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D.R. No. 83-21

Synopsis:

The Director of Representation determines that the Second Secretary to the Superintendent and the Secretary to the Assistant Superintendent have access and exposure to confidential labor relations material and are confidential employees within the meaning of the Act. These employees are excluded from a negotiations unit of secretaries. The Director remands the record concerning a third employee, a Secretary/Switchboard Operator, to the Hearing Officer for further hearing.

PERC Citation:

D.R. No. 83-21, 9 NJPER 180 (¶14084 1983)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.22 33.43

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 83-021.wpdDR 83-021.pdf - DR 83-021.pdf

    Appellate Division:

    Supreme Court:



    D.R. NO. 83-21 1.
    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 ( A Association @ ) filed a Petition for Clarification of Unit with the Public Employment Relations Commission ( A 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 ( A 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. ( A 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), A 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
    1/ Confidential employees are not eligible for inclusion in a collective negotiations unit with other public employees. See N.J.S.A. 34:13A-3(d).

    N.J.S.A. 34:13A-3(g) defines confidential employees as those:
    ... employees whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties.
          2/ The undersigned, in prior determinations, has occasionally used the term A access and knowledge @ interchangeably with the term A access and exposure. @ Cf. In re Bd. of Ed. City of Rahway, D.R. No. 80-12, 6 NJPER 506 ( & 10261 1979). It is recognized that the word A knowledge @ includes an awareness of the contents of confidential materials. It is not inconceivable that an employee would be exposed to confidential material and would be of a certain mindframe that would not involve consciously absorbing the contents of the material. The element of exposure is in itself sufficient to ascribe confidentiality if the employee is in any way expected to pay attention to the contents of the material in order to perform the job function.
      3/ Diggle testified that she typed negotiations proposals, but she did not recall whose proposals they were. The record is not complete as to this factual issue, and the undersigned has not considered this testimony in reaching his conclusions as to Diggle.
    ***** End of DR 83-21 *****