H.O. NO. 77-6

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

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, De Korte, Hopkinson & Vogel, Esqs. (Reginald F. Hopkinson, Esq.)

For the Petitioner

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

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Petition for Clarification of Unit was filed on August 11, 1975, by the Fair Lawn Education Association (hereinafter "FLEA"). FLEA seeks a determination as to whether approximately 21 support teachers employed by the Fair Lawn Board of Education (hereinafter the "Board") are included, or should be included, in a negotiating unit of approximately 425 classroom teachers. Specifically, at the time of the filing of the clarification of unit petition FLEA and the Board were parties to a negotiated Agreement effective July 1, 1974 through June 30, 1975 which contains a recognition provision as follows: "...all certified personnel under contract, on leave, employed or hereinafter employed under contract by the Board of Education of Fair Lawn, New Jersey as included herein: all certified personnel whose annual salary is based on the teacher guide. All certified personnel who are on the teachers salary guide and who receive differential payment in addition to their salary but excluding those whose duties are exclusively administrative and supervisory." The recognition clause goes on to list by title those supervisory and administrative personnel who are excluded from the unit. The Board takes the position that the support teachers are not, and should not be included in the negotiating unit.1/

A hearing was held before the undersigned Hearing Officer on March 22, 1976, March 31, 1976, April 23, 1976, and May 17, 1976 at which all parties to the proceeding had the opportunity to present evidence and argue orally. At the hearing, in addition to testimonial and documentary evidence the parties entered into a Joint Stipulation of some facts. Thereafter, the parties submitted post-hearing briefs for consideration by the undersigned.

The undersigned has carefully reviewed the entire evidentiary record and finds, as fact, the following:

1.	The Fair Lawn Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1.1 et seq. (The "Act"), and is subject to its provisions.

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

3.	The parties have entered into joint stipulations of fact contingent upon their being supplemented by testimonial evidence.

Having reviewed the entire evidentiary record, I accept the joint stipulations and incorporate them in total herewith:2/

Item 1. Definition of a Support Teacher: A support teacher is a part-time, hourly-paid, certified teacher whose duties are to teach language arts or mathematics to small groups of students, usually in groups from 6 to 8, in the 7 elementary schools. The support teachers would get its group of students either from a regular teacher, or 2 or 3 regular teachers in the same grade, or might combine students from a regular teacher in different grades.

The support teacher would teach the subject matter in the same manner as the regular teacher, drawing up her own lesson plans, teaching the students in her group, giving tests and grading them and papers, and also giving an overall mark to the regular teacher, which the regular teacher would formulate and incorporate in the report card.

The support teacher program operated differently in each elementary school, since it was the responsibility of the building principal to carry out the program. After the support teacher was finished with the particular group of students, that group would then return to the regular teacher for the rest of the day.

The support teacher worked regular hours, and her duties in teaching the students in her group as described hereinabove were the same as those of the regular teacher performing the same functions. In fact, the support teacher sometimes assumed the responsibility for the complete mathematics and/or language arts instruction that a particular group of students would receive.

The support teachers are not part of any other collective bargaining unit, and have made no attempt to organize or to be recognized as a bargaining unit.

There are approximately 160 to 170 regular teachers in the 7 elementary schools, and during the 1974-1975 School Year, the support teachers at the 7 elementary schools were as listed on the attached sheet. [See Attachment B, annexed to and incorporated as part of this Report].

Job Description: There is no written job description for the support teacher, supplemental teacher, substitute teacher and bedside teacher.3/

Item 2. There is a certification requirement for Support Teachers, as well as supplemental, substitute and bedside teachers.

Item 3 & 4. Beginning November 17, 1969, the Board has employed a number of personnel on a regular part-time basis to assist certain elementary classroom teachers in the instruction of students for the areas of language arts and mathematics. Specifically, two in school years 1969-1970 in the fifth grade; two in 1970-1971 in the third and sixth grades; two in 1971-1972 in the fourth grade; three in 1972-1973 in the fifth grade; three in 1973-1974 in the sixth grade; twenty-one in1974-1975 [in] in combination of classes and grades. With respect to 1974-1975, the parties agree to the submission of the attached sheet [Attachment B] to this document reflecting teachers and units and grades. And twenty-one in 1975-1976, also a combination of classes and grades.

Item 5. No written contract is offered to Support Teachers similar to the type of written contract given non-tenure, regular teachers. However, they are hired either by telephone call, by speaking to them directly, or by letter from duly authorized school authorities so that the agreement of hiring is either oral or written.

The Board of Education, during the summer months prepares a list of teachers, which list bears the caption "Substitute/Bedside/Supplementary Teacher List," and contains approved teachers that can fulfill all of these functions. This generally embraces a list of perhaps 100 or more individuals. This list is then approved by the Board of Education. This functions in this manner because all of said teachers on this list are paid the same salary of $6.80 per hour, except for the bedside teachers as heretofore explained. Each principal then goes to the lists and selects the individual that will be needed as a substitute, a bedside or supplemental teacher, or as a support teacher. At the present time, the hiring of support teachers is based on a formula depending on the number of students in either a class or in a grouping.

Item 6. The goal is to hire Support Teachers for the school year, although on occasion this may not occur, like if some variations occur because of anticipated enrollment. The master list described in #5 above is generally adopted by the Board during the August meeting as the basis for hiring Support Teachers for that school year. During the school year, there may be additional persons placed on this master list.

Item 7. Support Teachers work a regular schedule of a certain number of classes at certain specific times each day during the school week. Support Teachers generally work 2 hours per day for 5 days per week. Of the 21 Support Teachers, only 2 work 4 hours per day for 4 or 5 days per week. Thus, the average is 10 hours per week for most of them, with a maximum of 18 hours for 2 Support Teachers. The regular schedule of the Support Teachers is arranged by the separate building Principals.

Item 8. The Support Teacher applied [assigned (?_] in each building is recommended to be hired by that particular building principal. However, all teachers in the categories described in #5 above are placed on a master list and it is from this master list which support teachers as well as all other teachers are hired. In general, to be placed on the master list, support teachers as well as all others, are interviewed by the principal and also interviewed by the central office and administrative staff of the Board of Education. Thus, participation in hiring is both with the principal and the central office of the Board of Education. Exceptions occur based on availability of principals primarily during vacation periods.

Item 9. Support Teachers only perform teaching functions, and this may occur in hallways, faculty lounges, unused classrooms, sometimes in same classroom as regular teacher, occasionally have own classroom. This varies from school to school.

Item 10.	(a)	Assignment to a school comes from administrative offices of the school system. Assignment to a location in the school is made by building principal.

(f)	Support teachers are utilized in accordance with a formula. The budget appropriation set forth this formula as follows:

Support teachers will be provided in Kindergarten where class size is 22 or more, at the daily rate of 2 1/2 hours. Support will be provided at the minimum rate of 1 1/2 hours per class where multi-aging takes place. Support will be increased in half hour increments as average class size increases as follows: 22 to 23 and so on in grades 1 and 2; 24 to 25 and so on in grades 3 and 4; 26 to 27 and so on in grades 5 and 6

Maximum support provided any class will be 2 1/2 hours.

(Budget for 1975-76 Fiscal Year, "Salaries of Teachers," p. 15.3)

(g)	Support Teachers cannot reject assignments at will.

(h)	Non-retention of Support Teacher is recommended by building Principal.

Item 11.	Support Teachers are paid $6.80 per hour. Their salary is set by the Board of Education. They receive checks monthly under a special payroll as do the supplementary teachers, bedside teachers and substitute teachers. Regular teachers receive a check on the fifteenth of the month and [at the] end of the month.

Item 12.	Support Teachers are not paid if they are absent.

Item 13.	A substitute is not appointed for an absent Support Teacher, except if there is a long absence of a Support Teacher, that Support Teacher is replaced.

Item 14.	Support Teachers do not receive sick days, personal/professional days, medical insurance, or other benefits beyond $6.80 per hour.

Item 15.	We think that Support Teachers generally are not offered or expected to advise extra-curricular activities, but do know that on occasion some Support Teachers have attended "back to school night" and "grade nights" on their own time.

Item 16.	Support Teachers almost never substitute for absent teachers; there would have to be a real emergency when the school could not get another person from the master list as a substitute.

Item 17.	Support Teachers do not monitor hall duty, bus duty, study hall, homeroom.

Item 18.	Fair Lawn Education Association has been recognized for bargaining purposes since the first written agreements were authorized by Ch. 303, Public Laws of 1968, but had been recognized as representative of the Fairlawn Teachers for more than 20 years.

Item 19.	The first written agreement between FLEA and Fairlawn Board of Education was executed before school began in September, 1969.

Item 20.	The unit recognition language has remained either the same or substantially the same since the initial 1969-1970 contract. On November 17, 1969, the school authorities then hired two fifth grade teacher assistants for two to two and a half hours per day. At that time the education association did not raise a claim to represent those teacher assistants. When the present unit recognition language was agreed to in the first contract, there were no support teachers but there were supplemental, substitutes and bedside teachers and the subject of support teachers was not discussed by the contracting parties. In fact, the subject of including them in the unit recognition language was not discussed until after the 21 support teachers were hired for the 1974-1975 school year. When the subject was first raised by the association in its contract proposals around February, 1975, when the association proposed eliminating the phrase "under contract," and also deleted reference to "teachers" salary guide in the unit recognition article 1.

Item 21. Written agreements exist covering these years: 1969-70; 1970-71; 1971-73; 1973-74; 1974-75; 1975-76. Negotiations underway for 1976-77 agreement.

From the testimonial and documentary evidence elicited at the hearing, I make the following additional findings of fact:

4.	The Board and FLEA commenced negotiations towards a first formal written agreement in the summer of 1969. At about this time or shortly prior thereto, the parties agreed to exclude substitute teachers, bedside teachers, and supplemental teachers from the unit. Supplemental teachers currently work on a one-to-
one basis with children with learning disabilities. While the functions and purpose of supplemental teachers in 1969 is less clearly delineated in the record, they did then work individually with students in a similar fashion. FLEA decided not to have substitute and bedside teachers represented in the unit, in part because the groups were too nebulous to define. FLEA approached the supplemental teachers about being included in the unit, but the supplemental teachers declined and FLEA did not pursue the matter further. Thus, FLEA has never claimed to represent substitute teachers, bedside teachers, and supplemental teachers.4/

5.	The parties entered into their first formal written agreement on September 18, 1969. The recognition clause of that agreement, as it has reference to the instant issue, is essentially the same recognition clause embodied in the 1974-1975 agreement, which was in effect when the present dispute arose. In November 1969 the Board hired two teacher assistants as auxiliary teachers. These aides worked with groups of students of overpopulated classes performing functions similar to those performed by support teachers. The teacher assistants could be termed support teachers, but their numbers remained small until the 1974-1975 school year, when their number increased from two to twenty-four, and the educational concept for their being and a program structure concerning their utilization first became clearly defined. A witness who testified as to the teacher assistants during their first years confused them with supplemental teachers. FLEA first demanded to negotiate on behalf of support teachers during negotiations for a successor to the 1974-1975 contractual agreement. The Board has not negotiated with FLEA over support teachers.5/

6.	Support teachers are designated by building principals to work with a particular teacher or teachers. For example, in one situation a support teacher will work in the classroom setting with the regular teacher, either with a small group of students, or with the majority of pupils while the regular teacher works with a small group. In another situation, the support teacher removes an assigned group of students from the class for independent instruction. A group of students may be gathered from several classrooms.6/

7.	Beyond the possible request by a regular teacher to a principal that a support teacher be assigned, the regular classroom teacher is not in any way involved with the hire, fire or discipline of a support teacher, nor with the determination to assign a support teacher to the teacher. Support teachers are evaluated and observed by the building principal. The principals will irregularly and informally discuss a support teacher with the regular classroom teachers; however, the context of these conversations are not intended to be formal reviews concerning any observations.7/

8.	A support teacher working independently with a group of pupils outside the classroom generally does not coordinate the instruction of that group with the classroom teacher. A specified group of pupils is more or less permanently assigned to the support teacher. The support teacher is, within the framework of the curriculum guide, responsible for preparing her own lesson plans, developing and administering any tests, and submit a grade for the pupil in the subject matter taught. In no instance has a classroom teacher questioned or rejected that grade. Additionally no other teacher will instruct the pupil in the subject taught by the support teacher.8/

9.	A support teacher working in a classroom with the regular teacher may "pick up a lesson" for the classroom teacher. The support teacher will thus be expected to teach certain subject matter as directed. The classroom teachers consistently stated that in this context they do not instruct the support teacher on how to teach the material. Classroom teachers clearly consider themselves the ultimate authority in the classroom, but they state that the relationship between a teacher ad a support teacher is one of professional association rather than what might be expected of a student teacher-teacher relationship. Where the support teacher works independently in the classroom with a group of students, the regular teacher's only contact with that group is occasionally overhearing what is happening. A support teacher working independently in the classroom functions similarly to a support teacher who works outside the classroom.9/

10.	An example of a support teacher's role is demonstrated in the testimony of Betty Schwartzburg. In school year 1974-1975 Ms. Schwartzburg taught as a support teacher in the regular classroom, and presently, in 1975-1976, works as a support teacher in her own classroom.

Ms. Schwartzburg testified that as to 1974-1975 she worked in the classroom with nine students and was exclusively responsible for their reading and language program. She tested her pupils, graded them, gave them assignments, and was responsible for their daily work. She ordered teaching films directly. Both she and the regular classroom teacher worked together on lesson plans: the regular teacher setting forth coverage; Ms. Schwartzburg setting forth implementation. Ms. Schwartzburg testified that the school principal supervised her work, and would occasionally sit in. Ms. Schwartzburg had access to and used al teacher facilities. She did not participate in parent-teacher conferences.

In 1975-1976, Ms. Schwartzburg taught 18 students in the subjects of language arts and drug abuse. These students were assigned to her directly by the school principal according to their reading level. The principal explained Ms. Schwartzburg's precise assignment. Ms. Schwartzburg orders her own supplies, prepares her own lesson plans, gives tests, and records marks on the report cards. Her plan book is checked by the principal. If her pupils are to attend assemblies, she accompanies them. She also participated in class night. Ms. Schwartzburg doesn't know if she is formally evaluated.10/

DISCUSSION

Based upon the above facts, I conclude that the support teachers are regular part-time professional employees who are entitled to the rights of public employees as set forth in the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. I also conclude that, not unlike many situations involving part-time and full-time employees, the support teachers share a community of interest with the full-time teachers represented by FLEA. The interaction among classroom teachers and support teachers does not arise to a supervisory - non-supervisory relationship as contemplated by the Act. The regular classroom teachers do not hire, discharge, or discipline support teachers nor do they effectively perform the same.

The Board, however, asserts that a conflict of interest exists between support teachers and regular classroom teachers, stating in its brief that "the fact is that FLEA has nurtured a paranoid apprehension that support teachers will erode the total number of classroom teachers employed." The Board further states that its concern "is that the entire support teacher program that has proven so salutatory as to educational aims and goals may now be completely eradicated."

There is no evidence in the record to support the Board's fears. First, the testimony of John Farah, FLEA vice-president, as to the reason why FLEA desires to represent the support teachers and the manner in which it intends to represent them fails to give substance to the Board's claim.11/ Secondly, the record evidence demonstrates, and the Board agrees, that the advent of the support teacher program, has not led to a reduction of regular classroom personnel. The "conflict of Interest" as the Board sees it, is not the kind of conflict described by the Supreme Court in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), in which the loyalties and obligations of certain personnel to the employer vis-a-vis other employees warrant against the mixture of certain titles in the same negotiations unit. Rather, the "conflict" argued by the Board is the anticipation of an ill motive on the part of FLEA resulting in the failure of FLEA to provide fair representation to the support teachers. Without an evidentiary basis, the undersigned cannot recommend that the Commission presume ill motive on the part of FLEA and that FLEA will not effectuate its statutory obligation to fairly represent the interests of its constituency. Ultimately, the Board's concerns for the aims of its support teacher program and the continuation of that program reside within itself. These concerns will no doubt be reflected in the manner in which the Board approaches negotiations over terms and conditions of employment with FLEA, regardless of whether FLEA represents support teachers or not.

The Board also attributes the prospect of ill motive to FLEA by stating that the support teachers do not wish to be represented by FLEA. The Board gleans this position from letters sent to the Commission from the support teachers after they had been advised by FLEA that it had filed an unfair practice charge with the Commission seeking the extension of the FLEA contractual benefits to support teachers and that their names were included on the papers filed. These letters generally indicate no support among the support teachers for FLEA's action. However, the undersigned cannot completely deduce from these letters that the support teachers do not wish to be represented in FLEA's negotiating unit. One support teacher, Ms. Rowena Stecker, has indicated that her letter was sent after she became aware that her name was being submitted on a particular petition, and that her letter stated that this was being done without her knowledge. Ms. Stecker testified that she did not at any time give any thought to her opinion as to being included in the FLEA unit (T. 4/23/76: 66-71). Ms. Stecker's letter, Exhibit PE-5 and annexed hereto as Attachment C, is contradictory to her testimonial evidence. However, the other letters in evidence, PE-1 through PE-6, generally reflect the support teachers' disapproval of the use of their names without their knowledge and consent. With the exception of Ms. Stecker's letter, there is no mention in the support teacher letters as to whether the support teachers considered themselves represented or desired to be represented by FLEA.

Having concluded and recommended that support teachers are public employees who share a community of interest with the employees in FLEA's negotiating unit, the undersigned next must consider whether the support teachers should be included in the FLEA unit without an election.

It is clear that support teachers were not initially included in FLEA's unit. Support teachers were non-existent at the time of the unit formation. Shortly thereafter, in November 1969, two "teacher assistants," which title might be considered the progenitor of the support teacher title and educational concept, were hired. The undersigned concludes from the record that the support teacher title was inchoate until the support teacher program mushroomed in 1974-1975.

FLEA strenuously argues that, if support teachers are found not to be already in its unit, the Commission's responsibility to determine the "most appropriate unit" would warrant the inclusion of support teachers in its unit. FLEA also draws attention, in its brief, to the experience of the National Labor Relations Board, which has on occasion ordered that new employee classifications be included, without an election, in established bargaining units.

The undersigned has carefully considered FLEA's arguments, and has investigated the experience of the National Labor Relations Board in analogous situations.

The Commission's responsibility to determine the "most appropriate unit" in disputed matters, In re State of New Jersey and Professional Association of New Jersey Department of Education, 64 N.J. 231 (1974), arose within the context of numerous representation petitions brought before the Commission seeking the certification of various units of professional employees employed by the State. At the time of the petitions, the representation of State professional employees was an unchartered area. The Supreme Court stated that the Commission's responsibility in light of the various circumstances involved, was to fashion "the most appropriate unit" and "the unit it deemed best."

This standard is not automatically transferrable to clarification of unit proceedings. In a clarification of unit proceeding, the petitioner seeks a clarification of the description or composition of an already fashioned negotiating unit. The proceeding is not sanctioned for the purpose of reshaping the unit because it might most appropriately consist of something else. To the extent that it is applicable, the "most appropriate unit" standard is helpful in determining whether the general descriptive language already contained in a contractual recognition clause or unit certification is applicable to the employment title in question. In this regard, it is relevant to note that while the Commission has been directed to employ the "most appropriate unit" standard in disputed unit certification proceedings, the Act permits a public employer to voluntarily recognize a representative for an "appropriate unit." Thus, a unit may be recognized on the basis of its appropriateness, although it may not be the most appropriate unit that could have been fashioned. Where there is so, the parties have voluntarily consented to this arrangement. The scope of the unit should not be disturbed without compelling reason.

A petitioner seeking to enlarge the scope of an otherwise appropriate negotiating unit is best directed to the Commission's unit certification procedures, where the "most appropriate unit" standard is properly applied. The filing of a certification petition raises a question concerning representation. In such cases, the Act embodies a clear directive to the Commission "to resolve questions concerning representation of public employees by conducting a secret ballot election or utilizing any other appropriate and suitable method designed to ascertain the free choice of the employees." (N.J.S.A. 34:13A-6(d)) (To date, the Commission has relied exclusively upon the secret ballot election mechanism to resolve questions concerning representation.) However, not all additions of personnel to units raise questions concerning representation. For example, in some cases the employment of personnel in newly created job titles raises issues which are best resolved through a clarification of unit proceeding. A Commission determination that the description of the negotiating unit properly warrants the inclusion of the personnel in the newly created titles in the existing negotiating unit would result in a direction that these personnel be represented by the employee representative without their being granted the opportunity to exercise a free choice as to their negotiating agent.

An example wherein an "accretion"12/ by unit clarification is appropriate is found where an employee representative represents a large unit of all blue collar municipal employees. Subsequent to the formation of the unit, the employer creates a new employment operation and title, and hires a small number of employees in that title. After a hearing, it is determined that the title is a blue collar title and that the employees in the title without doubt would have been included in the unit when it was created if the title had then existed. Such circumstances would warrant the inclusion of those employees in the unit notwithstanding the fact that they would not be given the opportunity to exercise a free choice. The exercise of free choice would be incompatible with the earlier choice of a majority of blue collar employees to establish a blue collar unit. It would provide an opportunity to a minority group of employees to "opt out" of a unit into which they naturally belong -- a privilege, which due to the compelling policy reasons that a majority determine the representational status of the unit, is not available to other minority groups of employees without extenuating reasons. Analogously, the employees in newly created titles are entitled to no greater free choice rights than new employees in titles originally placed in the unit. The public interest in preserving stable employment relationships would, in view of the potential disruption to the existing negotiating relationship, mandate that these employees be included in the unit.13/

Great care must be taken by an administrative agency to insure that a matter placed before it as a clarification of unit petition does not result in the illegitimate disenfranchisement of unrepresented employees. Insofar as the process culminates with the possible inclusion of employees in a unit without an election, an accretion should be permitted only in appropriate situations. Those cases in which the National Labor Relations Board have considered accretions reflect this concern.

The Board has most recently stated in Fairleigh Dickenson University and Fairleigh Dickenson Council of American Association of University Professors Chapters, 227 NLRB No. 40 (1976), that "in each case the total circumstances are necessarily considered." The undersigned agrees. After considering the total circumstances, key factors may be identified and be accorded appropriate weight as warranted by the facts. Some factors in a case might support an accretion while others might not. For example, in Bradford-Robinson Printing company and Lithographers and Photoengravers Int'l Union, 193 NLRB No. 139, 78 LRRM 1406 (1971), the union sought clarification to include lithographic production employees working in a separate location for a newly established subsidiary. The Board identified (1) the functional integration of the two operations, and (2) language sufficiently broad in the contract to embrace the second facility's operation and employee classification, as factors militating towards accretion. However, the Board denied clarification because of numerous considerations weighing in favor of finding the second facility a new operation that would constitute a separate appropriate unit. In this regard the Board has further distinguished among cases in which the new employees were hired to do work that had previously been performed by unit members, and new types of work. Compare National Cash Register Company and Federation of Business Machine Technicians and Engineers Association, 170 NLRB No. 118, 67 LRRM 1541 (1968), and Worthington Corporation and Local 212, Office Employees Int'l Union, AFL-CIO, 155 NLRB No. 18, 60 LRRM 1267 (1965).

Additional factors commonly identified as militating in favor or against clarification include an analysis of similarities and differences in job functions, responsibilities, work location and hours, use of facilities, supervision, benefits, interchange of ideas and mutual problems, and use of initiative and judgment. See, for example, Massey-Ferguson, Inc. and Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 202 NLRB No. 20, 82 LRRM 1532 (1973); Worthington Corporation, supra; and Bradford-Robinson Printing Co., supra. These factors would normally constitute community of interest considerations applicable to questions concerning representation. This would necessarily be so, inasmuch as employees must share a community of interest to be in the same unit. However, the Board cases indicate that in order to support an accretion, the community of interest among the employees must be substantial and not that of a casual nature.

Other factors relevant to an accretion determination include whether the petitioner may have abandoned its claim to the employees either by negotiation, or a waiver by inaction. See Massey-Ferguson, supra, and Remington Rand Division of Sperry Rand Corporation and Local 212, Office Employees Int'l Union, AFL-CIO, 132 NLRB No. 92, 48 LRRM 1478 (1961). The failure of the parties to include an existing title in the unit at its formation may be mitigated by the inchoateness of the title. See National Cash Register Company, supra.

Considering the entire circumstances in the instant matter, the undersigned concludes that this is an appropriate situation for accretion. There is a substantial community of interest among regular teachers and support teachers. While their fringe benefits differ, not in small part due to the support teachers part-time nature, they share the same facilities, have common supervision, have common responsibilities, perform virtually identical job functions, utilize identical initiative and judgment, and engage in a professional interchange of ideas and mutual problems. If the Commission were presented herein with a certification petition in which a dispute arose as to the appropriate unit, there is no doubt in the undersigned's mind that a professional unit of all instructional personnel would appropriately include the support teachers. The Commission has clearly favored the creation of broad-based negotiations units where such units are appropriate, without discrimination among full time and regular part-time employees. (This policy of avoiding potential fragmentation is not the exclusive determinant of what constitutes the most appropriate unit. Other circumstances and considerations might warrant that separate units of all part-time personnel and ful-time personnel be found most appropriate However, this would not be the case herein.)

The evidence reveals that FLEA abandoned any claim to represent employees in those part-time classifications in existence at the time of the formation of the negotiating unit. It appears that at that time, FLEA had knowledge of various groups of part-time personnel in the district, it considered the appropriateness of including these groups in the unit and had even asked the supplemental teachers to be part of the unit sought to be recognized, but acceded to their desire not to be included. The Board and FLEA entered into a recognition agreement under these circumstances. The Board thereafter created a new category of part-time personnel; however, while the educational format is non-traditional, the duties of support teachers are substantially the same duties traditionally performed by the regular full time personnel. In effect, work performed by FLEA unit personnel when the unit was formed is now also being performed by part-time employees, who are sometimes doing the work physically beside the unit personnel. Surely, if the Board had chosen to employ full time personnel to perform support teacher tasks, there would be no doubt that these specialists -- similar to art teachers, music teachers, and other specialists -- would fall within the scope of the unit originally intended. Support teachers who are employed on a regular part-
time basis should share similar representation. FLEA's limitation of its unit to regular certificated employees on the salary guide, excluding thereby substitute, bedside and supplemental personnel, cannot be interpreted as an abandonment of any right to represent part-time personnel who are hired to perform regular teacher functions.

Where an employer is entitled to hire personnel in a new employment title to perform the work of represented employees, and is entitled to treat those personnel as outside of the unit, the stability of employer-employee relationship is jeopardized and the purpose of the Act is frustrated. The educational decision to hire support teachers is a managerial decision, permissively negotiable at the employer's option. So too, is the decision of how many employees, and in what categories, the employer desires to employ. The undersigned has no reason to doubt the educational commitment of the Board in having a support teacher program, lauds that program, and finds from the record no malicious intent on the part of the Board. However, if, as the Board claims here, the employee representative's concern is for the protection of its constituency, that is not an illegitimate concern. If FLEA does not perform pursuant to its statutory responsibilities, appropriate procedures before the Commission are available.

I therefore conclude and recommend, for all the reasons aforementioned, that the circumstances herein warrant that the unit represented by FLEA be forthwith clarified to include those personnel employed as support teachers by the Fair Lawn Board of Education.14/

Respectfully submitted,

/s/Joel G. Scharff

Hearing Officer

DATED:	February 9, 1977

Trenton, New Jersey