the Director of Representation and the Commission found that the Chief of Police was a supervisor who performed a wide range of duties, but the Mayor and the Commissioner of Police exercised almost complete control over the Chief in the daily operation of the department. The Chief's recommendations in a variety of matters were not followed; he could not deploy personnel, plan duty or vacation schedules, assign overtime, conduct discipline investigations or discipline personnel. He played no role in formulation of policy.

Similarly, In re Borough of Avon, P.E.R.C. No. 78-21, 3 NJPER 373 (1977), the lifeguard captain was found to be a supervisor notwithstanding his responsibility to prepare the budget, promulgate certain rules and regulations, change work schedules, direct work on a day-to-day basis in an emergency, hire additional guards. The Commission in affirming the Hearing Examiner, said:

We agree that the term 'managerial executive' shall be narrowly construed and that the relevant National Labor Relations Board precedent as cited by the Hearing Examiner indicates that a wider range of discretion than that possessed by [captain] is needed. [He] was clearly a supervisor and in that capacity could be said to be effectuating management policy, but the Act clearly distinguishes managerial executives - excluded from coverage - from supervisors - eligible to be represented in an appropriate unit. At page 374.

In Avon, supra, the Hearing Examiner noted at Footnote 7 that the holding in Montvale, supra, did not require an employee to have final responsibility for decisions but that the title must meet the criteria established in Montvale, supra.4/

Following Montvale, supra, the Director consistently applied the same standards in similar situations.5/

The Commission, in Montvale, supra, Footnote 8, has indicated that good policy reasons generally exist for considering the chief law enforcement officer an essential member of the employer's management team; however, where a dispute exists as to who actually bears primary responsibility for the employer's development of the means to accomplish the governmental mission, the Director of Representation and the Commission must examine the functional responsibilities of the disputed position very closely. Merely designating someone as Chief would not automatically result in a finding of managerial status. A case-by-case examination of the individual's actual role and functional responsibilities in the formulation of policy or the direction of its effectuation must be made before determining whether the position is managerial. Montvale, supra, at page 8.

These standards, established in Montvale, supra, apply to the instant dispute and require an examination of:

1.	the specific functions and responsibilities of the Chief and Captain;

2.	the relative position of these titles in the employer's organizational hierarchy; and

3.	the extent of discretion accorded to the individuals in their employment.

As in Montvale, supra, neither the Chief nor the Captain in Lavallette formulate management policies or objections and neither direct the effectuation of these policies in the Police Department. Neither participate in Department budget determinations or collective negotiations with the PBA. Neither has authority or discretion to deploy police officers, special officers, matrons or dispatchers; to purchase equipment except for a line item costing $25 or less; to make duty assignments, shift assignments, vacation schedules; to promulgate work rules; to discipline employees or effectively recommend the same or to hire employees.

The Chief is directly subordinate to the Chairman of the Borough Council Police Committee, the Mayor and the Borough Council members, all of whom are part-time elected officials. The Chief, although involved in some capacity with several functions in the operation of the department, has very limited discretion, if any, in the functions of hiring, discipline, personnel assignment and deployment, promulgation of rules and the daily activities of the department. Any discretion he has is limited by the strict reporting procedures imposed by the Police Committee and Council and their high degree of involvement. Therefore, his role is ministerial and routine.

The Police Committee Chairman, the Mayor and other Council members, are intimately involved in the daily activities of the department concerning employee relations and police work. As evidenced in the record, Borough officials take an extensive role in the affairs of the department to the exclusion of the Chief.

The Chief does not participate directly or indirectly in the development of department objectives designed to further the mission of the department. He has no discretion in the effectuation of policy. These functions and responsibilities are vested primarily in the Police Committee and its Chairperson who gives direct orders and instructions to the Chief, closely scrutinizes any decisions of the Chief and often countermands or changes the Chief's recommendations. Any discretion the Chief has in the exercise of his duties relates to the police functions of criminal detection but it is also limited by Council through its detailed policies and procedures for arrests and summons, and by requirements for detailed reports and telephone calls regarding criminal investigations and emergency situations. As in Montvale, supra, the Lavallette Police Chief's duties are routine and ministerial in nature. Therefore, I find that this position is not managerial.

The Captain, who is the Chief's subordinate, has even less responsibility than the Chief for policy determinations and the exercise of discretion in employee relations. Therefore, it follows, that this position is not managerial.

II - Conflict of Interest

In decision the appropriateness of the unit proposed by the Association, it is necessary to determine whether a conflict of interest exists between the Chief and Captain which would dictate against the inclusion of both in the same collective negotiations unit.

The New Jersey Supreme Court in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), established the following principles for examining the nature of the conflict.

If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisor is not present. 57 N.J. at 425.

* * *

While a conflict of interest which is de minimus or peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest. 57 N.J. at 425-426. (emphasis in the original)

The Commission has adopted a policy with respect to quasi-
military structures such as exists in the Borough of Lavallette Police Department which provides that patrolmen and superiors be placed in separate units except in very small departments where the conflict of interest, if any, is de minimus.6/

Applying these principles to the instant dispute, there is ample record evidence to demonstrate that there is no conflict of interest between the Chief and the Captain.

The Captain, although subordinate to the Chief in the department hierarchy, acts in the Chief's absence as the titular head of the department. The Captain has no greater authority than the Chief.

The Chief has no evaluative or other supervisory functions vis-a-vis the Captain. He does not have authority to hire, fire or discipline him; he has some limited authority within the detailed directives promulgated by the Police Committee to make duty assignments relating to police functions, i.e., arrests and criminal investigations.

The Captain, on occasion, receives direct orders from the Police Committee and Council members and is required to make reports directly to them.

Both the Chief and the Captain are authorized to implement these detailed directives and orders as they relate to Police Officers and Sergeants and are without discretion to modify orders. Neither has authority to hire, fire, discipline, deploy or schedule officers and sergeants.

It is event that there is little, if any, conflict of interest between the Chief and the Captain which would dictate against a collective negotiations unit comprised of both positions.

Based on the foregoing, I find the proposed unit to be appropriate.

RECOMMENDATION
Based on the foregoing discussion, I recommend the following:

1.	The positions of Chief of Police and Captain of Police in the Borough of Lavallette are not managerial executives within the meaning of the Act.

2.	That the petitioned-for unit is an appropriate collective negotiations unit.

3.	And that a yes/no secret ballot election be directed in the following negotiations unit wherein eligible voters shall vote as to whether they wish to be represented by the Petitioner. The appropriate unit shall be: The Police Chief and the Captain excluding all other employees of the Borough of Lavallette.

Respectfully submitted

Judith E. Mollinger

Hearing Officer

DATED:	August 16, 1982

Trenton, New Jersey