H.O NO. 81-11

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EAST WINDSOR REGIONAL SCHOOL DISTRICT,

Public Employer,

-and-	Docket No. CU-81-15.

EAST WINDSOR CLERICAL ASSOCIATION, N.J.E.A.,

Petitioner.

Appearances:

For the Public Employer,

James E. Major, Director of Special Projects

For the Petitioner,

Jane C. Protich, President

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

On September 22, 1980, a Clarification of Unit Petition was field with the Public Employment Relations Commission (the "Commission") by the East Windsor Clerical Association, N.J.E.A. (the "Association") to add the title "Transportation Secretary/Assistant to Supervisor" to the existing negotiating unit of clerical employees of the Board of Education of the East Windsor Regional School District (the "Board").1/ The Association argues that this new title shares the requisite community of interest with those titles currently in the unit and should be included in the unit. The Board seeks to have the title excluded from the unit on the grounds that the functional duties and responsibilities of the position are supervisory and/or confidential in nature.

Pursuant to a Notice of Hearing, a hearing was held before Michael B. Berman on January 6, 1981, in Trenton, New Jersey, at which time all parties were given the opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. The parties have waived their right to submit post-
hearing briefs.

Upon the entire record in this matter, the Hearing Officer finds:

1. The Board of Education of the East Windsor Regional School District 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 subject to its provisions and is the employer of the employees in question.

2. The East Windsor Clerical Association, N.J.E.A. is an employee organization within the meaning of the Act, is subject to its provisions, and has filed the instant Petition to represent the title in question.

3. The Association represents a unit consisting of clerks, secretaries, and bookkeepers employed by the Board but excluding, professionals, police, managerial executives, confidential employees, craft workers, and supervisors within the meaning of the Act.

4. The title in question was created and filled during the summer of 1980, subsequent to the execution of the current contract between the parties and, therefore, the instant Petition for Clarification of unit is proper to raise a question concerning the composition of the existing collective negotiations unit.

CONFIDENTIALITY

The Board contends that the employee in question is a confidential employee within the meaning of the Act.

N.J.S.A. 34:13A-3(g) defines "confidential employees" as

(g)"confidential employees" of a public employer means employees 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.

If it is found that she is a confidential employee within the meaning of the Act, then she should not be permitted to be represented by the Association.

The Director has found individuals who have access to and a reasonably certain potential for knowledge of contract proposals which form the basis for management policy affecting negotiations or contract administration to be confidential employees.2/ In the instant matter the employee involved is a member of the Board's team which negotiates with the bus drivers' association.3/ It is unrefuted that the Board's negotiating team consists of the Director of Special Projects, who is the spokesperson, the Transportation Supervisor, the Transportation Secretary/Assistant of Supervisor (the title in question), and three members of the Board of Education.4/ As a regular practice, she sits at the bargaining table across from the bus drivers' unit representatives.5/

The Association's representative reacts by stating that this individual is "at the table at the pleasure of the Board of Education. I don't feel that there's any real need for them to be at the table."6/

Absent union animus as a motivating factor, the undersigned will not recommend that the Board restructure its negotiating teams so that the Transportation Secretary/Assistant to Supervisor is stripped of her membership on the negotiating team. Rather, the undersigned will look solely at the question of confidentiality within the context of the employee's current functional duties and responsibilities.

FINDINGS
A thorough review of the entire record indicates that the Transportation Secretary/Assistant to Supervisor is a confidential employee within the meaning of the Act and her membership in any appropriate negotiating unit would be incompatible with her official duties. As described by the Board's negotiator, the Transportation Secretary/Assistant to Supervisor sits at the bargaining table, or provides written [imput] input, in the preparation of proposals and counter-
proposals. The team meets in caucus as a whole and this individual as a member of the team, is privy to and a contributor of ideas which become the Board's negotiating position.

SUPERVISION

The Act prohibits any employee "having the power to hire, discharge, discipline, or to effectively recommend the same"7/ from being in any unit which represents nonsupervisory employees, "except where dictates by established practice, prior agreement or special circumstances."8/ If the Transportation Secretary/Assistant to Supervisor meets any of these criteria, then she must be found to be a supervisory employee and should be absent one of the exclusionary conditions, excluded from the unit.

DISCUSSION

The testimony reveals that the individual has a wide-range of duties and responsibilities. The majority of her day is involved in routine office procedures, i.e., answering the telephone, handling the questions of parents and typing office correspondence. The remainder is taken up, apparently, in scheduling drivers either to cover for absent drivers or in preparing special runs, eg., field trips and athletic events.9/ The assignment of drivers to special runs is done according to a seniority list which leaves little discretion to the person making those assignments. The assignment of drivers to cover for absent drivers gives the person making the assignments some leway, but not very much. Regardless of the amount present, it still would not make an individual a supervisor absent the power to hire, discharge, discipline or effectively recommend the same.

The Transportation Supervisor stated that the individual has not been involved in disciplining any employees of the school district10/ although she might at sometime in the future. He also discussed a recent situation where, in his absence, she was involved in interviewing an individual for possible employment. The Transportation Secretary/Assistant to Supervisor interviewed the potential employee, did the background check and suggested that the person be hired.11/ The recommendation was then forwarded to the Personnel Director and from there to the Chief Administrative Officer of the district and ultimately to the Board of Education which is, in fact, the actual appointing authority.12/

FINDINGS

The undersigned cannot find the Transportation Secretary/Assistant to Supervisor to be a supervisory employee within the meaning of the Act. The vast majority of her time is spent performing routine clerical office functions, i.e., typing, answering the telephone and responding to inquiries from the public. The rest of her time is spent making driving assignments either from a seniority list or from among the drivers available. She has not been engaged in the discipline of employees in any way nor in their discharge. In a single incident, she interviewed a potential employee whom she recommended for employment and who, in fact, was employed. However, that recommendation was passed onto the Director of Personnel, the Superintendent of Schools and the Board of Education which is the appointing authority. As outlined by the Director of Special Projects who was at one time intimately involved in the procedure, the hiring process begins with a recommendation from the Supervisor or Assistant Supervisor being sent to the Personnel Director where it is "normally"13/ followed, perhaps "99 percent of the time."14/ From there it is forwarded to the Superintendent and finally to the Board who has actual hiring authority. At each step of the way, there is some degree of independent review. The Commission has stated that where there is an independent review of the recommendation to hire, as here, it will not find "effective recommendation."15/

CONCLUSION

The undersigned concludes that on the record as a whole and the evidence and testimony submitted, the Transportation Secretary/Assistant to Supervisor is a confidential employee within the meaning of the Act. The undersigned further concludes, that the Transportation Secretary/Assistant to Supervisor is not a supervisor within the meaning of the Act and should she, at some point in time, be divested of her confidential duties, would be appropriately placed within the Petitioner's unit.

_________________________________

Michael B. Berman

Hearing Officer

DATED: May 8, 1981

Trenton, New Jersey