D.R. NO. 81-26

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

RAMAPO-INDIAN HILLS REGIONAL

HIGH SCHOOL DISTRICT BOARD

OF EDUCATION,

Public Employer-Petitioner,

-and-	Docket No. CU-79-29

RAMAPO-INDIAN HILLS EDUCATION

ASSOCIATION, INC.,

Employee Representative.

Appearances:

For the Public Employer-Petitioner

Green & Dzwilewski, attorneys

(Jacob Green & Ellen Harrison of counsel)

For the Employee Representative

Goldberg & Simon, attorneys

(Sheldon Pincus of counsel)

DECISION

Pursuant to a Petition for Clarification of Unit filed with the Public Employment Relations Commission (the "Commission") by the Ramapo-Indian Hills Regional High School District Board of Education (the "Board"), hearings were conducted before a designated Commission Hearing Officer with respect to the claim raised by the Board that the Department Chairmen and the Director of Guidance should be removed from a negotiations unit of employees represented by the Ramapo-Indian Hills Education Association, Inc., (the "Association"), due to their alleged supervisory status.

Hearings were held before Commission Hearing Officer Arnold H. Zudick on December 4 and 5, 1979, January 29 and 31, 1980 and April 30, 1980, 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 briefs with the Hearing Officer. The Hearing Officer thereafter issued his report and recommendation on July 25, 1980. Neither party has excepted to the Hearing Officer's Report and Recommendation.

The undersigned has carefully considered the record in this proceeding, including the Hearing Officer's Report and Recommendations and finds and determines as follows:

1.	The Ramapo-Indian Hills Regional High School District Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (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 Ramapo-Indian Hills Education Association, Inc., is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Association is the recognized representative of a unit comprised of the Board's professional teaching personnel. Included in the unit are the positions of Department Chairmen and the Director of Guidance.

4.	The Board argues that the individuals in the above positions are supervisory employees pursuant to N.J.S.A. 34:13A-
5.3 and may not be included in a unit with nonsupervisory employees. The Board argued before the Hearing Officer that the employees became supervisors subsequent to July 1, 1968, and therefore, the narrow statutory exceptions preserving pre-1968 negotiations relationships involving employee units which included supervisory and nonsupervisory personnel are not applicable herein. In the alternative, the Board argued that if there was a pre-1968 relationship, the supervisory functions of each position had so increased in scope that the statutory exceptions should be rendered inapplicable.

5.	The Association argued before the Hearing Officer that the employees in the above titles were supervisors prior to 1968 and that a past practice existed to justify their continued inclusion in the unit. Additionally, the Association asserted that no conflict of interest exists between the employees in these titles and other unit employees, and therefore, the unit composition should not be altered.

6.	The relevant statutory provision concerning the appropriateness of including supervisory and nonsupervisory employees in the same negotiations unit is contained in N.J.S.A. 34:13a-5.3, as follows in relevant part:

... nor, except where established practice, prior agreement or special circumstances, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership . . .

Additionally, N.J.S.A. 34:13A-6(d) provides in part:

The division shall decide in each instance which unit of employees is appropriate for collective negotiation, provided that, except where dictated by established practice, prior agreement, or special circumstances, no unit shall be appropriate which includes (1) both supervisors and nonsupervisors . . . .

The Commission has determined that the terms "established practice" and "prior agreement" refer to negotiations relationships which pre-exist the passage of the Act in 1968. In In re West Paterson Bd. of Ed., P.E.R.C. No.77 (1973) and P.E.R.C. No. 79 (1973) (decision on reconsideration). In the absence of the existence of circumstances falling within the enumerated statutory exceptions, the Act prohibits the inclusion of supervisory with nonsupervisory employees in the same unit.

7.	The Hearing Officer found that the negotiations relationship between the Association and the Board predated the passage of the Act. However, the Hearing Officer found that the Department Chairmen were not supervisors prior to the passage of the Act, but were now functioning in a supervisory capacity. He, therefore, recommended that the Department Chairmen should be removed from the Association's negotiations unit. The undersigned, having reviewed the record and noting the absence of exceptions to the Hearing Officer's factual findings, adopts those findings and determines that Department Chairmen shall be removed from the Association's unit.

The Hearing Officer found that the Director of Guidance was represented by the Association prior to the passage of the Act and that the Director of Guidance was a supervisor prior to 1968. The Hearing Officer, further found that the supervisory responsibilities of the Director of Guidance substantially and dramatically increased afer 1968. In light of this finding, the Hearing Officer concluded that the "established practice" exception was negated by the substantial increase in supervisory duties.

Having fully reviewed the record, the undersigned adopts the Hearing Officer's factual findings and the above reasons for removal of the Director of Guidance from the Association's negotiations unit. The Commission has concluded that the mere finding of an established practice or prior agreement does not mandate the continuation of a mixed supervisory/nonsupervisory unit. The Commission addressed this argument in the West Paterson matter supra, P.E.R.C. No. 77, wherein it stated, pat p. 14:

The Association's position, on the other hand, seems unduly narrow. It argues that the prohibition against mixed units falls whenever established practice or prior agreement is found and that upon either finding, the continuation of such unit is mandated. That approach is fairly mechanical and seems to remove from consideration any evaluation on whether the end result -- the allegedly mandated unit -- is within the overall objectives of the statute. We can conceive of situations where the end result would be demonstrably obnoxious to such objective and surely beyond the contemplation of the Legislature beyond the contemplation of the Legislature when it adopted these exceptions. It also lends itself to a literal application whereby a single, one-
year, prior agreement would be sufficient to trigger the exceptions with no regard to be given to other substantial considerations. When the Legislature charged the Commission to 'decide in each instance which unit of employees is appropriate', we think it intended a greater degree of discretion and judgment than the Association's approach permits. The statute itself suggests that no unit is mandated because of particular findings. It provides that 'except where dictated by [one of the exceptions],' the mixed unit is forbidden; it does not say the existence of any of the exceptions dictates a particular unit result. Clearly, the sense of it is that an appraisal and judgment is to be made to determine whether exceptional circumstances warrant, indeed require a deviation from the norm.

Logically, the statutory exceptions which preserve preexisting relationships are not applicable where the circumstances underlying the pre-existing relationship no longer exist, as in the instant matter where the scope of the Director's supervisory responsibilities have been significantly upgraded, thus creating a potential conflict of interest between the Director of Guidance and other unit employees. The circumstances relevant to the narrow statutory exception having been removed, the Act's policy prohibiti9ng mixed supervisory/nonsupervisory employee units is preeminent.

Accordingly, for the above reasons, the undersigned adopts the recommendations of the Hearing Officer and determines that Department Chairmen and the Director of Guidance shall be removed from the Association's negotiations unit. The record reveals that the collective negotiations agreement between the parties, which was operative at the time the Petition was filed, has since expired. Accordingly, the instant determination is effective immediately.1/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

DATED:	January 30, 1981	Carl Kurtzman, Director

Trenton, New Jersey