H.E. NO. 91-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY (TRENTON

STATE COLLEGE,

Respondent,

-and-	Docket No. CO-H-89-341

COUNCIL OF NEW JERSEY STATE COLLEGE

LOCALS, NJSFT-AFT/AFL-CIO,

Charging Party.

Appearances:

For the Respondent, Hon. Robert J. Del Tufo, Attorney General (Melvin E. Mounts, D.A.G.)

For the Charging Party, Barbara Hoerner, Staff Representative

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On May 17, 1989, the Council of New Jersey State College Locals, NJSFT-AFT/AFL-CIO ("Council") filed an unfair practice charge against the State of New Jersey, Trenton State College ("State") with the Public Employment Relations Commission ("Commission") alleging that Trenton State College violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4(a)(5)

("Act").1/ The charge alleges that the State engaged in unfair practices when in January 1989 the Council learned that the State had removed the Director of Professional Laboratory Experiences and Assistant to the Dean ("Director/Assistant") from the Council's collective negotiations unit without notice to the Council.2/3/

A Complaint and Notice of Hearing was issued on June 20, 1989, by the Director of Unfair Practices. On June 29 and August 2, 1989 the State filed an Answer and an Amended Answer, respectively. On October 24, 1989, I conducted a hearing, at which the parties examined witnesses and presented evidence. Oral argument was waived. Post-hearing briefs were filed by March 16, 1990.

Upon the entire record, I make the following:

FINDINGS OF FACT

1. The State and Council are parties to a collective negotiations agreement effective from July 1, 1986 through June 30,

1/	This subsection prohibits public employers, their representatives or agents from: (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

2/	The charge also alleged that the State violated the Act by failing to provide a job description as requested by the Council but this part of the charge was withdrawn. (T6)

3/	The transcript of the October 24, 1989 hearing is cited as T. Commission exhibits are cited as C. Joint exhibits are cited as J. Charging party's exhibits are cited as CP and the Respondent's exhibits are cited as R.

1989. This agreement included the title Director of Professional Laboratory Experiences. (T9, J-1) The Council has represented a negotiations unit of the faculty and certain professional staff employed by the College since 1974. (T9)

2. Trenton State College changed the title Director of Professional Laboratory Experiences in January 1989 to Director of Professional Laboratory Experiences and Assistant to the Dean, School of Education (emphasis added) and removed it from the Council's unit. (T10) The Director's generic title is Director III, at range 29; the prior Civil Service title was Director, Professional Laboratory Experiences. In 1986 the College eliminated the position, Assistant to the Dean of Education. In December 1988 the Dean requested the addition of assistant to the Dean duties to the Director title. This request coincided with a change of incumbents in the position.

3. Dr. Robert Gerke occupied the position Director of Professional Laboratory Experiences from April 1973 through December 1988. Dr. Raye Wheeler has occupied the new Director/Assistant to the Dean position since January 6, 1989. (T10)

4. Both Gerke and Wheeler reported directly to Phillip Ollio, the Dean of the School of Education.

5. The Director/Assistant coordinates education majors' laboratory experiences. Laboratory experiences include student teaching, junior and senior experiences in schools, clinics, and hospitals. (T24) He plans, organizes, implements and evaluates all

student teaching and practicum services. He coordinates these programs with other Trenton State College programs and develops effective relationships with outside agencies and institutions. He interprets relevant college policies. (CP-1, R-1) The Director/Assistant maintains a student teacher handbook for students and collects program evaluation data for a three-year experimental model, now in its third year. (T96-97, T118-119)

Both the former and current titles' duties include:

Negotiating with public school districts, day care centers, hospitals and clinics for teaching, practicum and internship experiences for Trenton State College students.

Authorizing the reassignment or withdrawal of student teachers and interns.

Authorizing and preparing payment vouchers for interns, cooperating teachers and practicum personnel.

Scheduling and arranging interviews and visits by college staff and students to public school districts in connection with course requirements.

Providing information about Trenton State College student teaching/intern programs, policies and curricula to schools, hospitals, and clinics.

Researching and conducting surveys to provide data to the Dean on field experiences and education enrollment. (CP-1, R-1)

6. A comparison of the job descriptions of the former Director and the newer Director/Assistant titles shows that the latter no longer has responsibility for reviewing and processing applications for State certification, but has the additional duty of attending meetings of professional organizations. All other duties

in the former description were retained in the Director/Assistant description.

7. The Director/Assistant is working on an expansion and improvement of the relationship between the College and the cooperating schools and other institutions. (T105) He does not have the authority to decide to what extent student teaching, internships and practicum experiences are required in the curriculum. (T25, T30)

8. College supervisors are faculty who supervise students placed in laboratory experiences. The Director/Assistant does not affirmatively select or veto the choice of faculty members for college supervisor positions. His advice to the Dean about the assignment of college supervisors to certain school districts would carry weight. (T37, T98) However, normally such assignments are made by faculty coordinators.

9. Faculty coordinators are faculty who arrange contacts between college supervisors and student teachers. Faculty coordinators, rather than the Director/Assistant, assign college supervisors to particular schools. (T25) The Director/Assistant communicates policy changes to faculty coordinators. (T76) Faculty coordinators are the Director/Assistant's primary source for information about the field program. (T116)

10. An incident occurred wherein the Director/Assistant was asked by a school official not to assign a certain college supervisor to his school. The Director/Assistant communicated this to the faculty coordinator in charge of that college supervisor and

also to the Dean. The college supervisor was not assigned to that particular school. (T92) The Director/Assistant did not know whether that college supervisor was disciplined because of the school official's request.(T45) This type of incident has occurred only four or five times in the last ten years. (T109) The Director/Assistant is expected to investigate and decide whether to honor such requests. The decision not to assign or reassign a college supervisor under these circumstances is clear cut because the College needs to have the continuing cooperation of host schools and institutions and needs to foster good public relations in this area. (T110)

11. The Director/Assistant recommends policies and procedures for the Laboratory Experiences Program to the Dean. These recommendations are given considerable weight. (T97) The Dean approves and directs their implementation. (T64,T67,T68,T73) Most of the laboratory experiences program policies and procedures were developed before Wheeler's tenure as Director and are in a manual which Wheeler will update as necessary. (T76,T77) Wheeler's policy recommendations would not be adopted without review or independent study by Dean Ollio. (T64,T51) Wheeler is currently working on a major project to upgrade the cooperative teacher program. The objective is to develop incentives to improve the college's relationship with these teachers. (T105,T106) Another recommendation Wheeler made was to provide resumes of student teachers to public school districts.(T53) Since Wheeler has only

been in the position for nine months he has recommended few policies and procedures.(T69)

12. The new role of Assistant to the Dean includes representing the college and the Dean at professional organizational meetings and conferences. (T64,65) Examples of such organizations include the New Jersey Association of Teacher Educators; an association of administrators; the New Jersey Association of Colleges for Teacher Education, an association of deans; and the Intercollegiate Council, an organization of professional laboratory directors. (T81-82) The Dean expects Dr. Wheeler to raise questions about issues which may affect personnel issues. The discussions about such issues are information sharing in nature and may result in an organization taking an official position. (T103) These positions may have an indirect effect on Trenton State College's policies and programs. (T103, T104)

13. Wheeler has attended department chairperson meetings for the Dean. He attended a meeting of prospective education majors where faculty unit members were present. At that meeting he presented policies and procedures of the laboratory experiences program. (T68-T69) When Wheeler speaks publicly for the Dean, he clears the content of his statements ahead of time. (T67, T104) To date, the Director/Assistant has not voted for the Dean/College at any organization or department meetings because of his newness in the position. He also has not served as the Dean's representative at State Department of Higher Education meetings, though he will be expected to do this in the future. (T107)

14. The Director has a minor role in evaluating faculty members who supervise student teachers. (T118) The Director does not personally observe and evaluate faculty. (T113) The Dean evaluates faculty. He relies on a list of student teacher visits made; presence of a reason or basis for a student grade; the student's grade; feedback from cooperative teachers, principals, superintendents. Such information may be received by the Director and is forwarded to the Dean. (T114-115) If Dr. Wheeler possesses information about a college supervisor's performance he conveys that information to the Dean. (T92, T94) The Dean would give serious consideration to any information given him by the Director about faculty performance. (T95-96) Because he represents the college in setting up laboratory experiences throughout the state, he is one of the persons who is contacted when a problem with a college supervisor arises. (T37, T38)

ANALYSIS

The Council charges that the State's removal of the Director of Laboratory Experiences and Assistant to the Dean from its unit was a refusal to negotiate with the majority representative. In its defense, the State asserts that it is justified in removing the Director because additional duties assigned to the new incumbent render the title inappropriate for inclusion in the Council's unit because it is now either a managerial executive and/or a supervisor within the Act. Thus,

although raised in the context of an unfair practice charge, the central issues presented here are whether Wheeler functions either as a managerial executive or supervisor within the meaning of the Act.

An employer acts at its peril of committing an unfair practice if its judgment about the exclusion of titles from a unit proves incorrect. Thus, if the State is incorrect about whether the new duties have created a supervisory or managerial position, then it has committed an unfair practice. Passaic County Reg. H.S. Dist. #1 Bd. of Ed., P.E.R.C. No. 77-19, 3 NJPER 34 (1976)(Board held not to have committed unfair practice where it excluded a confidential employee); Westfield Bd. of Ed., P.E.R.C. No. 88-3, 13 NJPER 635 (¶18237 1987)(Board committed unfair practice where removed titles were found not to be performing supervisory duties which would have warranted their removal); City of Newark, H.E. No. 88-3, 13 NJPER 621 (¶18233 1987), adopted P.E.R.C. No. 88-24, 13 NJPER 727 (¶18274 1987)(City committed unfair practice when it unilaterally withdrew recognition of police recruits from police bargaining unit).

Initially, I find that the State did not create a completely new position when it added the name "Assistant to the Dean" to the Director's title. The testimony and minimal additions to the written job description support this conclusion. Only the processing of State certification applications was deleted from the position as performed by Gerke, the former incumbent. The new distinguishing duties, participation in meetings with outside

organizations, do not change the character of the position. In fact, Wheeler must clear position statements with the Dean prior to announcing them or answering questions.

Managerial Executive Status

N.J.S.A. 34:13A-5.3 excludes managerial executives from the protections and rights afforded by the Act to public employees. Under N.J.S.A. 34:13A-3(f) managerial executives are:

persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices....

This definition was applied initially in Borough of Avon, P.E.R.C. No. 78-21, 3 NJPER 373 (l977). There, a lifeguard captain was found not to be a managerial executive although he prepared the beach operations budget, authorized and modified rules and regulations, created the disciplinary system, authorized changes in the workweek, added guards to the payroll in emergencies, participated in management meetings, influenced the Borough's and Mayor's policies, trained and scheduled all guards, managed the beach and supervised guards on a day-to-day basis. The Commission stated:

[T]he term "managerial executive" shall be narrowly construed, and...the relevant National Labor Relations Board precedent...indicates that a wider range of discretion than that possessed by [the lifeguard captain] is needed. [He] was clearly a supervisor and in that capacity could be said to be effectuating management policy, but the Act clearly distinguishes managerial executives --excluded from coverage-- from supervisors--eligible to be represented in appropriate units. Id. at 374. (Emphasis added).

Here, Wheeler is the coordinator of the practicum and student teaching programs. As such he oversees their operation, acts as a liaison to host schools and institutions, and plans modifications to the programs. At present he is charged with improving the College's relations with participating schools and teachers. No evidence was offered which supports that he has the authority to change the direction of these programs or to make changes which widely affect the College's mission. His one area is professional laboratory experiences. He has authority to observe, plan and recommend changes. The one change he implemented, forwarding student teachers' resumes to host schools, is procedural in nature. He is also responsible for monitoring and evaluating these programs but these are administrative or analytical duties, rather than indicative of managerial authority as contemplated by the Act. He appears to have little or no budget authority, and no evidence was produced which indicates he can change rules, regulations, or policies without the Dean's agreement or approval.

An important indicator of the range of his discretion is the existence of a program manual. The student teacher handbook, which contains the policies and procedures of the professional laboratory program, was created prior to his tenure and circumscribes and limits his discretion. Finally, while Wheeler may be expected to handle problems and make decisions without the Dean's authority, to date he has not exercised this authority in a wide

range of policy matters. The testimony and evidence indicates that as to major program policies, the Dean makes these decisions. Effective recommendations are not part of the standard for managerial executives. Avon dictates managerial executives possess a wider range of discretion.

In Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507, 508-09 (¶11259 1980), 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 for 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 purposes or 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.

Id. at 509. (Emphasis added)

Here, Wheeler does not have authority sufficient to affect broadly the organization's purposes. He does not have authority to decide to what extent student laboratory experiences are required in the curriculum.(T25,T30) Wheeler assists the Dean by recommending procedures. It appears he does not unilaterally determine how policies will be implemented, but rather ensures that standard

operating procedures are followed. Accordingly, I find that he does not formulate policy.

Wheeler's duties involve primarily administrative and coordinative responsibilities. He has some discretion in responding to day to day situations. No evidence was offered regarding the Wheeler's role in collective negotiations or handling grievances.

Montvale states that relative position in the hierarchy is an important factor in managerial status determinations. See, Bergen Pines Cty. Hosp. and Council No. 5, NJCSA, D.R. No. 83-8, 8 NJPER 525 (¶13245 1982), where three titles were held not managerial though they were fourth in the chain of command but had only department-wide, not hospital-wide authority. Similarly, here, Wheeler's policy-making role is limited to the Professional Laboratory Experiences Program in the School of Education.

Supervisory status

N.J.S.A. 34:13A-5.3 provides in part that

". . . nor except where established practice, prior agreement or special circumstances dictate the contrary, shall any supervisor having the power to hire, discharge, discipline or effectively recommend the same have the right to be represented in collective negotiations by an employee organization that admits non-supervisory personnel to membership."

The Commission has determined that the Act defines a supervisor as one having the authority to hire, discharge, discipline, or to effectively recommend any of the foregoing. "The mere possession of the authority is a sterile attribute unable to sustain a claim of

supervisory status." Somerset Cty. Guidance Center, D.R. 77-4, 2 NJPER 358, 360 (1976). We must review all the circumstances of a particular case to determine whether the employee has and regularly exercises such power. City of Margate, P.E.R.C. No. 87-146, 13 NJPER 500 (¶18184 1987); Cherry Hill Tp. DPW, P.E.R.C. No. 30 (1970).

Here, no evidence was presented that Wheeler has hired, discharged, disciplined or effectively recommended the hiring, discharge or disciplining of any employee. He does not select faculty members for college supervisor positions or assign college supervisors to particular schools.

The State asserts that Wheeler's role in evaluating unit employees puts him in an impermissible conflict with those employees. However, the record does not support this. The Director plays a minor role in evaluating Council unit members. While evaluating alone is not one of the statutory criteria, the Commission has considered it as it relates to other actions such as renewal, tenure, promotion and salary. See Watchung Hills Reg. H.S. Bd. of Ed., P.E.R.C. No. 85-116, 11 NJPER 368 (¶16130 1985) and cases cited in H.E. at 18. Evaluations alone do not necessarily create a conflict of interest sufficient to exclude the evaluator from a unit. See, e.g., Roselle Park Bd. of Ed., P.E.R.C. No. 87-80, 13 NJPER 73 (¶18033 1987).

Here, there were no evaluations in the record. Wheeler may collect some of the data used by Dean Ollio to evaluate faculty members and he may forward information that comes to his attention

and not directly to the Dean. No evidence was presented to show that Wheeler either prepares, discusses or signs evaluations. There is no evidence that Wheeler is in conflict with the other members of the Council's unit because of his role in performance evaluations.
Under all the circumstances of this case, I find that Wheeler is not a supervisor. He has neither the statutorily required power to hire, discharge, discipline or effectively recommend the same nor the type of substantial control of the evaluation process sufficient to require his exclusion from the Council's unit.

A supervisor's role in evaluations can serve as effective recommendations for the statutorily mandated criteria. Data gathering or recommendations for another's evaluations which might then serve as the basis for another's personnel decisions are too far removed from the personnel decisions to create a conflict of interest substantial enough to remove the titles from the unit. Westfield Bd. of Ed., P.E.R.C. NO. 88-3, 13 NJPER 635 (¶18237 1987) Contrast Wilton v. West Orange Bd. of Ed., 57 N.J. 404 (1971).

CONCLUSIONS OF LAW

Accordingly, I conclude that the State of New Jersey, Trenton State College violated N.J.S.A. 34:13A-5.4(a)(5) when it removed the Director of Professional Laboratory Experiences and Assistant to the Dean, School of Education from the unit represented by the Council of New Jersey State College Locals, AFT. The State

acted at its peril when it removed the title from the unit unilaterally. Because I have found that Wheeler's title belongs in the Council's unit, the State violated subsection 5.4(a)(5) when it unilaterally removed the title from the unit. The State should have filed a clarification petition to obtain a determination as to the supervisory and managerial status of the title without running the risk of violating the Act by acting unilaterally. The Commission has established the non-adversarial unit clarification petition as the preferred vehicle to resolve the issues presented here. If in the future there are substantial changes in this Director's duties the State may file a unit clarification petition.

RECOMMENDATIONS

I recommend that the Commission ORDER that the Respondent	A. Cease and desist from:

1.	Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment.

B.	Take the following affirmative action:

1.	Put the title Director of Professional Laboratory Experiences and Assistant to the Dean, School of Education into the Council's professional non-supervisory unit effective retroactive to January 6, 1989.

2.	Upon demand, negotiate in good faith with
the Council over terms and conditions of employment of the Director of Professional Laboratory Experiences and Assistant to the Dean.

3.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

4.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

Elizabeth J. McGoldrick

Hearing Examiner

DATED: February 11, 1991

Trenton, New Jersey

WE WILL cease and desist from refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, particularly by removing the Director of Professional Laboratory Experiences and Assistant to the Dean, School of Education from the Council's negotiations unit.

WE WILL put the title Director of Professional Laboratory Experiences and Assistant to the Dean, School of Education into the Council's professional non-supervisory unit effective immediately retroactive to July 16, 1985.

WE WILL upon demand, negotiate in good faith with the Council over terms and conditions of employment of the Director of Professional Laboratory Experiences and Assistant to the Dean.