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D.R. No. 83-10

Synopsis:

The Director of Representation, adopting the recommendations of a Hearing Examiner, determines that Department Heads are supervisors, may be removed from a unit with teaching personnel, and may vote in an election to select or reject a negotiations representative for a unit of department heads. The Director's decision is consistent with numerous recent decisions finding that department heads exercise supervisory powers, particularly in the observation and evaluation of teachers. The Director also rejects the contention of the teachers association that department heads remain in the unit to the extent that they are teachers. Such a conclusion would promote conflicts of interest.

PERC Citation:

D.R. No. 83-10, 8 NJPER 540 (¶13248 1982)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

15.111 16.32 33.42 46.92

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.DR 83-010.wpdDR 83-010.pdf - DR 83-010.pdf
    Appellate Division:
    Supreme Court:


    D.R. NO. 83-10 1.
    D.R. NO. 83-10
    STATE OF NEW JERSEY
    PUBLIC EMPLOYMENT RELATIONS COMMISSION
    BEFORE THE DIRECTOR OF REPRESENTATION

    In the Matter of

    CLIFFSIDE PARK BOARD OF EDUCATION,

    Public Employer,

    -and- Docket No. RO-82-56

    CLIFFSIDE PARK SUPERVISORS
    ASSOCIATION,

    Petitioner,

    -and-

    CLIFFSIDE PARK EDUCATION ASSOCIATION,

    Intervenor.

    Appearances:

    For the Public Employer
    Winne, Banta & Rizzi, Esqs.
    (Robert N. Jacobs of counsel)

    For the Petitioner
    Robert M. Schwartz, Esq.

    For the Intervenor
    Bucceri & Pincus, Esq.
    (Sheldon H. Pincus of counsel)
    DECISION AND DIRECTION OF ELECTION

    On October 1, 1981, a Petition for Certification of Public Employee Representative, supported by an adequate showing of interest, was timely filed with the Public Employment Relations Commission ( A Commission @ ) by the Cliffside Park Supervisors Association ( A Petitioner @ ), seeking to represent, A All personnel who have been appointed department supervisors having supervisory responsibilities within the meaning of N.J.S.A. 34:13A-5 et seq. @ who are employed by the Cliffside Park Board of Education ( A Board @ ). The department supervisors are currently represented by the Cliffside Park Education Association ( A Association @ ) and are included in a unit which includes teachers and other professional staff. Pursuant to N.J.A.C. 19:11-2.7, the Association requested and was granted intervenor status.
    Hearings were held before Commission Hearing Officer, Robert E. Anderson, Jr., on February 10 and 11 and also April 12, 1982, in Newark, New Jersey, at which time all parties were given an opportunity to present evidence, to examine and cross-examine witnesses, and to argue orally. Post-hearing briefs were submitted by the parties, the last of which was received by June 7, 1982. The Hearing Officer thereafter issued his Report and Recommendations on June 21, 1982, a copy of which is attached hereto and made a part hereof. The Association filed exceptions to the Hearing Officer = s Report and Recommendations on July 1, 1982.
    The undersigned has considered the entire record herein, including the Hearing Officer = s Report and Recommendations, the transcript, the exhibits and the Association = s exceptions and finds and determines as follows:
    1. The Cliffside Park Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ), is the employer of the employees who are the subject of this Petition, and is subject to the provisions of the Act.
    2. The Cliffside Park Supervisors Association and the Cliffside Park Education Association are employee representatives within the meaning of the Act and are subject to its provisions.
    3. The Association is the exclusive representative of a unit of professional employees which include teachers, department heads and other professional titles.
    4. The Petitioner seeks a separate negotiations unit of department heads/supervisors of instruction ( A department heads @ ). It argues that department heads are supervisors and therefore may not be included in a unit which includes nonsupervisors. The Board agrees that department heads are supervisors and does not oppose a separate unit. The Association argues that the department heads are not supervisors, and that their inclusion in the negotiations unit with teachers does not present a conflict of interest. It further argues that even if department heads are excluded from the unit because of their supervisory status, they should remain in the unit to the extent that their duties are the same as any other teacher in the unit.1/
    5. The Hearing Officer found that the department heads are supervisors within the meaning of the Act, that through their roles in the observation/evaluation process and in making recommendations with respect thereto they have substantial power to affect the careers of teachers, and that the exercise of their supervisory responsibilities would present a conflict of interest vis-a-vis their inclusion in the negotiations unit with teaching staff members whom they supervise. He also found that the teaching duties of department heads as could not be separated from their duties as supervisors and thus they could not be included in the unit to the extent that they are teachers. Finally, the Hearing Officer recommended that the department heads be removed from the existing collective negotiations unit and be provided with the opportunity tho choose separate representation.
    The Association excepts to the Hearing Officer = s findings, arguing that the department heads are not supervisors within the meaning of the Act and that there is no actual or potential conflict of interest between the department heads and other unit members. The Association further submits that even if the department heads are supervisors, to the extent that they are teachers, they should be included in the existing unit.
    After a review of the entire record, the undersigned adopts the Hearing Officer = s findings of fact, conclusions of law, and recommendation that an election be provided to resolve the question concerning representation in the unit of department heads.
    N.J.S.A. 34:13A-5.3 defines a supervisor as one having the power to hire, discharge or discipline employees, or to effectively recommend the same. In numerous recent decisions, which have reviewed school district situations subsequent to the promulgation by the Commissioner of Education of regulations concerning the observation/evaluation of teachers in accordance with the A thorough and efficient @ education mandate, the undersigned has consistently found department chairpersons to have supervisory status.2/ The record herein reveals that department heads, all of whom hold supervisory certificates, play a substantial role in a teacher = s evaluation and submit these written evaluations to the principals with recommendations. The evaluation process plays a significant role in decisions involving the reappointment or non-reappointment of teachers as well as the granting or denial of tenure. The record also reveals that the department heads, together with the building principal and vice-principal, conduct the hiring interviews for the prospective teachers in the department head = s area of expertise. Each member of the interviewing team prepares an appraisal record and makes a recommendation. The high school principal stated that no person has ever been hired over the objection of a department head. Department heads also help prepare class schedules and assignments and develop a budget for their own department. The high school principal described the department heads as being part of the management team.
    After a review of the record the undersigned is satisfied that, based on the functions they perform, particularly in the observation/evaluation/recommendation process, the department heads in this instance are statutory supervisors and that, for collective negotiations purposes, they must be separate from the teachers they supervise.
    The undersigned is further satisfied that this is not a situation where the department heads should remain in the existing unit to the extent that they are teachers. In In re Ocean Twp. Bd. of Ed., P.E.R.C. No. 82-9, 7 NJPER 446 ( & 12198 1981) the Commission held that the Board could appoint non-unit supervisory employees, specifically, department chairpersons, to co- and extracurricular positions which were represented in the teachers unit. The Commission held that the department chairpersons would be unit members for the limited purpose of determining the terms and conditions of employment associated with the extra-curricular position.
    In footnote 11 of Ocean Twp., the Commission stated: A No tension will exist between the limited inclusion fo department chairpersons and teachers in the same unit because department chairpersons will have no supervisory responsibilities over other unit members stemming from their extracurricular activities. @ In Ocean Twp. there existed minimal potential for conflict as the result of the limited scope of negotiations involving extra- curricular employment conditions, predominantly stipend. Department heads perform teaching and other non-supervisory functions activities as part of their overall job function. As a result of the far more expansive area of negotiations relating to these activities, the degree of tension is more significant in the instant context. Negotiable issues, such as hours, workload, pupil contract time as opposed to time devoted to evaluation and other administrative functions, are matters which may concern both teachers and department heads and therefore may inevitably lead to the conflict which unit separation would avoid.
    Accordingly, for the above reasons, the undersigned adopts the Hearing Officer = s Recommendation that department heads are supervisors within the meaning of the Act and should be removed from the Cliffside Park Education Association. The petitioned- for unit is prima facie appropriate. Therefore, the undersigned finds that the appropriate unit for collective negotiations is: all department head/supervisors of instruction, but excluding managerial executives, confidential employees, police and craft employees, and all other professional employees of the Cliffside Park Board of Education.3/
    Pursuant to N.J.A.C. 19:11-2.6, the undersigned directs that an election be conducted among the above employees. The election shall be conducted no later than thirty (30) days from the date set forth below.
    Those eligible to vote are the department heads who are employed during the first payroll period of September 1982, including employees who did not work during that period because they were out ill, or temporarily laid off, including those in 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 shall file with the undersigned and with the Petitioner an election eligibility list consisting of an alphabetical listing of the names of all eligible voters together with their last known mailing addresses and job titles. In order to be timely filed, the eligibility list must be received by the undersigned no later than ten (10) days prior to the date of the election. A copy of the eligibility list shall be simultaneously filed with the Petitioner with statement of service to the undersigned. The undersigned shall not grant an extension of time within which to file the eligibility list except in extraordinary circumstances.
    Those eligible to vote shall vote on whether or not they desire to be represented for the purpose of collective negotiations by the Cliffside Park Supervisors Association.
    The exclusive representative, if any, shall be determined by the majority of valid ballots cast by the employees voting in the election. The election directed herein shall be conducted in accordance with the provisions of the Commission = s rules.
    BY ORDER OF THE DIRECTOR
    OF REPRESENTATION

    Carl Kurtzman, Director

    DATED: September 3, 1982
    Trenton, New Jersey
    1/ N.J.S.A. 34:13A-5.3 provides that under certain conditions a mixed unit of supervisory and non-supervisory employees is permitted. However, the Association does not contend that any of the statutory exceptions apply to the instant matter.
      2/ In re Delaware Valley Regional High School Board of Education, D.R. No. 82-11, 7 NJPER 530 ( & 12234 1981); In re Emerson Board of Education, D.R. No. 82-13, 7 NJPER 571 ( & 12255 1981); In re Edison Twp. Bd. of Ed., D.R. No. 82-8, 7 NJPER 560 ( & 12249 1981); In re Paramus Bd. of Ed., D.R. No. 82-7, 7 NJPER 556 ( & 12247 1981); In re Waldwick Bd. of Ed., D.R. No. 82-5, 7 NJPER 498 ( & 12221 1981); In re Ramsey Bd. of Education, D.R. No. 82-37, 8 NJPER 141 ( & 13062 1982), aff = g H.O. No. 82-8,7 NJPER 688 ( & 12309 1981); In re Bloomfield Bd. of Ed., D.R. No. 82-56, 8 NJPER 383 ( & 13175 1982), aff = g H.O. No. 82-13, 8 NJPER 262 ( & 13113 1982); In re Parsippany-Troy Hills Bd. of Ed., D.R. No. 82-51, 8 NJPER 282 ( & 13128 1982), aff = g H.O. No. 82-12, 8 NJPER 178 ( & 13077 1982); In re Paterson Bd. of Ed., D.R. No. 82-46, 8 NJPER 250 ( & 13110 1982).
      3/ The department heads include the heads of the following high school departments: Social Studies, Business, English, Language, Science, Mathematics, Industrial and Fine Arts, Physical Education, and Guidance and the heads of the following middle school departments: English/Social Studies, Math/Science, Special Subjects, and Reading, and the head of the Child Study Team.
    ***** End of DR 83-10 *****