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D.R. No. 82-5

Synopsis:

The Director of Representation, adopting the recommendations of a Hearing Officer, determines that department chairpersons, coordinators and the director of guidance should be removed from a unit of employees which includes nonsupervisory teaching personnel. The individuals in the above titles are supervisors and, since 1979, their supervisory duties have significantly increased. The Director agrees with the Hearing Officer that the chairpersons were not supervisors prior to 1968 and, therefore, the statutory exception of "established practice" may not be relied upon to support the Association's claim that the chairpersons may continue to be included in a unit with nonsupervisory personnel.

PERC Citation:

D.R. No. 82-5, 7 NJPER 498 (¶12221 1981)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.32 33.42 36.121

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 82-005.wpdDR 82-005.pdf - DR 82-005.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 82-5 1.
    D.R. NO. 82-5
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    WALDWICK BOARD OF EDUCATION,

    Public Employer-Petitioner,

    -and- Docket No. CU-80-34

    WALDWICK EDUCATION ASSOCIATION,

    Employee Representative.

    Appearances:

    For the Public Employer-Petitioner
    Aron, Till & Salsberg, attorneys
    (Richard M. Salsberg of counsel)

    For the Employee Representative
    Schneider, Cohen, Solomon & DeMarzio, attorneys
    (J. Sheldon Cohen of counsel)
    DECISION

    Pursuant to a Petition for Clarification of Unit filed on November 13, 1979, with the Public Employment Relations Commission (the A Commission @ ) by the Waldwick Board of Education (the A Board @ ), hearings were conducted before a designated Commission Hearing Officer on the claim raised by the Board that department chairpersons, subject co-ordinators and the director of guidance, should be removed from the collective negotiations unit represented by the Waldwick Education Association (the A Association @ ) 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 A Act @ ), and because of a potential conflict of interest.
    Hearings were held before Commission Hearing Officer Arnold H. Zudick, on May 1, June 16 and July 18, 1980, in Newark, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally.1/ Post-hearing briefs were submitted by the parties and the record closed on October 15, 1980. The Hearing Officer thereafter issued his Report and Recommendations on November 17, 1980, a copy of which is attached hereto and made a part hereof.
    The Association filed exceptions to the Hearing Officer = s Report and Recommendations on December 15, 1980. The Board filed a reply to these exceptions on December 30, 1980.
    The undersigned has carefully considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits, the Association = s exceptions and the Board = s reply and finds and determines as follows:
    1. The Waldwick Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., is the employer of the employees who are the subject of this Petition and is subject to the provisions of the Act.
    2. The Waldwick Education Association is an employee representative within the meaning of the Act and is subject to its provisions.
    3. The Association is the recognized representative of a unit comprised of Board personnel including department chairpersons, subject co-ordinators, the director of guidance and teachers.
    4. The Board argues that the titles in question are supervisors within the meaning of the Act, that the conditions requiring the implementation of the statutory exceptions permitting the continuation of a mixed unit of supervisors and nonsupervisors are not present herein, and that a conflict of interest due to the inclusion of these titles in a unit which contains the employees who are the subject of their supervision, the teachers.
    5. The Association argues that the instant titles have never been, and are not now, supervisors within the meaning of the Act. The Association claims that there is no conflict of interest as the result of the inclusion of these titles in the present unit. Furthermore, the Association contends that even if the disputed titles were supervisors, a negotiations relationship existed between the parties prior to the passage of the Act which created an A established practice @ mandating the continued inclusion of these titles within the unit.
    6. The Hearing Officer found the following: (a) there was no showing that a pre-1968 negotiations relationship existed between the parties; (b) the disputed titles were not supervisors within the meaning of the Act prior to 1968; (c) the instant titles are now supervisors within the meaning of the Act; (d) with the implementation of the new State Board of Education = s evaluation requirements, the date of the title increased to the point that these personnel are primarily responsible for evaluation of nonsupervisory staff; and (e) that a substantial potential conflict of interest arises between the disputed personnel and nonsupervisory unit members requiring the former = s removal from the [teachers] teachers = unit.
    7. The Association objects to the Hearing Officer = s findings and conclusions in all but item (b), above.
    The principles applicable to the issues which arise in this matter are not complicated. The Act, which was adopted for public employees in 1968, prohibits the inclusion of supervisors in units with nonsupervisors. A supervisor is defined as an employee who has the power to hire, discharge, discipline or effectively recommend the same. N.J.S.A. 34:13A-5.3. In In re Tp. of Cherry Hill, P.E.R.C. No. 30 (1969). The sole exceptions to this prohibition, outlined by the Act, are where A established practice, prior agreement or special circumstances dictate the contrary. @ Id. The Commission has found that the established practice and prior agreement exceptions are limited to negotiations relationships predating the passage of the Act. In re W. Paterson Bd. of Ed., P.E.R.C. Nos. 77 and 79 (1973).2/
    Turning to the instant matter, the Hearing Officer found that the evidence did not establish the existence of a pre-1968 relationship between the Board and the Association which would meet the requirements of either A established practice @ or A prior agreement. @ He further concluded that the existence or non- existence of such a relationship was inconsequential since he found no evidence to establish that department chairpersons were supervisors prior to 1968. The record bears out the Hearing Officer = s findings that department chairpersons were not supervisors prior to 1968, and therefore supports his conclusion that consideration of the parties = pre-1968 relationship is inconsequential. The testimony of two department chairpersons relative to their status prior to 1968 establishes that they did not participate in the hiring process for teachers within their departments. The record indicates that the extent of the chairpersons = evaluative responsibilities during the pre-1968 period does not support a finding that their participation in this process had any meaningful effect with respect to discharge and discipline. Indeed, neither Association nor the Board has objected to the Hearing Officer = s finding that department chairpersons were not supervisors prior to 1968.
    The Hearing Officer nevertheless found that in the post-1968 period department chairpersons, coordinators and the director of guidance have acted as supervisors within the meaning of the Act. The Hearing Officer reached this conclusion after analyzing the extent of their participation in the district = s [herein] hiring and evaluation practices. As indicated above, the Association has excepted to the Hearing Officer = s conclusion that the personnel in these titles are supervisors and should be removed from the unit.
    The record confirms that the disputed employees significantly participate in the hiring of nonsupervisory personnel within their subject areas. The testimony, on the whole, indicates that the principals and chairpersons (coordinators and director of guidance) each assess the qualifications of candidates and confer with each other with the intent of achieving a consensus recommendation which is submitted to the superintendent. The superintendent testified that the district would not hire an applicant who was not acceptable to the department chairperson. On the other hand, department chairpersons testified with respect to several instances in which they had not interviewed applicants; they had not been consulted in the selection of an applicant who was offered employment; their preference for an applicant was not passed on to the superintendent; and the district offered employment to a candidate who was not the consensus choice of both the principal and chairperson. After considering all the instances of hiring since 1970 which have been cited in the testimony, the undersigned cannot conclude that the instances cited by the Association represent isolated exceptions to the norm. More importantly, an examination of the most recent experience of the district is inconclusive due to relative inactivity in this area. The Superintendent = s testimony reveals that the teaching staff is substantially tenured, the district has been releasing teachers at a much greater rate than hiring teachers due to declining enrollment, and with reference to 1981-82 A [T]his is the first year in quite some time we = ve had more than one teacher that we = re hiring. @ Accordingly, the undersigned cannot conclude from the record evidence that department chairpersons effectively recommend the hiring of teachers.
    Nevertheless, the absence of clear evidence demonstrating that chairpersons, coordinators and the director of guidance make effective recommendations as to hire is not the critical factor in determining that, under the facts herein, these disputed individuals are supervisors and have duties to management which present a potential for a substantial conflict of interest with teachers. The chairpersons, coordinators and the director of guidance have for some time engaged in evaluations of teachers with the high school principals. However, since 1979, the chairpersons = evaluative functions have significantly increased. In previous years, both the chairperson and the principal together prepared end of the year evaluations. The chairpersons are now primarily responsible for the final year-end evaluation of teachers. The principal reviews and signs the evaluations, and sometimes requires certain additional comment by the chairpersons. While the department chairpersons who testified stated that they did not include a specific recommendation concerning non-renewal, the grant of tenure or the denial of an increment in the evaluation report, it is apparent from the testimony of the superintendent that the evaluations are instrumental in arriving at these determinations. Contrary to the views of the Association, the changes to the system of evaluation are substantive, not merely procedural. That these changes arose during the pendency of the processing of the Board = s instant clarification of unit petition does not render the changes any less significant.
    Accordingly, for the above reasons, the undersigned adopts the Hearing Officer = s recommendation that chairpersons, coordinators, and the director of guidance are supervisors within the meaning of the Act, have potential substantial conflicts of interest with teachers, and should be removed from the Waldwick Education Association unit. Since the contract covering the employees in the Waldwick Education Association unit expired during the processing of the within petition, this determination is effective immediately.3/
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director
    DATED: August 7, 1981
    Trenton, New Jersey
    1/ This matter was originally assigned to Hearing Officer Bruce Leder who conducted the hearing of May 1, 1980. Pursuant to N.J.A.C. 19:11-6.3, the undersigned substituted Arnold H. Zudick as Hearing Officer on June 6,1 980, due to the original Hearing Officer = s unavailability to complete the hearing and for the issuance of a Report and Recommendations.
      2/ 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, supra, 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. of 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. of Ed., D.R. No. 81-26, 7 NJPER 119 ( & 12048 1981), the undersigned stated:

    Logically, the statutory exceptions which preserve pre- existing relationships are not applicable where the circumstances underlying the pre-existing relationship no longer exist, 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. of Ed., D.R. No. 81-39, 7 NJPER 274 ( & 12122 1981).
      3/ In re Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977).
    ***** End of DR 82-5 *****