D.R. No. 79-10

Synopsis:

The Director of Representation clarifies a collective negotiations unit represented by the Petitioner by determining that a Township dispatcher, who was appointed as a special officer pursuant to N.J.S.A. 40A:14-146, is a policeman within the meaning of the New Jersey Employer-Employee Relations Act and should be included in a unit of police employees. The Director further determines that three other Township dispatchers, who function as police matrons, are not vested with police powers and, therefore, are not police within the meaning of the Act. The Director determines that these three dispatchers/matrons should remain in the Intervenor's unit. The Director rejects the Petitioner's argument that special circumstances exist to include the dispatchers/matrons in the police unit, finding that the potential for conflict of interest by the continued inclusion of dispatchers/matrons in a non-police unit is de minimis in nature, and that their integration with police officers in the delivery of police services does not require representation in a police unit. The Director determines that the non-police unit is available to represent the interests of the civilian dispatchers/matrons and that there is no evidence indicating that the needs of a civilian dispatcher cannot be realized in the non-police unit.

PERC Citation:

D.R. No. 79-10, 4 NJPER 440 (¶4199 1978)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

430.15 437.35

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- DR 79-010.pdf
Appellate Division:
Supreme Court:

D.R. NO. 79-10 1. D.R. NO. 79-10 STATE OF NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION BEFORE THE DIRECTOR OF REPRESENTATION In the Matter of TOWNSHIP OF MAPLE SHADE, Public Employer, -and- Docket No. CU-77-77 MAPLE SHADE PBA LOCAL 267, Petitioner, -and- AFSCME, LOCAL 1160, Intervenor. Appearances: For the Public Employer, Richard Clark, Township Manager For the Petitioner, Tomar, Parks, Seliger, Simonoff & Adourian, Esqs. (Steven K. Kudasky, of Counsel) For the Intervenor, Mark Neimeiser, Associate Director, AFSCME, Council 73 DECISION On August 23, 1976, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission (the A Commission @ ) by the Maple Shade PBA Local 267 (the A PBA @ ), seeking the inclusion of dispatchers employed by the Township of Maple Shade (the A Township @ ) in the PBA unit consisting of all regular Township police officers and sergeants. The dispatchers are presently represented for the purposes of collective negotiations by the Intervenor, AFSCME, Local 1160 ( A AFSCME @ ) in a unit of all blue and white collar Township employees. Pursuant to a Notice of Hearing dated April 6, 1977, hearings were held before Hearing Officer J. Sheldon Cohen on April 22, July 8 and July 21, 1977, at which all parties were afforded an opportunity to present evidence, to examine and cross-examine witnesses, and to argue orally. The Township and the PBA submitted post-hearing briefs. On November 14, 1977, the Director of Representation substituted Bruce D. Leder as Hearing Officer in this matter pursuant to N.J.A.C. 19:11-6.4. On June 2, 1978, the Hearing Officer issued his Report and Recommendations, a copy of which is attached hereto and made a part hereof. Both the Township and the PBA filed exceptions to the Hearing Officer = s Report. AFSCME did not file exceptions. Upon the entire record in this proceeding the undersigned finds and determines as follows: 1. The Township of Maple Shade is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., as amended (the A Act @ ), is the employer of the employees involved herein, and is subject to the Act = s provisions. 2. Maple Shade PBA Local 267 and AFSCME, Local 1160 are employee representatives within the meaning of the Act and are subject to its provisions. 3. The PBA, having filed a Clarification of Unit Petition with respect to dispatchers and, thus, having raised a question as to the composition of its collective negotiations unit, the matter is appropriately before the undersigned for determination. 4. There are four non-supervisory dispatchers who are the subject of this Petition. One employee who functions as a full- time dispatcher also performs the part-time function of special officer pursuant to N.J.S.A. 40A:14-146. The three other dispatchers perform matron functions in connection with their dispatcher duties. The parties have stipulated that the sole issue in this matter is whether the above police dispatchers are police officers within the meaning of the Act and/or whether the dispatchers, under the statutory exception of A special circumstances @ , should be included in the negotiations unit represented by the PBA.1/ 5. The PBA argued at hearing that because one dispatcher performed special police officer functions and the other dispatchers performed matron functions, all dispatchers either were performing police functions and thereby in the PBA unit, or should be placed in the police unit due to special circumstances. The Township and AFSCME argued that the dispatchers as a group were not police and that insufficient special circumstances existed to warrant their inclusion in the PBA unit. 6. The Hearing Officer found and recommended that the one dispatcher performing part-time special officer functions was a police officer within the meaning of the Act and should, therefore, be in the PBA unit. However, the Hearing Officer found that the other dispatchers are not police and belong in the AFSCME unit, and that special circumstances did not exist to warrant placement of these dispatchers in a police unit. The PBA and the Township filed timely exceptions to the Hearing Officer = s Report. The PBA argued that the three remaining dispatchers should be placed in the police unit due to special circumstances. The Township excepted to the Hearing Officer = s finding that one dispatcher, performing part-time special officer functions, was a police officer within the meaning of the Act. 7. The undersigned has carefully reviewed the entire record in this matter and adopts the Hearing Officer = s recommendations with certain modification and clarification. The record reveals that the one dispatcher who has been appointed a special officer is often called upon to perform special officer functions, which include police officer duties, while he is engaged in the normal role of dispatcher. The record also reveals that those dispatchers who are required to perform matron duties frequently are called upon to function as matrons while performing their normal dispatcher duties. Thus on the basis of the evidentiary record herein, the undersigned concludes that the performance by these personnel of special officer functions and matron functions, respectively, is regularly commingled with the performance of dispatcher duties. Accordingly, for the purpose of considering the appropriate unit placement of these personnel, the undersigned shall determine the community of interest question and the claimed A police @ status of these personnel based upon the entirety of their responsibilities.2/ 8. Regarding the dispatcher/special officer position, the undersigned adopts the Hearing Officer = s recommendations that the individual functioning as a dispatcher/special officer is a policeman within the meaning of the Act and should be included in the unit represented by the PBA. The record reveals that the dispatcher/special officer has been appointed as a special officer annually for a consecutive number of years. The record further reveals that the dispatcher/special officer is trained in the use of a firearm, wears his firearm while performing dispatcher duties, may be involved in the apprehension and arrest of suspected criminals, and generally assists police officers when needed. The status of such a dispatcher/special officer has previously been considered by the Commission in In re Township of Ewing, D.R. No. 78-21, 3 NJPER 353 (1977) and In re Borough of Avalon, E.D. No. 76-23, 2 NJPER 59 (1976). In Avalon, supra, the Commission considered the placement of three titles: special police officer; civilian police dispatcher; and special police officer/dispatcher. The evidence in that case showed that the special police officer and the special police officer/dispatcher could carry weapons, make arrests and generally exercise police power as defined in County of Gloucester v. PERC, 107 N.J. Super. 150 (App. Div. 1969) aff = d per curiam 55 N.J. 333 (1970). The Executive Director therefore found those titles to be police titles within the meaning of the Act, whereas the civilian police dispatcher, who had not been appointed as a special officer and, therefore, not vested with police powers, was found not to be a policeman within the meaning of the Act. In Ewing, supra, the undersigned found that a civilian police dispatcher, who had special officer powers pursuant to N.J.S.A. 40A:14-146, did have reserve authority to detect, apprehend, and arrest as set forth in Gloucester, supra, and was therefore a police officer within the meaning of the Act. In the instant matter the dispatcher/special officer also has police powers as discussed in Avalon and Ewing and is therefore a police officer and appropriately belongs in the PBA unit. Since the dispatcher/special officer employed by the Township has reserve authority and the power to detect, apprehend and arrest, his duties come within the New Jersey Supreme Court = s definition of police powers as set forth in Gloucester, supra, and he, therefore, should be included in the PBA unit. In the event of non-reappointment as a special officer the police powers would be removed and the dispatcher would thereafter belong in the unit represented by AFSCME. 9. Regarding the dispatcher/matron position, the undersigned adopts the Hearing Officer = s recommendation that these personnel are not police, therefore not includable in the police unit, and should remain in the AFSCME unit. Although matrons exercise some responsibilities that resemble police functions, they do not have the authority reserved to special officers and are not authorized to exercise police powers as defined in Gloucester, supra. Since the matrons lack reserve police authority, and are not authorized to exercise police powers, the undersigned determines that they are not police within the meaning of the Act and cannot be included, as police, in a police unit. Although dispatcher/matrons perform duties which are of a police nature and this may conceivably result in a conflict with non-police employees of the Township, such a potential conflict is de minimis in nature and would not justify the removal of the matrons from the AFSCME unit. If the Township were to appoint the dispatcher/matrons as special officers, the concomitant police powers would compel their removal from the AFSCME unit and placement in the PBA unit. 10. The PBA argues that special circumstances exist which would permit the inclusion of all dispatchers in the police unit. The PBA claims that integration of the dispatchers with the regular police officers in the law enforcement activities of the police department inextricably intertwines the dispatchers with regular police officers in the effective delivery of public safety services. In addition, the PBA states that the communications role played by the dispatchers in the delivery of police services creates a potential for A split allegiance @ on the part of dispatchers to the employer and their fellow unit members. The PBA argues that these conditions create the statutory special circumstances which would allow for the inclusion of all dispatchers in the police unit. In In re N.J. Turnpike Authority, P.E.R.C. No. 24 (1969), the Commission found that special circumstances existed to warrant the inclusion of craft employees in a non-craft unit. The employer therein had negotiated with one unit of craft and non-craft employees prior to the passage of the Act in 1968 except for a period from 1964 to 1968 when negotiations were prohibited by court injunction. The Commission considered the pre-1964 past practice of negotiations and determined that, but for the court injunction, negotiations would have continued in the one unit of craft and non-craft employees. The Commission concluded that this constituted special circumstances justifying the continuation of a mixed craft, non-craft unit. In the instant matter the evidence does not establish that the Township negotiated with police and non-police dispatchers in one unit prior to 1968. Therefore, the special circumstances referred to in the Turnpike Authority matter, supra, do not exist herein. In In re Clearview Regional H.S. Board of Education, D.R. No. 78-2, 3 NJPER 248 (1977), the undersigned determined that in certain limited factual settings A special circumstances @ would warrant the continued inclusion -- until the expiration of a collective negotiations agreement -- of personnel otherwise inappropriate for inclusion in a unit. This was done in order to preserve the stability of the collective negotiations relationship during the terms of a negotiated agreement. Since the instant matter does not involve personnel who were previously included in the PBA unit, the special circumstances referred to in Clearview, supra, do not exist herein to warrant the continued inclusion in the Petitioner = s unit. There is no doubt that functions of the dispatchers are closely related to the law enforcement activities of police. However, the undersigned is not convinced that the integrated participation of police and non-police dispatchers in the delivery of services requires the representation of non-police in a police unit. There is a non-police unit available to represent the interests of civilian personnel and there is no evidence that the needs of the civilian dispatchers cannot be realized in the AFSCME unit. As noted above the undersigned has determined that the police-like functions of the matrons pose a de minimis potential for conflict. Likewise, the undersigned determines that the communications responsibilities of the civilian dispatchers do not create a substantial potential for conflict. Where the continuation of the civilian dispatchers in the civilian AFSCME unit creates a minimal potential for conflict, A special circumstances @ do not exist which dictate the inclusion of non- police in a police unit. Based upon the above discussion, it is therefore determined that the person functioning as a dispatcher/special officer be removed from the AFSCME unit at the conclusion of the agreement between AFSCME and the Township which was in effect at the time of the filing of the instant Petition, and that the dispatcher/special officer be placed in the PBA unit as of that date. The dispatcher/matrons shall remain in the AFSCME unit. BY ORDER OF THE DIRECTOR OF REPRESENTATION /s/Carl Kurtzman, Director DATED: October 13, 1978 Trenton, New Jersey 1/ N.J.S.A. 34:13A-5.3 provides, in relevant part, A ...except where established practice, prior agreement, or special circumstances dictate the contrary, no policeman shall have the right to join an employee organization that admits employees other than policemen to membership... @ 2/ Accordingly, for purposes of simplification and clarity, the dispatchers involved herein shall hereafter be termed A dispatcher/special officer @ or A dispatcher/matron, @ respectively. ***** End of DR 79-10 *****