H.O. NO. 84-16

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EGG HARBOR TOWNSHIP,

Public Employer,

-and-	Docket No. RO-84-52

EGG HARBOR TOWNSHIP SUPERIOR

OFFICERS ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Steven S. Glickman, Esq.

For the Petitioner

Edgar Unsworth & Alfred Lisicki, pro se

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

On October 28, 1983, a Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission ("Commission") by the Egg Harbor Township Superior Officers Association ("Association") seeking a collective negotiations unit of the police chief and the police captain employed by the Egg Harbor Township ("Township") (C-1).1/

In its response filed November 14, 1983,2/ the Township objected to the unit. It argued that the chief was a managerial position within the definition of the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act") and that this position should therefore be excluded from the unit and since a one-member unit is not appropriate the police captain would not be entitled to form a unit, even if his position were to be established as non-managerial.

Pursuant to a Notice of Hearing issued December 8, 1983, a hearing was held January 5, 18 and 23, 1984. At the hearing, the parties were given an opportunity to examine witnesses, to present evidence and to argue orally. The parties waived oral argument and both submitted post-hearing briefs by April 6, 1984. Neither party filed reply briefs and the record was closed.

Therefore, a dispute exists concerning the composition of a collective negotiations unit and the matter is properly before the Hearing Officer for Report and Recommendations.

Issues

1.	Is the police chief of Egg Harbor Township a managerial executive within the meaning of the Act?

2.	Is the police captain of Egg Harbor Township a managerial executive within the meaning of the Act?

Findings of Fact

Based on the entire record of these proceedings the Hearing Officer makes the following findings of fact:

1.	Egg Harbor Township is a public employer within the meaning of the Act; it is subject to the provisions of the Act (T1. 10).3/

2.	The Association is an employee representative within the meaning of the Act; it is subject to the provisions of the Act (T1. 10).

3.	The Township of Egg Harbor is governed by a five member Township Committee ("Committee") (T1. 86). All members are elected and serve part-time. One member of its Committee serves as its chairman and holds the title "Mayor." The Committee is divided into sub-committees, each of which oversees a specific operation of the Township's administrative departments (T1. 87; J-2 Section 2-8.3).

4.	The Township administrative organization is divided into various departments: communications, roads, courts, finance, treasury, recreation, buildings and police (T3. 61-62). A department head manages each department and reports directly to the Committee (T3. 63). The Committee is vested with authority to oversee the various Township departments including the police (J-2 Section 2-8.3). There is no chief administrator for the Township (T3. 63).

5.	The police department has 51 officers (T3. 31, 92). Its budget for 1978 was $65,000 a year; in 1980 it had increased to $150,000 per year (T3. 29). The 1983 budget request was for $375,000; the Committee approved a budget for $250,000 (T3. 30). The chief is the executive officer of the police department; his position is similar to that of all the other department heads (T3. 58; J-2 Section 2-8.4). Next to the chief, in descending order of supervision, is the administrative captain (J-75) - a position whose status is the subject of this proceeding.

The police department is further divided into two sub-
divisions (J-75): the Criminal Investigation Division ("CID") and the Patrol Division. These divisions have equal status. Patrol division is commanded by Lieutenant Habermarhl (T1. 41). The division commanders report directly to the captain and chief (J-9, 75). They oversee and direct the work of sergeants, patrol officers, and clerical staff (T1. 55). The functions of CID staff are to conduct various criminal and civil investigations, internal police investigations, criminal history and background checks on applicants for liquor or merchantile licenses (T1. 27), and other related duties (T1. 55). The functions of the staff in the patrol division include traffic duty, vehicle auctions, and taxi safety inspections (T1. 61, 71).

Division commanders take directions from both the chief and Committee members (T1. 41). Committee members often make direct inquiries of the CID's and patrol division's staff regarding ongoing investigations, vehicle inspections and vehicle auctions (T1. 61). For example, patrol division was recently given direct orders by Committee members, to expedite car auctions (T1. 61) and to forward all requests for street lights directly to the Committee clerk's office for approval (T1. 66, 67).

Changes in the table of organization for the police department are finalized by the Committee, sometimes upon the recommendations of the chief (J-71, 72, 73). Recently the chief recommended a single administrative captain position, the one in dispute here; this recommendation was adopted (J-3, 9, 37, 39, 75 Section 2-8.4a).

6.	Sergeants, lieutenants and all full-time patrol officers are in a collective negotiations unit represented by Local 77, P.B.A. Inc. ("PBA") (J-1). Negotiations between the Committee and the PBA are conducted by members of the Committee itself (P-1). The chief is not included in either the actual negotiations or Committee caucuses (T2. 12). The chief has participated in collective negotiations twice in the last few years: in 1976, for the 1977-78 contract and in 1978, for the 1979-80 contract. His participation was limited, though he did represent the Committee and attend its caucuses. His participation involved advisory duties but no participation in any decision-making processes (T2. 11-13). He was not asked to participate in collective negotiations for contracts covering the years 1981, 1982 or 1983 (T2. 12). Since the earlier negotiations, the chief has had no involvement in collective negotiations.

7.	Chief Unsworth was appointed acting police chief in October 1976 and his position was made permanent July 1977 (T2. 10; J-4). The chief's job description and duties are set out in Section 2-8.4 of the Egg Harbor Ordinances. According to that section, his responsibilities in the Township are commanding the police force, controlling the assignment and stationing of the members and directing the police work. His authority is subject to the Committee's rules, regulations and orders; he may also perform other duties required by the Committee. The terms and conditions of his employment are set by the Committee. His salary, vacation schedule, sick leave, authorization to attend seminars, and expense reimbursements are all approved or disapproved by the Committee (J-15 24, 29, 49). However, the chief is responsible to file a monthly activity report with the Committee (J-16, 35).

8.	Police Captain Alfred G. Lisicki was appointed captain in December 1979 (T2. 14; J-5, 7) and, as all captains, he served as a division commander (J-9, 71). Prior to that he served as a lieutenant, as a sergeant, and as a patrol officer in the Detective division. However, as of 1981, the captain's level of authority has changed: the police department's table or organization was changed to provide for only one administrative captain's position (J-75). Thus, Mr. Lisicki's responsibilities increased. These changes were reflected in revised job specifications (J-3). Since 1980, the Committee has been responsible for setting all terms and conditions of the captain's employment (J-6, 24, 25).

Section 2-8.4a of the Township's revised Ordinances sets out the duties of the captain's position. This section indicates that the rank of captain is next in command to that of the chief and is superior to all other ranks in the police department. The captain's duties include: initiation of appropriate discipline for neglect of duty or for disobedience of orders by department employees; issuing of orders to assure public safety and efficient operation of the department; planning activities for the health and welfare of the citizens. Section 2-8.4a also authorizes the captain to instruct subordinate supervisors on their duties; to ascertain that personnel are attired in the proper uniform and have the proper equipment; and to assist the chief in the performance of all his duties. Additionally, he is responsible for the maintenance of records and files and may perform police duties as required (J-2).

9.	Pursuant to 2-8.3 of the Township Ordinances, the Committee is vested with the power of the "supervision, regulation and control of the police department" and the "authority to appoint, suspend, try and remove all officers, members and employees of the police department" (J-2). Programs and policies of the police department are established by the Committee as a whole, some of which include a scuba program (J-
8), a police vehicle inspection program (J-13; P-1), the explorers program (J-78), and the ECHO program (J-79). Additionally, there is a bomb emergency program which establishes the mayor as the primary emergency control officer and the chief as the third in command. Finally, there is a training, testing and awards program (J-50) and an auto disposal program (J-64; T1. 64-69). The Committee designated enforcement of parking regulations (J-54) and taxi cab inspections to specific police officers. The Committee has decided that the deputy mayor has final approval of street lights (J-48). The Committee also oversees various routine projects such as no parking regulations (J-44), debris and weed complaints (J-18, 35, 36, 52), traffic control assignments and speed signs (J-52), and court appearances (J-53). Pursuant to Township Ordinance (J-2 Section 2-8.10) the Committee promulgates policies, rules and negotiates collectively with the PBA and establishes police department programs (P-1; J-
8, 13, 37, 48, 78).

10.	The Committee sets the budget for the police department. The parties made the following stipulations regarding the budget (T1. 20):

E. BUDGET PREPARATION

1.	The superior officer in charge of each section prepares the budget for his section and submits it to the Services Division.

2.	The Services Division coordinates the budget submissions from all sections and submits the budget proposal to the Chief of Police.

3.	The Chief of Police reviews the budget, and with his administrative staff has a short budget meeting with the governing body.

4.	The entire salary and wage portion of the budget is contractually controlled. Over ninety (90%) percent of the other expense portion of the budget is covered by the Collective Bargaining Agreement.

5.	The governing body determines the amount to be included in the other expense portion of the budget. Sometimes the governing body notifies the Chief of Police where to make reductions in the budget or which line items to eliminate. Sometimes the governing body notifies the Chief of Police of his operating expense budget, and permits the Chief of Police to determine the amounts to be allotted to the various line items.

The Petitioner in this case indicated that "sometimes" means that the chief is not always delegated power for the allotment of an amount in budget line items (T1. 20). The Employer indicates that "sometimes" means "not always" (T1. 20). Recently, the police sub-committee directed the transfer of $20,000 from the department's general operating fund into a special expense fund without consulting with the chief (J-23).

Each division commander in the police department has prepared a proposed budget for his own section; it is based on current and anticipated operating expenses. These proposals are submitted to the chief. The chief forwards these requests to the police sub-committee for review and final authorization (the chief does review these but does not revise the budget proposals himself) (T3. 28-31).

The Committee then schedules budget hearings. At that time, the chief and other officers are afforded an opportunity to explain, clarify and justify the department's budget requests (T3. 5, 8, 69). The Committee then reviews each line item (T3. 28-29). Although the chief's recommendations are important to the Committee, it is the Committee that grants final approval of the police department budget (T3. 9). The chief is not included in the Committee's deliberations and plays no role in the decision-making process to determine the final budget amounts. The money appropriated for each category establishes the spending limits for the department's operations (T3. 30) and purchases, including limits for such items as police vehicles (T3. 5) and personnel expenses (T3. 42; J-22). The chief may not exceed the limits established in each category nor may he reallocate money among the categories (T2. 28, T3. 72). However, changes in budget appropriation may be made by the Committee. The chief is then informed of such changes and he cuts expenditures accordingly (T3. 72). When the chief anticipates that expenses for a particular line item will exceed the amount allocated, he requests that the Committee make adjustments to those budget items (T3. 29; J-32).

11.	The parties stipulated the following facts regarding expenditures for budgeted items and the operation of the police department (T1. 16):

C. EXPENDITURES

1.	Standard Township procedure is for three (3) signatures to be attached on any and all vouchers submitted to the Township for payment from any department.

2.	In general, all vouchers submitted by the Police Department are approved. The exceptions are as follows: (1) Very few vouchers where the individual's name appears; (2) Where the voucher submitted is for a non-budgeted item, and; (3) Where "Mid-term" budget revisions reduce the amount of the police department operating expense budget.

3.	Discretion for expenditures are [sic] generally left up to the Chief of Police, so long as he stays within his other expense budget. However, as stated previously, discretion is limited by contractual requirements.

Within the voucher system required for payment of expenses, the chief has limited discretion. As noted previously, he is not permitted to reallocate money from one budget category to another (J-32). The Committee reviews and approves all expenditures and three signatures of its members are required for payment to be made for expenses (T3. 70; P-1). The payments are only made after the Treasurer certifies that funds are available. All departments use the same system of voucher and receipts (T3. 10). Although the chief has discretion to sign vouchers, the money must still be certified through the Treasurer and paid by the Committee as a whole (T3. 10-18). However, there have been occasions when vouchers signed by the chief and certified by the Treasurer have not been paid for expenses of the police department (J-15, 21). Also, certain expenses have not been approved for the chief, such as his attendance at conferences. In one case, certification of money available was made by the Treasurer, however, expenses were not reimbursed; the Committee offered no explanation (T3. 83, 88-91). Additionally, on one occasion the chief was disciplined for exceeding the limited amount of allocated money in the budget for the purchase of police vehicles (J-22). On another occasion, a suggestion made by a member of the Committee to purchase certain fire extinguishers for the cars was not acceptable to the police department (J-13), and therefore a recommendation against the purchase was made.

The chief is authorized to sign vouchers for purchases of $4,500 or less (T3. 23). For items costing more than $4,500, the chief is expected to submit the specifications for bid solicitation (T3. 23); if an item is under $4,500 and an approved budget line item, the chief may make purchases and take delivery before the voucher is signed (T3. 24, 26-27). Vouchers are also used to pay individual employee's expenses after certification that they are "legally correct" and the money has been "appropriated" (T3. 73, 74). However, since the chief's expenses for an ICAP conference were disapproved (T3. 76; J-21), it is not clear what "legally correct" refers to. (Witnesses did not define this term when used).

12.	The Committee bargains collectively with the PBA (P-1). The chief is not now included in this process. In the past, the chief sat in on collective negotiations but his participation was limited to that of advisor. In fact, his participation ceased altogether after the 1979-80 contract (T2. 4). He no longer participates in the Committee caucuses or in collective negotiations with the PBA (T2. 12, 13). However, he does serve as the Township's representative at step 2 of PBA's contractual grievance procedure and he serves in an informal capacity at step 1 (J-1). The parties stipulated the following facts (T1. 16);

D. GRIEVANCE PROCEDURE

1.	Prior to using the grievance procedure, the Sergeant, Lieutenant and Captain try to resolve the grievance. The Sergeant, Lieutenant and the Captain have the right to resolve the grievance on behalf of the Township.

2.	Any departmental grievance (i.e. vacation scheduling) based upon an order by the Chief of Police can only be decided by the Chief.

However, the Committee (Township) has authority over the chief to resolve grievances at step 3 (T1. 17). The final step of the process is binding arbitration (T1. 18).

3.	Pursuant to the first and second steps of the grievance procedure, the Chief of Police hears the grievance and has the right to resolve the grievance. The Chief does not have to check with the Police Committee or any other individual prior to settling the grievance.

13.	The parties stipulated to the following facts regarding the hiring of personnel for the police department (T1. 22):

F. HIRING

1.	The Police Department maintains a list of all eligible applicants.

2.	Interviews of prospective applicants are conducted by the Chief of Police, the Police Committee, and a Chief of Police from outside the Township.

3.	Interviews are conducted as a body, and the entire interviewing committee decides whether an applicant goes on the eligible list.

4.	The Police Committee or governing body determines the number of new hires.

5.	The Police Committee informs the Chief of Police as to the number of new hires, and requests the Chief to forward to the Committee the names and applications of the top applicants.

6.	The governing body selects the new hires from these applicants.

The chief keeps a separate file of the names of eligible applicants for police department positions (J-38). He uses this information to make hiring recommendations to the Committee which then makes the final hiring decision. Promotions are handled in the same way (J-41, 81).

14.	The parties stipulated to the following facts regarding performance evaluations (T1. 23):

H. EVALUATIVE FUNCTIONS

1.	Evaluations are performed annually.

2.	Evaluations are performed by the officer's immediate supervisor and submitted to the Chief of Police and Captain.

3.	The evaluations are utilized by the department at the training level for the purposes of training.

Evaluations are made annually by the employee's immediate supervisor; these evaluations are submitted to the captain and chief. This material is kept by the captain in locked files (Stip. A-8). Three people have access to these files -- the chief, the captain and the chief's secretary.

Regarding the training of employees, the parties stipulated as follows (T1. 22):

G. TRAINING

1.	The major portion of training entitlement is covered by the Collective Bargaining Agreement. In-service training is handled by the training officer of the Police Department.

15.	The parties stipulated to the following facts regarding disciplinary procedures (T1. 5):

B. DISCIPLINARY PROCEDURE

1.	The Sergeant, Lieutenant and Captain have the right to give verbal and/or written reprimands and emergency suspensions.

2.	If there is an allegation of violation of departmental rules and regulations, an investigation is undertaken. After the investigation is completed and if charges are filed, the Chief of Police hears the case.

3.	The Chief of Police has the right to suspend any officer for up to a maximum of five (5) days without further authorization. The Chief of Police notifies the Police Committee of all suspensions.

Stipulation #3 is modified to indicate that Section 2-8 of the Township Ordinance is on the record as Exhibit J-2 (T1. 5). Petitioner clarifies stipulation #3 to indicate that every suspension decision made by the chief is subject to the governing body's approval or disapproval (T1. 5).

4.	Any action or violation or charge which could result in demotion or dismissal must be heard by the entire governing body.

The Employer agrees that the governing body is notified (T1. 14)l

A. DAY-TO-DAY OPERATIONS

* * *

8.	Maintenance and Personnel Files: Personnel files for all police department employees are kept under lock and key in the office of the Secretary to the Chief of Police. The only employees having access to these files are the Chief of Police, Captain, and the Secretary to the Chief of Police.

The Committee is empowered to hold hearings to determine just cause for the removal, demotion, suspension, firing or other penalties imposed on department employees (P-1; J-2 Section 2-
8.15).

The chief is empowered to suspend patrol officers for a maximum of five days pending a hearing (T3. 32, 46, 77-79, 82; J-
55, 60, 61, 62). He also hears disciplinary appeals and contract grievances (T3. 34; P-1; J-9, 63). However, the Committee may choose to hear disciplinary matters rather than have the chief hold the hearing (T3. 35, 79-82; J-34, 46).

The Committee has authorized both the chief and the captain to conduct internal investigations (T3. 33, 46, 86, 87; J-46). However, the Committee, itself, has inquired into employees' use of sick leave, disability leave (J-83) and into some police officers' behavior at open Committee meetings (J-1). The parties stipulated to the following (T3. 96):

The township attorney recommended to the Committee that it, rather than the chief, hear certain, if not all, disciplinary matters so that the chief could avoid any conflict of interest.

The Committee is empowered by Section 2-8.14 and 15 of the Township Ordinances to decide "just cause" and hear charges against all police officers (J-2).

16.	The parties stipulate to the following facts concerning the day-to-day operations of the police department (T1. 11):

A. DAY-TO-DAY OPERATIONS

The day-to-day operations of the department, other than the work hours, which is contractually controlled, are handled by various superior officers through the chain of command. The day-to-day operations are enumerated below, along with the superior officer directly responsible for that operation:

1.	Shift Assignments: Shift assignments are the direct responsibility of the Lieutenant.

2.	Number of Men Per Shift: The number of men per shift is the direct responsibility of the Lieutenant.

3.	Daily Duty Assignments: Daily duty assignments are the direct responsibility of the immediate supervisor.

4.	When and Where Breaks and Lunches are to be Taken: The immediate supervisor is directly responsible for determining when and where breaks and lunches are to be taken.

5.	Vacation Schedules: Although the eligibility and procedure for selecting vacations is somewhat covered by the Collective Bargaining Agreement, all vacation schedules are approved through the Chief of Police, on behalf of the Township.

6.	Overtime Schedules and Approval of Overtime: The Sergeants are initially responsible for scheduling and approving overtime. Since the Captain is responsible for preparing the overtime vouchers, the Captain monitors the overtime. If it appears that there is substantial overtime for any divisions, section, or individual, the Captain will investigate and correct any situation requiring correction.

7.	Assignment of Police Vehicles: The assignment of police vehicles is the direct responsibility of the Sergeants and Division Commanders.

8.	Maintenance of Personnel Files: Personnel files for all police department employees are kept under lock and key in the office of the Secretary to the Chief of Police. The only employees having access to these files are the Chief of Police, Captain, and the Secretary to the Chief of Police.

Several examples show that the Committee takes an active role in the day-to-day operations of the police department:

It concerns itself with shift assignments, shift operations and revised schedules for police officers (T3. 12, 21-22; J-20, 82).

Although the chief implemented various changes in the department's operation, in early 1976, these changes were based upon recommendations of the Prosecutors Office and therefore the chief simply implemented those recommendations (J-67).

In 1980, the Mayor inspected the police vehicles and ordered a certain kind of propane fire extinguishers for use in patrol cars; however, these extinguishers were not appropriate for the police vehicles.

In 1983, the chief was required to answer an inquiry from the Committee concerning the number of department vehicles which needed replacement; the final decision on that matter was made by the Committee (J-45).

In February, 1983, the Committee made specific duty assignments -- it transferred a sergeant from one specific position to another because the Committee had become aware that the patrol unit was without a permanent sergeant (J-14, 17); it also authorized a particular sergeant to make training assignments (J-20).

The Committee regularly receives copies of memoranda concerning officer assignments and department general operating orders (J-20).

Sometimes, however, the chief does make reassignments of police officers from patrol divisions to the detective division (T3. 40).

The Committee is ultimately responsible for the approval of liquor licenses. On a regular basis, the CID reports on license applicants are sent to the Committee through the chief (T1. 55, 86). However, quite often the chairman of the license sub-
committee makes direct inquiry about investigations to the CID officers (T1. 43, 47, 55, 60, 85, 86, 87, 88). The chairman does this on a spontaneous basis, often when the captain or chief are not there. Therefore, the responsibility for notifying the captain and chief that the inquiry has been made falls on the CID police officers.

17.	Terms and conditions of employment for police officers are determined by contract (J-1). Division commanders assign overtime subject to final approval by the Committee (T1. 27) before the voucher for overtime pay is signed (T1. 13). Division commanders may also assign police officers to emergency duty upon approval of the chief (T1. 32-42) and subject to his further direction. During an emergency, division commanders may also authorize overtime. Division commanders exercise little discretion in assigning the overtime hours for high school activities because the number of overtime hours required has been predetermined by the school superintendent and the Committee (T1. 29).

Sergeants may authorize overtime for patrol officers who are required to stay to complete a particular assignment already in progress (T1. 42).

18.	The captain exercises some authority in disciplining patrol officers. In some cases, he conducts departmental hearings on grievances or for investigations of police officers (J-17, 64, 66). He is authorized to attempt to resolve contractual disputes and other grievances at the lowest level possible (T2. 18).

The captain plays a limited role in the preparation of the department's budget; he assists the chief in reviewing the division requests before they are submitted to the Committee (T2. 15, 16). He plays no role in the final decision-making process (T2. 17). He also plays no role in the interviewing or screening of candidates for employment or promotion.

Like the chief, the captain has no discretion on allocating money for daily expenses or for the general operation of the department (T2. 17-24).

The captain's terms and conditions of employment are set by the Committee and payment for expenses is by voucher (T2. 17). However some of his training expenses have not been paid (T2. 22).

Applicable Law

Managerial Executive

Section 13A-3(f) of the Act defines "managerial executives" as those "persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices,..."

Section 5.3 excludes managerial executives from the protections and rights afforded by the Act to public employees.4/

In In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 (¶11259 1980) affirming D.R. No. 80-32, 6 NJPER 198 (¶11097 1980) ("Montvale"), the Commission applying the definition in section 3(f), set forth the following standards for determining whether a person is a managerial executive as defined by the Act i.e., that a person formulates policy or directs its effectuation:

A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment sufficient to affect broadly the organization's purposes or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. 6 NJPER at pp 508-
509.

See, In re County of Bergen, Bergen Pines County Hospital, D.R. No. 83-8, 8 NJPER 535 (¶13245 1982) (adopting the standards set forth out in Montvale), request for review denied P.E.R.C. No. 83-76, 9 NJPER 47 (¶14022 1982) aff'd App. Div. Docket No. A-564-
82T2 (10/18/83) ("Bergen Pines").

In applying Montvale to subsequent cases, as in Bergen Pines, we have focused on the three factors enumerated in determining whether persons "possess and exercise a level of authority and independent judgment sufficiently to affect broadly the organization's purposes or its means of effectuation of these purposes" to be titled "managerial executive." Such persons need not have final responsibility for decisions but the level of authority exercised must meet the standard established.5/ The power claimed must be exercised regularly.6/ Additionally, "those chosen for directing and effectuating policy must be empowered with a substantial measure of discretion in deciding precisely how the policy should be effectuated." Montvale, D.R. No. 80-32, slip op. p. 22 (emphasis added).

Additionally, policy in a public employment context is defined as:

...the development of particular sets of objectives of a governmental entity designed to further the mission of the agency and the methods of achieving such objectives. Those who formulate policy are those who select a course of action from among the alternatives and those who substantially and meaningfully participate in the essential processes which result in the selection of a course from the alternatives available. Montvale, 6 NJPER 202.

Clearly, a managerial executive must have the authority to make operative decisions. In other words, a managerial executive must be allowed to exercise substantial discretion, independent of the employer's established policies and procedures, to set policy governing the objectives of a governmental entity and to fashion methods of achieving such objectives. This authority to make operative decisions on behalf of the employer is distinguished from mere discretion exercised by supervisory employees. Section 5.3 of the Act describes a supervisory employee as one "having the power to hire, discharge, discipline, or to effectively recommend the same."

Clearly, as we have previously indicated, good policy reasons exist for considering the chief law enforcement officer an essential member of the employer's management team. However, if there is a dispute over the functional responsibilities of a position, then we must examine these responsibilities very closely. For example, merely designating someone as "chief" would not automatically result in a finding of managerial status. As previously stated, managerial status is determined by analysis of the relative position of the employee in the organization hierarchy; the employee's functions and responsibilities; and the extent of discretion exercised.

In applying the Act's definition of managerial executive to the facts in this case, I find that neither the chief nor the captain are managerial executives.

Analysis

As in Montvale,

neither the chief nor the captain in Egg Harbor formulates managerial policy or objectives nor does either direct the effectuation of these policies in the police department.

Neither participates in final determinations regarding the department's budget, personnel complement, employee promotion and selection or employee discharge.

Neither participates in collective negotiations with the PBA.

Neither has authority beyond the second level of the contract grievance procedure to settle employee grievances.

Neither has authority or discretion to transfer funds from one budget category to another, to make purchases for the department, to approve personnel expenses, to authorize payments for overtime, or to establish department programs without approval of the police sub-committee or the Committee as a whole.

The police sub-committee oversees the police department operations very closely - often assuming responsibility for the payment of personnel and daily department operations. The chief's discretion in the exercise of his duties is merely routine and ministerial. The captain, who is the chief's subordinate, has even less authority and discretion.

In deciding the appropriateness of the unit proposed by the Association, it is necessary to determine whether a conflict of interest exists between the chief and the captain that dictates against the inclusion of both in the same collective negotiations unit. Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971).7/

With respect to police departments or quasi-military structures, the Commission has determined that patrol officers and superiors should be placed in separate units except in very small departments where the conflict of interest, if any, is de minimis.8/

In the instant case, the captain is directly subordinate to the chief; he acts in the chief's absence but has no greater authority. He, like the chief, hears grievances only at the first and second level of the department grievance procedure. The chief has no evaluative functions vis-a-vis the captain. Together they supervise the daily operations of the police department. It is evident that there is little, if any, conflict of interest between the chief and the captain that would dictate against a collective negotiations unit including both positions.

Based on the foregoing, I find the proposed unit appropriate.

Recommendation

1.	The positions of police chief and police captain are not managerial executives within the meaning of the Act.

2.	The unit proposed by the Association is appropriate for collective negotiations.

3.	A yes/no secret mail ballot election should be directed in the collective negotiations unit; eligible employees shall vote on whether or not they wish to be represented by the Association. The appropriate unit shall be: police chief and police captain excluding all other employees of Egg Harbor Township.

/s/Judith E. Mollinger

Hearing Officer

DATED:	June 22, 1984

Trenton, New Jersey