D.R. NO. 78-27

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF METUCHEN,

Public Employer-Petitioner,

-and-	Docket No. CU-77-47

POLICEMEN'S BENEVOLENT ASSOCIATION

FOR THE BOROUGH OF METUCHEN, LOCAL

NO. 60, INC.,

Employee Representative.

Appearances:

For the Public Employer-Petitioner

Martin A. Spritzer, Esq.

For the Employee Representative

Robert Bradley Blackman, Esq.

DECISION

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a collective negotiations unit represented by the Policemen's Benevolent Association for the Borough of Metuchen, Local No. 60, Inc., (the "PBA"), a hearing was held before James F. Schwerin, on June 30, 1977 at which time all parties were given an opportunity to examine and cross-
examine witnesses, present evidence and argue orally. Both parties filed briefs, and the Hearing Officer issued his Report and Recommendations on September 14, 1977. A copy is annexed hereto and made a part hereof. No exceptions to the Hearing Officer's Report have been filed.

The undersigned, having considered the entire record including the Hearing Officer's Report and Recommendations and the transcript, finds and determines as follows:

1.	The Borough of Metuchen (the "Borough") 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"), is the employer of the employees involved herein and is subject to the Act's provisions.

2.	The Policemen's Benevolent Association for the Borough of Metuchen, Local No. 60, Inc. is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The PBA is the exclusive representative for a negotiations unit consisting of all police employees of the Borough.

4.	The Borough has filed the instant Clarification of Unit Petition seeking a determination that the Chief of Police, two Police Captains, and one Police Lieutenant are supervisory personnel, as defined in N.J.S.A. 34:13A-5.3,1/ and, consequently, must be excluded from the rank and file unit of patrolmen. Accordingly, a Clarification of Unit Petition having been filed and there existing a question concerning the composition of a collective negotiations unit, the matter is appropriately before the undersigned for determination.

5.	Subsequent to the opening of the hearing, the Borough amended its petition by withdrawing the Police Lieutenant title from those titles sought to be excluded from the unit. The PBA withdrew its objection or opposition to the removal of the Chief of Police from the unit. Therefore, the testimonial evidence presented at the hearing was limited to the issue of whether the Captains should be excluded from the unit.

6.	The Hearing Officer found that the Metuchen Police Department is organized into three divisions with the Chief of Police and the two Captains each commanding a division. Further, the Hearing Officer found that the Captains take an active part, along with the Mayor, Police Commissioner and Chief of Police, in effectively recommending hiring and discharging, have authority to issue oral reprimands directly to the men under their command for minor disciplinary infractions, and, with regard to more serious infractions, forward reports to the Chief who consults with the Captains to reach a consensus on what action to take. The Hearing Officer concluded that, while the Captains share the recommendation function with regard to hiring, discharging and major discipline, their input in these supervisory functions is both significant and consequential. Considering this fact in conjunction with the Captains' authority to take less serious disciplinary measures on their own initiative, the Hearing Officer found that the Captains are supervisors within the meaning of the Act.

However, the Hearing Officer also found that there existed an "established practice"2/ of including superior officers with rank and file patrolmen in the PBA collective negotiations unit. He also found that no actual conflicts of interest had occurred as a result of the mixed unit. He reached this finding on the basis of the Borough not having come forward with any evidence of specific examples of actual conflicts and the testimony of Chief Perrino that no conflicts arose during the time he was a Captain or since he was promoted to Chief of Police. The Hearing Officer then applied the Commission's decision in In re West Paterson Board of Education, P.E.R.C. No. 77 (1973), which provides that where there is established practice, actual as opposed to potential conflicts must exist to support the removal of personnel from a unit. Accordingly, the Hearing Officer recommended that the portion of the Petition which seeks the exclusion of Captains from the unit be dismissed.

Having reviewed the entire record, the Hearing Officer's Report and Recommendations, and noting the absence of any party's exceptions to the Report, the undersigned finds that there is ample evidence in the record to support the Hearing Officer's findings. The record reveals that the Captains have direct authority to discipline minor infractions and actively participate in effectively recommending disciplinary measures in more serious matters. In addition, they are voting members of the committee which effectively recommends the hiring and discharging of policemen.

Moreover, the undersigned finds that the Hearing Officer's conclusions regarding the application of "established practice" are consistent with the Commission's decision in In re West Paterson Board of Education, supra. The record does not contain any evidence indicating that actual conflicts of interest have arisen.

Accordingly, the undersigned finds that the Captains are supervisors within the meaning of the Act. However, due to the established practice of including Captains in the PBA unit and the absence of actual conflicts -- as opposed to the potential for conflict of interest, the undersigned finds it appropriate to continue the inclusion of Captains in the existing unit. Therefore, that portion of the Borough's Petition seeking the exclusion of Captains from the unit is dismissed.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

of Representation

DATED:	November 29, 1977

Trenton, New Jersey