H.O. NO. 77-7

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BROOKDALE COMMUNITY COLLEGE,

Public Employer,

-and-	Docket No. RO-1058

BROOKDALE COMMUNITY COLLEGE

ADMINISTRATIVE ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer

Murray, Meagher & Granello

(John A. Meagher, of Counsel)

For the Petitioner

Ruhlman & Butrym

(Edward J. Butrym, of Counsel)

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Petition for Certification of Public Employee Representative was filed on June 23, 1975 by the Brookdale Community College Administrative Association (the "Association") seeking certification as the exclusive representative for the purpose of negotiations of administrative employees of Brookdale Community College (the "College").

Pursuant to a Notice of Hearing, a hearing was held in Newark, New Jersey, before Hearing Officer Leo M. Rose on October 30, 1975, November 24, 1975, January 23, 1976, March 18, 1976, March 31, 1976, and May 3, 1976.1/

During the hearing the parties were given the opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Both parties filed briefs subsequent to the hearing, the Petitioner's being received on July 8, 1976 and the Employer's on July 22, 1976.

Pursuant to N.J.A.C. 19:14A-2.22/ the Director of Representation Proceedings designated the undersigned on February 7, 1977, as Hearing Officer for the purpose of issuance of a Report and Recommendation. This was due to Mr. Rose having left the employ of the Commission.

Upon the entire record, the exhibits admitted into evidence and the briefs in the instant proceeding the Hearing Officer finds:

1.	Brookdale Community College is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the "Act") and is subject to its provisions.

2.	The Brookdale Community College Administrative Association is an employee organization within the meaning of the Act and is subject to its provisions.

3.	The Association sought recognition as the exclusive representative of a unit of administrative employees and the College objected to the appropriateness of the unit sought, objecting to the inclusion of a substantial number of titles. Accordingly, there is a question concerning representation regarding the administrative personnel of the College and the question is appropriately before the Hearing Officer for a Report and Recommendation.

Both before and during the hearing, the parties reached agreement as to the inclusion or exclusion of a large number of job titles in the proposed unit. Annexed hereto as Appendix A is a list of the titles agreed upon by the parties.

The College is currently objecting to the inclusion of some 24 titles in the unit on the grounds either that a conflict of interest exists between the objected to title and one or more other titles sought for inclusion, or that a petitioned-for employee is a confidential employee within the meaning of the Act, and therefore ineligible to be represented in any bargaining unit. In certain instances the College has pressed both objections to the same titles. These two broad areas of objection to inclusion will be treated separately.

CONFLICT OF INTEREST

It is the College's position that twelve titles are in effect "supervisors" of the titles to be included in the unit, and that therefore a conflict of interest exists such that the community of interest between these employees is not sufficient to warrant their inclusion in the same unit with the other administrators. These twelve are: Assistant Director of Computer Services for Systems and Programming; Assistant Director of Computer Services for Contract Services; Operations Manager, Computer Services; Manager Data Base; Director of Student Life and Activities; Director of Admissions and Records; Director, Career Services; Associate Dean Community Education; Director Human Resources; Assistant Director, Human Resources; Director, Information Services; Manager, Material Services.

The College does not argue that these titles should be excluded on the basis of the Act's declaration that supervisors not be in the same unit with non-supervisors.3/ This is due to the fact that other titles, to which the College does not object, are supervisors within the meaning of the Act in their relationship to non-administrative personnel not sought for inclusion in this unit. However, the College does contend that the standard to be used in determining whether there is a conflict of interest is that for determining supervisors - the power to hire, discharge, discipline, or effectively recommend the same. Maintaining that the twelve titles enumerated above have these powers over other employees in the unit sought, the College asserts that conflict exists as a result of the exercise of these supervisory duties.

The Association responds by asserting that the administrators in question are only minimally involved in the hiring, discharge or discipline of other proposed unit members. Higher level administrators are pointed to as those who effectively are the decision makers in these areas, and as the Association is not seeking their inclusion in the unit, the potential for real conflict of interest, it is argued, has been eliminated.

Central to any determination on this question is the New Jersey Supreme Court decision in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971). At issue therein was whether the Director of Elementary Education would properly be included in a unit of supervisory personnel. The Court rejected the notion that merely because Miss Wilton was a supervisor, and the other proposed members were supervisors, a community of interest existed per se. What must be examined is the degree to which a particular supervisor's duties are related to a management function.

Ordinary considerations of employer-employee relations make it sensible to say that if performance of assigned duties by a particular supervisor bespeaks such an intimate relationship with the management and policy-making function as to indicate actual or potential substantial conflict of interest between him and other supervisory personnel in a different or lower echelon of authority, such supervisor should not be admitted to the same negotiating unit.4/

In support of its position, the College relied primarily on the testimony of Ghislaine Sheehan, the Assistant Director of Personnel. Mrs. Sheehan's testimony was based on a compilation of job descriptions5/ which was the result of a compensation study performed by an outside consultant. It was compiled through the use of questionnaires to be filled out by the incumbents in the administrative job titles from which the consultant firm and the college were able to develop the descriptions.

Mrs. Sheehan testified that according to the description of his position, the Director of Student Life and Activities was the "supervisor" of an Administrative Assistant. When such position fell vacant, it would be up to the Director to submit a request for personnel6/ which would need approval from the Dean of Student Development, and then need approval signatures from a college Vice-President, the personnel department and the President. Then it would be up to the Director to interview candidates with the option of using a committee for that function. Then he would fill out an employment recommendation form7/ listing the candidate of his choice, and send it through the same chain of approvals necessary for the request for personnel with the Board of Trustees having to give final approval for an administrative position.8/

In addition to initiating the hiring process, the Director could also initiate the discharge process by use of a recommendation for non-renewal,9/ which calls for a "college officer's" signature - in this case Vice President, and then goes on to the President for a final decision.10/ (Although the form does not call for the Dean's signature, he would be expected to sign-off).11/ Furthermore, the Director would be involved in evaluating the Administrative Assistant. On the evaluation form12/ objectives to be accomplished are listed as developed by the Director and the Assistant, and at the end of the year the Director would evaluate the Assistant on the basis of accomplishment or non-accomplishment. Often times, an Assistant might also be asked to do self-evaluation. Then the form is sent to the personnel office for review.13/

After this testimony, it was agreed by counsel for both sides that the general procedure outlined above would apply to all the administrators sought to be excluded on the basis of conflict of interest.14/ From there on, the College's evidence as to the remaining titles was limited to a recitation of what administrators were supervised by the title in question, that the "supervisor" initiated hiring or discharge procedure, and evaluated the subordinate. Additionally, Mrs. Sheehan testified that a grievance procedure had been established for non-
represented personnel15/ and that a person's immediate supervisor was responsible for the informal first step necessary before the formal stage could be entered. She stated that no grievances had yet been processed through this procedure.16/ All of this testimony was based on the contents of the job descriptions, and was virtually devoid of specific examples. (The same type testimony was provided as to the four computer people17/ by Vincent Gorman, the Director of Computer Services.) Mrs. Sheehan stated that she personally was familiar with the hiring and other processes only insofar as the necessary forms and the personnel office's procedures.18/

The College is divided into departments each of which is headed by a Dean or Director. All of the Deans and Directors in charge of a department have been stipulated out of the unit, and all of the titles at issue for conflict of interest are subordinate to one of these Deans or Directors.

It has been the Commission's position that the bare possession of supervisory authority without more is insufficient to sustain a claim of supervisory status. There must be concrete indication that the power is exercised with regularity and is not a "sterile" attribute. In re Somerset County Guidance Center, D.R. No. 77-4 (176). This is even more important in the instant case where the grounds for objection are not separating supervisors from non-supervisors, but instead are actual conflict of interest albeit from the supervisor-supervisor relationship alleged.

Upon a review of the testimony on this point, the undersigned concludes that the evidence does not demonstrate the existence of a conflict of interest sufficient to warrant exclusion from the proposed unit. Mrs. Sheehan's testimony did not give any figures as to the number of occasions on which any of the "supervisors" at issue had instituted hiring or discharge procedures, nor did it indicate how often such recommendations may have been followed or disapproved by higher authority. The sole indications of possible conflict were the job descriptions which on paper showed that these administrators were the supervisors for other administrators in the unit.

In reaching this conclusion, the undersigned wishes to stress the fact that the testimony was uncontroverted that all of the actions of the "supervisors" are subject to review by a number of higher levels of authority within the College, and that final decisions rest with the President. It is not contended that these administrators can actually hire or fire, but rather they can "effectively recommend" the same. Yet there is nothing in the record to show whether or not these recommendations are indeed effective. Unless it could be substantiated that these recommendations are accepted in almost all cases, it cannot be said that the administrator-supervisors are effectively recommending action.

The brief submitted on behalf of the College makes reference to three Executive director decisions dealing with community colleges in which immediate supervisors were found to effectively recommend hire or discharge even though they had to submit their recommendations through higher levels of administration.19/ These cases dealt with the issue of whether Department Chairmen were supervisors within the meaning of the Act. In all of them, the evidence clearly established that the recommendations as to hiring made by these Chairmen were followed almost 100% of the time, and so they were found to effectively recommend, and therefore were excluded from faculty units as supervisors.

As noted above, the record herein does not contain evidence showing the recommendations' effectiveness, nor even how often the administrators have ever made such recommendations. In terms of discharge, while testifying about the position of Director of Student Life and Activities, Mrs. Sheehan stated that he had not ever instituted a discharge proceeding for the Administrative Assistant position he supervised.20/ Moreover, the department chairmen most closely analogous to the excluded supervisors in the other cases are not now being sought for inclusion in the unit. Unlike the department chairmen in these cases, the administrators herein at most are listed as being supervisor for one or two other administrators, and direct supervision of these other unit members are not their primary job functions even according to the job descriptions put into evidence by the College.

Only one of the administrators in question testified as to the actual functions of his job - Steven Seligman, Director of Admissions and Records. He stated that his role in evaluating administrators working under him was to form goals jointly with them and have them evaluate their success subject to his comments before sending the evaluation up through the chain of command. This contrasted with his evaluation of non-academic staff which he testified was done without significant in put from the persons evaluated.21/ This description of working in conjunction with the other administrators rather than by fiat certainly does not indicate a conflict of interest. While on cross-examination he did state that he was in a position to make recommendations for discontinuance of employment, there was no indication he had actually done so, nor that he had actually had to be involved with a administrator's grievance though he theoretically would be the necessary first person involved.

The undersigned is not convinced by the evidence that the administrators here at issue have been shown to be the supervisors of those below them within the Act's definition of that term. Even if they were, that alone would not require their exclusion from the unit as those being supervised are themselves supervisors of non-administrative personnel. Actual conflict, or at least a very strong potential, must be shown, and the record herein does not show the existence of such conflict. Accordingly, the undersigned recommends that these twelve titles not be excluded from the proposed unit on the basis of conflict of interest.

CONFIDENTIALITY

There are seventeen administrators as to whom the College asserts that they are confidential employees within the meaning of the Act, and therefore ineligible for inclusion in any bargaining unit. Nine of these employees may be loosely classified as computer personnel - Assistant Director of Computer Services for Systems and Programming; Assistant Director of Computer Services for Contract Services; Production Control Coordinator; Operations Manager; Project Manager; Systems Coordinator; School Coordinator; Manager, Data Base; Coordinator, Data Base. There are four administrative assistants - Senior Administrative Assistant to Dean of Natural and Applied Sciences; Senior Administrative Assistant to Dean of Human Affairs; Senior Administrative Assistant to Dean of Applied Humanities; and Administrative Assistant to the Director of the Learning Resources Center. Additionally there are four other titles - Chief Accountant; Director of Informational Services; Data Coordinator, Research; Research Associate.

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

(g) 'Confidential employees' of a public employer means 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.

The Act bars confidential employees from the right to join, form or be represented by an employee organization.22/

Prior to the amendment of the Act to include the above definition of confidential employee, the Commission had adopted as part of its rules N.J.A.C. 19:10-1.1 which defined a confidential employee as:

...any employee for whom a principal duty is to assist and act in a confidential capacity to persons who formulate, determine and effectuate management policy in the area of labor relations...The term 'confidential employee' shall be narrowly construed.

Nothing in the Commission's definition is inconsistent with the legislative definition, and therefore the undersigned considers N.J.A.C. 19:10-1.1 as a guide to be used in application of N.J.S.A. 34:13A-3(g). In light of the fact that the legislature has chosen to completely bar confidential employees from representation by an employee organization, the stricture that the term shall be narrowly construed is more vital than ever.

Computer Personnel

Testimony as to the job functions of the nine computer area administrators was provided by Vincent Gorman, Director of Computer Services. He testified that when a request for a report comes in, if it is for an existing report, it would go directly to the operations wing for processing. In that wing, the administrator titles involved would be Production Control Coordinator and Operations Manager. If a request for new information is made, it would first have to go to the Systems and Programming group in which the Assistant Director and Project Manager would be directly involved, and it would then be sent on to the operations wing. The Manager of Data Base has control over access to the stored information. All other titles objected to would have access to the information.23/

Mr. Gorman further testified that his department performed primarily a maintenance, storage and production function as to data compiled by the various departments of the College and that his department was the only one which would have all of the data together for the College as a whole.24/

As to labor negotiations, Mr. Gorman testified that requests for information would be received for possible use in labor negotiations. The one example he gave was a request for salary information. What was supplied was historical data and current salary figures. He stated that approximately twenty percent of the Computer Center's time would be spent on reports relating o negotiations.25/

In In re Board of Education of the Township of West Milford, P.E.R.C. No. 56 (1971), the Commission was faced with determining whether a large number of employees were confidential. Three employees out of nineteen were found to be confidential. They were secretaries to the School Superintendent and Board Secretary, who shared responsibility for formulating labor policy and conducting negotiations, and were found to have access to policy information. As to the remaining employees the Commission declared:

It may be that the lowest clerk would, as part of that job, record or assemble data which the Board may consider confidential for a variety of reasons and which may later become a factor in a policy decision, but there is no reason why the performance of that collection function should disqualify one from the possibility of representation. Mere knowledge of raw information acquired in this process would not ordinarily tend to compromise management's right to confidentiality in matters of policy affecting negotiations or contract administration.26/

It is the undersigned's conclusion that the computer personnel of Brookdale College fall under the above analysis from West Milford. As part of their duties they may be dealing with data which will later on be considered by management in formulating its policies in labor negotiations or contract administration. This knowledge does not compromise management's position as the computer people do not know what conclusions will be drawn from the data, or whether it will in the long run have any real effect on labor policy. Unlike the secretaries found to be confidential in West Milford, the personnel in computer work does not attend any policy formulation meetings and does not have access to items such as the minutes of policy sessions. Therefore, there is no reason to believe that their inclusion in the unit will in any manner compromise management's position in labor relations.

Administrative Assistants

Mr. Stanley Stein, Director of Personnel, gave the College's position as to these four titles. He testified that at the initial stage of labor policy formulation, the College utilized committees to discuss past experience and come up with some preliminary positions to be taken into a negotiations session. Among those who would be called upon to serve on these committees might be the immediate superiors of the four employees concerned -- the Dean of Human Affairs, the Dean of Applied Humanities, the Dean of National and Applied Sciences, and the Director of the Learning Resources Center. Mr. Stein testified that the Administrative Assistants might have to prepare material for their superior for use in these meetings, and that as these discussions often carried for a period of weeks at a time, the Administrative Assistants would inevitably be aware of what was being discussed at them.27/ He went on to state that a leak of information from these meetings had taken place and been traced to an Administrative Assistant, although whether it was one of the titles herein at issue was not specified.28/

During cross-examination Mr. Stein -- who was initially describing the duties of administrative assistants in the course of testifying as to the Assistant to the Director of the Learning Resources Center -- stated that he had not, at any of the meetings described, seen the Assistant to the Director of Learning Resources present. Nor had he received any direct input from the Assistant as to labor negotiations policy. He further testified that while he would expect that the Assistant was utilized in formulating responses for inquiries to the Director on the subject of labor relations, he did not have first hand knowledge of how she was utilized.29/

As to the remaining three titles, Mr. Stein's testimony by and large added no new elements to the description of what administrative assistants do and why they should be excluded from the unit. He gave one concrete example of Mr. Skoules - Assistant to the Dean of Applied sciences - compiling data on the question of shift differentials for non-academic staff.30/

Two of the four administrative assistants testified. Pamela Austin, Assistant to the Director of Learning Resources Center disclaimed any knowledge of confidential information regarding negotiations, and said she did not consult with the Director or any other official with respect to matters concerning labor negotiations.31/ She did participate in putting together figures from the subdivisions of the Learning Resources Center as to the budget, which would include only the current salary figures, and not any projections of future salaries.32/ She did not do cost analysis of sick days, vacations and the like but merely kept records of who was away at what times. She was surprised that the questionnaire form as to her position indicated access to confidential information (it was filled out by the Director as she was not at that time employed by the College).33/

Cathleen McNee, Administrative Assistant to the Dean of Human Affairs, also denied knowledge of any labor negotiations confidential information or consultation on that subject. She said that the Assistants to the Deans of Applied Humanities and National Sciences did basically the same things she did.34/

In view of the fact that the testimony by the Administrative Assistants themselves consisted of out and out denial of any involvement in the labor negotiations area on behalf of their superiors, and that the testimony by Mr. Stein relied on job descriptions and what he assumed would be the role of the Assistants, there is no basis for exclusion of these titles as confidential employees. In prior cases, it has been held that there must be regular involvement in work concerning labor policy. In re Springfield Board of Education, E.D. No. 52 (1974); In re Plainfield Board of Education, E.D. No. 1 (1970). Herein the Deans might be said to be regularly involved on the basis of the committee meetings, but there is no evidence that the Administrative Assistants are utilized in a confidential capacity on those matters. Even if on occasion an Assistant may prepare statistical material, such as the shift differentiation data as mentioned above, that is not regular involvement which would warrant the exclusion of those Administrative Assistants from the right to be represented in collective negotiation.

Chief Accountant

The Chief Accountant position was described by Mr. Stein. Mr. Tomlinson, the incumbent, reports to the College's comptroller. The main contention made by the College was that the Chief Accountant participated in overall budget formulation including costing out of proposals put forth in negotiations.35/

The status of employees who prepare cost projections was considered by the National Labor Relations Board in National Medical Hospital, 88 LRRM 1075 (1974). A bookkeeper therein had access to salary and other cost data, and prepared cost projections for use by management in labor negotiations. The Board reasoned that this alone did not give him knowledge of policy that would make him a confidential employee. Similarly budget analysts with access to salary, fringe benefit, and labor hours and rates information were held not to have access to basic labor relations policy and were not confidential. General Dynamic Corp., 87 LRRM 1705 (1974).

The fact that the Chief Accountant may cost out items proposed in negotiations does not mean that his presence in the unit will compromise management. At most, he will know what proposals have been put on the bargaining table, and not what management's position vis-a-vis these proposals may be.36/ It is the undersigned's recommendation that the Chief Accountant not be excluded as a confidential employee.

Director of Information Services

Mr. Stein again provided the testimony as to this job position. The Director reports to the Executive Director of Public Affairs who is in the President's cabinet. The Executive Director sits in on labor relations strategy meetings with the President and other cabinet members. The Director of Information Services has not attended any of these meetings.37/ However, when the College is in the position of dealing with the press, the Director is made aware of the College's position on labor questions, and told what can be released to the press and what cannot be made known.38/ No conflicting testimony was offered.

The Director of Information Services appears to precisely fit the concept of what is a confidential employee as defined by the legislature and the Commission. As part of his duties, he reports to a superior regularly and directly involved in formulating labor policy and regularly is utilized in a confidential capacity. Mr. Stein's testimony that labor policy positions are revealed to the Director was not rebutted, and therefore he ought to be excluded from representation by an employee organization.

Date Coordinator, Research and Research Associate

No testimony was presented as to these two positions. In the absence of any showing that these employees do have access to confidential information or are in any was involved in the process of formulating labor policy, the undersigned declines to recommend their exclusion from any right to representation on the basis of their being confidential employees.

RECOMMENDATION

For the above stated reasons the undersigned recommends that the appropriate unit should be all administrators employed by Brookdale Community College excluding the following: President; Administrative Assistant to the President; Vice-Presidents; Assistants to Vice-Presidents; Executive Director of Public Affairs; Director of Information Services; Internal Auditor; Deans; Administrative Assistant to Executive Director of Public Affairs; Director of Personnel; Assistant Director of Personnel; Lieutenant, Safety and Security; Director, Safety and Security; Executive Assistant to the President; Director of Computer Services; Director of Learning Resources; Director of Accounting; Director of Campus Services; Director of Physical Plant; Comptroller; Director of Research.

Respectfully submitted,

/s/James F. Schwerin

Hearing Officer

DATED:	March 4, 1977

Trenton, New Jersey

APPENDIX A

The following titles were agreed upon by the parties for inclusion or exclusion in the proposed unit.

Inclusions: Program Administrator, Community Services; Manager, Food Services; Coordinator, Community Services; Associate Dean, Extension Services; Construction Coordinator; Program Administrator, Community Services; Administrative Assistant, Community Services; Administrative Assistant, Student Development; Supervisor, Media Distribution; Director, Testing Services; Director, Nursing and Allied Health; Manager, Print Shop; Manager, College Store; Director of Financial Aid; Coordinator, Facilities Planning; Coordinator, Publications; Supervisor, Learning Resources Center; Coordinator, Cooperative Education; Manager, Central Plant; Supervisor, Grounds; Director, Curriculum Design; Supervisor, Childhood Education Learning Laboratory; Coordinator, Veterans Affairs; Supervisor, Audio Visual; Director, Multi-Cultural Programs; Supervisor, Common Services; Manager, Maintenance and Custodial Services; Supervisor, Custodial Services; Registrar; Director, Instructional Development.

Exclusions: President; Vice-President; Deans; Executive Director, Public Affairs; Executive Assistant to the President; Administrative Assistant to the President; Assistants to Vice-
Presidents; Director, Safety and Security; Lieutenant, Safety and Security; Administrative Assistant, Public Affairs; Comptroller; Internal Auditor; Director of Accounting; Director of Personnel; Assistant Director of Personnel; Director, Learning Resources; Director, Computer Services; Director, Campus Services; Director, Physical Plant; Director, Research.