H.O. NO. 81-8

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

WALDWICK BOARD OF EDUCATION,

Public Employer-Petitioner,

-and-	Docket No. CU-80-34

WALDWICK EDUCATION ASSOCIATION,

Respondent.

Appearances:

For the Public Employer, Aron, Till & Salsberg, Esq.

(Richard M. Salsberg, of Counsel; Barbara A. Morrill, on the Brief)

For the Respondent, Schneider, Cohen, Solomon & DeMarzio, Esqs. (J. Sheldon Cohen, of Counsel; Paul A. Montalbano, on the Brief)

HEARING OFFICER'S REPORT AND RECOMMENDATIONS

A Petition for Clarification of unit was filed with the Public Employment Relation Commission (the "Commission") on November 13, 1979 by the Waldwick Board of Education (the "Board") seeking a clarification of a negotiations unit of employees represented by the Waldwick Education Association (the "Association"). The Board seeks to have certain titles currently in the Association's collective negotiations unit removed therefrom allegedly because they are supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), and because of a potential conflict of interest. The Association argues that the titles in question most appropriately belong in their unit.

Pursuant to a Notice of Hearing dated March 25, 1980, hearings were held in this matter on May 1, June 16, and July 18, 1980,1/ in Newark, New Jersey, at which all parties were given the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Subsequent to the close of hearing, the parties filed timely briefs in this matter the last of which was received on October 15, 1980.2/

Based upon the entire record in these proceedings, the Hearing Officer finds:

1.	The Waldwick Board of Education is a public employer within the meaning of the Act and is subject to its provisions.

2.	The Waldwick Education Association is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Board seeks a clarification of the collective negotiations unit of its employees currently represented by the Association. The parties have been unable to agree upon the continued placement of the titles in question in the unit and, therefore, a question concerning the composition of a collective negotiations unit exists, and the matter is appropriately before the undersigned for Report and Recommendations.

4.	The parties agree that the titles in question are as follows:

a.	Department Chairman (including Special Services Chairman)

b.	Subject Coordinators

c.	Director of Guidance

5.	The parties stipulated that the Association has represented these titles at least since the passage of the Act in 1968, but the parties differ as to whether a negotiations relationship existed prior to July1, 1968 which would justify a finding of established practice.

6.	The Board argued that the titles in question are supervisors within the meaning of the Act, that a negotiations relationship did not exist between the parties prior to the passage of the Act, and, that a conflict of interest existed with the inclusion of these titles in the unit. The Association argues to the contrary on all of these points and maintains that the titles should remain in the unit.

ANALYSIS

I.	Did a Negotiations Relationship Exist Between The Parties

Prior to July 1, 1963?

As a defense to the Board's position, the Association alleges that a negotiations relationship existed between the parties prior to the passage of the Act thereby creating an "established practice" which justifies a continuation of the current unit structure. The Commission has indicated the type of relationship between parties that is necessary to establish that a negotiations relationship existed.3/ The Commission has required that a negotiations relationship be evidenced by:

an organization regularly speaking on behalf of a reasonably 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 an intent to reach agreement.4/

In order to prove that a negotiations relationship existed it must be shown that a consistent relationship existed between the parties as demonstrated by an exchange of proposals on terms and conditions of employment, and that a give and take relationship existed with the intent to reach agreement. The mere labeling of an event as negotiations or calling a document a proposal will not ordinarily be enough to demonstrate that negotiations occurred.5/

The facts in the instant matter show that there is actually no physical evidence to substantiate the Association's contention that a pre-1968 negotiations relationship existed. The Association did not present any copies of written proposals it may have made to the Board, not did it present any form of written agreement between the parties. The strongest evidence that the Association could develop on this point was the testimony from Richard Keil, a department chairman since 1964. Keil testified that prior to 1968 the Association definitely negotiated with the Board over salaries and other benefits.6/ He also testified that the Association made proposals to the Board, and that some form of written agreement was reached.7/ To some extent, Keil's testimony was corroborated by James Stock, another department chairman.8/ However, Stock's testimony was not nearly as effective as Keil's, in fact, Stock admitted that he was never actually involved in the process that Keil described.9/

Although Keil appeared to be a credible witness, the lack of any physical evidence to corroborate his testimony makes it impossible to prove an established practice. The Commission in In re West Paterson, P.E.R.C. No. 77, pp 9-10 (1973), gave a very narrow interpretation to the "established practice-prior agreement" provision of the Act. The Commission further indicated that these provisions were exceptions to the Act and could not be found without establishing certain minimum ingredients as previously set forth herein.10/ Among those ingredients was the exchange of proposals and the intent to reach agreement. Without the physical evidence of proposals and a written agreement, the Association does not satisfy the Commission's requirements concerning established practice and it certainly does not show that the Board intended to reach any agreement. In order to justify an exception to the Act the elements of that exception must be clearly established. Keil's testimony, although not contradicted, is not the best evidence of a negotiations relationship, and does not dispel the possibility that the pre-1968 meetings with the Association were discussions only, and not negotiations. Noting that sufficient doubt remains regarding the purpose and structure of the pre-1968 meetings, the exception to the Act cannot be implemented.

II.	The Supervisory Issue

Since the undersigned has found that a pre-1968 established practice did not exist between the instant parties, the question of whether the titles at issue were supervisors prior to 1968 is no longer critical. Nevertheless, a brief examination of that issue is helpful.

The only evidence that the instant titles may have been supervisory prior to 1968 came from department chairmen Daniel Flegler and Richard Keil. Both of these witnesses testified that department chairmen have always had evaluative duties.11/ However, upon closer analysis the undersigned is unable to rely upon that testimony to establish supervisory authority. There was no indication on the record to establish that any recommendations by department chairmen prior 1968 were considered effective. In addition, Kiel testified that prior to 1968 his input in the hiring process was not essential.12/ Absent any proof that the input from department chairmen was effective, the undersigned finds that they were not supervisors within the meaning of the Act prior to 1968.

Having already found that no established practice existed herein, if the undersigned finds that the titles at issue are now supervisors within the meaning of the Act, then the titles must be removed from the Association's unit. The Association has argued that the instant titles have never been, and are not now, supervisors within the meaning of the Act. The evidence, however, does not support that contention. For many years subsequent to 1968 the titles in question have been effectively involved in the hiring and evaluation process. Joseph Mas, who has been Superintendent for ten years, testified that the titles in question are involved in the screening and interviewing of job applicants,13/ and that the recommendation for hiring is a consensus of the department chairmen (subject coordinator, or director of guidance) with the principal.14/ Mas also testified that he would not hire anyone without going through the department chairmen level,15/ and stated that he would not hire anyone who was not acceptable to the department chairmen.16/

With regard to evaluations, Mas testified that the instant titles have been performing evaluations and making recommendations concerning increments, tenure, and non-renewal for the last ten years.17/ He further testified that there was a dual responsibility for the end of year evaluations. Both the department chairmen and the principal completed an evaluation.18/ Nevertheless, Mas testified that the department chairmen's recommendations are effective, and he even accepted a chairman's recommendation of renewal despite a principal's recommendation for non-renewal.19/

The Association disputes the Board's contention that department chairmen make effective recommendations. The Association cited certain instances where chairmen recommendations were not followed. However, the fact that a supervisor's recommendation must be effective, does not mean that every recommendation must be adopted. The Superintendent testified that department chairmen have made recommendations regarding hiring and renewal or non-renewal, and he has followed many of those recommendations. For example, Dr. Mas indicated that the evaluations of three different department chairmen about a specific teacher were instrumental in the decision not to renew that teacher's contract.20/

The Superintendent's testimony further reveals that in 1979, with the introduction of the New Jersey State Board of Education's new evaluation requirements, that the duties and responsibilities of the instant titles increased. Under the old policy the department chairmen (coordinators and director of guidance) and the principal evaluated the non-supervisory professionals and together drafted the end of year evaluation. However, that system has changed. Now the department chairmen (coordinators and director of guidance) are primarily responsible for the evaluations, and for the development of professional improvement plans for the non-supervisory professionals.21/ The dual evaluation policy is no longer utilized. In fact, Dr. Mas testified that during the past school year the instant titles performed the end of year evaluation based upon the new procedure.22/ Although the principal still has the right to comment on those evaluations, the instant titles actually perform the role of the primary evaluator.

An examination of the evaluation forms also demonstrate an increase in the responsibilities of the instant titles. The new evaluation form (Exhibit P-3) is far more comprehensive than the original form (Exhibit P-5), and requires greater analysis by the evaluator.

The Association argued that the new duties thrust upon the instant titles is substantially similar to those performed in the past. However, whether that is accurate or not is no longer of any consequence. The undersigned believes that the instant titles are supervisors within the meaning of the Act whether relying upon the old evaluation process or the new. Since the Act forbids the inclusion of supervisors with non-supervisors, and since no established practice or prior agreement exists to otherwise justify inclusion, the undersigned recommends that the instant titles be removed from the existing unit.

III.	Conflict of Interest

Even assuming that an established practice or prior agreement existed between the parties herein, and further assuming that the instant titles were supervisors within the meaning of the Act prior to 1968 (which the Association disputes), the undersigned would still recommend the removal of the titles based upon a conflict of interest. The facts show that with the implementation of the new State Board of Education evaluation requirements the duties of the instant titles increased. The evaluation procedures became more comprehensive and more precise. As the duties of the disputed titles increased, the potential for substantial conflict with the non-
supervisory professionals also increased. The State Supreme Court in Board of Ed. of W. Orange v. Wilton, 57 N.J. 404 (1971), indicated that where a conflict is more than a mere de minimis conflict it is opposed to the public interest. The potential for conflict in this matter is well beyond the de minimis stage. The instant titles can substantially affect the employment status of the unit members, and it is for the protection of both sides that the disputed titles be removed from the unit.

This very issue has been considered in three previous decisions.23/ Those decisions held that department chairmen and other similar titles should be removed from units with non-
supervisory employees because of actual or potential substantial conflict of interest. The facts show that the duties of the disputed titles herein are substantially the same as the duties of those titles which were removed from non-supervisory units because of conflict. The facts of this case suggest the same conclusion.

RECOMMENDATIONS

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

1.	That the Department Chairmen (including Special Services Chairman), Subject Coordinators, and Director of Guidance employed by the Board be removed from the Association's negotiations unit.

a.	That no established practice or prior agreement existed between the parties.

b.	That the titles in question were not supervisors within the meaning of the Act prior to 1968, but were supervisors within the meaning of the Act subsequent to 1968.

c.	That a conflict of interest exists with the inclusion of the disputed titles in the existing unit.

Respectfully submitted,

Arnold H. Zudick

Hearing Officer

DATED:	November 17, 1980

Trenton, New Jersey