H.O NO. 83-6

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF TRENTON,

Public Employer-Petitioner,

-and-	Docket No. CU-82-65

AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES,

LOCAL NO. 2281,

Employee Representative.

Appearances:

For the Public Employer

Katz, Bitterman & Dougherty

(Michael L. Bitterman, Esquire)

For the Employee Representative

Carlton Steger, Council Representative

Council No. 73, AFSCME

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

On March 17, 1982, the City of Trenton (the "City") filed a Petition for Clarification of Unit with the Public Employment Relations Commission (the "Commission") seeking a clarification of a negotiations unit represented by the American Federation of State, County and Municipal Employees, Local 2281 ("AFSCME"). The City seeks the removal of the Sanitation Superintendent and Streets Superintendent titles from AFSCME's negotiations unit, contending that the titles are confidential, managerial executives and/or that conflicts of interest preclude the inclusion of these titles in AFSCME's negotiations unit. AFSCME disputes these contentions and urges that the petition be dismissed.

Pursuant to a Notice of Hearing dated April 21, 1982, hearings were held before the undersigned on May 26 and 27, 1982. At the hearings, all parties were given opportunities to examine witnesses, cross-examine witnesses, present evidence and argue orally. Subsequent to the close of the hearing, the parties filed timely briefs in this matter.

Based upon the entire record in these proceedings, the Hearing Officer finds as follows:

1.	The City of Trenton is a public employer within the meaning of New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), is the employer of the employees who are the subject of this petition, and is subject to the provisions of the Act.

2.	The American Federation of State, County and Municipal Employees, Local 2281 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The City seeks a clarification of the collective negotiations unit of its employees currently represented by AFSCME, namely, the removal of the Sanitation Superintendent and Streets Superintendent from that unit. AFSCME asserts that these positions should remain within the negotiations unit. Accordingly, there is a question concerning the composition of a collective negotiations unit, and the matter is properly before the undersigned for a Report and Recommendations.

4.	The instant petition concerns two titles which are at the same level in the City's hierarchy. The City of Trenton Organization Chart (Exhibit J-2) indicates that beneath the Mayor and Business Administrator, the executive branch of the City government is divided into seven departments. Within those departments there are 24 divisions. The Street Superintendent is the division director of the Division of Streets, and the Sanitation Superintendent is the division director of the Division of Garbage and Trash. Both of these divisions are within the City's Department of Public Works.

5.	Mr. Pasquale Capone is the City's Street Superintendent and has held that position since 1977. (Tr. at p. 160). His uncontested testimony establishes that there are 49 employees in the Division of Streets (Tr. at p. 154) and that the Division's budget for fiscal year 1982 is approximately $505,000. (Tr. at p. 161, Exhibit P-1). Street Superintendent is a Civil Service title. (Tr. at p. 110). The Street Superintendent is assisted by a General Foreman, who is also represented by AFSCME, Local 2281. (Tr. at p. 180). The remainder of the employees in the Division of Streets are represented by AFSCME, Local 2286.

6.	Mr. William Wade is the Sanitation Superintendent and has served in that capacity since 1979. (Tr. at p. 185). Wade's uncontested testimony establishes that the Division of Garbage and Trash has 65 employees (Tr. at p. 191) and a budget for fiscal year 1982 of approximately $931,000. (Tr. at p. 186, Exhibit P-2). Sanitation Superintendent is a Civil Service position. (Tr. at p. 110). The Sanitation Superintendent and Assistant Sanitation Superintendent are represented by AFSCME, Local 2281. (Tr. at pp. 151-152). The remainder of the employees in the Division of Garbage and Trash are represented by AFSCME, Local 2286.

7.	Both the Street Superintendent and Sanitation Superintendent report to and are supervised by the Director of the Department of Public Works, Mr. Joseph Tuccillo. Tuccillo is an appointed official of the City of Trenton. (Tr. at p. 110).

8.	Testimony of Capone, Wade, Tuccillo and Davis Williams, the Business Administrator, establishes that both the Street Superintendent and the Sanitation Superintendent are responsible for preparing budgetary requests for their respective divisions prior to each fiscal year. (Tr. at pp. 18-24, 160, and 187). These submissions of the Sanitation Superintendent and the Street Superintendent are reviewed and subject to modification by the Business Administrator and Director of the Department of Public Works. (Tr. at p. 22). Ultimately, the budget proposals are presented to the City Council for review, modification and/or adoption. (Tr. at p. 24). In addition to their roles in the budgetary process, the Street Superintendent and the Sanitation Superintendent are involved in the purchasing process during the course of the budget year by recommending the purchase of items, setting specifications, or actually purchasing items up to $50. (Tr. pp. 43 and 163-165). Purchases beyond $50 may not be made without approval by the Director of the Department of Public Works. (Tr. at pp. 31, 115 and 210). All purchases, whether below or above the $50 limitation, must be within the budgetary allotments approved by Council.

9.	Testimony by Tuccillo, Wade and Capone establishes that the Sanitation Superintendent and Street Superintendent have substantial authority to deploy their work forces. (Tr. at pp. 156 and 189). In the deployment of their employees, both Superintendents work within City policies and union contract limitations (Tr. at p. 175) and are assisted in these functions by their foremen. (Tr. at pp. 208 and 264).

10.	Testimony also establishes that the Sanitation Superintendent and Street Superintendent are involved in the evaluation and discipline of employees. While evaluation within the Department of Public Works is informal (Tr. at p. 150), the disciplinary process can lead to a formal procedure. In both the Division of Streets and the Division of Garbage and Trash, the Superintendents are ultimately responsible for determining whether or not disciplinary charges are brought against their employees. (Tr. at pp. 71-75). In all cases brought by one of the Superintendents, the Director of the Department of Public Works serves as the hearing officer. (Tr. at pp. 71-72). However, if the Superintendent determines that a hearing is not necessary for a disciplinary matter, the Superintendent has the authority to take certain disciplinary action short of processing the charges. (Tr. at pp. 158, 170 and 199). The Superintendent is limited to imposing summary disciplinary action for the day of the infraction, or may take no disciplinary action at all. If the Superintendent deems further disciplinary action to be necessary, he must submit paperwork requesting a hearing before the Department Director. (Tr. at pp. 198-199).

ANALYSIS

I.	Confidential Employees

N.J.S.A. 34:13A-5.3 excludes confidential employees from the right to collective representation. A confidential employee is defined in N.J.S.A. 34:13A-3(b)(1) as an employee:

...whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate unit incompatible with their official duties.

The City asserts that both the Sanitation Superintendent and the Street Superintendent are confidential employees under the Act because of their roles in the City's budgetary process. As noted above, both Superintendents are responsible for preparing their budgets for the review of the Director of the Department of Public Works, the Business Administrator and ultimately the Mayor and City Council. Moreover, the record establishes that, while the Director of the Department of Public Works, the Business Administrator and the Mayor and Council can all make changes in the budgets proposed by the Superintendents, nevertheless the budgets have been routinely adopted by Council with only minor changes. (Tr. at pp. 24-36).

However, a finding of confidential status does not merely require an involvement in the budgetary process; instead, confidential status requires an employee who has access to or knowledge of sensitive labor negotiations material. While the testimony establishes that the Superintendents' budgetary proposals include figures for wages of division employees, nonetheless both Superintendents testified that the budgetary wage figures were known prior to the budgetary proposals and were compiled by the City computers. (Tr. at pp. 169 and 203-205). The record herein establishes that the Street Superintendent and the Sanitation Superintendent do not play an active role on behalf of the City in collective negotiations. (Tr. at pp. 173-
174 and 203-205). In fact, the record establishes that the Business Administrator does not consult with the Superintendents as to collective negotiations proposals. (Tr. at pp. 54-58 and 173-174).

Therefore, notwithstanding their roles in the budgetary process, the Sanitation Superintendent and Street Superintendent are not involved in the collective negotiations process in any functional way which would preclude their membership in the negotiations unit. Accordingly, the undersigned recommends the finding that the Street Superintendent and Sanitation Superintendent are not confidential employees within the meaning of the Act.

II.	Managerial Executives

Managerial executives are defined at N.J.S.A. 34:13A-3(f), in pertinent part, as follows:

"Managerial executives" of a public employer means 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....

The City asserts that the Sanitation Superintendent and the Street Superintendent are managerial executives in accordance with the above definition and relevant Commission case law. As noted above, the record reveals that the Sanitation Superintendent and Street Superintendent have a level of authority to deploy and discipline their personnel and have routinely exercised such authority.

Cases relied upon by the City are In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 (¶11259 1980) and City of Newark and Newark Superior Officers Association, D.R. No. 82-81, 7 NJPER 644 (¶12291 1981). In Montvale, supra, the Commission set forth guidelines for managerial executive status:

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 method, 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 of 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 508]

The undersigned now proceeds to apply the above standards to the record in this matter.

As noted above, the hierarchy of the executive branch of the City of Trenton reveals that the Sanitation Superintendent and the Street Superintendent are subordinate to the Director of the Department of Public Works, who in turn reports to the Business Administrator on budgetary matters and to the Mayor and Council on other policy issues. As noted above, the Street Superintendent has 49 employees in his division and the Sanitation Superintendent has 65 employees within the Division of Garbage and Trash.1/

As to the functions, responsibilities and extent of discretion exercised by the Sanitation Superintendent and Street Superintendent, the undersigned notes preliminarily that in public employment, ultimate authority rests with elected or appointed governing bodies. Notwithstanding this legal premise, the Commission confers managerial executive status upon public employees subordinate to governing bodies when the subordinates exercise significant authority and discretion. For example, in Newark, supra, the Director of Representation found the Newark Chief of Police and Deputy Chiefs of Police to "...possess and exercise a level of authority and independent judgment sufficient to broadly affect the department's policies." (7 NJPER at 646). Conversely, in Montvale, supra, and Borough of Lavallette and Superior Officers Association of Lavallette, D.R. No. 83-17, 8 NJPER 617 (¶13293 1982), the Commission and the Director of Representation found that police chiefs in those municipalities were not managerial executives, based on the lack of authority and independent judgment exercised by those police chiefs in the formulation and effectuation of department policies. See also, County of Bergen (Bergen Pines County Hospital) and Council No. 5, New Jersey Civil Service Association, D.R. No. 83-8, 8 NJPER 35 (¶13425 1982), request for review denied, P.E.R.C. No. 83-76, 8 NJPER ___ (¶_____ 1982), appeal pending, App. Div. Docket No. A-564-82-T2.

The record in this matter reveals that the Sanitation Superintendent and Street Superintendent do possess and exercise a level of authority and independent judgment in their duties. As noted above, the Superintendents have the authority to make expenditures less than $50 on their own. They may exercise independent judgment in determining whether or not to impose immediate minor discipline, as opposed to processing formal charges to be reviewed at a higher level. In addition, the record reveals that the Superintendents exercise independent judgment in coping with every day work situations. For example, the Street Superintendent testified that it is his responsibility to declare and supervise all snow emergencies that might occur on a weekend or during the evening, without consultation with the Department Director. (Tr. at pp. 167-168). Other examples of the level of independent judgment exercised by the Superintendents are found in the directives they issue to their employees. For example, in Exhibit P-7, the Sanitation Superintendent issued a memorandum to all foremen and inspectors reviewing their hours and responsibilities. Clearly, the Superintendents use their judgment to determine when it is appropriate to reinforce existing regulations. Moreover, as noted above, the Superintendents may impose limited forms of discipline at their discretion.

The Sanitation Superintendent has an additional responsibility which involves the exercise of independent judgment. The City of Trenton and the Township of Ewing jointly operate a trash transfer station. The Sanitation Superintendent represents the City of Trenton on the joint transfer station committee. In that capacity, the Sanitation Superintendent joins in the study of transfer station operations and formulation of recommendations for both the City and the Township of Ewing. (Tr. at pp. 25-29 and 202). The record clearly establishes that the committee does not have a formal voting procedure, nor does it have the authority to make purchases or policy changes at the transfer station. (Tr. at pp. 201 and 215). Instead, the committee's recommendations are reviewed by the City and the Township, and those governing bodies determine the policies and purchases of the transfer station committee.

In summary, a review of the functions, responsibilities and extent of discretion exercised by the Sanitation and Street Superintendents reveals that the Superintendents both exercise a level of independent judgment in the formulation and effectuation of division policies. This determination, alone, does not establish that the Superintendents are managerial executives within the meaning of the Act. Instead, the undersigned must determine whether or not the level of authority and independent judgment exercised is "...sufficient to broadly affect the department's policies" (7 NJPER at 646, emphasis supplied). Accordingly, the undersigned now reviews the substantial record in this matter to determine the effects of the level of authority and independent judgment exercised by the Superintendents upon the policies of their respective divisions.

The record is replete with references to policy determinations [effecting] affecting the Division fo Streets and Division of Garbage and Trash. For example, the Street Superintendent is periodically responsible for compiling a five year program listing streets in need of resurfacing. (Exhibit P-
14, Tr. at pp. 165 and 166). In his tenure as street superintendent, Capone has submitted two five year plans to the Director of the Department of Public Works. Capone testified that the first five year plan which he submitted was only "[p]artially" implemented. As to his most recent five year plan, which Capone submitted on April 22, 1982, Capone testified on May 26, 1982 that he had yet to receive any response from the Director as to his submission. (Tr. at p. 166). With reference to the five year plan, Director Tuccillo testified that the five year program requires Council's approval and that he and the Business Administrator would appear before Council to seek its approval. When asked whether the Street Superintendent would attend, Tuccillo testified "...sometimes out of courtesy, we bring him." (Tr. at p. 138). Thus, the record reveals that while the Street Superintendent may have an important preliminary role in identifying possible policy objectives, the Street Superintendent is not given the opportunity to have a subsequent broad effect on those policy objectives.

This conclusion is further supported by other exhibits in testimony. For example, Exhibit P-15 is a request by the Street Superintendent to Richard Porth, Assistant Business Administrator for the City. In this memorandum the Street Superintendent requests a total of ten additional employees who assist in "...services that are expected and required of this Division...you must also realize that in order to even operate at the minimum, truck drivers and laborers are desperately needed in this Division." Testimony of the Director of the Department of Public Works indicates that only one or two out of a total of ten additional employees requested in Exhibit P-15 were actually hired as a result of the Superintendent's request (tr. at p. 139); it would appear that the Superintendent's vehement request had a minimal affect in ultimate division policy. Of course, further evidence of the Street Superintendent's limited ability to broadly effect the operation of this division was noted above; the Street Superintendent cannot purchase any items costing more than $50. In a context of a division budget of approximately $505,000, the Street Superintendent's discretion to authorize expenditures would appear to be extremely limited.

Notwithstanding his level of authority and exercise of independent judgment, the Sanitation Superintendent is similarly limited in his ability to broadly affect policies in his division. Like the Street Superintendent, the Sanitation Superintendent is limited to purchases of less than $50, which involves a minimal exercise of discretion in the context of a budget of approximately $931,000. Like the Street Superintendent, the Sanitation Superintendent is rarely given the opportunity to appear before City Council to argue a policy or budgetary position. The only occasion referenced in the record when the Sanitation Superintendent appeared before the Council was when he was called to explain a recommendation for awarding a contract to the second lowest bidder and eliminating the lower bidder. (Exhibit P-10; Tr. at p. 197). This unusual circumstance does not indicate an ability to broadly affect division policies. Additional exhibits in the record only further support the conclusion that the Sanitation Superintendent does not broadly affect division policy. For example, Exhibit P-
7 is a memorandum from the Sanitation Superintendent addressed to foremen and inspectors within his division. While the memo sets forth various work rules and regulations, the Director of the Department of Public Works testified that P-7 did not represent a change in any of these areas. Instead, Exhibit P-7 is merely a restatement of the existing rules and regulations, issued with the intent of reminding employees of areas which they may have forgotten. (Tr. at pp. 123 and 124). As noted above, this type of memorandum represents an exercise of independent judgment on the part of the Sanitation Superintendent, namely, a determination as to when certain policies require reinforcement. However, this kind of independent judgment does not have the broad effect on division policies which would manifest managerial executive status. Similarly, Exhibit P-8 is a memo from the Sanitation Superintendent to the Director of the Department of Public Works requesting that a memo be sent to all divisions reminding them of certain environmental protection obligations. Even in this relatively mundane area, the Sanitation Superintendent either does not possess the authority to make a directive or at least did not believe he had the authority to make such a directive.

The testimony and exhibits lead the undersigned to conclude that both the Sanitation Superintendent and the Street Superintendent are not managerial executives within the meaning of the Act. While the record reveals that both Superintendents exercise a level of authority and independent judgment, nonetheless that authority and independent judgment does not prove to have a broad affect on policies in either division. In light of the above-referred testimony and exhibits, it is not surprising that neither the Sanitation Superintendent nor the Street Superintendent are invited to attend weekly staff meetings with the Mayor. (Tr. at pp. 216-218). Similarly, the disciplinary process reviewed supra, vests responsibility for major disciplinary action with the Director of Public Works, not with the Superintendents. From the record in this matter, the undersigned concludes that the formulation and effectuation of policy in the City's Division of Streets and Division of Garbage and Trash begins at the Department Director level.2/

III.	Conflict of Interest

The principles of conflict of interest were established by the New Jersey Supreme Court in Board of Education of W. Orange v. Wilton, 57 N.J. 404 (1971).

In Wilton, the Court held:

If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisors is not present. 57 N.J. at 425.

The Court also stated:

While a conflict of interest which is de minimis or peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest. 57 N.J. at 425-426.

In applying these principles, the Commission's Director of Representation has removed employees from negotiations units where potential conflicts of interest existed due to both evaluative3/ and disciplinary4/ functions. As noted above, evaluations in the divisions are performed on an informal basis. The undersigned concludes that those informal evaluation processes do not have potential for creating a substantial conflict of interest between the superintendents in question and other employees represented by AFSCME Local 2281.

The undersigned now proceeds to consider whether the disciplinary responsibilities of the Sanitation Superintendent and Street Superintendent create an actual or potential substantial conflict of interest between those employees and other employees represented by AFSCME Local 2281. As noted above, the Street Superintendent is assisted by a General Foreman, who is also represented by AFSCME Local 2281. The remainder of the employees in the Division of Streets are in the blue collar rank and file unit represented by AFSCME Local 2286. Similarly, the Sanitation Superintendent is assisted by an Assistant Sanitation Superintendent who is also represented by AFSCME Local 2281. The remainder of the employees in the Division of Garbage and Trash are in the blue collar rank and file unit represented by AFSCME Local 2286. Therefore, if a potential for a substantial conflict of interest exists which would compel the removal of the Superintendents from AFSCME Local 2281, that conflict could only exist between the Superintendents and their respective assistants, who are second in the hierarchy of their respective divisions.

Both the Street Superintendent and the Sanitation Superintendent testified that while they have the authority to discipline their immediate subordinates, they never had occasion to do so. (Tr. at pp. 181 and 199). Thus, the record reveals there have been no actual conflicts of interest that would bar the inclusion of the Sanitation and Street Superintendent in the same negotiations unit as their immediate assistants. However, for the reasons stated below, the undersigned concludes that the potential for a substantial conflict of interest compels the exclusion of the Sanitation Superintendent and the Street superintendent from the negotiations unit represented by AFSCME Local 2281.

As noted above, the Superintendents have an important role in the discipline of employees. Disciplinary proceedings within both the Division of Streets and the Division of Garbage and Trash can ultimately result in a hearing before the Director of the Department of Public Works. However, if the Superintendent determines that a hearing is not necessary for disciplinary matter, the Superintendent has the authority to take minor disciplinary action, or no action at all.

Under the circumstances, the undersigned concludes that the potential exists for each of the Superintendents in question to be caught in a substantial conflict of interest with respect to his immediate subordinate. Where appropriate, each Superintendent is responsible for referring charges to the Director of Public Works for hearing. At the same time, given the significant discipline which could result from that hearing, the Superintendent may be subject to intense pressure from a fellow member of AFSCME Local 2281 (i.e., his immediate subordinate) or from the Union itself to take only minor disciplinary action, if any action at all. Moreover, if the Superintendent forwards charges against his immediate subordinate to the Director, and if the subordinate (and/or AFSCME Local 2281) contests the charges, the Superintendent could be responsible for testifying against the subordinate (and/or AFSCME Local 2281) at the hearing held by the Director. The above forms of conflict were precisely the kinds of situations which the Court sought to avoid in Wilton (supra at p. 426). The undersigned notes that the conflicts described above are not inherent in the responsibilities of any supervisor having any role in the discipline of any subordinate. Instead, the undersigned notes that the particular stage in the disciplinary process is critical in any conflict of interest analysis. In the instant matter, the Superintendents do not serve as hearing officers on disciplinary charges; nonetheless, they function at the last stage prior to a disciplinary hearing. In this pivotal final prehearing step, the Superintendent is subject to a significantly greater level of pressure to eschew the presentation of charges than a supervisor at a prior stage in a disciplinary process. The undersigned notes that earlier and less formal stages in a disciplinary process are not as likely to cause substantial conflicts requiring the removal of a supervisor from a supervisory unit. However, given the level and formality of the disciplinary process as reviewed above, the undersigned determines that a potential for substantial conflict of interest exists which compels the exclusion of the Sanitation Superintendent and Street Superintendent from the negotiations unit represented by AFSCME Local 2281.

RECOMMENDATIONS

For the above stated reasons, the undersigned recommends the following findings:

1.	The Sanitation Superintendent and Street Superintendent employed by the City of Trenton are not confidential employees within the meaning of the Act.

2.	The Sanitation Superintendent and the Street Superintendent employed by the City of Trenton are not managerial executives within the meaning of the Act.

3.	The potential for a substantial conflict of interest exists which compels the exclusion of the Sanitation Superintendent and Street Superintendent from the negotiations unit represented by AFSCME Local 2281.

Respectfully submitted,

Mark A. Rosenbaum

Hearing Officer

DATED:	December 29, 1982

Trenton, New Jersey