H.O NO. 83-15

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HIGHLAND PARK BOARD OF EDUCATION,

Public Employer/petitioner,

-and-	Docket No. CU-82-32

HIGHLAND PARK EDUCATION ASSOCIATION,

Employee Representative.

Appearances:

For the Public Employer-Petitioner,

Cassetta, Brandon and Taylor

(Bruce Taylore, Labor Relations Consultant)

For the Employee Representation,

Klausner and Hunter, Esqs.

(Stephen B. Hunter, Esq., of Counsel)

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Clarification of Unit Petition was filed on November 20, 1981 with the Public Employment Relations Commission (the "Commission") by Highland Park Board of Education (the "Board") seeking a clarification of a negotiations unit of its employees represented by the Highland Park Education Association (the "Association").1/ The Board seeks to have the position "Department Chairpersons" removed from the Association's negotiations unit because they are supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act") and that a potential and actual conflict of interest exists between the supervisory and non-
supervisory employees in the mixed unit.

Hearings were held before the undersigned on January 11, March 9, April 26, April 27, September 22, September 23 and October 15, 1982 in Trenton, New Jersey, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and argue orally. Both parties submitted briefs; the record was closed December 22, 1982.

Based on the entire record in these proceedings, the undersigned finds:

1. The Highland Park Board of Education is a public employer within the meaning of the Act, is the employer of the employees involved herein and is subject to its provisions.

2. The Highland Park Education Association is a public employee representative within the meaning of the Act and is subject to its provisions.

3. The Association is the majority representative of a negotiations unit comprised of Board personnel including department chairpersons and teachers.

4. The parties stipulated at the hearing on September 22, 1982 that there was an established practice pre-dating 1968 of "including department heads in a unit of non-supervisory teaching staff members" and agreements between the Board and the Association were reached concerning terms and conditions of employment "after exchange of proposals and counter proposals and negotiations concerning same." (Tr 9/22/82-p. 72-3)

5. The Board notes that while it agreed to the stipulation that the department chairpersons were included in the Association's unit prior to 1968, the stipulation did not include that department heads were supervisors prior to 1968. They argue that assuming arguendo they were supervisors prior to 1968, there has been a substantial increase in the scope of their supervisory duties mandated by the Public School Education Act of 1975 (N.J.S.A. 18A: 7A-1 et seq.) (The "T and E law") and specifically N.J.S.A. 18A:27-2.1 et seq. (re-evaluation of nontenured personnel) and N.J.S.A. 18A:1-1 and N.J.A.C. 6:11-3.4 (re-
evaluation of tenured personnel). This increase is supervisory duties has increased the potential for a substantial conflict of interest between the supervisory and non-supervisory employees in the unit, the Board argues, and points to evidence in the record of actual conflicts of interest that have occurred.

6. The Association argues that the negotiations history falls within the statutory "established practice" exception embodies in N.J.S.A. 34:13A-5.3 which permits supervisors to be included in units with non-supervisors. Further, it argues that there is no actual or potential substantial conflict of interest to prohibit the continuation of the admittedly mixed supervisory/non-supervisory unit. The Association argues that the chairperson's supervisory responsibilities have not increased sufficiently to disturb the existing unit.

Since the enactment of the T & E law department heads have been required to possess supervisory certificates and all except one of the department heads in Highland [Parrk] Park have complied with the requirement. Pursuant to the statutory requirements of the T & E law department heads observe and evaluate all tenured and nontenured teaching staff members in their departments, except the head of the Business Department who is the one department head who does not possess a supervisor's certificate. As part of this evaluation all department heads (except Business) recommend whether the teacher should be reappointed or receive tenure, when applicable, for nontenured teachers and granting or withholding of increment for tenured teachers. The high school principal, William Donahue, evaluates the business teachers and for that reason the Board is not requesting that the head of the Business Department be removed from the teachers unit. The Association argues that the department heads' evaluation of their teachers has remained substantially unchanged since 1968.

The Commission has considered many cases concerning the role of department chairpersons or equivalent positions under laws and regulations in the past few years which have sought to strengthen supervisory controls over the teaching process under the T & E law. In each case, department chairpersons were found to be supervisors within the meaning of the Act. Under the T & E law school boards have developed more structured observations and evaluation systems, required department heads to obtain certification as supervisors and delegated more responsibility to department heads. This case is no exception. The fact that they high school principal performs evaluation of the business teachers because that department heads does not posses the certification now required by statute makes this clear. If the role of department heads was unchanged after they were required to obtain supervisors certificates, the head of the business department would evaluate teachers.

The undersigned believes, based on the present evaluative role of department heads, that the facts of this case are consistent with the many other department head cases the Director has considered and therefore would recommend on that basis alone that the unit be clarified to remove the department heads.

Additionally, the undersigned feels there was sufficient evidence presented of conflict of interest that would negate the continuation of the negotiations relationship. The Director of Representation Procedures pointed out in Waldwick Bd/Ed, D.R. No. 82-5, 7 NJPER 498 (¶12221 1981):

The mere finding of a pre-1968 established practice or prior agreement does not necessarily mandate the continuation of a mixed supervisory/nonsupervisory unit. West Paterson (citations omitted) holds that the subsequent occurrence of an event constituting a substantial conflict of interest will terminate the continued applicability of the statutory exception. See also In re River Dell Bd/Ed, P.E.R.C. No. 78-85, 4 NJPER 252 (¶4128 1978). Additionally, the mixed unit may not continue to be preserved where the supervisory status of the individuals involved has been substantially altered. In In re Ramapo-
Indian Hills Reg. H.S. Bd/Ed, D.R. No. 81-26, 7 NJPER 119 (¶12048 1981), the undersigned stated:

Logically, the statutory exceptions which preserve preexisting relationships are not applicable where the circumstances underlying the pre-existing relationship no longer exists, as in the instant matter where the scope of the Director's supervisory responsibilities have been significantly upgraded, thus creating a potential conflict of interest between the Director of Guidance and other unit employees. The circumstances relevant to the narrow statutory exception having been removed, the Act's policy prohibiting mixed supervisory/nonsupervisory employee units is preeminent.

See also In re Cinnaminson Tp. Bd/Ed, D.R. No. 81-39. 7 NJPER 274 (¶1211 1981).

Under the Association's collective negotiations agreement with the Board (C-2, 3, 4 in Evid.-contracts from 1979 to 1984) the department head may be the respondent at the first step of the grievance procedure which provides that a "teachers...shall discuss it first with his/her ...department head..." (C-4 in Evid.) A number of grievances have been filed by teachers against actions of department heads. If the grievance is not resolved at the first level, it proceeds to step two which is submitted in writing to the principal. Evidence of three written grievances against actions of department heads was placed in the record (PE-10,2/ PE-13 and PE-14). In PE-13 a teacher filed a grievance because of the teaching assignment that was made by the department chairperson for the ensuing year. In PE-14 a teacher grieved what she described as a "negative evaluation statement" by her department head on the teacher's evaluation form. The Department Head, Irene Gelman, testified about this grievance:

...I was naive in terms of thinking the Association was supportive of me also. I mean, it had always been my association. It was the first time I realized that when I was in conflict with the teacher I was the Department Chairperson and I was in conflict with the Teacher and I had no representation. (Tr 4/27, pp. 133,134)

Ms. Gilman discussed the grievance with the Association's grievance chairperson who ultimately represented the grievant in the grievance against the action of Ms. Gelman. Ms. Gelman went on to testify concerning this grievance:

...eventually because I felt without legal representation, I left the association..., I cancelled my membership...I was management and they could not Rep me...(Tr 4/27, p. 141)

These grievances concern the department heads' assignment of personnel to teaching responsibilities and an evaluation of a teachers, both of which constitute supervisory responsibilities. The undersigned concludes that these incidents constitute a substantial conflict of interest that "terminate and continued applicability of the statutory exception." Waldwick Bd/Ed, supra.

Therefore, based on the upgrading of the supervisory responsibilities of the department heads and the evidence of actual conflict of interest between the supervisors and non-
supervisors, I recommend that the Director clarify the negotiations unit to exclude the department heads from the Association's negotiations unit.3/

Respectfully submitted,

_________________________

Joan Kane Josephson

Hearing Officer

Dated: May 13, 1983

Trenton, New Jersey