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H.O. No. 83-3

Synopsis:

A Hearing Officer of the Public Employment Relations Commission recommends that the Athletic Director employed by the Rumson-Fair Haven Regional Board of Education be excluded from a collective negotiations unit represented by the Rumson-Fair Haven Education Association.

The Hearing Officer recommends a finding that the Athletic Director is a supervisor within the meaning of the New Jersey Employer-Employee Relations Act. He further recommends findings that neither established practice, prior agreement, nor special circumstances exist which would permit the inclusion of the Athletic Director in a negotiations unit which includes nonsupervisory personnel. The Hearing Officer also recommends a finding that a conflict of interest compels the exclusion of the Athletic Director from the negotiations unit represented by the Education Association.

PERC Citation:

H.O. No. 83-3, 8 NJPER 516 (¶13239 1982)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

15.114 16.32 33.42

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.HO 83-003.wpdHO 83-003.pdf - HO 83-003.pdf
    Appellate Division:
    Supreme Court:


    H.O. NO. 83-3 1.
    H.O. NO. 83-3
    STATE OF NEW JERSEY
    BEFORE A HEARING OFFICER OF THE
    PUBLIC EMPLOYMENT RELATIONS COMMISSION

    In the Matter of

    RUMSON-FAIR HAVEN REGIONAL
    BOARD OF EDUCATION,

    Public Employer,

    -and- Docket No. CU-81-25

    RUMSON-FAIR HAVEN EDUCATION
    ASSOCIATION,

    Petitioner.

    Appearances:

    For the Public Employer
    Kalac, Newman & Griffin, attorneys
    (Peter P. Kalac of counsel)

    For the Petitioner
    Klausner & Hunter, attorneys
    (Stephen B. Hunter of counsel)
    HEARING OFFICER = S REPORT
    AND RECOMMENDATIONS

    On October 27, 1980, the Rumson-Fair Haven Education Association ( A Association @ ) filed a Petition for Clarification of Unit with the Public Employment Relations Commission ( A Commission @ ), seeking to resolve a dispute between the Association and Rumson-Fair Haven Regional Board of Education ( A Board @ ). The Association contends that the Athletic Director in the employ of the Board should be included in the negotiations unit represented by the Association. The Board asserts that the Athletic Director is a supervisor within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A Act @ ), and thus cannot be represented by the Association.
    Pursuant to a Notice of Hearing dated August 25, 1981, a hearing was held before the undersigned on December 7, 1981. At the hearing, all parties were given the opportunity to examine and cross-examine witnesses, present evidence, and argue orally. Both parties submitted post-hearing briefs.
    Based on the entire record of these proceedings, the Hearing Officer finds that:
    1. The Rumson-Fair Haven Regional Board of Education is a public employer within the meaning of the Act and is subject to its provisions.
    2. The Rumson-Fair Haven Education Association is an employee representative within the meaning of the Act and is subject to its provisions.
    3. The Association has filed a Petition for Clarification of Unit seeking a determination that the title of Athletic Director be included within their negotiations unit and the matter is appropriately before the undersigned for report and recommendations.
    4. N.J.S.A. 34:13A provides, in pertinent part:
    5.3 . . . nor except where established practice prior agreement, or special circumstances, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits non- supervisory personnel to membership . . . .

    * * *

    6(d) The division shall decide in each instance which unit of employees is appropriate for collective negotiations, provided that, except where dictated by established practice, prior agreement, or special circumstances, no unit shall be appropriate which included (1) both supervisors and nonsupervisors . . . .

    5. The instant petition concerns the position of Athletic Director. Prior to the 1980-81 academic year, the Athletic Director position was represented by the Association, and was a stipended, extracurricular position.1/ During the 1979-80 academic year, the Board became aware of the likely resignation or retirement of its incumbent Athletic Director.2/ At that time, the Board determined to change the Athletic Director position from a stipended, extracurricular position to @ ...have the Athletic Director in a supervisory role, which could impact upon the employment of coaches, the termination of coaches, and the evaluation of the coaching and total athletic program. @ 3/ In subsequent negotiations between the Board and the Association, a collective agreement was reached for a period of July 1, 1980 to June 30, 1982. That contract did not include a stipend for the Athletic Director position.4/ Subsequently, the Board and the Rumson-Fair Haven Supervisors Association ( A Supervisors @ ) concluded a collective agreement for the period of July 1, 1981 to June 30, 1983, which included the Athletic Director position within its recognition clause.5/
    6. Several coaches testified on behalf of the Association. Without exception, the coaches indicated that the present Athletic Director, Mr. Gerry Matthews, never formally evaluated their performances.6/ Some coaches testified that Matthews occasionally observed them during games or meets7/ and that they met with Matthews as a group only to receive their schedules and other paper work prior to the fall athletic season.8/
    7. Dr. William Greenham, the Board = s Superintendent of Schools testified that Matthews had extensive involvement in the evaluation and hiring of coaches in the district. While Greenham was ultimately responsible for recommending the reappointment of incumbent coaches to the Board, Matthews previously reviewed all candidates with Greenham.9/ On numerous occasions Matthews gave Greenham oral informal evaluations of all coaching staff.10/ Greenham also testified that Matthews initiated conferences with certain coaches and assistant coaches to review the poor attendance patterns of certain coaches.11/ These conferences resulted in the satisfactory resolution of the attendance problems.12/ Greenham also testified that he always forwarded Matthews = recommendations on retention,13/ nonretention,14/ and hiring of coaches15/ and athletic personnel16/ to the Board without alteration, and that the Board, with only one exception,17/ implemented all of Matthews = recommendations. Greenham himself is responsible for evaluation of Matthews = performance,18/ both as Athletic Director and as Head Basketball Coach.19/
    ANALYSIS
    The Board argues that the Athletic Director is a supervisor within the meaning of the Act and therefore may not be represented for the purposes of collective negotiations by the Association.20/ It is undisputed that the Association does not represent supervisory personnel, other than in their stipended extracurricular capacities. The Association does not contend, nor does the record suggest, that A established practice @ or A prior agreement @ exist herein which could permit a supervisor to be represented by the Association pursuant to N.J.S.A. 34:13A-5.3 and 6(d). No do A special circumstances @ exist which would allow a supervisor to be represented by the Association pursuant to the same statutory provisions. Thus, the undersigned considers below whether or not the Athletic Director is a supervisor within the meaning of the Act.
    Preliminarily, the undersigned notes that a determination of supervisory status requires far more than a job description or verbal assertion stating that an employee may have the power to hire, discharge, discipline or effectively recommend the same:
    [T]he bare possession of supervisory authority without more is insufficient to sustain a claim of status as a supervisor within the meaning of the Act. In the absence of some indication in the record that the power claimed possessed is exercised, with some regularity by the employees in question, the mere A possession @ of the authority is a sterile attribute unable to sustain a claim of supervisory status. Somerset Cty. Guidance Center, D.R. No. 77-4, 2 NJPER 358, 360 (1976).

    With this caveat in mind, the undersigned reviews the responsibilities and actual job performance of the Athletic Director to determine whether or not he is a supervisor within the meaning of the Act.
    The Athletic Director is responsible for the evaluation of all coaches and athletic equipment personnel employed by the Board; indeed, the position requires a New Jersey Supervisor or Administrator Certificate.21/ As noted, supra, the Athletic Director informally performed these responsibilities throughout the 1980-81 school year. The Athletic Director summarized his informal evaluations and recommended retention or nonretention of coaching personnel to the Superintendent, who routinely forward these evaluations and recommendations without alteration to the Board. Without exception, all coaches whom Matthews recommended be retained were retained by the Board and the coach whom Matthews recommended not be retained was not retained by the Board. In addition, Matthews was involved in two hiring decisions for the 1980-81 academic year. In both cases, Matthews interviewed candidates for the positions and recommended candidates for appointment, and in both cases, those candidates were hired.22/ One disciplinary problem during the academic year led to a conference between Matthews and the coaches involved, but did not result in any form of discipline.
    A public employee is a supervisor within the meaning of the Act if he has the power to make effective recommendations regarding hiring or discharge or discipline. In re Tp. of Teaneck, E.D. No. 23 (1971). While Matthews has not effectively recommended discipline of employees during his term as Athletic Director, his track record reveals actual, frequent and near universal adoption of his personnel recommendations as to hiring and discharge of employees.23/ Accordingly, the undersigned finds that the Athletic Director is a supervisor within the meaning of the Act.
    Having found the Athletic Director to be a statutory supervisor, the undersigned now addresses the Association = s assertions that the Athletic Director should nonetheless be included in the Association = s negotiations unit.24/ The Association argues that, even if the Athletic Director is a supervisor, he does not supervise A ... unit teaching personnel in their capacity as full time teachers in the school district. @ 25/ This argument presumes that supervisory status under the Act is dependent upon the type or function of the employee whom the supervisor supervises. There is no foundation for such distinctions in either the Act or relevant case law; so long as the individual who is supervised is an employee under the Act, the supervisor is a statutory supervisor.26/
    The Association also asserts that a conflict of interest would prevent the Athletic Director from being represented by the Supervisors and that comparatively less conflict would occur if the Athletic Director were placed in the Association = s unit. This argument is based on the conflict of interest identified by the supreme court in Bd. of Ed. of West Orange v. Wilton, 57 N.J. 404, 425 (1971):
    If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees the community of interest required for inclusion of such supervisor is not present. While a conflict of interest which is de minimis or peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest.

    As noted above, the undersigned is without authority to consider the placement of the Athletic Director into the unit represented by the Supervisors. However, even assuming such authority, the undersigned finds that no conflict exists between the Athletic Director and individuals represented by the Supervisors. While the record reveals that the Supervisors represent employees who are supervised in their coaching capacities by the Athletic Director,27/ these individuals are represented in their coaching capacities by the Association. Accordingly, no conflict of interest would exist between the Athletic Director and supervisor/coaches if the Athletic Director were placed in the Supervisors unit.28/
    Thus, even assuming comparative conflict to be a legitimate criterion for choosing between two possible negotiations unit placements for one position,29/ the undersigned finds that a potential conflict of interest herein would occur only if the Athletic Director were placed in the Association = s unit. Indeed, assuming arguendo that the Athletic Director is not a supervisor within the meaning of the Act, the undersigned finds that a sufficient Wilton-type conflict of interest exists to warrant the exclusion of the Athletic Director from the negotiations unit represented by the Association. The Athletic Director = s responsibilities in the hiring, discharge and evaluation processes, as reviewed supra, are extensive. The good faith performance of these responsibilities by the Athletic Director could often put him at odds with those coaches and athletic personnel affected by his recommendations. Clearly, Wilton and its progeny30/ preclude this potential conflict and dictate the exclusion of the Athletic Director from the collective negotiations unit represented by the Association.
    For the above stated reasons, the undersigned recommends the following findings.
    1. The Athletic Director employed by the Rumson-Fair Haven Regional Board of Education is a supervisor within the meaning of the Act.
    2. The Rumson-Fair Haven Education Association is an employee representative which does not represent supervisors within the meaning of the Act, other than in their nonsupervisory, extracurricular capacities.
    3. Neither established practice, prior agreement nor special circumstances exist which could allow the Association to represent supervisors within the meaning of the Act.
    4. Potential conflicts of interest exist between the Athletic Director and members of the negotiations unit represented by the Association.
    5. Accordingly, the negotiations unit represented by the Association should be clarified to exclude the Athletic Director from that negotiations unit.
    Respectfully submitted,

    Mark A. Rosenbaum
    Hearing Officer

    DATED: August 13, 1982
    Trenton, New Jersey
    1/ Exhibit J-1 (Appendix B).
      2/ Transcript ( A T @ ) pp. 77, 78.
      3/ T at p. 78.
      4/ Exhibit J-2. The Board argues that by concluding this agreement, the Association waived its right to claim the Athletic Director position. However, a clarification of unit petition is appropriate to seek inclusion of existing titles which the parties failed to include in their most recent contract. A Commission determination to include such a title in a negotiations unit would become effective upon the expiration of the parties = current contract. Since the instant agreement between the parties (Exhibit J-2) expired on June 30, 1982, the waiver argument presented by the Board is moot. Clearview Reg. H/S Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977).
      5/ Exhibit J-3. The Supervisors were invited to participate in this matter, but declined to assert intervenor status. Exhibit A-14; T at p. 123.
      6/ T at pp. 26, 42, 61 and 67.
      7/ T at pp. 43, 62 and 68.
      8/ T at pp. 28 and 68.
      9/ T at p. 74.
      10/ T at pp. 74, 83-85, 104-105.
      11/ T at pp. 84, 107.
      12/ Id.
      13/ T at pp. 83-85.
      14/ T at pp. 74, 87, 104-105.
      15/ T at p. 74, 90.
      16/ T at p. 74.
      17/ T at pp. 89, 104-105. One recommended candidate withdrew from consideration for a coaching position.
      18/ T at 82. While Matthews, as Athletic Director, is also responsible for teaching physical education courses, the Physical Education Department Chairperson does not evaluate Matthews = teaching performance.
      19/ Of course, the position of Head Basketball Coach is not a subject of the instant petition.
      20/ The Board further asserts that the current collective agreement between the Board and the Supervisors, which includes the Athletic Director title within its recognition clause, compels the placement of the Athletic Director in the Supervisors unit. Since the Supervisors are not a party to these proceedings, the undersigned is without jurisdiction to recommend such a unit placement.
      21/ Exhibit J-4.
      22/ See n.17.
      23/ Matthews = effective recommendations of retention or nonretention of coaches from season to season are analogous to hiring and discharge determinations, and support the above conclusion. Moreover, while Matthews = participation in the hiring and discharge processes has been neither formal nor written, these facts do not detract from the regularity and effectiveness of his recommendations.
      24/ The Association argues that the present Athletic Director is performing the same duties as his predecessor, that the Board acknowledged that the predecessor was not a statutory supervisor and that the Athletic Director position should thus be included in the Association = s unit. Assuming, arguendo, that the Athletic Director is performing the same duties as his predecessor, such a finding would not compel the inclusion fo the Athletic Director position in the Association = s unit. Instead, an examination of the Athletic Director = s present duties and actual job performance above determines whether or not that title belongs in the Association = s unit.
      25/ Brief of the Education Association, p. 7.
      26/ An employee who supervises students who are not public employees, for example, is not a statutory supervisor. Edison Tp. Bd. of Ed., H.O. No. 81-7, 6 NJPER 582, 584 ( & 11292 1980), D.R. No. 82-8, 7 NJPER 560 ( & 12249 1981).
      27/ T at p. 122.
      28/ Similarly, Matthews himself, in his capacity as Head Basketball Coach, will still be represented by the Association. The Commission has sanctioned this approach to hybrid employees who are both supervisors and extracurricular non-supervisors. Tp. of Ocean Bd. of Ed., P.E.R.C. No. 82-9, 7 NJPER 446 ( & 12199 1981).
      29/ The undersigned is unaware of Commission or judicial acceptance of a comparative conflict doctrine. Indeed, the concept seems inconsistent with the precepts of Wilton; a conflict which prevents placement in one negotiations unit exists independent of alternative unit placement considerations.
      30/ While Wilton concerned the conflicts between different supervisors, the Commission has expanded this doctrine to prevent conflicts between nonsupervisory employees. In re City of Camden, P.E.R.C. No. 70 (1972).
    ***** End of HO 83-3 *****