P.E.R.C. No. 2000-31, Rutgers

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY, Public Employer, -and- Docket No. CU-H-97-12 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 68, AFL-CIO, Petitioner. ¶

AppearancesAppearances: ¶

For the Public Employer, Monica C. Barrett, Employment and Labor Counsel ¶

For the Petitioner, Mary E. Moriarty, IUOE General Counsel ¶

DECISION ¶

On October 24, 1996, the International Union of Operating Engineers, Local 68, AFL-CIO filed a clarification of unit petition. IUOE seeks to add four employees holding the title Supervisor Utility Operations ("SUO") to its unit of non-supervisory employees of Rutgers, the State University. Rutgers opposes the petition, contending that the SUO title is supervisory and cannot be included in a unit with non-supervisory employees. ¶

On November 10, 1997, the Director of Representation issued a Notice of Hearing. On March 26 and 27 and April 15, 1998, Hearing Officer Wendy L. Young conducted a hearing. The parties stipulated certain facts, examined witnesses, introduced exhibits and filed post-hearing briefs. ¶

On June 22, 1999, the Hearing Officer issued her report and recommendations. H.O. No. 99-2, 25 NJPER 377 (¶30165 1999). She concluded that SUOs are supervisors within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., because they have the authority to discipline cogen operating technicians ("COT"), employees within Local 68's negotiations unit. 1/ She also found a potential conflict of interest because SUOs are designated to respond to first step grievances. ¶

On August 9, 1999, after an extension of time, Local 68 filed exceptions. It asserts that the Hearing Officer erred by finding that: ¶

1. Four COTs report to the SUOs, ¶

2. SUO Gladkowski has the authority to oversee the work of the COT who is his shift partner and that part of that responsibility includes reprimanding the COT, ¶

3. Gladkowski has the authority to direct a relief COT to remain on shift, ¶

4. SUO Flaherty reprimanded a COT who was not following newly established procedures nor performing acceptably, ¶

5. In January 1998, Manager Utilities Operations Bankowski relied on SUO Flaherty and SUO Foxe's recommendation to terminate a temporary mechanic, ¶

Note1/ COTs have the same responsibilities as boiler operators in a conventional heating plant and additional responsibilities for running a cogeneration plant. A cogeneration ("cogen") plant burns fossil fuel to generate electricity and caps thermal energy contained in exhaust gases to produce hot water or steam. ¶

6. SUOs on shift have the authority to issue grievance reports similar to the authority of the COEs, ¶

7. SUOs on shift have the authority to discipline, up to and including termination, and that they are therefore statutory supervisors under the Act, ¶

8. Based on the SUO's authority to discipline, the inclusion of SUOs in Local 68's negotiations unit constitutes a potential conflict of interest under West Orange Bd. of Ed. v. Wilton, 57 N.J. 404 (1971), ¶

9. Even though SUOs have no authority to make grievance decisions and have not exercised any power in grievance matters, their designation by the employer in the grievance procedure to respond at the first step creates a potential conflict of interest under Wilton, ¶

10. All SUOs, rather than SUO Foxe alone, are supervisors within the meaning of the Act. ¶

Local 68 argues that SUOs do not have the authority to discipline COTs. It further argues that the SUOs' designated authority under the grievance procedure does not create a Wilton conflict since none of the SUOs on shift have exercised that authority, even when such an opportunity arose. Finally, Local 68 argues that the work of SUOs on shift is different from that of the daytime SUO in statutorily relevant ways, and that the finding that daytime SUO Foxe is supervisory should be adopted. ¶

On August 25, 1999, after an extension of time, Rutgers filed an answering brief. It argues that the Hearing Officer properly found that SUOs regularly exercise their disciplinary responsibilities. It further argues that the Hearing Officer properly excluded SUOs from the unit based on a significant potential conflict of interest. ¶

We have reviewed the record. We incorporate the Hearing Officer's findings of fact (H.O. at 2-41). ¶

We specifically adopt the Hearing Officer's findings that the four COTs report to the SUOs. The Utilities Department Table of Organization so provides (ER-8). ¶

We also agree that the SUOs have the authority to reprimand COTs. SUO Gladkowski's hesitation to acknowledge that fact and his desire to view his relationship with his COT as a partnership notwithstanding, the employer has granted the SUOs that authority and it has been exercised the few times it has been necessary to do so. ¶

We also specifically adopt the finding that SUOs have the authority to direct a relief COT to remain on shift. SUOs are responsible for the integrity and safety of the cogeneration plant facility during their shifts. Having a COT, whose presence is required, remain on shift appears to be part of that responsibility. ¶

We reject Local 68's exception to the finding that SUO Flaherty reprimanded a COT who was not following newly established procedures. He so testified and the record supports that finding. ¶

We also reject Local 68's exception to the finding that Bankowski relied on SUOs Flaherty and Foxe's recommendation to terminate a temporary mechanic. The record citations support the Hearing Officer's finding. ¶

Finally, we reject Local 68's exception to the finding that SUOs on shift have the authority to issue grievance reports similar to the authority of the chief operating engineers (COEs) who work in the central heating plants. The Director of Utility Services so testified and Local 68 has not provided any basis to reject his testimony. ¶

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 to effectively recommend the same, have the power to be represented in collective negotiations by an employee organization that admits non-supervisory personnel to membership.... ¶

Applying that proscription, the Hearing Officer could not definitively conclude that the SUOs have the authority to hire or effectively recommend the hiring of individuals for positions in the utilities department. However, she did find that SUOs have the authority to discipline, up to and including termination, and she therefore concluded that they are supervisors under section 5.3. The record supports that conclusion. Accordingly, SUOs cannot be in a negotiations unit with COTs and the petition must be dismissed. 2/ ¶

Note2/ Having found that the SUOs are supervisors, we need not address whether their role in the grievance procedure creates an additional conflict of interest. ¶

OrderORDER ¶

The unit clarification petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato and Ricci voted in favor of this decision. None opposed. ¶

DATED: October 28, 1999 ¶

Trenton, New Jersey ¶

ISSUED: October 29, 1999 ¶