D.R. NO. 78-18

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF SOUTH PLAINFIELD,

Petitioner,

-and-	Docket No. CU-76-30

SOUTH PLAINFIELD P.B.A. LOCAL 100,

Employee Representative.

Appearances:

For the Petitioner, Abrams, Dalto, Gran,

Hendricks & Reina, Esqs.

(Angelo H. Dalto, of Counsel)

For the Employee Representative,

Renato R. Biribin, Esq.

DECISION

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a negotiations unit represented by the South Plainfield P.B.A. Local 100 (the "P.B.A."), a hearing was held before Charles A. Tadduni on June 3, 11, 30, July 21 and August 24, 1976, in Newark. All parties were given an opportunity to examine witnesses, present evidence, and argue orally. Briefs were filed by October 1, 1976, and the Hearing Officer issued his Report and Recommendations on June 1, 1977. A copy is annexed hereto and made a part hereof. Exceptions were filed by the P.B.A. on July 28, 1977, to which the Borough of South Plainfield (the "Borough") has not responded.

The undersigned has considered the entire record including the Hearing Officer's Report, the transcript and the exceptions, and on the basis thereof finds as follows:

1.	The Borough of South Plainfield is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the "Act"), and is subject to its provisions.

2.	South Plainfield P.B.A. Local 100 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Public Employer having sought clarification of a unit of its employees for which the PBA is the exclusive representative, a question concerning the composition of a unit of public employees exists and the matter is appropriately before the undersigned for determination.

4.	The PBA unit has included all police other than the Chief. The Borough seeks the exclusion of all superior officers - captains, lieutenants and sergeants from the PBA unit.

The Hearing Officer found that the superior officers were supervisors within the meaning of the Act, and further that a conflict of interest exists between patrolmen and superior officers warranting severance of the superiors from the unit. He also found that no established practice existed which might overrule the above considerations and allow the superior officers to remain in the unit. Consequently, he recommended that the superior officers be severed from the PBA unit. The PBA's exceptions take issue with the Hearing Officer's findings and conclusions, generally claiming that the weight of evidence is contrary to his findings.

There is now a long line of Commission decisions on the question of whether superior officers may be included in negotiations units with patrolmen. The standards utilized by the Commission in reaching these determinations are presented in In re City of Elizabeth, P.E.R.C. No. 71 (1972), In re City of Union City, P.E.R.C. No. 70 (1972), and In re City of Camden, P.E.R.C. No. 52 (1971). Generally, these decisions provide that, except in very small departments where any conflict of interest between superior officers and rank and file personnel is de minimis in nature, the quasi-military structure of police departments virtually compels that superior officers and patrolmen be placed in separate units. This is so inasmuch as the exercise of significant authority in a chain of command operation produces an inherent conflict of interest within the New Jersey Supreme Court's definition of that concept in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971). The existence of an inherent conflict of interest in these circumstances must lead to a determination that separates superior officers from rank and file notwithstanding a previous history of collective negotiations in a combined unit. Moreover, the finding of such conflict is not contingent upon a finding that the superior officers are supervisors within the meaning of N.J.S.A. 34:13A-
5.3.

In the Union City matter, supra, the Commission stated the above most cogently:

"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 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."

The Union City rationale was relied upon, and its facts analogized, in a subsequent decision, In re Borough of Sayreville, E.D. No. 76-27, 2 NJPER 85 (1976), rev. denied, P.E.R.C. No. 76-35, 2 NJPER 174 (197 ), aff'd., App. Div. Docket No. A-3325-75 (4/1/77), Pet. for Certif. denied, __ N.J. ___ (7/20/71). The Appellate Division stated:

"In reviewing a determination of an administrative agency in a matter such as this, the courts ordinarily give deference to the expertise of the agency entrusted with the duty of developing and applying an expertise in the area delegated to it. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Allowing for such deference to the presumed expertise in the developing field under the jurisdiction of PERC, we conclude that there is sufficient evidence in the record to support its determination and affirm essentially for the reasons expressed in its written decision.

In view of the Appellate Division's affirmance of the Sayreville decision, the standards utilized by the Commission in this decision are now the standards by which all such cases will be determined. 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: (1) A department in which there is a very small force, where superior officers perform virtually the same duties as patrolmen, and where any community of interest is de minimis in nature;1/ (2) Where it is determined that superior officers are supervisors, the existence of established practice, prior agreement or special circumstances dictate the continued inclusion of superior officers in a unit of rank and file personnel.2/

5.	An examination of the facts in this matter reveals that the police department consists of 50 policemen organized by divisions with captains in command and the lieutenants and sergeants having command responsibilities. A chain of command exists and the Chief must rely on his superior officers in order for the Department to function. Accordingly, having reviewed the record, the undersigned adopts the findings of fact and recommendations of the Hearing Officer and further finds that under these circumstances and in the context of the standards enumerated above there is an inherent conflict of interest between the superior officers and patrolmen which is not mitigated by exceptional circumstances.

As to the PBA's claim that an established practice exists in the Borough, an independent review of the record reveals that with one exception, the witnesses who had been on the Police Committee prior to 1968 testified that the Police Committee had no authority to enter into any binding agreements, and that its meetings with the PBA were utilized only to provide guidelines for the Mayor and Council. Accordingly, the record, while establishing a history of meetings between the Borough's police committee and the committee from the PBA, fails to meet the requirements for a finding of established practice, as described in West Paterson, footnote 2.

Based on the above conclusions, it is unnecessary for the undersigned to make a ruling as to whether the superior officers are supervisors.

Accordingly, for the reasons stated above the undersigned hereby directs the removal of all superior officers (captains, lieutenants and sergeants) from the unit represented by the PBA. Insofar as the instant Clarification of Unit Petition was filed prior to the execution of a 1976 Agreement,3/ the undersigned finds in accordance with the Commission's clarification procedure4/ that the superior officers shall be removed from the unit immediately upon this determination.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

of Representation

DATED:	October 26, 1977

Trenton, New Jersey