D.R. No. 84-9

Synopsis:

The Director of Representation, adopting the findings and recommendations of a hearing officer, excludes sergeants assigned to the Office of the Governor, the Office of the Attorney General, and the Personnel Bureau of the Division of State Police from the unit of State Trooper Enlisted Non-Commissioned Officers. The sergeants described above perform functions which provide them with access and exposure to State confidential labor relations materials, and are therefore confidential employees. Sergeants assigned to the Division's Budget Bureau do not have access and exposure to confidential labor relations materials and shall remain in the NCO unit.

PERC Citation:

D.R. No. 84-9, 9 NJPER 613 (¶14262 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

16.22 33.43

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 84-009.pdf
Appellate Division:
Supreme Court:

D.R. NO. 84-9 1. D.R. NO. 84-9 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of STATE OF NEW JERSEY (DIVISION OF STATE POLICE), Public Employer-Petitioner, -and- Docket No. CU-80-42 STATE TROOPERS NCO ASSOCIATION OF NEW JERSEY, INC., Employee Organization. Appearances: For the Public Employer-Petitioner Melvin E. Mounts, Deputy Attorney General For the Employee Organization Cerreto & LaPenna (Jerome J. LaPenna, of counsel) DECISION On December 12, 1979, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission ( A Commission @ ) by the State of New Jersey ( A State @ ) raising a question concerning the composition of a collective negotiations unit comprised of enlisted non-commissioned officers in the Division of State Police represented by the State Troopers NCO Association of New Jersey, Inc. ( A Association @ ). The State seeks to have the NCO = s in the following positions removed from the Association = s negotiations unit on the grounds that they are confidential employees within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.: (1) two sergeant positions assigned to the Governor = s staff, (2) one sergeant position assigned to the Attorney General = s staff, (3) four sergeant positions assigned to the Personnel Bureau of the Division of State Police, and (4) four sergeant positions, known as budget coordinators, assigned to the Budget Bureau of the Division of State Police.1/ Pursuant to a Notice of Hearing, hearings were held before Commission Hearing Officer Charles A. Tadduni on October 27, 28, 1980, June 9 and October 6, 1981, in Trenton, New Jersey at which time all parties were given an opportunity to examine and cross- examine witnesses, to present evidence and to argue orally. Both parties submitted briefs, the last of which was received by October 15, 1982. The Hearing Officer submitted his Report and Recommendations on July 26, 1983, a copy of which is attached hereto and made a part hereof. Neither party has filed exceptions to the Hearing Officer = s Report and Recommendations. The undersigned has carefully considered the entire record herein, including the transcripts, exhibits, and the Hearing Officer = s Report and Recommendations, and finds and determines as follows: 1. The State of New Jersey is a public employer within the meaning of the Act, is the employer of the employees involved herein and is subject to the provisions of the Act. 2. The State Troopers NCO Association of New Jersey, Inc. is an employee representative within the meaning of the Act and is subject to its provisions. 3. The Association is the majority representative of a negotiations unit comprised of enlisted non-commissioned officers in the Department of Law & Public Safety, Division of State Police. 4. The Hearing Officer recommended the following: (1) that the sergeants assigned to the Office of the Governor, the Office of the Attorney General and the Personnel Bureau of the Division of State Police were confidential employees within the meaning of the Act and should be removed from the Association = s negotiations unit, and (2) the sergeants assigned to the Budget Bureau of the Division of State Police were not confidential employees and should remain in the Association = s negotiations unit.2/ The undersigned has fully reviewed 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 record indicates that the two sergeants assigned to the Office of the Governor are primarily responsible for ensuring the safety of the Governor. They also function as the Governor = s drivers and general aides. In carrying out their duties the sergeants are necessarily in constant close proximity to the Governor. The record also reveals that the Governor actively participates in the planning of the State = s labor relations policies and also makes the final decisions concerning the State = s position on various collective negotiations issues such as salaries and benefit packages. The sergeants, in carrying out their job responsibilities, are privy to the various conversations, meetings and documents that make up the Governor = s workday, including those dealing with collective negotiations. Also, as part of their duties, the sergeants have been regularly required to retrieve and photocopy specific documentary material which may be found in the Governor = s collective negotiations files and which may require perusal of contents in order to identify the requested material. In addition, the sergeants have access to the Governor = s mail, which has included collective negotiations material. The record further reveals that Harold Hodes, at one time the Governor = s Chief of Staff, had, as a general practice discussed with the Governor matters including collective negotiations issues during the course of travel with the Governor and within earshot of the assigned Sergeant who was driving the automobile. The sergeants assigned to the Office of the Attorney General perform essentially the same functions as their counterparts in the Governor = s office -- bodyguard, driver and general aide. The Attorney General is personally involved with labor relations issues as they affect the Department of Law and Public Safety and all other State departments. Moreover, the Attorney General serves as the legal advisor to the State Office of Employee Relations. As in the Office of the Governor, the sergeants in the Attorney General = s office, as a function of their duties, are in constant close proximity to the Attorney General and are, in fact, exposed to conversations, documents, messages, and files containing collective negotiations materials. For example, on one occasion a sergeant was given a note detailing two alternative State proposals which were in response to a monetary proposal presented to the State by the NCO Association during collective negotiations. The sergeant was asked to contact the head of the labor relations department in the Division of State Police to obtain the cost-out of each of the alternative proposals. The sergeant later returned with the requested information. The record established that the sergeants in the Office of the Governor and the Office of the Attorney General have access and exposure to confidential State materials involved in the collective negotiations process that render their membership in the Association unit incompatible with their official duties. The State also seeks the removal of four sergeants who are assigned to the Personnel Bureau of the Division of State Police. The Bureau, which consists of medical, payroll and recruiting, research and promotions units, is generally responsible for personnel recruitment, promotions, payroll, health and medical claims of police and civilian employees of the Division of State Police. The Bureau also performs research and data collection for the Division = s Labor Relations Unit for use in contract negotiations and grievance processing. This unit is an independent unit which is physically housed adjacent to the Bureau and is headed by Capt. Edward Martin. Martin = s responsibilities include contract negotiation and grievance processing. Sergeants Soos and Ditman, who are assigned to the medical unit, are involved in the initial processing of medical claims. As part of this function the claim will be evaluated and a recommendation will be forwarded to the labor relations unit concerning whether or not the claim should be paid. Captain Martin exercises final authority with respect to the payment of the claim. Grievances by employees concerning medical claims are not infrequent. During the processing of these grievances, Martin will consult extensively with the sergeants in the medical unit and review pertinent information leading to grievance decision making. Sergeant Ferguson is assigned to the recruitment, research and promotions unit and is involved in determining which candidates meet the promotions criteria and also what weight to assign to various factors used in making promotions. The record indicates that there have been several grievances filed over how promotional criteria were applied and how factors were weighted. Sergeant Black, who is an assistant to the head of the Personnel Bureau, administers the position reclassification program. While the sergeants generally perform tasks which vary according to the unit to which they are assigned,3/ the Bureau is not functionally compartmentalized in a strictly formal way and as a result the sergeants in the Bureau have access to all of the records maintained by the Bureau, with the exception of the medical records of sworn police employees. The record reveals that in preparing for contract negotiations Captain Martin consults with the Bureau personnel, including the four sergeants under review herein, on a wide range of issues including salary and benefit costs, benefit usage, seniority of employees and how many employees are at each increment step. The record further reveals that Sergeants Black, Soos and Lt. Treavors (who was Sergeant Ferguson = s predecessor) were involved in researching various information needed to formulate a shift differential proposal for the State. In addition, it is apparent that Captain Martin frequently discusses various aspects of contract negotiations and grievance arbitration with Bureau personnel including the Sergeants. The record offers substantial support for the Hearing Officer = s findings that the Personnel Bureau is a primary information source and processor for the labor relations unit and also that Bureau personnel, in their overall employment, have substantial involvement with sensitive confidential labor relations matters. The four sergeants assigned to the Budget Bureau of the Division of State Police are known as Budget Coordinators and under direction are responsible for the formulation and administration of the Division = s budget. However, the Budget Coordinators are not privy to confidential labor relations information. Rather, in formulating a budget, the coordinators utilize cost information from the previous budget. It is not until after negotiated increases have been finalized that such information is given to the coordinators. In addition, the Budget Coordinators are not involved in collective negotiations and do not cost-out negotiations proposals. Therefore, the record does not establish that Budget Coordinators are confidential employees within the meaning of the Act. Accordingly, the undersigned finds that the disputed sergeants in the Division of State Police assigned to the Office of the Governor, the Office of the Attorney General and the Personnel Bureau are confidential employees within the meaning of the Act and are inappropriate for inclusion in any negotiations unit. The undersigned therefore adopts the Hearing Officer = s recommendation that those personnel be removed from the Association = s unit effective immediately.4/ The undersigned also adopts the Hearing Officer = s recommendation that the sergeants functioning as Budget Coordinators are not confidential employees within the meaning of the Act and are properly included in the Association = s unit. BY ORDER OF THE DIRECTOR OF REPRESENTATION Carl Kurtzman, Director DATED: September 23, 1983 Trenton, New Jersey 1/ The original Petition had included a sergeant position assigned to the Chief Justice of the New Jersey Supreme Court. However, subsequent to the filing of this Petition, that sergeant position was changed to a lieutenant position. Accordingly, there no longer being a sergeant position assigned to the Chief Justice, the State amended its Petition to delete the request to clarify the NCO unit to exclude the sergeant position assigned to the Chief Justice. The Association objected to the amendment, contending that the function was still non-confidential and that it would seek to take action concerning this particular matter in some other proceeding. The Hearing Officer overruled the objection and accepted the State = s requested amendment. The undersigned concurs with the Hearing Officer = s action. 2/ Confidential employees are not eligible for inclusion in a collective negotiations unit. 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. 3/ No sworn police employees are assigned to the payroll unit. In addition, the record indicates that there has been a certain amount of A cross-training @ of Bureau personnel which permits individuals to work in areas of the Bureau other than their normal work areas. 4/ In re Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). ***** End of DR 84-9 *****