Back

D.R. No. 80-36

Synopsis:

The Director of Representation, in agreement with the recommendations of a Hearing Officer, determines that the Director and Assistant Director of Public Health Nursing Services are neither managerial executives nor confidential employees under the New Jersey Employer-Employee Relations Act and are entitled to representation for the purpose of collective negotiations. The Director concludes from the facts that the Director and Assistant Director do not formulate management policies and practices and do not direct the effectuation of management policies and practices as intended within the definition of managerial executive contained in the Act. Further, the Director concludes that the Director and Assistant Director do not engage in functional responsibilities or have knowledge in connection to the issues involved in the collective negotiations process which would make their membership in any appropriate negotiating unit incompatible with their official duties. Therefore, these employees are not confidential employees under the Act.

PERC Citation:

D.R. No. 80-36, 6 NJPER 278 (11132 1980)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.12 33.41

Issues:


DecisionsWordPerfectPDF
NJ PERC:.DR 80-036.wpdDR 80-036.pdf - DR 80-036.pdf

Appellate Division:

Supreme Court:



D.R. NO. 80-36 1.
D.R. NO. 80-36
STATE OF NEW JERSEY
PUBLIC EMPLOYMENT RELATIONS COMMISSION
BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CITY OF JERSEY CITY,

Public Employer,

-and- Docket No. RO-79-149

ADMINISTRATIVE HEALTH
PROFESSIONAL ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer
Manuel A. Correia, attorney
(John A. Smith, III on the brief)

For the Petitioner
Daniel Hussey, attorney
DECISION

Pursuant to an Agreement for Consent Election, the Commission conducted a secret ballot election in a collective negotiations unit comprised of the director and the Assistant Director of Public Health Nursing Services. At the election, the City of Jersey City (the A City @ ) challenged the voting eligibility of these individuals when they appeared and cast ballots. The City now claims that these individuals are either managerial executives or confidential employees as defined by 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 Commission Hearing Officer Dennis Alessi on April 19 and 20, 1979, at which the City and the Administrative Health Professional Association (the A Association @ ), the Petitioner herein, were given the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The City and the Association filed post-hearing briefs and reply briefs by August 20, 1979. The Hearing Officer issued his Report and Recommendations on November 30, 1979, a copy of which is attached hereto and made a part hereof. Neither the City nor the Association has filed exceptions to the Hearing Officer = s Report.
The undersigned has considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits, and on the basis thereof, finds and determines as follows:
1. The City of Jersey City 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 Administrative Health Professional Association is an employee organization within the meaning of the Act and is subject to its provisions.
3. The City has challenged the voting eligibility of the Director and Assistant Director of Public Health Nursing Services and, pursuant to N.J.A.C. 19:11-9.2(k), the matter is appropriately before the undersigned for determination.
4. The City asserts that the above employees are either managerial executives or confidential employees. The Association disputes this contention.
5. The Hearing Officer concluded that the Director and the Assistant Director of Public Health Nursing Services were not managerial executives and were not confidential employees. The Hearing Officer recommended that the ballots cast by these individuals be opened and tallied.
Having reviewed the entire record herein and noting the absence of objections filed thereto, the undersigned adopts the findings of fact and recommendations of the Hearing Officer. A summary of some of the relevant findings of the Hearing Officer follows:
Contained within the Jersey City Department of Human Resources is the Division of Health. Both the Department and the Division are headed by Directors. The Bureau of Public Health Nursing Services is a bureau within the Division of Health. The purpose of the Bureau is to provide home nursing services to patients within the community who have been released from the hospital. The Bureau is licensed by the State as a health care facility and participates in federal HEW Programs as a Home Health Care Facility. The employees involved in the instant matter, the Director and Assistant Director of Nursing Services, are responsible for overseeing the day-to-day operations and administration of the Bureau. The Director supervises the facilities and staff performance, and plans, coordinates, and directs ongoing training.
Although the director prepares an initial budget proposal for her bureau, the budget request is then forwarded to the Director of the Division of Health who prepares a line item budget proposal for the entire division. The Director of the Department of Human Resources then coordinates the proposals of al six divisions into a departmental budget proposal. Budget priorities and reductions are determined by the department Director without consulting the Director of Nursing Services.
The Director and Assistant Director of Nursing Services have been present at negotiations sessions concerning the Bureau = s professional staff and have been utilized as resource persons to clarify professional matters. The Director and the Assistant director have not been part of the City = s negotiating team, and input in the City = s proposals and have not evaluated the feasibility or implications of the union = s negotiations proposals.
The Director is the second step in the grievance procedure for the Bureau = s professional employees. However, this step may be bypassed and grievances may be presented directly to the Director of the Department of Human Resources. The record reveals that the Director of Nursing Services has not possessed sufficient authority to resolve grievances relating to monetary items, and certain physical working conditions. Such grievances, when submitted to the director, have been forwarded to the Director of the Division of Health with a recommendation.
The primary responsibility of the Director and Assistant Director in overseeing the day-to-day operation and administration of the Bureau is to assure the general planning of patient care and the maintenance of professional standards and efficiency. The Director and Assistant Director assure compliance of the Bureau with the rules and regulations for state licensing and participation in federally funded programs. Additionally, the Director and Assistant Director are responsible for seeing that the Bureau has met Blue Cross/Blue Shield, Medicare and Medicaid requirements. In this regard, the Director directs in-service training and disseminates information to staff. The Director exercises independent authority concerning staff training, although the Director of the Division of Health provides pro forma approval.
The Director of Nursing Services recommends the exercise of disciplinary personnel actions to the Department Director in conformance with Civil Service regulations. However, the Director and Assistant Director have the discretionary authority to transfer employees to various branch offices. In exercising other personnel functions, the Director must comply with the City = s Personnel Handbook.
N.J.S.A. 34:13A-3(f) and (g) provide the following definitions:
(f) A Managerial executives @ of a public employer means persons who formulate management policies and practices, 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.

(g) A Confidential employees @ of a public employer means employees whose functional responsibilities or knowledge in connection with issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties.

In a recent determination regarding the identification of managerial executives, In re Borough of Montvale, D.R. No. 80-32, 6 NJPER ___ ( & _____ 1980), the undersigned stated that where a managerial executive issue exists, the undersigned is compelled to examine: (1) the specific functions and responsibility of the individual involved; (2) the relative position of that individual in the employer = s organizational hierarchy; and (3) the extent of discretion afforded to that individual in his/her employment.
The Director and the Assistant Director herein exercise supervisory and administrative functions at a high level, but they do not formulate management policies and practices, and they are not charged with the responsibility of directing the effectuation of management policies and practices as that term is intended within the statutory definition.
In the Montvale decision, supra, the undersigned stated:
In general, A policy @ may be defined as a A definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions. @ Websters Seventh New Collegiate Dictionary. In a public employment context, A policy @ may further be defined as the development of particular sets of objectives of a governmental entity, designed to further the mission of the agency and the methods of achieving such objectives. Those who formulate policy are those who select a course of action from among the alternatives and those who substantially and meaningfully participate in the essential processes which result in the selection of a course from the alternatives available. [citations omitted]

Managerial executives who direct the effectuation of policy are charged with overseeing or coordinating policy effectuation by line supervisors. Most importantly, those chosen for A directing the effectuation @ of policy must necessarily be empowered with a substantial measure of discretion in deciding precisely how the policy should be effectuated.

In the Montvale decision, the undersigned noted that the National Labor Relations Board had developed a working definition of managerial executives which identified as managerial = s those employees who have discretion in the performance of their job independent of their employer = s established policy.
The undersigned is convinced that the discretion afforded by the City to the Director and Assistant Director in all matters of implementing policy, with the sole exception of staff training, is confined to matters where Bureau policy and guidelines have already been established. The Director and the Assistant Director do not bear the primary responsibility for the employer = s development of the methods, means and extent of accomplishing the Bureau = s mission. The undersigned concludes that the Director and Assistant Director are not managerial executives.
The record also reveals that the Director and Assistant Director are not confidential employees. They do not participate in negotiations on behalf of management. The Director exercises grievance handling authority at a low level on the grievance procedure and does not exercise discretion in resolving grievances. The undersigned cannot conclude that these individuals = 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. Accordingly, the undersigned agrees with the Hearing Officer that the Director and Assistant Director are not confidential employees and may be represented for collective negotiations purposes.
Therefore, for the above reasons, the undersigned determines that the Director and the Assistant Director of Public Health Nursing Services are eligible to vote for representation and the undersigned directs that their ballots be tallied and the appropriate certification be issued.
BY ORDER OF THE DIRECTOR
OF REPRESENTATION

Carl Kurtzman, Director

DATED: May 13, 1980
Trenton, New Jersey
***** End of DR 80-36 *****