D.R. NO. 81-39

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

CINNAMINSON TOWNSHIP BOARD

OF EDUCATION,

Public Employer-Petitioner,

-and-	Docket No. CU-78-52

CINNAMINSON TOWNSHIP TEACHERS

ASSOCIATION,

Employee Representative.

Appearances:

For the Public Employer-Petitioner,

Murray, Granello & Kenney

(James P. Granello, of Counsel)

For the Employee Representative,

Selikoff & Cohen, P.A.

(Joel S. Selikoff, of Counsel)

DECISION

Pursuant to a Petition for Clarification of Unit filed on June 1, 1978, with the Public Employment Relations Commission (the "Commission") by the Cinnaminson Township Board of Education (the "Board"), hearings were conducted before a designated Commission Hearing Officer on the claim raised by the Board that all department chairpersons should be removed from the collective negotiations unit represented by the Cinnaminson Township Teachers Association (the "Association") because the department chairpersons, upon implementation of a newly revised job description, will be supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act").

Hearings were held before Commission Hearing Officer Charles A. Tadduni on June 19, 20, 21 and 27, 1979 in Trenton, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Post-hearing briefs were submitted by the parties and the record closed September 6, 1979. The Hearing Officer thereafter issued his Report and Recommendations on July 18, 1980.

The Association filed exceptions to the Hearing Officer's Report and Recommendations on August 29, 1980. The Board filed a reply to these exceptions on September 15, 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 Cinnaminson Township 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 its provisions.

2.	The Cinnaminson Township Teachers 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 and teachers.

4.	The Board argues that the chairpersons will become supervisors upon implementation of a proposed new job description and therefore must be excluded from the collective negotiations unit pursuant to N.J.S.A. 34:13A-5.3 and 6(d). Further, they contend that there is a substantial actual or potential conflict of interest between department chairpersons and teachers if chairpersons remain in the same unit while functioning in a supervisory capacity vis a vis teachers. Furthermore, the Board asserts that there has been no clear and convincing showing of any statutory exception that would mandate the continued inclusion of chairpersons in the existing collective negotiations unit.

5.	The Association argues that prior to July 1, 1968,1/ the department chairpersons were supervisors within the meaning of the Act and that they have continued to be supervisors. They also argue that the Association's collective negotiations history with the Board falls within the statutory "established practice" exception and therefore permits the continuation of this mixed unit of supervisors and non-supervisors. The Association contends that the employer has failed to demonstrate that the continued inclusion of supervisors in the unit gives rise to any actual conflict of interest which would require their removal. In the alternative, the Association argues that even if a potential for conflict was an appropriate standard for exclusion of supervisors, it is premature to apply that standard to the circumstances in the instant case because chairpersons do not now perform the supervisory duties listed in the proposed job description.

6.	The Hearing Officer found the following: a) Department chairpersons were not supervisors within the meaning of the Act prior to 1968 because their role in the procedures for hiring, teacher evaluation and staff discipline was inconsistent, inconclusive and not sufficiently substantial to rise to the level of supervisory; b) The statutory established practice exception allowing the continued mixing of supervisors and non-
supervisors was intended to preserve only those collective negotiation relationships which existed before passage of the Act, and does not protect this mixed unit of supervisory and non-
supervisory employees. The Hearing Officer found that there was no showing that prior to 1968 the parties negotiated the terms and conditions of employment which specifically related to department chairpersons and that any discussions which occurred were applicable only to the position of teacher; c) There was sufficient evidence to substantiate the claim of a pre-1968 collective negotiations relationship between the Board of Education and the Association; d) Chairpersons would be functioning as supervisors with a substantial expansion of their role in the evaluation and observation of non-tenured and marginal tenured teachers. Chairpersons would be assigned duties and responsibilities concerning recommendations in the areas of hiring, annual salary increments and renewal of non-tenured teachers. Chairpersons would have more authority in disciplinary matters and would be involved as management's representative in the initial steps of the grievance procedure. In addition, these employees would be required to secure supervisory certification in accordance with newly promulgated regulations.

The Hearing Officer recommended that department chairpersons be removed from the collective negotiations unit immediately because the substantial increase in their supervisory duties presents potential or actual conflicts of interest between the chairpersons and the teachers whom they would supervise.

The Association excepts to the Hearing Officer's findings arguing that 1) department chairpersons were supervisors within the meaning of the Act prior to 1968 and they made effective recommendations concerning the employment of teachers. The Association argues that, to avoid conflict of interest, the administrators did not allow chairpersons to observe non-tenured teachers or marginal teachers. 2) Further, the position of department chairperson was included in the Cinnaminson Teachers Association collective negotiations unit prior to 1968, as stipulated by the parties. 3) A pre-1968 collective negotiations relationship between the Board and the Association was demonstrated and supports the application of the statutory established practice exception to permit continuation of the present mixed unit. 4) The Board's clarification of unit petition is untimely because the alleged conflict of interest claim is based on a proposed job description which has not yet been adopted nor implemented. The Association distinguishes In re Sterling Board of Education, P.E.R.C. No. 80 (1974), where the parties jointly urged an adjudication while in the instant case the Association does not seek an adjudication prior to the actual implementation of the proposed job description for chairpersons. 5) Exclusion of department chairpersons from a collective negotiations unit, where an established practice exists, requires a showing of actual conflict of interest.

The Board submitted a brief in support of the Hearing Officer's findings of fact and conclusions of law.

After review of the entire record, the undersigned adopts the Hearing Officer's findings of fact, conclusions of law and recommendation that department chairpersons be removed from the Association's collective negotiations unit.

The statutory provisions concerning the appropriateness of including supervisory and non-supervisory employees in the same negotiations unit are contained in N.J.S.A. 34:13A-5.3 and 6(d) which provide in relevant part as follows:

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 negotiation, provided that, except where dictated by established practice, prior agreement, or special circumstances, no unit shall be appropriate which includes (1) both supervisors and non-supervisors . . .

There is ample evidence in the record to support the Hearing Officer's finding that department chairpersons were not supervisors prior to 1968. Likewise the record supports his conclusion that a pre-1968 collective negotiations relationship did not exist between the Board and the Association, as it related to the role of department chairpersons.

The record further reveals that, beginning in 1974, with the hiring of Superintendent Holtzman and High School Principal Byrne, substantial changes occurred in the administrative and supervisory organization of the school district. The role of chairpersons in the teacher evaluation process has increased significantly due to new requirements for both formative and summative evaluations of non-marginal tenured teachers. These requirements have been imposed on school districts by the State Department of Education in implementation of the "thorough and efficient" education standards established by legislation in 1975 and 1979. It appears that the Board has withheld from chairpersons the requirement that they prepare evaluations for non-tenured teachers because preparation of the evaluations would create a conflict of interest between the chairpersons and other employees in the unit.

In order to implement the new requirements, the Board has created new duties and authorities for the chairpersons, which it has embodied in a new job description.

Under the new job description, chairpersons will clearly be supervisors within the meaning of the Act. They will be responsible for evaluation of non-tenured and marginal tenured teachers, for recommendations on increments and renewals, for screening and rating teacher applicants, for teacher discipline and for grievance administration on behalf of the Board. Supervisory certification will be required for preparation of evaluations. Consequently, chairpersons will be in a position where their good faith performance as supervisors would often put them at odds with other employees in the unit, thus raising a potential substantial conflict between the chairpersons and teachers.2/ The Hearing Officer, in the instant case, correctly determined that the performance of the obligations and powers delegated to department chairpersons under the new job description would create more than a de minimis conflict of interest, destroying the prior community of interest between the department chairperson and teachers in the existing collective negotiations unit. As supervisors, the department chairpersons may not be in the same unit with non-supervisors.

The Association, however, strongly argues that a pre-1968 "established practice" existed which would mandate the continued inclusion of the department chairpersons in the unit. In addition, the Commission has been presented with several clarification of unit petitions which seek the removal of department chairpersons because of the implementation of the "thorough and efficient" regulations. Although the undersigned has concluded that the record herein does not support a finding that department chairpersons were supervisors prior to 1968, thus mooting the "established practice" argument, the other petitions may pose the question in the context of a proven established practice situation. Therefore, to provide guidance, the undersigned has evaluated this petition in light of principles recently outlined in In re Ramapo-Indian Hills Regional High School District Board of Education, D.R. No.81-56, 6 NJPER ___ (¶_____ 1981).

In Ramapo, the undersigned reviewed a Hearing Officer's recommendation concerning the unit placement of a Director of Guidance. The Hearing Officer found that the Director of Guidance was represented by the Association prior to the passage of the Act and that the Director of Guidance was a supervisor prior to 1968. He also found that the negotiations relationship between the Association and the Board predated the passage of the Act. The Hearing Officer further found that the supervisory responsibilities of the Director of Guidance substantially and dramatically increased after 1968. In light of this finding, the Hearing Officer concluded that the "established practice" exception was negated by the substantial increase in supervisory duties. The undersigned, in affirming the Hearing Officer, pointed out that the mere finding of an established practice does not mandate the continuation of a mixed supervisory/non-
supervisory unit.3/

In conclusion, 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/non-supervisory employee units is preeminent.

In the instant case, upon implementation of a new job description for department chairpersons there will be substantial and significant change in the relationship between the supervisory and non-supervisory employees in the existing unit which would negate any statutory established practice, if it had existed.

The Association raises a timeliness issue and argues that the application of the potential conflict standard is premature in the instant case because the Board has neither adopted nor implemented the chairperson job description. It distinguished Sterling, supra wherein the parties jointly urged a determination on the merits.

In Sterling, the Board of Education converted department chairpersons into department coordinators with expanded supervisory authority and duties. The Commission therein concluded that the coordinators' new hiring authority and other supervisory duties established an "incompatibility of interest" with teachers and therefore coordinators were excluded from the teacher collective negotiation unit. Similarly, in the instant case, the chairpersons, under the revised job description, have greater decision-making authority for hiring, renewals, termination and grievance on behalf of the Board as well as an expanded supervisory responsibility for teacher evaluation. The undersigned concludes that the potential substantial conflict of interest which would result from inclusion of chairpersons performing duties under the new job description raises the kind of situation which the Court in Wilton wished to avoid. This conflict requires exclusion from the existing unit.

Notwithstanding the Association's assertion that the instant matter is not ripe for adjudication, the Commission has not adopted a rigid approach relating to its consideration of Clarification of Unit petitions. In Sterling, supra, the Commission proceeded to issue a determination as to unit identification, although it advised that the record therein did not reflect the normal demonstration of "sufficient past conduct from which a pattern or routine could be established with reasonable conviction." The Commission noted that both parties in Sterling urged a determination, but this consideration does not appear to be the sole reason for the Commission's consideration of the issues. The record in Sterling revealed a substantially developed supervisory job description, adopted by the Board in June, implemented in December, and the subject of a Commission hearing in December. Previously, in West Paterson, supra, n.3, the Commission had stated:

"future contingencies are an acceptable and, in fact, generally controlling consideration in most determinations concerning supervisors because, in the absence of a history, there is only expectation and probability that the interests of supervisors and those supervised will clash, to the detriment of some right entitled to protection. But where past experience exists, such can obviously be a more accurate gauge of probabilities than mere speculation not benefitted by hindsight."

In contrast, in In re Somerset County Guidance Center, D.R. No. 77-4, 2 NJPER 358 (1976), the undersigned declined to consider an employer's claim that a possible future expansion of a program would produce a "conflict of interest" since the "string of contingencies on which such a conflict is predicated is too far removed from the present situation to support the exclusion of the Coordinator of Consultation and Education from the petitioned-for unit."

In the present matter, the Board has confirmed its intent to adopt and implement the new job description for department chairperson, and apparently will do so upon the exclusion of department chairpersons from the Association's unit.4/ Thus, this matter does not involve speculation or conjecture as to job function nor does it involve a remote possibility that implementation of the changes would ever occur, as in the Somerset matter. Clarification of the Association's unit is therefore appropriate at this time.5/

Accordingly, for the above reasons, the undersigned adopts the findings of fact and conclusions of law of the Hearing Officer and determines that department chairpersons shall be removed from the existing collective negotiations unit. The effectiveness of the instant clarification, and therefore, the exclusion of department chairpersons from the Association's collective negotiation unit shall be simultaneous with the Board's adoption of the new job description. The undersigned further determines that if the program as conceived has not materialized within a reasonable time from the date of the

adoption of the job description either party may request a reexamination of this matter. See Sterling, supra.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	May 7, 1981

Trenton, New Jersey