The American Federation of State, County and Municipal Employees, Council 52 ("AFSCME"), NJIT Professional Staff Association, Inc./AAUP ("PSA"), and Local 32, Office and Professional Employees International Union ("OPEIU") are majority representatives of NJIT employees and properly intervened in this proceeding, pursuant to N.J.A.C. 19:11-2.7.

OPEIU asserted that it had filed an AFL-CIO Internal Disputes Plan proceeding, specifically, an Article XXI complaint, against CWA. OPEIU requested and the Commission agreed to pend the petition for 30 days.

NJIT opposed the petition. It asserts that some 37 titles listed in Schedule A are appropriately included in the OPEIU unit, 20 or more should be in the PSA unit, about 7 belong in the AFSCME unit and about 10 titles are confidential within the meaning of the Act and cannot be included in any unit.

AFSCME represents blue collar employees -- operations and maintenance, food service workers, special service department and some technical staff. It opposes the petition and claims that about 13 petitioned-for titles should be included in its unit.

PSA represents the faculty, directors and administrative personnel, at NJIT. It opposes the petition, claiming that the unit is inappropriate and that at least five titles are appropriately included in its unit.

CWA asserts that the "community of interest" among the petitioned-for employees is that they are unrepresented.

On June 12, 1991, OPEIU filed a representation petition (docket no. RO-91-192) seeking to represent about 30 to 40 "non-supervisory clerical, support and technical employees" of NJIT. OPEIU wishes to add these employees (included in the CWA petition) to its unit of "all regular full-time and part-time white collar employees." This petition was accompanied by an adequate showing of interest. N.J.A.C . 19:11-1.2(a)(8). OPEIU also asserts that about six petitioned-for titles are already included in the recognition article ("Appendix A") of its current agreement with NJIT.

NJIT filed a detailed statement on both petitions, including a list of "confidential" employees, together with descriptions. NJIT does not oppose OPEIU's petition.

The AFL-CIO did not issue a decision on the Article XXI allegations filed by OPEIU.

We have conducted an administrative investigation to determine the facts. N.J.A.C. 19:11-2.2.

NJIT employs about 850 employees who are largely organized into four broad-based units. About 350 faculty and non-teaching professional employees are represented by PSA. OPEIU represents about 180 white collar employees. AFSCME represents about 130 blue collar and technical employees and the FOP, Lodge #93 represents about 20 police employees.

The white collar unit listed in Appendix A of the current OPEIU/NJIT agreement includes many secretarial, office support and technical employees. Examples are; accountant assistant, administrative clerk/word processor, principal clerk assistant, secretarial assistant, principal clerk stenographer and library assistant III. ^1/ Also included are graphic artist, media technicians and theatre production coordinator.

On January 7, 1992, we issued a letter setting forth job descriptions, recommendations on most appropriate unit questions and directing an election among certain employees. No party objected to the letter.

NJIT has listed about 20 petitioned-for titles and their job descriptions. They are:

1/ The principal stenographer and library assistant III are included in the CWA petition. These employees are already represented for purposes of collective negotiations and are not "residual." CWA has no apparent legitimate claim to them.

When more than one unit configuration is potentially appropriate, the Commission must decide the most appropriate unit. State v. Prof. Assn. of N.J. Dept. of Ed. , 64 N.J . 231 (1974). The Act requires that units be defined with "...due regard for the community of interest among the employees concerned." But the Commission also considers the statutory intent of promoting stable and harmonious employer-employee relations. The desires of the employees and other parties are relevant but not controlling concerns. The Commission considers the totality of circumstances, including the history of the negotiations unit(s) and the extent of organization of the employees. Tp. of Teaneck, P.E.R.C. No. 88-20, 13 NJPER 722 ( & 18270 1987); Passaic Cty. Bd. of Freeholders, P.E.R.C. No. 87-141, 13 NJPER 483 (& 18179 1987). The Commission favors structuring negotiations units along broad-based functional lines and generally opposes units structured by occupation or department. Bergen Cty. Bd. of Freeholders, P.E.R.C. No. 66, NJPER Supp. 66 (1972). In determining the appropriateness of residual units, the Commission balances the rights of employees who desire representation against the effect such organization will have on the employer's overall labor stability.

In 1988, I dismissed a representation petition seeking to represent a separate unit of NJIT security guards. In NJIT and SEIU, Local 389, D.R. No. 88-29, 14 NJPER 148 ( & 19060 1988), NJIT opposed the petition, contending that a separate unit would upset the existing organizational structure, leading to unit fragmentation. I agreed, finding that NJIT has "four broad-based units organized along generic, college-wide lines" and that it had "previously rejected claims for separate, narrowly defined units." See N.J. Institute of Technology, D.R. No. 79-22, 5 NJPER 102 (& 10056 1979).

"Where the Commission finds that a residual employee group more appropriately belongs in an existing overall broad-based unit, a request to represent the residual group separately will fail, absent exceptional circumstances." ^2/ No exceptional circumstances here justify the formation of a residual unit of predominantly white collar employees. Relying in part on our previous finding that NJIT has "four broad-based units organized along generic college-wide lines," I determine that the most appropriate unit for these titles is the white collar unit represented by OPEIU. See NJIT at 14 NJPER 150. A community of interest does not exist among the petitioned-for titles simply because they are unrepresented.

2/ In University of Medicine and Dentistry of N.J., P.E.R.C. No. 84-28, 9 NJPER 598 (& 14253 1983), the then Director approved a residual unit of graduate faculty who were employed before the broad-based faculty unit was organized. The larger unit had twice refused to represent graduate faculty employees.

Other titles listed in the original petition and in correspondence filed by the parties are not appropriately included in the existing OPEIU white collar unit.

A portion of the current PSA/NJIT recognition clause includes these employees:

All full-time administrative personnel below the level of departmental, office, program or center director or administrative or professional head and specifically including associate directors, assistant directors, administrative assistants I, program or function coordinators, assistants to deans, assistants to directors, assistants to department and/or sponsored chairs, and assistants to department heads, program or function managers, professional librarian,

program, center supervisors and operational specialists in professional fields.

The recognition clause also has a provision requiring a committee of NJIT and PSA representatives to determine whether a newly created title should be added to the unit.

NJIT asserts that the current recognition clause is "functional" and that past clauses were "title-specific." It maintains that these petitioned-for titles should be included in the PSA unit: project manager, media services; associate director of alumni relations, Office of Institutional Advancement; supervisor of CMF; marketing specialist, OED, assistant to the Director of Defense Procurement; AA/EEO Coordinator; supervisor of architectural model

lab; special assistant for University advancement programs; bioprocess engineer and biotech lab supervisor, Architecture.

These titles are similar to those listed in the PSA recognition clause and fall within the description, "full-time administrative personnel below the level of departmental, office, program or center director or administrative or professional head...." Accordingly, I find that the CWA's petitioned-for residual unit of these employees is inappropriate and that these titles are also inappropriate for inclusion in OPEIU's existing white collar unit.

The AFSCME/NJIT recognition clause includes all "operations and maintenance, departmental technical staff, food service workers and special service employees." It excludes all "teaching staff, administrative staff, office and clerical employees, guards..." and other employees.

NJIT has filed these job descriptions of employees it contends are most appropriately included in the AFSCME unit:

1) Assistant Supervisor, Custodial Services : This lead custodial services position provides assistance to the Supervisor and Manager of Custodial Services and participates in both hands-on custodial service and supervision of the work schedule and project maintenance plan, as directed.

2) Chef, Food Service Division of Student Sergices : This lead food preparation specialist position is not supervisory within the meaning of the controlling labor act. The position not only prepares food, it initiates the menu plan and directs the food preparation and distribution for the Division.

I have found that the programmer/analyst, technical project coordinator and systems manager are most appropriately included in the OPEIU unit. Having received no facts on which to base a most appropriate unit recommendation about the architectural assistant, manager and biotechnical supervisor, I cannot determine if these

titles should be included in the AFSCME or OPEIU unit. In any event, these titles may not form a residual unit.

N.J.S.A. 34:13A-3(g) defines "confidential employees" as those,

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.

The Commission narrowly defines the term, "confidential employee." See State of New Jersey, P.E.R.C. No. 86-18, 11 NJPER 507 ( & 16179 1985); mot. to reopen den. P.E.R.C. No. 86-59, 11 NJPER 714 ( & 16249 1985). "A determination that an employee is confidential and therefore excluded from the Act's protections, N.J.S.A. 34:13A-5.3, should not be based on speculation...." Lacey Tp. Bd. of Ed., P.E.R.C. No. 90-38, 15 NJPER 628 ( & 20263 1989). The Commission has frequently stated its inquiry:

We scrutinize the facts of each case to find for whom each employee works, what he does and what he knows about collective negotiations issues. Finally, we determine whether the responsibilities or knowledge of each employee would compromise the employer's right to confidentiality concerning the collective negotiations process if the employee was included in a negotiating unit. [ State of New Jersey, 11 NJPER 507]

See also State of NJ (OER) and Council of NJ State College Locals , P.E.R.C. No. 90-22, 15 NJPER 596 ( & 20244 1989), aff'd App. Div. Dkt. No. A-1445-89T1 (1/22/91); Sayreville Bd. of Ed., P.E.R.C. No. 88-109, 14 NJPER 341 ( & 19129 1988), aff'd App.Div. Dkt. No. A-4297-87T1 (4/21/89); Ringwood Bd. of Ed., P.E.R.C. No. 87-148, 13

NJIT asserts that these petitioned-for employees are confidential and cannot be included in any collective negotiations unit:

1. Secretarial Assistant II, Office of the President

2. Secretarial Assistant II, Office of the General Counsel

3. Principal Clerk/Stenographer, Office of the General Counsel

4. Employment Coordinator, Office of Human Resources

5. Human Resource Asst./Technician, Office of Human Resources

6. Human Resource Asst./Technician, Office of Human Resources

7. Principal Clerk/Stenographer, Office of Human Resources

8. Sr. H.R. Asst./Technician, Office of Human Resources

9. Human Resources Assistant II, Office of Human Resources

10. Statistical Typist Secretary, Budget Office

11. Admin. Asst./Office Manager, Office of the Provost

12. Secretarial Assistant II, Office of Human Resources

13. Assistant to the Vice President for Academic Affairs

14. Budget Analyst I, Budget Office

15. Budget Analyst I, Budget Office

NJIT concedes that if the titles are not confidential, most would be most appropriately included in OPEIU's white collar unit. It maintains that if titles numbered, 4, 11 and 13 are not confidential, they would be most appropriately included in the PSA

NJIT asserts that the employment coordinator in the Office of Human Resources (#4) works with with the Employee Relations department and handles numerous matters which "directly and indirectly affect...collective negotiations at NJIT." In the past, this position has been involved in "collective negotiations, consulting sessions, grievance and arbitration strategy meetings and labor and employment planning meetings at which...labor strategy is shaped, discussed and set into action."

PSA has not filed a response. Based upon the limited facts before me, I determine only that the employment coordinator in the Office of Human Resources is ineligible to vote in a secret ballot election for OPEIU's petitioned-for employees.

NJIT asserts that the human resources assistant/technician (#5) reports directly to the assistant director of human resources and has been "directed to tabulate and maintain records that include labor confidential data runs or collective agreement results of a labor relations position taken by the university."

OPEIU asserts that this employee "generally handles payroll questions for employees, such as errors in checks, overtime payments, payroll deductions, etc." It denies that the employee "participates in the formulation" of wage proposals.

In the absence of specific facts about what data is "tabulated" by this human resource assistant/technician, or when the tasks are performed, I cannot conclude that the position in confidential. Accordingly, the position is included in the white collar unit and the employee may vote in the directed election.

NJIT states that the other human resource assistant/technician is "clerical" and along with the sr. human resource assistant, is charged with employee benefits administration and is privy to "inside" information about labor relations. NJIT also foresees the increase of "labor confidential" assignments.

OPEIU maintains that this title generally answers payroll questions concerning correct check amounts, overtime pay, deductions, etc. It assertedly does not participate in any formulation of wage proposals.

In the absence of specific facts about confidential duties performed by this employee, I find that this title is eligible for inclusion in the OPEIU unit.

NJIT maintains that the sr. human resource technician is the chief benefits liaison with the State and with contracted carriers. It asserts that this position is privy to "inside" labor relations strategies and is the rough equivalent to the "functional professional coordinator" in the PSA unit.

OPEIU asserts that this position is concerned with pension matters and that the pension plan for the OPEIU unit is not collectively negotiated. It maintains that the position is not confidential.

The parties have not filed enough facts about the job duties of the sr. human resource technician to permit a decision on the most appropriate unit -- professional or white collar. Nor do I have enough facts to determine if the title should be excluded from any unit because it is confidential. In the absence of sufficient facts disposing of the matter, I find that this employee may vote in the representation election, subject to challenge. If the challenged ballot is not dispositive of the outcome of the election ( N.J.A.C . 19:11-9.2), PSA and OPEIU may seek to clarify their respective units to include the title by filing a clarification of unit petition. NJIT may also file a petition seeking to have the title declared confidential.

NJIT asserts that the statistical typist/secretary in the Budget office reports to the Budget Director. It "performs periodic spread sheet documentation...expressly for collective negotiations" and has done this work in autumn 1990.

OPEIU concedes that this position requires skills which other employees in the same title lack, but it is not involved in the "actual formulation or compilation of the budget, especially as it pertains to labor relations."

In the absence of examples of "spread sheet documentation" performed by this employee in preparation for collective negotiations (or an affidavit to that effect), I find that this employee is not confidential. Accordingly, this employee is eligible to vote in the representation election.

NJIT asserts that the administrative assistant/office manager in the office of the Provost prepares the Provost's negotiations proposals and delivers them to the lead NJIT negotiator, the Director of Employee Relations. It also asserts that if the title is not confidential, it belongs in the PSA unit.

OPEIU denies that the provost sits at the negotiating table and that the disputed employee has "dealings with any matters regarding labor relations."

A provost who does not attend negotiations sessions but creates negotiations proposals is nevertheless a confidential employee. OPEIU's use of the word, "dealings" is vague and does not rebut NJIT's description of the administrative assistant/office manager's duties. In the absence of OPEIU's and PSA's response to NJIT's position on the most appropriate unit for the title, I determine that it is not eligible for inclusion in either the petitioned-for OPEIU unit or in any residual unit.

Finally, NJIT asserts that the two budget analyst I's in the budget office, under the direction of the Budget Director, "provide budget analysis, forecasts, models and reports." This title assertedly provides, "collective negotiations budget and costing contingency planning."

OPEIU responds indirectly, claiming that the State, rather than NJIT, controls negotiations and that its information is "public," rendering confidentiality a "non-issue."

I am not persuaded that the budget analyst I's current responsibilities are "confidential" and that its inclusion in the OPEIU unit is inappropriate. I find that this title is included in OPEIU's petitioned-for unit.

I summarize my findings: the petitioned-for titles are not appropriately included in a residual unit; most are appropriately included in either the white collar, professional or blue collar units. Accordingly, I dismiss the CWA petition.

These employees shall vote on whether they wish to be represented by the OPEIU in the existing white collar collective negotiations unit: Payroll Analyst - Payroll Department, Project Leader - Computing Services Department, Systems Analyst I & II - CIAT, Programmer Analyst/Specialist - Computing Services Department (CSD), Technical Project Coordinator - CMS, Programmer Analyst - CSD, Sr. Programmer Analyst - CSD, Sr. Systems Programmer - CSD, Network Analyst - Telecommunications Department, Super Computer Specialist - CSD, DP Analyst I - (CSD), Systems Integrator - CMS, Systems Programmer - CSD, Assistant Project Director CCCC - CSD, Engineering Software Specialist - Engineering Computing Department, Systems Manager - CIS, Systems Manager - Engineering Computing Department, Consultant/Project Manager - CIAT, Senior Information Systems Analyst - CSD, Assistant to the Manager, Bookstore, Budget Analyst II; human resources assistant/technician; statistical typist/secretary - budget office; and budget analyst I - budget office.

The remaining petitioned-for titles are appropriately included in other negotiations units or are confidential and not appropriately included in any unit. My decision is based exclusively upon matters currently pending, i.e., the two representation petitions.

The election shall be conducted no later than thirty (30) days from the date of this decision. Those eligible to vote must have been employed during the payroll period immediately preceding the date below, including employees who did not work during that period because they were out ill, on vacation or temporarily laid off, including those in the 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 public employer is directed to file with us an eligibility list consisting of an alphabetical listing of the names of all eligible voters in the units, together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by us no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously provided to the employee organization with a statement of service filed with us. We shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.

The exclusive representative, if any, shall be determined by a majority of the valid votes cast in the election. The election shall be conducted in accordance with the Commission's rules.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION




Edmund G. Gerber, Director

DATED: February 6, 1992
Trenton, New Jersey