D.R. NO. 78-22

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOARD OF EDUCATION OF FAIR LAWN,

Public Employer,

-and-	Docket No. CU-76-8

FAIR LAWN EDUCATION ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, Esqs. (Reginald F. Hopkinson, Esq.)

For the Petitioner

Mandel, Wysoker, Sherman, Glassner, Weingartner & Feingold, Esqs. (Jack Wysoker, Esq.)

DECISION AND ORDER

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a negotiating unit of public employees, a hearing was held on March 22, March 31, April 23 and May 17, 1976, before Hearing Officer Joel G. Scharff, at which all parties were afforded an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. At the hearing the parties entered into a joint stipulation of certain relevant facts which was made a part of the record. Post-hearing briefs were filed by both the Petitioner and the Public Employer.

Thereafter, on February 9, 1977, the Hearing Officer issued his Report and Recommendations (H.O. No. 77-6), a copy of which is attached hereto and made a part hereof. On February 18, 1977, the Commission received a request from the Public Employer for an extension of time to file exceptions to the Hearing Officer's Report and Recommendations. On February 23, 1977, the Director of Representation extended the time to file exceptions in this matter to February 28, 1977. The exceptions subsequently filed by the Public Employer were received by the Director of Representation on March 1, 1977.1/

The undersigned has carefully considered the entire record in this proceeding including the Hearing Officer's Report and Recommendations, the briefs, and the exceptions and on the facts in this case finds and determines as follows:

The Fair Lawn Board of Education (the "Board") is the employer of the employees in question, a public employer and is subject to the provisions of the New Jersey Employer-Employee Relations Act (the "Act"), as amended.

The Fair Lawn Education Association (the "FLEA") is an employee representative within the meaning of the Act and is subject to its provisions.

A Petition for Clarification of Unit was filed with the Commission on August 11, 1975, by the FLEA seeking a determination that approximately 21 support teachers employed by the Board are included or should be included, in a negotiating unit of approximately 425 classroom teachers. The Board takes the position that the support teachers are not, and should not be included in the negotiating unit. Therefore, there is a question concerning the composition of a negotiating unit of public employees and the matter is properly before the undersigned for a decision.

The Hearing Officer recommended that regular part-time support teachers be included in a unit of regular teaching personnel represented by FLEA. This conclusion was predicated on his findings that: 1) The support teacher program was not in existence at the time of the formation of the FLEA unit; 2) There is a substantial community of interest between support teachers and regular classroom teachers; 3) Support teachers perform work that had been performed by the FLEA unit at the time it was formed; 4) the Association did not abandon its claim to represent support teachers at the time the unit was formed; and 5) correspondence received by the Commission from certain of the support teachers was not dispositive of the decision in this matter.

The exceptions filed by the Board argued that the Hearing Officer: A) Erroneously concluded that correspondence from support teachers does not justify a conclusion that said support teachers do not wish to be represented by the FLEA; B) Improperly attempted to mitigate the fact that the classroom teacher is the ultimate authority in the classroom and that the support teacher works for the classroom teacher; C) Failed to conclude any importance to FLEA's failure to include predecessor teacher aides, which the Board contends are support teachers known by another name, until negotiations during the 1974-75 school year; D) Incorrectly stated that there is no conflict of interest in FLEA representing both support and regular full-time teachers and concluded that the Board has misplaced fears in believing that this would inappropriately undermine the educational purposes; and E) That the entire basis of a community of interest between support and regular teachers, as concluded by the Hearing Officer, is erroneous in every particular.

The undersigned, having carefully considered the exceptions filed by the Board, finds them to be without merit. Treating the issues raised by the exceptions seriatum, the undersigned concludes that the Board's initial exception mistakes the law governing Clarification of Unit Petitions. In evaluating Clarification Petitions brought pursuant to the Act and its attendant rules, the Commission is guided by the long experience and the adjudications under the National Labor Relations Act (the "NLRA").2/

It is well settled law under the NLRA that a unit clarification petition is the proper method to "add" a new employee classification or the employees in a new, but analogous operation, into a pre-existing bargaining unit, if certain conditions are present.3/ Where such an "accretion" is appropriate, no self-determination election is afforded to those employees so accreted into the bargaining unit as this would be disruptive of a stable bargaining relationship.4/ However, where the disputed employees do not constitute an accretion to the existing unit, the correct procedure is not a petition for clarification. Rather, this latter situation raises a question concerning representation which may only be handled by a timely Petition seeking a representation election.5/ Thus, the initial determination in this matter is whether the petition requests a valid accretion to Petitioner's unit or whether the Petition raises a question concerning representation. If it is found that accretion of the support teachers is appropriate, the disputed employees will be accreted to Petitioner's unit without recourse to the desires of the disputed employees. If a question concerning representation exists, the Clarification Petition is to be dismissed as improper. In either case, the undersigned's decision will be made without any recourse to the Hearing Officer's conclusions concerning the desires of the disputed employees.

With regard to the Board's second exception, it is clear that the record supports the finding that classroom teachers are the ultimate authority in the classroom. However, the record does not support a finding that the classroom teacher is the "supervisor" (as that term is defined in the Act) of the support teacher. There is no evidence that classroom teachers hire, discharge, discipline, direct, or formally evaluate support teachers. Nor is there any evidence that classroom teachers effectively recommend or participate in the aforementioned processes with regard to support teachers. On the contrary, the record reveals that classroom and support teachers work literally side-by-side, as professionals, to enhance the educational experience afforded to their students. Suffice it to say, this is not the divided loyalty situation envisioned either by N.J.S.A. 34:13A-5.3 or by the Court in Board of Education of West Orange v. Wilton, et al., 57 N.J. 404 (1971).

The Board's third exception questions the propriety of treating the instant Petition as an "accretion" to the existing unit. Precedent under the NLRA forestalls accreting a group or classification of employees which were existent at the time the negotiations unit was formed,6/ or where a union had long "slept on its rights" concerning the unrepresented titles.7/ In both cases a question concerning representation would be found and the unit clarification petition dismissed. Conversely, the start of a new operation by an employer whose employees perform the same or substantially similar work to that performed by employees in the existing unit, is fertile ground for an "accretion" petition.8/

On examination of the relevant testimony the undersigned finds that the uncontroverted testimony of the Board's Superintendent of Schools and its Director of Elementary Education indicates that the support teacher program is a new operation, predicated on the Board's written educational policy decision to institute a pilot program of individualized instruction, substantially different in both kind and degree from that which existed previously with regard to support teachers and which amounted to an entire reorganization of the school district's elementary reading and mathematics programs.9/

In order to carry this program forward the Board instituted a precise formula, keyed to class size, for the employment of professionally certified teachers. The teachers, herein referred to as support teachers, were to be responsible for individualized instruction in reading and mathematics of multi-age, homogeneous groupings of students. In prior school years reading and mathematics instruction was provided by regular classroom teachers.10/

Prior to the implementation of this program, the two or three auxiliary teachers employed by the Board were utilized to relieve a specific problem of overcrowding in certain elementary grades.11/

Based upon these facts, the undersigned finds, in accordance with the Hearing Officer and for the reasons cited by him, that FLEA did not waive its rights to represent support teachers by virtue of the fact that it did not, prior to the 1974-75 school year, seek to represent those titles known as auxiliary teachers.

The objection to the conclusion of the Hearing Officer contained in the fourth exception filed by the Board is unsupported by the facts and the applicable law. That portion of the exception which alleges that the proposed unit inclusion would undermine the educational process, is made without any evidence that such a result would accrue. The Board's contentions concerning a purported conflict of interest arising by virtue of FLEA representing both regular and support teachers in the same unit raise a question concerning potential unfair representation. The undersigned is not prepared to assume, In Futuro, absent clear evidence, that a majority representative of public employees will abrogate its statutory duty to fairly represent all employees in the unit without regard to union membership.12/

In its final exception to the Hearing Officer's Report and Recommendations, the Board alleges that the Hearing Officer incorrectly concluded that there is a community of interest between support and regular teachers. As the undersigned has already determined that the instant Petition is a technically proper attempt to accrete employees of a new operation into an existing negotiating unit, it is now proper to consider the question of community of interest.

The Hearing Officer's report correctly states and applies the standards under the NLRA for determining the community of interest among employees in an existing unit and employees sought to be accreted into that unit.13/ The undersigned finds that the record amply supports the conclusion that there is a substantial community of interest among regular teachers and support teachers. Accordingly, the undersigned hereby adopts the findings of the Hearing Officer with respect to community of interest.

The Board's further observation that titles not subject to the within Petition also share certain attributes of a community of interest with classroom teachers does not mitigate the Hearing Officer's conclusion, in which the undersigned concurs, that classroom teachers and support teachers share a vital community of interest. Additionally, while community of interest is given due regard, it is not the exclusive determining factor in representation determinations.

In response to the Board's contention that the existing unit has been virtually unchanged for six years, the undersigned notes that the Board has, in 1974-75, promulgated a significant new program employing support teachers whose functions encompass duties traditionally performed by members of the existing unit. Thus, in accord with the Hearing Officer and for the reasons cited by him, the undersigned finds that support teachers may properly be accreted to the existing FLEA unit.

Based upon the above findings, the undersigned hereby adopts the Report and Recommendations of the Hearing Officer, substantially for the reasons cited by him. The negotiations unit represented by the FLEA shall be and is clarified to include those personnel employed as support teachers by the Fair Lawn Board of Education.

In view of the fact that the clarification of unit question was raised before the Commission prior to the execution of the parties' most recent contract, in accordance with the policy enunciated in In re Clearview Regional High School Board of Education, D.R. No. 78-2, 3 NJPER 247 (1977), the undersigned finds that the disputed title shall immediately be included in Petitioner's collective negotiations unit.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

/s/Carl Kurtzman, Director

of Representation

DATED:	November 4, 1977

Trenton, New Jersey