P.E.R.C. No. 2001-50, Mt Laurel Fire Commrs Bd Dist One

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MT. LAUREL BOARD OF FIRE COMMISSIONERS, DISTRICT ONE, Petitioner, -and- Docket No. CU-H-98-22 IAFF LOCAL 3091-O (SUPERVISORY), Employee Representative. MT. LAUREL BOARD OF FIRE COMMISSIONERS, DISTRICT ONE, Respondent, -and- Docket No. CO-H-98-375 IAFF LOCAL 3091-O (SUPERVISORY), Charging Party. ¶

AppearancesAppearances: ¶

For the Petitioner/Respondent, Ruderman & Glickman, P.C., attorneys (Steven S. Glickman, of counsel) ¶

For the Employee Representative/Charging Party, Sagot, Jennings & Sigmond, attorneys (Mary L. Crangle, of counsel) ¶

DECISION ¶

On October 30, 1997, the Mt. Laurel Board of Fire Commissioners, District One, filed a petition seeking to have the supervisory negotiations unit represented by International Association of Fire Fighters, Local 3091-O, clarified to exclude Kenneth Scott Jones, a firefighter who holds a hybrid Department of Personnel title Business Manager/UFD (Uniformed Fire ¶

Division). The Board alleged that the business manager is a managerial executive and confidential employee and, therefore, inappropriate for inclusion in any negotiations unit. IAFF opposed the petition. ¶

On April 13, 1998, Local 3091-O, filed an unfair practice charge alleging that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), (3) and (4),1/ when, during negotiations in March 1998, its chief negotiator threatened to demote or terminate Jones. ¶

On November 23, 1998, the Director of Unfair Practices and Representation issued a Complaint and Notice of Hearing on the unfair practice charge and an order consolidating both cases. On December 4, 1998, the Board filed an Answer denying that it had threatened Jones or violated the Act. ¶

On June 9, 1999, Hearing Examiner Elizabeth J. McGoldrick conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument but filed post-hearing briefs. ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1)Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act; and (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act." ¶

On September 7, 2000, the Hearing Examiner issued her report. H.E. No. 2001-9, 26 NJPER 448 (¶31176 2000). She found that the Business Manager/UFD was a confidential employee and recommended that the unit be immediately clarified to exclude that title. She also recommended dismissing the Complaint because, as a confidential employee, Jones was not protected by the Act. ¶

On October 11, 2000, after an extension of time, Local 3091-O filed exceptions. It asserts that the information gathered by Jones and transmitted to the Board was factual, not analytical, and was available to the public and it contends that the Hearing Examiner erred in concluding that Jones was a confidential employee. Local 3091-O also excepts to the recommended dismissal of the Complaint. It maintains that the conduct of the Board's chief negotiator at the two negotiations sessions tended to interfere with, restrain and coerce employees in the exercise of protected rights. It further asserts that a finding that the Board violated 5.4a(1) should be made even if Jones is removed from the supervisory unit as a confidential employee. ¶

On October 24, 2000, after an extension of time, the Board filed an answering brief urging adoption of the Hearing Examiner's recommendations. ¶

We have reviewed the record. We incorporate the Hearing Examiner's findings of fact (H.E. at 3-13). We modify finding 12 to reflect that the argument between Jones and Stenton likely occurred in September rather than June of 1997 (P-8). In light of the exceptions, we clarify finding 17 to reflect that Jones typed up contract language after negotiations had been concluded or agreement had been reached on a specific issue. We reject Local 3091-O's other factual exceptions as unnecessary or unwarranted. ¶

Confidential Status ¶

The Act covers all public employees except for elected officials, members of boards and commissions, managerial executives, and confidential employees. N.J.S.A. 34:13A-3(g) defines "confidential employees" as: ¶

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. ¶

Mere access to labor relations information does not automatically render an employee confidential. New Jersey Turnpike Auth. v. AFSCME, Council 73, 150 N.J. 331, 358 (1997) instructs: ¶

The test should be employee-specific, and its focus on ascertaining whether, in the totality of the circumstances, an employee's access to information, knowledge concerning its significance, or functional responsibilities in relation to the collective negotiations process make incompatible that employee's inclusion in a negotiating unit. ¶

The Board has looked to Jones, as its business manager, to provide information concerning negotiations proposals and employee benefits. We especially note Jones' role in gathering information about alternative health insurance coverages and his dispute with a Board member over whether or not to tell the firefighters' majority representative of cost savings he had found. We also note that Jones, as business manager, is expected to attend closed Board sessions and take the minutes of such sessions. While these sessions did not involve discussion of negotiations confidences before, the Board has represented that it intends to have its business manager evaluate negotiations proposals and share negotiations confidences in future negotiations. ¶

Given that representation, we accept the Hearing Examiner's recommendation that Jones should be excluded from the negotiations unit. We make that order effective immediately. Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). However, our order will be without prejudice to Local 3091-O's right to file a new unit clarification petition if the Board does not use Jones in a confidential manner in upcoming negotiations. 2/ ¶

The Unfair Practice Charge ¶

Board member Stenton threatened to demote, reassign or terminate Jones unless he resigned from the IAFF. However, the ¶

Note2/ The Hearing Examiner did not reach the question of whether Jones is a managerial executive. It does not appear that he formulates management policies and practices or directs the effectuation of such polices and practices, but in the absence of arguments by the parties, we will not formally consider this issue. ¶

Hearing Examiner concluded that the threat did not violate N.J.S.A . 34:13A-5.4a(1) because Jones, as a confidential employee, had no rights under the Act. She further concluded that under the totality of the circumstances, his comments did not tend to interfere with the exercise of protected rights by the other unit members represented by Local 3091-O. ¶

We find that Stenton's threat tended to discourage employees from exercising their right, protected by N.J.S.A . 34:13A-5.3, to form, join or assist an employee organization and lacked a legitimate business justification. At the time the threat was made, Jones was a member of the supervisory unit recognized by the Board; he had been deliberately excluded from any confidential negotiations activities; and he had not yet been deemed to be a confidential employee through the clarification of unit proceedings the Board had initiated. If the Board prevailed in that proceeding (as it has), then Jones would be removed from the unit by our order. But if the Board did not prevail, the position would be a non-confidential one and the Board would have had no basis for insisting that another employee besides Jones hold it. In either case, there was no legitimate reason for Stenton to have threatened Jones with demotion, menial tasks, or termination if he did not resign from the union. Accordingly, we hold that the employer violated N.J.S.A . 34:13A-5.4a(1). In the absence of exceptions, we dismiss the portions of the Complaint alleging violations of N.J.S.A. 34:13A-5.4a(2), (3), and (4). ¶

OrderORDER ¶

I. The petition for clarification of unit is granted prospectively in accordance with the terms of this decision. ¶

II. The Mount Laurel Board of Fire Commissioners, District One, is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by threatening to lay off, demote, transfer or change the job duties of an employee the employer seeks to have deemed confidential through a clarification of unit proceeding. ¶

B. Take this action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and 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 material. ¶

2. Notify the Commission Chair within twenty (20) days of receipt what steps the Respondent has taken to comply with this order. ¶

III. The remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: February 22, 2001 ¶

Trenton, New Jersey ¶

ISSUED: February 23, 2001 ¶