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D.R. No. 82-8

Synopsis:

The Director of Representation clarifies the composition of a negotiations unit which includes Board personnel who are employed as principals, vice principals, supervisors, guidance counselors, coordinators and child study team members. The Director finds that the guidance counselors, coordinators and child study team members are nonsupervisory employees and that there is no "established practice" relationship between the Board and the Association which might be the basis for continuing their inclusion in the unit with supervisory employees. Therefore, the Director removes the nonsupervisory employees from the unit.

The Director also concludes that supervisors may remain in the unit with principals, since neither supervises the other and since their responsibilities do not present an actual or potential substantial conflict of interest.

The record does not reveal that there is an actual or potential substantial conflict of interest between the vice principals and principals, and therefore, the Director determines that vice principals may remain in the unit with principals and supervisors. However, the Director indicates that he would be willing to entertain a motion by the Board to reopen the record for a more complete examination concerning the principal/vice-principal relationship.

PERC Citation:

D.R. No. 82-8, 7 NJPER 560 (¶12249 1981)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

33.311 34.19 36.121 36.221 16.32 33.42 36.123 15.11 33.35 33.382

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 82-008.wpdDR 82-008.pdf - DR 82-008.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 82-8 1.
    D.R. NO. 82-8
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    EDISON TOWNSHIP BOARD OF EDUCATION,

    Public Employer-Petitioner,

    -and- Docket No. CU-79-44

    EDISON PRINCIPALS ASSOCIATION
    a/w NJASSPS,

    Employee Representative.

    Appearances:

    For the Public Employer-Petitioner
    R. Joseph Ferenczi, attorney

    For the Employee Representative
    Schneider, Cohen & Solomon, attorneys
    (J. Sheldon Cohen, of counsel)
    DECISION

    Pursuant to a Petition for Clarification of unit filed with the Public Employment Relations Commission (the A Commission @ ) on April 10, 1979, by the Edison Township Board of Education (the A Board @ ), hearings were conducted before a designated Hearing Officer on the claim raised by the Board that substantial conflicts of interest and/or supervisory/nonsupervisory relationships exist among employees currently represented by the Edison Principals Association (the A Association @ ).
    Hearings were held before a designated Hearing Officer on November 13, 14, and 15, 1979 in Trenton, New Jersey, at which time all parties were given an opportunity to examine and cross- examine witnesses, to present evidence and to argue orally. Post-hearing briefs were submitted by both parties; the record was closed April 3, 1980. Pursuant to N.J.A.C. 19:11-6.4, the Director of Representation transferred this matter to Hearing Officer Arnold H. Zudick on October 14, 1980.1/ On November 7, 1980, the Hearing Officer issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. Both the Board and the Association have filed timely exceptions to the Hearing Officer = s Report.
    The undersigned having carefully considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits and the exceptions filed by the parties, finds and determines as follows:
    1. The Edison Township Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A 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 Edison Principals Association is an employee representative within the meaning of the Act and is subject to its provisions. The Association is the recognized representative of a unit comprised of administrative personnel of the Board.2/
    3. In the proceeding before the Hearing Officer, the Board argued that a potential or actual substantial conflict of interest exists due to the supervisory relationships within the unit, and requested that the Commission divide the present unit into three separate units as follows: (1) principals; (2) vice principals and supervisors; and (3) guidance counselors, cooperative education coordinators, and child study team members.
    The Board maintains that principals supervise vice principals and supervisors. In addition, the Board claims that supervisors and vice principals act in a supervisory capacity with regard to other employees of the school district. According to the Board, guidance counselors, the cooperative education coordinators and child study team members are nonsupervisors who may not be included in units with supervisory personnel.3/ The Board maintained that it did not engage in a pre-1968 negotiations relationship with the Association which would permit the continued inclusion of supervisors in a unit with nonsupervisors under the A established practice @ exception embodied in N.J.S.A. 34:13A-5.3, below, n.3.
    4. The Association argued before the Hearing Officer that it engaged in a pre-1968 negotiations relationship with the Board within the meaning of the statutory A established practice @ exception, and that actual substantial conflicts of interest have not arisen among unit members, thereby permitting a continuation of this mixed unit of supervisory/nonsupervisory employees.4/ If no A established practice @ is found, the Association submits that, at most, the unit may be split in two; one comprised of nonsupervisory titles and the second comprised of principals, vice principals and supervisors..
    5. The Hearing Officer found that the guidance counselors, coordinators and child study team members were nonsupervisory employees and that principals, vice principals, and supervisors were supervisors within the meaning of the Act. He also found that there was no pre-1968 A established practice @ between the Association and the Board. The Hearing Officer then recommended that the nonsupervisory titles be removed from the contested unit. The Hearing Officer then found that there was no actual or potential substantial conflict of interest between principals, vice principals and supervisors and recommended that they remain in the same unit.
    6. The Board excepts to the Hearing Officer = s recommendation that there are no actual or potential substantial conflicts of interest between principals, vice principals and supervisors as the result of their inclusion in a single unit, and continues to urge that principals be separated from the supervisors and the vice principals.
    7. The Association excepts to the Hearing Officer = s conclusion that there was no pre-1968 negotiations relationship between the parties to support a finding of A established practice. @ Specifically it challenges the Hearing Officer = s findings that there was no well defined unit, that there were no negotiation sessions and there was no executed contract.
    8. After review of the entire record, the undersigned adopts the findings of fact, conclusions of law and recommendations of the Hearing Officer with certain modifications set forth, infra. There is substantial evidence in the record to support the finding that the pre-1968 relationship between the Board and the Association does not satisfy the A established practice @ standard described in W. Paterson, supra.
    In W. Paterson, the Commission observed:
    The Commission has consistently given a narrow interpretation to these terms [i.e., A established practice @ and A prior agreement @ ] ... The Commission has generally refused to find that either condition existed because the evidence failed to establish that the process of negotiation was the method whereby significant employee conditions were determined. Based on the Commission = s experience it appeared that many, perhaps most, employer-employee relationships prior to 1968 were characterized by an organization = s request for improvement of a particular condition or resolution for a particular grievance. Upon submission the matter was considered privately by the employer and his decision was later announced. There was seldom evidence a sense of mutual undertaking for the resolutions of differences or an intent to achieve common agreement. P.E.R.C. No. 79 at p. 9.

    In 1964, the principals formed an informal association to pursue issues of interest such as employment conditions and education policy.5/ The record reveals that the principals initiated discussions with the Superintendent of Schools regarding their salaries, and salaries of other administrators who were A on ratio @ with the teachers, including vice principals and supervisors. These discussions took place at regularly scheduled administrative meetings. The Superintendent then reviewed the suggestions of the principals and prepared his salary recommendation for submission to the Board of Education. There is no evidence that members of the Board or the School Superintendent entered into a dialogue or process of give-and- take with the principals, with any intent to reach a mutual agreement on salary or other conditions of employment. Further, there is no evidence that any Board adopted salary guide for ratio personnel was the product of a relationship between the Board and the Association6/ meeting the A established practice @ standard.
    Accordingly, for the above reasons, the undersigned concludes that evidence of an A established practice @ which might constitute a basis for continuing the present mixed supervisory/non-supervisory structure of the Association = s unit, is not present herein. The undersigned notes that the Association has not excepted to the Hearing Officer = s finding that guidance counselors, the cooperative education coordinators and child study team members are nonsupervisory employees. However, the Association has urged that the Commission not dismiss the A peaceful and effective collective negotiations history since that time (post-1968). @ Assuming for the moment the factual accuracy of the Association = s description of the parties = post-1968 experience, the undersigned must nonetheless be guided by the preemptive nature of the Act, which precludes the commingling of supervisors and nonsupervisors in units unless there is a basis to apply the statutory exceptions.
    The undersigned now turns to the Hearing Officer = s recommendation that supervisors should remain in the unit with principals. The Hearing Officer found that there is no supervisory relationship between supervisors and principals and that the responsibilities of the individuals functioning in these titles have not resulted in a conflict of interest and would not present a potential for substantial conflict of interest. See Bd. of Ed. of W. Orange v. Wilton, 57 N.J. 404 (1971). The undersigned adopts the findings and recommendations of the Hearing Officer as to supervisors. The supervisors = responsibilities are district-wide, and involve the development and improvement of curriculum and instruction in their area of specialization. A principal is responsible for the total educational program at a given school. Supervisors report to, and are thus evaluated by, the Superintendent for Curriculum and Instruction. A principal reports to, and is thus evaluated by, the Superintendent. Accordingly, neither the supervisors nor the principal supervise each other, and the record does not indicate that the loyalties owed by principals or supervisors to the Board would present a conflict vis-a-vis their joint inclusion in a negotiations unit.
    Lastly, the Hearing Officer recommended that vice principals remain in the unit with principals and supervisors since vice principals are supervisors, act in the place of principals in their absence, and since the evidence at best established only a de minimis, as opposed to substantial, conflict of interest between principals and vice principals. The Hearing Officer noted the scant evidence in the record of incidents of actual conflict which may have arisen as a result of the principals = evaluation of vice principals. The Board, in its exceptions, criticizes the Hearing Officer = s conclusions, arguing that Wilton believed that the mere finding of an evaluative function would necessarily result in a finding of actual or potential substantial conflict of interest, it would not have remanded the Wilton matter to the Commission for a full factual review of this issue.
    Although the record in the instant matter does not support the conclusion that vice principals should be removed from the Association = s unit, the undersigned cannot conclude that a different conclusion might not be reached if a factual record concerning the relationship between principals and vice principals had been more fully developed. Under the particular circumstances of this matter,7/ the undersigned would be willing to entertain a motion by the Board to reopen the record for further development of the issue of the principal/vice principal relationship.
    Accordingly, for the reasons stated above, the undersigned clarifies the Edison Principals Association unit consistent with the Hearing Officer = s recommendation. Since the filing of the Petition, the parties = contractual agreement has expired. Thus, guidance counselors, cooperative education coordinators, and child study team members are excluded from the Edison Principals


    Association unit effective with this determination.8/
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director

    DATED: August 19, 1981
    Trenton, New Jersey
    1/ Due to the resignation of Hearing Officer Bruce Leder, the matter was reassigned to another Hearing Officer in June 1980. This matter was assigned to Hearing Officer Zudick after the resignation of the originally assigned Hearing Officer.

      2/ The Association = s unit includes employees in the following titles: Principals, Vice Principals, Supervisors, Psychologist, Learning Consultants, Social Workers, Guidance Counselors and Coordinators.
      3/ N.J.S.A. 34:13A-5.3 provides in relevant part as follows: A . . . Nor, except where established practice, prior agreement or special circumstances dictate the contrary, shall any supervisor having the power to hire, discharge, discipline or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership . . . A
      4/ In In re W. Paterson Bd. of Ed., P.E.R.C. No. 77 (1973), the Commission stated that an A established practice @ would be found where the facts revealed that there was A an organization regularly speaking on behalf of a responsible well-defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations) with an employer who engaged in the process with the intent to reach agreement. @ at p. 10. In In re W. Paterson Bd. of Ed., P.E.R.C. No. 79 (1973), the Commission, upon consideration of P.E.R.C. No. 77, held that the ' 5.3 A established practice @ and A prior agreement @ exceptions related solely to pre-Act (July 1, 1968) relationships. P.E.R.C. No. 77 further provides that evidence of an actual substantial conflict of interest precludes the continued applicability of the A established practice @ and A prior agreement @ exceptions.
      5/ A formal principals = organization was not formed until 1968.
      6/ An October 27, 1966 letter from Principal Charles Boyle to Superintendent Joseph Ruggieri concerning A Principals Salary Committee Recommendations @ illustrates the manner in which the parties = pre-1968 relationship may be described, and is fully supportive of the Hearing Officer = s conclusions. The memo, in relevant part, states:

    The principals request that you submit the attached letter to the Board of Education for consideration. We would also appreciate it if you will put this term on the agenda for Monday = s meeting.

    The principals were somewhat discouraged that no action was taken after the June Board meeting. It was my feeling that a substantial number of the Board members felt that something should be done. Especially with regard to the training level recommendation that is mentioned in our letter.

    Also, we are not pleased with the fact that we are the last group to be considered concerning salary requests. After teachers = requests, secretaries = requests, and custodians = requests are settled, then the Board gets around to discussing the principals = requests or they are not even considered, as was the case of the last two years. In the future, we would like to be considered first, not last, or certainly before all other salary issues are settled. We are cognizant of the fact that the principal = s salary will be determined by the masters level maximum of the teachers = salary guide. Yet, this could be anticipated in any consideration by the Board. (Exhibit R-9)
          7/ The Commission has not to date addressed the issue of the unit placement of supervisors who are supervised by fellow unit members. After its remand, the Wilton matter was withdrawn from consideration by the Petitioner.
      8/ See In re Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). Since the instant matter was initiated by the filing of a clarification of unit petition the undersigned has refrained from defining alternate unit structures but instead has confined the decision herein to a determination concerning the appropriateness of the inclusion of certain disputed titles within the existing unit.
    ***** End of DR 82-8 *****