D.R. NO. 80-15

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

JERSEY CITY BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. CU-79-40

JERSEY CITY TITLE I

ADMINISTRATORS ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Louis Serterides, Esq.

For the Petitioner

David A. Hatchett, Title I Administrator

DECISION

On February 22, 1979, a Petition for Clarification of Unit was filed with the Public Employment Relations Commission (the "Commission") by the Jersey City Title I Administrators Association (the "Association") seeking a clarification regarding the composition of a collective negotiations unit comprised of Title I Administrators employed by the Jersey City Board of Education (the "Board"), which unit the Association represents. More specifically, the instant Petition raises the question of whether two administrators, the Director and the Assistant Director of the Title I Program, are represented by the Association. The Association maintains that these individuals may not be included within the Association's unit because of a conflict of interest between the Director and the Assistant Director and other Title I administrative personnel. The Board, additionally, argues that the Director and the Assistant Director are confidential employees.

Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer Steven P. Weissman on March 24, 1979, and March 25, 1979, 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 post-
hearing briefs. The Hearing Officer issued his Report and Recommendations on July 17, 1979, a copy of which is attached hereto and made a part hereof. Neither party has filed exceptions to the Hearing Officer's Report.

The Hearing Officer concluded from the factual evidence presented that neither the Director nor the Assistant Director possess the authority to hire, or to discharge employees, or to effectively recommend these actions. Further, although the Hearing Officer found that the Director and Assistant Director did possess the ability to administer mild sanctions to employees, he concluded that neither the Director nor the Assistant Director possessed the authority, or effective authority, to discipline employees.1/

Nevertheless, the Hearing Officer concluded that a potential for a substantial conflict of interest, as envisioned by the Supreme Court in In re Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), existed which would require the exclusion of the Director of the Title I Program from the administrators unit. The Hearing Officer based his recommendations upon an examination of the Director's role in the Administrative Council of the Board,2/ the Director's role in the preparation of the Title I budget and the Director's authority to administer certain disciplinary sanctions to administrators. The Hearing Officer particularly noted the inclusion of the Director in the Administrative Council as significant in that the Director is perceived by the Superintendent as a more significant management representative than other district special program directors. The Hearing Officer raised the concern expressed in the Wilton matter, supra, that the Director of the Title I Program, by virtue of his responsibilities to management, is placed in a conflicting loyalty situation as the result of his inclusion in the negotiations unit with other administrative personnel.

The Hearing Officer found no substantial potential conflict of interest between the Assistant Director and the other administrators in the unit.

The undersigned, on the basis of a review of the entire record including the transcripts, the documentary evidence, as well as the Hearing Officer's Report, and particularly noting the lack of exceptions filed by either party to the Report, adopts the findings and recommendations of the Hearing Officer. As noted by the Hearing Officer, the Title I Director participates actively in a sensitive management capacity through his input as a member of the Board's Administrative Council. His activities in this regard pose a substantial potential for a conflict of interest which requires his exclusion from the administrators unit. Further, the undersigned agrees with the Hearing Officer that the Assistant Director does not play a supervisory role within the intendment of the Act with respect to other administrators in the administrator's unit. Additionally, the Assistant Director is not a confidential employee since his responsibilities do not entail a "knowledge in connection with the issues involved in the collective negotiations process [which] would make [his] official duties." N.J.S.A. 34:13A-3(g). Finally, the record does not establish a substantial potential for conflict of interest between the Assistant Director and other Title I Administrators.

The instant Petition filed by the Association indicates that the Association was recognized on January 10, 1979, and no collective negotiations agreement currently exists. The Petition was filed on February 22, 1979, approximately one month after recognition. Accordingly, the instant dispute has arisen in the context of the formulation of a collective negotiations unit and there is a dispute as to the identification of certain individuals regarding the appropriateness of their inclusion within the scope of the generally defined unit. Since this is a matter involving the identification of employees, the instant determination is effective immediately in accordance with in In re Clearview Regional High School Board of Education, D.R. No. 78-2, 3 NJPER 248 (1977).

Accordingly, the undersigned determines that the Director of the Title I Program is hereby excluded from representation within the administrators unit and the Assistant Director is hereby included within the administrators unit.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	November 19, 1979

Trenton, New Jersey