H.O. NO. 84-2

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NORTH BERGEN BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-83-40

COUNCIL OF ADMINISTRATORS AND

SUPERVISORS, NJEA,

Petitioner,

-and-

NORTH BERGEN FEDERATION OF

TEACHERS, LOCAL 1060, AFL-CIO,

Intervenor.

Appearances:

For the Public Employer

Greenberg & Covitz, Esqs.

(John C. McGlade of counsel)

For the Petitioner

Bucceri and Pincus, Esqs.

(Louis P. Bucceri of counsel)

For the Intervenor

Sauer, Boyle, Dwyer & Canellis

(Amy Rudolph of counsel)

HEARING OFFICER'S REPORT

AND RECOMMENDATION

A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission ("Commission") on October 7, 1982, by the Council of Administrators and Supervisors ("Petitioner") seeking to add eleven (11) department chairpersons1/ employed by the North Bergen Board of Education ("Board") into its existing unit.2/ The department chairpersons are currently included in a unit represented by the North Bergen Federation of Teachers, Local 1060, AFL-CIO ("Intervenor") which intervened herein.3/

The Board seeks dismissal of the Petition and argues that the petitioned for unit is inappropriate because a conflict of interest exists between the department chairpersons and the high school principal. The Petitioner argued that no such conflict exists, and the Intervenor took no position on the entire matter.

Pursuant to a Notice of Hearing dated January 3, 1983, a hearing was held in this matter on March 2, 1983 in Newark, New Jersey, at which all parties were given the opportunity to examine and cross-examine witnesses, present evidence and argue orally. The Petitioner and the Board filed post hearing briefs the last of which was received on April 7, 1983.4/

Based upon the entire record in this proceeding the Hearing Officer makes the following:

FINDINGS OF FACT

1.	The North Bergen Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A; 34:14A-1 et seq. ("Act"), is the employer of the employees involved herein, and is subject to the provisions of the Act.

2.	The Council of Administrators and Supervisors, and the North Bergen Federation of Teachers, are public employee representatives within the meaning of the Act and are subject to its provisions.

3.	The Petitioner seeks a secret ballot election to add department chairpersons to its existing supervisory unit. The Board opposes the Petition alleging that a conflict of interest exists between department chairpersons and principals. The Intervenor neither opposed nor approved the Petition. Since the parties have been unable to agree upon the appropriateness of the inclusion of department chairpersons into the Petitioners unit, a question concerning representation exists regarding that title, and the matter is appropriately before the undersigned for Report and Recommendations.

4.	The parties stipulated that the department chairpersons are supervisors within the meaning of the Act. The record shows that department chairpersons are only located in the high school and only have contact with the high school principal, and with no other principals in the Petitioner's unit. The only potential conflict alleged by the Board was between the department chairpersons and the high school principal.

5.	Although the job description for principals (Exhibit J-
4a and J-4b) includes the supervision and evaluation of staff members, and, although vice principals are included in the high school staff, none of the principals actually evaluate any of the titles included in the Petitioner's unit, including vice principals. The record shows that only the Superintendent evaluates the employees presently included in the Petitioner's unit (T. p. 16). However, Leo Gattoni, as Assistant Superintendent since 1979, but who served as Acting Superintendent from September 1982 until March 1, 1983, testified that he evaluated only the three non-tenured employees in the Petitioner's unit. The remaining employees in that unit were tenured and were not evaluated.

6.	The evidence regarding the department chairpersons shows that all of them are tenured, and that the high school principal did evaluate them in the 1979-80 academic year while they were included in the Intervenor's unit. However, none of the department chairpersons were evaluated during the 1980-81, and 1981-82 academic years. But, in September 1982, in response to a Board directive, Gattoni required the high school principal to evaluate department chairpeople by the end of the 1982-83 academic year.5/ As of the hearing in this matter, however, no evaluations of department chairpeople had been performed, and Gattoni admitted that he did not even know if his directive would be followed (T. p. 23).6/

7.	The facts regarding the department chairperson evaluations shows that all of the 1979-80 evaluations and recommendations were good (T. pp. 23, 40), and that no grievances were ever filed by department chairpersons against principals regarding those evaluations or for any other reason (T. pp. 35, 46, 52). In addition, both Thomas Muir, the Principal who performed those evaluations, and Anthony Vecchionie, the English Department Chairperson, testified as to the lack of conflict between the high school principal and the department chairpersons. Finally, the evidence shows that there have been no strikes or job actions in this district in the last several years. (T. p. 25).

ANALYSIS

The undersigned has considered all of the instant facts and the relevant law and finds that under the current circumstances no conflict of interest exists between department chairpersons and the high school principal. Although the Act specifically prohibits the inclusion of supervisors within the meaning of the Act with non-supervisors, there is no such specific prohibition against including one level of supervisors with a higher or different level of supervisors. However, in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), the New Jersey Supreme Court established a community of interest standard by which to measure the inclusion of certain supervisors with other supervisors. The Court reasoned that different levels of supervisors should not be placed in the same unit if there were an actual or potential substantial conflict of interest between them. The Court held that if such a conflict existed the community of interest would be lacking.

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 supervisor is not present. While a conflict of interest which is de minimis of peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest. 57 N.J. at pp. 425-426.

However, the Court in Wilton did not establish an automatic ban on the inclusion of different levels of supervisors in the same unit, it merely required an examination of whether the titles in relationship to one another evidenced a conflict of interest.

In this case the only evidence of a possible conflict between the department chairpersons and the high school principal were the evaluations performed by the principal on the department chairpersons in 1979-80, and Gattoni's directive to the high school principal in September 1982 to once again evaluate department chairpersons. There is no evidence of there ever having been an actual conflict between those titles, but merely the Board's assertion that performing the evaluations then, and now, presents the potential for a substantial conflict of interest. The undersigned disagrees.

At best, even considering the 1979-80 evaluations, there is nothing more herein than a mere de minimis conflict between the principal and department chairpersons. With regard to the 1979-
80 evaluations, there is no evidence to suggest that by performing those evaluations a conflict arose between the principal and department chairpersons. Rather, [the evidence shows that all of] the evidence shows that all of the evaluations were good, and that department chairpersons have never filed grievances with respect to any actions of the high school principal. Under these circumstances the 1979-80 evaluations do not even rise to the level of a potential "substantial" conflict of interest.

With regard to the directive to perform evaluations for 1982-83, the evidence shows that no evaluations had been performed by March 2, 1983, the hearing date herein, and Gattoni admitted that he did not know whether the department chairpersons would comply with his directive. The lack of any new evaluations eliminates any possibility for a potential conflict of interest.

However, even assuming that the principal performs the evaluations as directed, that alone is neither actual or potential "substantial" conflict of interest. Unlike the situation between supervisors and non-supervisors where the mere performing of the evaluation and effective recommendation requires separation of those titles because of the wording of the Act, the mere evaluation by one supervisor of another supervisor is not enough to warrant a finding of "substantial" conflict of interest. The Director of Representation has previously approved negotiations units which include different levels of supervisors even where one supervisor may supervise another supervisor within the meaning of the Act.

For example, in In re Borough of Fair Lawn, D.R. No. 79-30, 5 NJPER 165 (¶10091 1979), a unit including a deputy chief, captains, lieutenants and sergeants was found to be appropriate even though the higher titles evaluated the lower titles.7/ In a case more similar to the instant matter, In re Lakewood Bd/Ed, D.R. No. 78-44, 4 NJPER 212 (¶4105 1978), a unit including department chairpersons, educational specialists, assistant principals and principals was found to be appropriate even though the principals evaluated the department chairpersons and other members of that unit.8/ The important factor in those cases was that the mere evaluation responsibility did not establish a conflict of interest.

The undersigned finds support for the above analysis in another case similar to the instant matter, In re Edison Twp. Bd/Ed, D.R. No. 82-8, 7 NJPER 560 (¶12249 1981). That case involved, at least in part, the appropriateness of combining two supervisory titles, principals and vice principals, in the same unit. The Board, therein, argued that since principals evaluated vice principals the unit was inappropriate. With respect to the evaluation responsibilities the director held that:

The mere finding of an evaluation responsibility does not, per se, give rise to the conclusion that there is a potential for substantial conflict. Had the Court in 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. 7 NJPER at pp. 561-562.

In a relevant but distinguishable matter, In re Cinnaminson Twp. Bd/Ed, D.R. No. 81-39, 7 NJPER 274 (¶12122 1981), the director was presented with a unique set of facts. Department chairpersons had been included in a non-supervisory teachers unit and the Board, therein, petitioned to remove them from that unit because it was about to require the department chairpersons to evaluate the teachers. The Board refused to give the department chairpersons their new evaluation duties until that title was removed from the unit because of the conflict of interest which would occur if they remained in the unit with the teachers while performing evaluations. The Director found that since the Board made a commitment to assign the department chairpersons the evaluation duties, and since such duties would make them supervisors within the meaning of the Act, that said title had to be removed from the non-supervisory unit.

Cinnaminson is similar to the instant matter in that it concerned evaluation duties which had not yet been performed, and where a conflict of interest was alleged based upon the mere performance of the evaluations. However, the instant matter is dissimilar and clearly distinguishable from Cinnaminson for several reasons. First, in Cinnaminson the Board made a firm commitment to require the department chairpersons to perform the evaluations. In the instant matter, however, Gattoni admitted that he did not know whether his directive would be followed and the undersigned perceived that some doubt exists as to whether the directive will be enforced. In addition, the facts show that the superintendent presently evaluates all of the titles in the Petitioner's unit, and the Board did not dispel to the undersigned's satisfaction the possibility that the superintendent might evaluate the department chairpersons if they too were part of the Petitioner's unit.

Second, the issue in Cinnaminson was whether or not department chairpersons were supervisors within the meaning of the Act. Since performing evaluations and making effective recommendations meets the definition of a supervisor within the meaning of the Act, and, since the Director determined therein that the department chairpersons would be performing such duties, the department chairpersons -- as supervisors -- could no longer remain in a non-supervisory unit and were removed therefrom. In the instant matter, however, the issue is not one of supervisory status, the parties stipulated the supervisory status. Rather, the issue is whether the performance of evaluations alone rises to the level of conflict of interest. In Cinnaminson the evaluation duty standing alone established a conflict because it involved supervisory and non-supervisory employees which is presumed inappropriate by the Act. But for the reasons stated herein above, evaluations of the instant department chairpersons by the high school principal do not automatically rise to the level of potential substantial conflict of interest. The Act does not automatically prevent a unit of different levels of supervisors, and there was no showing that the 1979-80 evaluations created a potential substantial conflict of interest as set forth in Wilton, and there is no reason to suspect that the evaluation of department chairpersons by the high school principal in 1983 will create a substantial conflict of interest.

Accordingly, a review of the evidence presented to date, and the existing law, does not support a finding of actual or potential substantial conflict of interest between department chairpersons and the high school principal.9/ A secret ballot election should therefore be conducted to determine whether the department chairpersons wish to be represented by the Petitioner in its existing unit.

RECOMMENDATIONS

Based upon the foregoing discussion, the undersigned Hearing Officer recommends the following:

1.	That no actual or potential substantial conflict of interest exists between department chairpersons and the high school principal which would prevent them from being represented in the same negotiations unit.

2.	That a secret ballot election be directed so that department chairpersons can vote as to whether or not they wish to be represented by the Petitioner in its existing negotiations unit.

Respectfully Submitted

Arnold H. Zudick

Hearing Officer

DATED:	July 21, 1983

Trenton, New Jersey