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D.R. No. 83-36

Synopsis:

The Director of Representation, adopting the conclusions and recommendations of a Hearing Officer, finds that the Chief Clerk and Assistant Administrative Supervisor of Income Maintenance employed by the Welfare Board are supervisory employees and not managerial executives. Accordingly, an election is directed among all supervisors of the Welfare Baord to ascertain their representational desires.

PERC Citation:

D.R. No. 83-36, 9 NJPER 388 (¶14176 1983)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

16.12 16.32 33.41 33.42

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 83-036.wpdDR 83-036.pdf - DR 83-036.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 83-36 1.
    D.R. NO. 83-36
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    GLOUCESTER COUNTY WELFARE BOARD,

    Public Employer,

    -and- Docket No. RO-82-174

    GLOUCESTER COUNTY WELFARE BOARD
    SUPERVISORS, CWA, AFL-CIO,

    Petitioner.

    Appearances:

    For the Public Employer
    Cassetta, Brandon Associates
    (Daniel Brandon, Consultant)

    For the Petitioner
    Carol Gay, CWA Representative
    DECISION AND DIRECTION OF ELECTION

    On June 14, 1982, amended August 4, 1982, a Petition for Certification of Public Employee representative, supported by an adequate showing of interest, was timely filed with the Public Employment relations Commission ( A Commission @ ) by the Gloucester County Welfare Board Supervisors, Communications Workers of America, AFL-CIO ( A Petitioner @ ) seeking to represent A all supervisory @ personnel employed by the Gloucester County Welfare Board ( A Board @ ).
    Hearings were held before Commission Hearing Officer, Judith E. Mollinger, on October 4 and 14, 1982, in Newark, New Jersey, at which time all parties were given an opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Neither party submitted a post-hearing brief. The Hearing Officer thereafter issued her Report and Recommendations on March 23, 1983, a copy of which is attached hereto and made a part hereof. No exceptions have been filed with respect to the Hearing Officer = s Report and Recommendations.
    The undersigned has considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, and the exhibits and finds and determines as follows:
    1. The Gloucester County Welfare Board is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ( A 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 Gloucester County Welfare Board Supervisors, Communications Workers of America, AFL-CIO is an employee representative within the meaning of the Act and is subject to its provisions.
    3. The Petitioner seeks to represent a negotiations unit of all supervisory employees. The Petitioner is neither a recognized nor a certified employee representative at the present time. However, another CWA affiliate represents nonsupervisory employees of the Board.1/ The petitioned-for employees are not currently represented for collective negotiations purposes.
    4. The Board concedes that a unit of all supervisory employees is appropriate but objects to the inclusion of the positions of Chief Clerk and Assistant Administrative Supervisor of Income Maintenance ( A Assistant Supervisor @ ) in the proposed unit, contending that both are managerial executives within the meaning of the Act and, therefore, are not public employees entitled to collective negotiations rights under the Act.
    5. The Hearing Officer found that the chief clerk and assistant supervisor are not managerial executives and may appropriately be included in the petitioned-for unit.
    6. N.J.S.A. 34:13A-5.3 excludes managerial executives from the protections and rights afforded by the Act to public employees. Section 13A-3(f) defines managerial executives as:
    ... persons who formulate policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in a school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.

    In In re Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 ( & 11259 1980), aff = g D.R. No. 80-32, 6 NJPER 198 ( & 11097 1980), the Commission endorsed certain guidelines for determining whether an employee is a managerial executives within the meaning of the above definition. The Commission stated:
    A person formulates policies when he develops a particular set of objectives designed to further the mission of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Simply put, a managerial executive must possess and exercise a level of authority and independent judgment sufficient to affect broadly the organization = s purpose or its means of effectuation of these purposes. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer = s hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises.

    Based upon an application of the above principles, the Commission concluded in Montvale that the chief of police was a supervisor but not a managerial executive within the meaning of the Act. This result was based on the finding that formulation and implementation of policy for the police department was essentially exercised by the police committee.
    In accordance with Montvale, the undersigned focuses primarily upon A (1) the relative position of [the] employee in his employer = s hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises, @ in determining whether the questioned employee A possess[es] and exercise[s] a level of authority and independent judgment sufficient to affect broadly the organization = s purposes or its means of effectuation of these purposes. @ In re City of Jersey City, D.R. No. 80-36, 6 NJPER 278 ( & 11132 1980); In re Essex Cty. Welfare Bd., D.R. No. 81-5, 6 NJPER 424 ( & 11213 1980); In re City of Newark, D.R. No. 82-18, 7 NJPER 640 ( & 12288 1981).
    The Board provides its services through an administrative agency managed by a director and a deputy director. The chief clerk is one of four employees2/ who report directly to the director and his deputy. The chief clerk = s duties relate primarily to the clerical operations of the Board, including administrative oversight of clerical methods, operations, and staffing. She supervises 56 clerical employees, interviews all clerical candidates for vacancies, and makes employment recommendations to the director and deputy director who have authority to make appointments subject to Board approval. The chief clerk does not determine whether vacancies should be filled or how many clerical positions should be allocated. While she submits a temporary budget by projecting operating costs based exclusively upon past budgets, responsibility for regular budget proposals rests with the Director and Fiscal Officer.
    The assistant supervisor reports directly to the administrative supervisor of income maintenance. The assistant supervisor supervises and evaluates 13 employees, all of whom are included in the nonsupervisory collective negotiations unit.3/ The assistant supervisor oversees the delivery of a nonassistance food stamps program, and also serves as Fair Hearing Coordinator for Agency clients. The assistant supervisor does not formulate agency or program policies, and does not prepare a budget.
    Neither the chief clerk nor the assistant supervisor participate in any labor negotiations. Both individuals, however, function at the first step in the Agency = s grievance procedure mechanism.
    Given the above and the more fully developed findings of the Hearing Officer, which are not in dispute, the undersigned cannot conclude that the chief clerk and the assistant supervisor exercise a level of authority and independent judgment sufficient to affect broadly the Board = s purposes or its means of effectuating these purposes. Accordingly, the undersigned adopts the Hearing Officer = s recommendation that the chief clerk and the assistant supervisor are not managerial executives but rather are supervisors who may be represented in a supervisors = negotiations unit. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: All supervisory employees of the Gloucester County Welfare Board (including the following titles: Assistant Administrative Supervisor of Income Maintenance, Chief Clerk, Assistant Training Supervisor, Income Maintenance Supervisors, Social Work Supervisors); excluding managerial executives, confidential employees, nonsupervisory employees within the meaning of the Act, Fiscal Officer, Training Officer, Administrative Supervisor of Income Maintenance and all other employees.
    Pursuant to N.J.A.C. 19:11-2.6(b)(3), the undersigned directs that an election be conducted among the employees described above. The election shall be conducted no later than thirty (30) days from the date set forth below.
    Those eligible to vote are the employees set forth above who were employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, or on vacation, or temporarily laid off, including those in military service. Employees must appear in person at the polls in order to be eligible to vote. Ineligible to vote are employees who resigned or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date.
    Pursuant to N.J.A.C. 19:11-9.6, the Board is directed to file with the undersigned and with the Petitioner an election eligibility list consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by the undersigned no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with Petitioner with statement of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.
    Those eligible to vote shall vote on whether or not they desire to be represented for the purpose of collective negotiations by Gloucester County Welfare Board Supervisors, CWA, AFL-CIO.
    The exclusive representative, if any, shall be determined by the majority of valid ballots cast by the employees voting in the election. The election directed herein shall be conducted in accordance with the provisions of the Commission = s rules.
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director
    DATED: June 17, 1983

    1/ The Petitioner has complied with the requirements of In re City of Camden, P.E.R.C. No. 82-89, 8 NJPER 226 ( & 13094 1982).
      2/ The parties have agreed to exclude the other three employees -- Fiscal Officer, Training Officer, and Administrative Supervisor of Income Maintenance -- from the unit.
      3/ The record reveals that the assistant supervisor is responsible for supervising and evaluating one supervisory title. However, that title is presently vacant. Since there is no indication in the record that an actual or potential conflict of interest, as noted in Bd. of Ed. of W. Orange v. Wilton, 57 N.J. 404 (1971), exists in this case, the undersigned cannot at this time speculate as to what level of conflict, if any, would exist if the vacancy were filled.
    ***** End of DR 83-36 *****