D.R. NO. 83-21

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RIVER DELL REGIONAL

BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. CU-81-59

THE SECRETARIAL UNIT OF THE

RIVER DELL EDUCATION, NJEA/NEA,

Petitioner.

Appearances:

For the Public Employer

Stein, Joseph & Rosen

(Marc Joseph of counsel)

For the Petitioner

Bucceri & Pincus

(Louis P. Bucceri of counsel)

DECISION

On April 28, 1981, the Secretarial Unit of the River Dell Education Association, NJEA/NEA ("Association") filed a Petition for Clarification of Unit with the Public Employment Relations Commission ("Commission") seeking a determination as to whether the Secretary to the Assistant Superintendent, Second Secretary to the Superintendent, and Secretary/Switchboard Operator are included within the collective negotiations unit comprised of all full time and part-time secretarial and clerical personnel employed by the River Dell Regional Board of Education ("Board"). The Board asserts that each secretary is a confidential employee within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), and should be excluded from the negotiations unit.

Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer, Judith E. Mollinger, on September 22, October 9, and October 23, 1981, in Newark, New Jersey, at which time all parties were afforded the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The Board waived a post-hearing brief and argued orally at the hearing on October 23, 1981. The Association filed its post-
hearing brief on December 18, 1981. A reply brief was filed by the Board on February 8, 1982. The Hearing Officer submitted her report and recommendation on August 4, 1981, a copy of which is attached hereto and made a part hereof. Thereafter, the Association and the Board filed exceptions to the Hearing Officer's Report and Recommendations. The Association has filed a reply to the exceptions filed by the Board.

The undersigned has considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript and the exhibits, the exceptions and reply to the Hearing Officer's Report and Recommendations, and on the basis thereof, finds and determines as follows:

1.	The River Dell Regional Board of Education is a public employer within the meaning of 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 Secretarial Unit of the River Dell Education Association, NJEA/NEA is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Association represents a unit consisting of all Secretaries, Clerks, Switchboard Operators, Administrative Secretaries, Bookkeepers, Payroll Clerks and AVA Technicians employed by the Board, but excluding the Secretary to the Superintendent, the Secretary to the Board of Education Secretary, and such temporary, hourly personnel that may be needed in an emergency situation and/or as summer replacements.

4.	The Hearing Officer recommended that the Secretary to the Assistant Superintendent was a confidential employee and therefore not included in the unit. She further recommended that the Second Secretary to the Superintendent and Secretary/Switchboard Operator were not confidential employees and were appropriately included in the unit.1/

The Association takes exception to the Hearing Officer's finding that the Secretary to the Assistant Superintendent is a confidential employee because she has access to information concerning the labor relations policies of the Board. It states that such a finding is unsupported by the record.

The Association relies on the decision In re Brookdale Community College, H.E. No. 77-7, 3 NJPER 108 (1976), aff'd in part, rev'd in part, D.R. No. 78-10, 4 NJPER 32 (¶4018 1977) in which a hearing officer recommended that the definition of a confidential employee be narrowly construed. Further reliance is placed on In re City of Jersey City, D.R. No. 80-36, 6 NJPER 278 (¶11132 1980), where it was stated that the determination of confidential status is to be made on a case-by-case basis.

The Board takes exception to the Hearing Officer's finding that the Assistant Secretary to the Superintendent and the Secretary/Switchboard Operator are not confidential employees. It argues that both employees have access to and knowledge of confidential information, and cites In re Bd. of Ed. of West Milford, P.E.R.C. No. 56 (1971); In re Orange Bd. of Ed., D.R. No. 78-28, 4 NJPER 1 (¶4001 1977); and In re Jersey City Bd. of Ed., D.R. No. 78-35, 4 NJPER 139 (¶4085 1978).

The undersigned has engaged in a careful review of the record, focusing upon evidence concerning the extent of the above employees' access and exposure to confidential information involved in the collective negotiations process in the course of their functional responsibilities.

The Secretary to the Assistant Superintendent, Margaret Grossi, works exclusively for the Assistant Superintendent, Thomas Hausdorff. Hausdorff's responsibilities include the preparation of negotiations proposals, and he attends all closed Board work sessions pertaining to negotiations. Grossi types all of Hausdorff's correspondence, calculates the cost of Association proposals, and types memoranda concerning the school budget. Grossi has also been present when Hausdorff and the Superintendent have discussed current negotiations and has taken notes of these discussions. Grossi maintains all of the files in the Assistant Superintendent's office. Some of these files include confidential communications between the Superintendent and the Assistant Superintendent including negotiations matters, public and nonpublic Board minutes, information concerning staffing, negotiations and budget, and the Assistant Superintendent's own notes concerning various school personnel matters. These files are locked and only Grossi and the Assistant Superintendent have access to them. Grossi testified that her work on a daily basis requires her to open these files and to inspect their contents. The record establishes that Grossi's access and exposure to confidential Board materials involved in the collective negotiations process renders her membership in any appropriate negotiating unit incompatible with her official duties.

The next disputed individual is the Second Secretary to the Superintendent, Sheila Diggle. The prior Second Secretary, Charlotte Fehrle, who is now the Secretary to the Superintendent, was treated by the parties as being within the Association's unit. The record indicates that no appreciable change in duties has occurred since Fehrle occupied the position.

Notwithstanding the above, the record establishes that, in the course of her responsibilities, Diggle has significant exposure to the issues involved in the collective negotiations process. Superintendent Mary Lou Bartley has dictated notes of negotiations progress reports and notes of her conversations with Board members regarding negotiations to Diggle for typing. The Superintendent keeps a file of all items relating to work conditions that the Board seeks to raise in negotiations. Diggle is responsible for inserting and removing materials in both the general and the negotiations files. Additionally, Diggle has typed correspondence from the Superintendent to the Board's attorney concerning grievance responses. In reviewing the mail, Diggle has received and has opened the attorney's replies. She has, on occasion, reviewed on the phone the contents of the attorney's replies with the Superintendent when the Superintendent was away from the office.

Although the Superintendent's secretary, Fehrle, is available full day and Diggle works only half day, it is apparent that the assignment to perform office work is indiscriminate and depends solely upon the secretaries' respective availability. The undersigned is satisfied that Diggle's access and exposure to issues involved in the collective negotiations process renders her membership in any appropriate negotiating unit incompatible with her official duties.

The record established not only that Grossi and Diggle have handled confidential materials in the past, but that they would be expected to continue to have access and exposure2/ to such materials in the exercise of their duties in the future.3/ In reaching the instant conclusion, the undersigned has given due consideration to the degree to which Grossi and Diggle are exposed to confidential materials. As observed in In re Tp. of Dover, D.R. No. 79-19, 5 NJPER 61 (¶10040 1979), "although the record may not conclusively demonstrate a continuous pattern of exposure to the collective negotiations process, the statutory definition does not make confidential status dependent upon regular involvement in labor relations."

The third disputed employee is Dorothy Savage, Secretary/Switchboard Operator. Savage is a full time employee whose primary duties involve general typing for the Board Secretary, switchboard relief (lunch/break time), processing reimbursements for employees under the Paid Drug Prescription Plan, and substituting for absent secretaries.

Savage reports to Board Secretary Paul Chieff. The record reveals that Chieff, along with Superintendent Bartley and Assistant Superintendent Hausdorff, participates intimately with Board members in developing the Board's negotiations positions. However, the record with respect to Savage's functional responsibilities on her knowledge in connection with the issues involved in the collective negotiations process is not sufficiently clear to render a determination at this time. The record is ambiguous as to what negotiations or grievance material Savage may have typed as well as the nature of her review of any mail from the Board attorney which she may have opened. Additionally, further examination of Savage's filing responsibilities is required. Therefore, the record must be remanded to the Hearing Officer for further proceedings. The Board may wish to present documentary material in support of its evidentiary proffers.

Accordingly, the undersigned finds that Sheila Diggle and Margaret Grossi are confidential employees and, effective with the issuance of this decision, they are excluded from the Association's unit. The record is remanded for further hearings respecting Dorothy Savage.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	February 16, 1983

Trenton, New Jersey