P.E.R.C. No. 2009-25, Teaneck Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF TEANECK, Public Employer, -and- Docket No. RO-2007-060 LOCAL 108, PUBLIC EMPLOYEE DIVISION SUPERVISORY GROUP, RWDSU, UFCW, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies a request for review of D.R. No. 2009-3. In that decision, the Director of Representation certified a unit of supervisory employees. The Director excluded certain titles as confidential and included, among others, department head titles that the Township sought to exclude as managerial executives. The Township asserts that it was wrongly denied a fact-finding hearing and that department heads are excludable from representation as a matter of law. The Commission denies the request for review finding that the Township has not established any of the reasons for granting a request for review. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF TEANECK, Public Employer, -and- Docket No. RO-2007-060 LOCAL 108, PUBLIC EMPLOYEE DIVISION SUPERVISORY GROUP, RWDSU, UFCW, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, DeCotiis, Fitzpatrick, Cole and Wisler, LLC, attorneys (Louis N. Rainone, of counsel and on the brief; Melissa Gonzalez, on the brief) ¶

For the Petitioner, Oxfeld Cohen, PC, attorneys (Nancy I. Oxfeld, of counsel) ¶

DECISION ¶

On September 12, 2008, the Township of Teaneck filed a request for review of D.R. No. 2009-3, 34 NJPER 268 (¶96 2008). In that decision, the Director of Representation certified a unit of supervisory Township employees to be represented by Local 108, Public Employee Division Supervisory Group, RWDSU, UFCW. The Director excluded certain titles as confidential and included, among others, department head titles that the Township sought to exclude as managerial executives. The Director concluded that the performance of statutory duties, without more, does not support a finding of managerial executive status under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The Director determined that the Township had not demonstrated that department heads actually formulate, direct or effectuate municipal policies and therefore they should not be excluded from the petitioned-for unit. ¶

The Township asserts that it was wrongly denied a fact- finding hearing since material facts are in dispute. It also asserts that the department heads are excludable from a representation unit as a matter of law. Local 108 opposes the Township’s request for review. The grounds for review having not been met, we deny the Township’s request. ¶

N.J.A.C. 19:11-8.2(a) states that a request for review will be granted only for one or more of these compelling reasons: ¶

1. A substantial question of law is raised concerning the interpretation or administration of the Act or these rules; ¶

2. The Director of Representation’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of the party seeking review; ¶

3. The conduct of the hearing or any ruling made in connection with the proceeding may have resulted in prejudicial error; and/or ¶

4. An important Commission rule or policy should be reconsidered. ¶

N.J.A.C. 19:11-8.3 requires that a request for review must be a self-contained document enabling the Commission or Chairman to rule on the basis of its contents. A request must contain a summary of all evidence and rulings bearing on the issues. ¶

The Township’s first argument is that it was entitled to a fact-finding hearing under N.J.A.C. 19:11-2.6(f)(1). That regulation provides that a hearing will be conducted: ¶

If it appears to the Director of Representation that substantial and material factual issues exist which, in the exercise of reasonable discretion, may more appropriately be resolved after a hearing. ¶

Neither public employers nor public employee representatives have an absolute right to a hearing. We have a consistent policy of resolving representation questions after administrative investigations unless substantial and material facts are in dispute. Contrast Town of Kearny, P.E.R.C. No. 89-55, 15 NJPER 10 (¶20002 1988) (Commission ordered election in unit of department heads after a hearing). ¶

The Director conducted an administrative investigation. A Commission staff agent conducted a conference to identify the titles in dispute. Afterwards, the staff agent requested that the Township submit a position statement including certifications specifically addressing each position in dispute and examples of the tasks, responsibilities, decisions, authority, chain of command, job descriptions etc. that apply to each department head. The Director then sent the parties a letter explaining the determinations he was inclined to make and inviting the parties to submit additional material facts including documentary materials, affidavits or other evidentiary materials and a letter brief in support of their position. After receipt of the parties’ responses, the Director issued his final decision. ¶

The Township has not shown that there are substantial and material factual issues in dispute that warrant convening an evidentiary hearing. Nor has it provided examples of factual issues that would, after being resolved at hearing, demonstrate that the department heads are managerial executives. It has provided a list of the documents supplied to the Director, but does not explain how those documents indicate that the disputed employees are managerial executives. The Director accepted the evidence submitted by the Township and reached a legal conclusion based on that evidence. Based on the record before us, there are no substantial and material facts that need to be resolved at a hearing. ¶

In re Judges of Passaic Cty., 100 N.J. 352 (1985), a case cited by the Township, is inapposite. There, the issue was not whether to have an investigation or a hearing, but whether this Commission had the authority to adjudicate the County’s claim contesting the Judiciary’s assertion that the Judiciary was the public employer of the employees in question. We held that under Passaic Cty. Probation Officers v. Passaic Cty., 73 N.J. 247 (1977), we did not have that authority. P.E.R.C. No. 82-92, 8 NJPER 233 (¶13097 1982). The Supreme Court agreed, but invited us as a matter of comity to perform a fact-finding function and make an initial determination that it would later review. The case does not suggest that a hearing is required in a representation matter where no material facts are in dispute. ¶

West Orange Bd. of Ed. v. Wilton, 57 N.J. 404, 427 (1971), also does not point to the need for a hearing. That case requires fact-finding to determine whether there is a substantial actual or potential conflict of interest among supervisors that warrants the creation of separate supervisory units. Here, the Director engaged in that kind of fact-finding and the Township did not provide any facts supporting managerial executive status or an actual or potential conflict of interest in response to the Director’s final invitation to do so.1/ ¶

The Township’s second argument is that department heads are managerial executives as a matter of law. It asserts that based on a certification with exhibits of Township Manager Helene Fall that it submitted to the Director, it has demonstrated that department heads formulate policies and practices or are responsible for directing the effectuation of their particular job. The Township operates pursuant to the Council-Manager form of government as provided for in the Faulkner Act, N.J.S.A. 40:69A-1 et seq. The Township argues that because all executive and managerial authority resides in appointed positions, the department heads who report directly to the Township Manager are inherently managerial executives. ¶

The Director considered and rejected this argument because no evidence was submitted to support the assertion that department heads formulate policies that affect the Township’s mission. He considered the Manager’s certification and found no specific examples of employees in the disputed titles actually formulating policy or directing or effectuating management policies. ¶

The Director also considered and rejected the Township’s argument that department heads have broad authority including the authority to act as manager in the Manager’s absence. The Township provided no evidence to the Director of any instance where the Manager had granted that authority and Local 108 asserted that no disputed department heads have ever been appointed to act as manager. ¶

Finally, the Township cites to Cavuto v. New Jersey Transit, 161 N.J. 107, 123 (1999), for the proposition that department heads are managerial executives. That case required the Court to decide which employees were “upper management” for purposes of punitive damages under the Law Against Discrimination. The Court noted that labels are not particularly helpful, id. at 123, and reiterated that whether or not an employee possesses a managerial executive level of authority under our Act “may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer’s hierarcy; (2) his function and responsibilities; and (3) the extent of the discretion he exercises.” New Jersey Turnpike Auth. v. AFSCME, Council 73, 150 N.J. 331, 356 (1997). This is exactly the standard cited and applied by the Director based on the evidence presented to him. Contrary to the Township’s assertion, the Director did not find that department heads needed to have organization-wide authority to be found to be managerial executives. He specifically noted that the Supreme Court had rejected that requirement. D.R. at 18. ¶

The Township has not established any of the reasons for granting a request for review and we accordingly deny its request. ¶

OrderORDER ¶

The request for review is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Branigan, Buchanan, Fuller, Joanis and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: November 25, 2008 ¶

Trenton, New Jersey ¶

Note1/ The Director also rejected the Township’s argument that the department heads could not be in a unit with other supervisors because no examples were provided in any of the Township’s submissions showing when, if ever, the department heads have disciplined or evaluated other supervisors in the petitioned-for unit. The Director noted that hiring, firing and disciplinary recommendations must be effective recommendations in order to require a separate negotiations unit. ¶