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D.R. No. 83-11

Synopsis:

The Director of Representation, adopting the recommendation of a Heariang Officer, determines that Senior Investigators Motor Carrier are supervisors within the meaning of the Act and excluded from a unit of non-supervisory inspection and security personnel represented by Local 194, IFPTE, AFL-CIO. The individuals involved perform evaluative functions, and their recommendations are instrumental in discharge and discipline determinations.

PERC Citation:

D.R. No. 83-11, 8 NJPER 586 (¶13271 1982)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.32 33.42

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 83-011.wpdDR 83-011.pdf - DR 83-011.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 83-11 1.
    D.R. NO. 83-11
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    STATE OF NEW JERSEY,

    Public Employer,

    -and- Docket No. CU-78-59

    LOCAL 195, IFPTE, AFL-CIO,

    Petitioner,

    -and-

    STATE SUPERVISORY EMPLOYEES
    ASSOCIATION, C.S.A./S.E.A.,

    Intervenor.


    Appearances:

    For the Public Employer
    Honorable Irwin I. Kimmelman, Attorney General
    (Melvin E. Mounts, Deputy Attorney General)

    For the Petitioner
    Rothbard, Harris & Oxfeld, attorneys
    (Sanford R. Oxfeld, of counsel)

    For the Intervenor
    Fox & Fox attorneys
    (Richard H. Greenstein, of counsel)

    DECISION

    Pursuant to a Notice of Hearing issued with respect to a Clarification of Unit Petition, a hearing was held before the Commission Hearing Officer Charles A. Tadduni, on March 4, 1981, in Newark, New Jersey on the claim raised by Petitioner, Local 195, IFPTE, AFL-CIO ( A Local 195"), that the title Senior Investigator Motor Carrier should be placed in the Local 195 negotiations unit of State inspection and security personnel. At the hearing, the State of New Jersey ( A State @ ) and the State Supervisory Employees Association a/w NJCSA/NJSEA ( A Association @ ) asserted that the title may not be included in Local 195's collective negotiations unit because it is a supervisory title and that it is properly placed in the Association = s unit of primary level supervisors.
    All parties were afforded the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The State and Local 195 submitted post-hearing briefs by November 16, 1981.1/ The Hearing Officer submitted his Report and Recommendations on July 19, 1982, a copy of which is attached hereto and made a part hereof. The Hearing Officer recommended that employees in the Senior Investigator Motor Carrier position be determined to be supervisors within the meaning of the Act and that Local 195's petition be denied. No exceptions to the Hearing Officer = s report have been filed.
    The undersigned has carefully considered the entire record herein, including the transcript, exhibits, and the Hearing Officer = s Report and Recommendations, and finds and determines as follows:
    1. The State of New Jersey is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A0-1 et seq. ( A Act @ ), is the employer of the employees who are the subject of this proceeding, and is subject to the provisions of the Act.
    2. Local 195, IFPTE, AFL-CIO and the State Supervisory Employees Association are employee organizations within the meaning of the Act and are subject to its provisions.
    3. Local 195 is the majority representative of nonsupervisory inspection and security employees of the State of New Jersey (the A Inspection and Security Unit @ ).
    4. Local 195 contends that the Inspection and Security Unit should include the Senior Investigator Motor Carrier position. Local 195 alleges that prior to 1978 the incumbents in this disputed title were performing the same functions in the title of Senior Investigators Utilities and were employed by the Public Utilities Commission ( A PUC @ ). Local 195 contends that at that time the title of Senior Investigator Utilities was included within its negotiations unit. During 1978 certain positions and employees, including the personnel involved herein, were transferred from the PUC to the Department of Transportation ( A DOT @ ). According to Local 195, at the time of the transfer the State redesignated the personnel in question as Senior Investigators Motor Carrier and placed the employees in the Primary Level Supervisors Unit.
    Local 195 argues that what occurred was simply a transfer of positions from one department to another, and that Senior Investigators Motor Carrier are not supervisors since they have not authority to hire, discharge or discipline or to effectively recommend the same. Local 195 asserts that its unit contains other A senior @ line titles and that Senior Investigators Motor Carrier have more in common with Investigators Motor Carrier than with supervisory personnel.
    Essentially, the State and the Association contend that the Senior Investigators Motor Carrier are currently supervisors within the meaning of the Act and therefore cannot be included in a unit of nonsupervisory personnel.
    5. Senior Investigators Motor Carrier supervise Investigators Motor Carrier, whose function is to inspect buses at bus company garages and at roadside checks. Motor Carrier inspection work has been performed by PUC personnel until the transfer of this work to the Department of Transportation in 1978. The Hearing Officer found that the record did not substantiate Local 195's claim that the work of Senior Investigators Motor Carrier was performed at PUC by employees in a variant of the Senior Investigator Utilities title known as Senior Investigator Utilities (Motor Carrier). However, he found that the resolution of this factual question was not critical, since the controlling factual and legal issues related to the current job responsibilities of Senior Investigators Motor Carrier.
    In this regard he found that, Senior Investigators Motor Carrier, acting under the new job description developed at DOT in 1978, have substantial involvement in the areas of general supervision, work assignments, and review of work performance. Senior Investigators Motor Carrier complete and sign Performance Certifications and Salary Increase Recommendations as well as Employee Performance Evaluation and Improvement System Reports. These documents are evaluative instruments which ultimately determine the grant of permanent employee status and/or salary increment affecting Investigators Motor Carrier. In one cited instance, a probationary investigator was given a series of negative working test period reports by a Senior Investigator Motor Carrier, and ultimately, based upon the working test performance evaluation, the employee was not retained. The Hearing Officer further found that the Seniors may impose minor discipline subject to review. The Hearing Officer concluded that supervisory status as defined by the Act had been established.2/
    6. The undersigned adopts the above factual findings of the Hearing Officer and his determination that Senior Investigators Motor Carrier are supervisors. The factual record amply supports the conclusion that their evaluative functions are instrumental in determinations concerning job retention and/or denial of increment. Thus, the disputed personnel effectively recommend discharge and discipline.
    The undersigned also concurs with the Hearing Officer = s conclusion that the controlling issue herein is the current exercise of supervisory powers by the disputed personnel. N.J.S.A. 34:13A-5.3 prohibits the inclusion of supervisors and nonsupervisors in the same unit, unless established practice, prior agreement or special circumstances dictate the contrary. These exceptional circumstances are not implicated herein. Thus, assuming for present purposes that Local 195 had previously represented motor carrier inspections personnel who exercised supervisory powers, the Act = s exclusionary rule is preemptive.3/
    Accordingly, the undersigned finds the position of Senior Investigator Motor Carrier to be supervisory and it may not be included in the negotiations unit represented by Local 195.
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director
    DATED: September 20, 1982
    Trenton, New Jersey
    1/ The Association did not submit a brief. Subsequent to the close of formal hearings, the Association was replaced as majority representative by Communications Workers of America, Primary Level Supervisors. CWA was provided an opportunity to participate in the instant proceeding upon assuming majority status but it did not forward additional submissions in the within matter. See Hearing Officer = s Report, fn 4.
      2/ N.J.S.A. 34:13A-5.3 defines a supervisor as an employee who has the power to hire, fire, discipline or to effectively recommend the same.
      3/ See In re W. Paterson B/E, P.E.R.C. Nos. 77 and 79 (1973), wherein the Commission found that the term established practice is limited to pre-Act (1968) negotiations relationships. Also, In re Edison Twp. B/E, D.R. No. 82-8, 7 NJPER 560 (1981).
    ***** End of DR 83-11 *****