P.E.R.C. No. 2009-70, Old Bridge Tp Fire Dist 2

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of OLD BRIDGE TOWNSHIP FIRE DISTRICT #2, Petitioner, -and- Docket No. CU-2008-013 OLD BRIDGE TOWNSHIP CAREER FIRE FIGHTERS ASSOCIATION, LOCAL 3311, IAFF, Employee Organization. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Old Bridge Township Career Fire Fighters Association, Local 3311, IAFF’s request for review of D.R. No. 2009-13, __ NJPER __ (¶ __ 2009). The Director of Representation had granted a petition of the Old Bridge Township Fire District #2 and clarified a negotiations unit to exclude the secretary to the Board of Fire Commissioners as a confidential employee. The IAFF argues on appeal that a factual dispute among the witnesses raises a material issue that should have been resolved based on a hearing record, rather than an administrative investigation. The Commission holds that there is a factual dispute as to the secretary’s duties and the Director’s ruling may have resulted in prejudicial error. The Commission remands the case to the Director of Representation for an evidentiary hearing. ¶

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 OLD BRIDGE TOWNSHIP FIRE DISTRICT #2, Petitioner, -and- Docket No. CU-2008-013 OLD BRIDGE TOWNSHIP CAREER FIRE FIGHTERS ASSOCIATION, LOCAL 3311, IAFF, Employee Organization. ¶

AppearancesAppearances: ¶

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

For the Employee Organization, Kroll Heineman, attorneys (Raymond G. Heineman, of counsel) ¶

DECISION ¶

On May 1, 2009, Old Bridge Township Career Fire Fighters Association, Local 3311, IAFF, requested review of D.R. No. 2009- 13, __ NJPER __ (¶ __ 2009). In that decision, the Director of Representation granted a petition of the Old Bridge Township Fire District #2 and clarified a negotiations unit to exclude the secretary to the Board of Fire Commissioners as a confidential employee. The employer has not filed a response opposing the request for review. We remand for an evidentiary hearing. ¶

The IAFF contends that the Director concluded that the Board secretary’s responsibility to type the Board’s executive session minutes renders her confidential and that the Director specifically found that the notation “br” at the end of executive session minutes identified the secretary as the typist. The IAFF asserts that the secretary denied that her initials indicated that she attended the meetings at issue or typed the minutes. The secretary explained that a template was used with her initials by whomever typed the minutes. The IAFF argues that a factual dispute among the witnesses raises a material issue that should have been resolved based on a hearing record, rather than an administrative investigation. The IAFF also disputes the characterization of some of the minutes as involving confidential labor relations matters. Instead it asserts that the secretary typed generalized non-confidential summaries provided by a Board member. ¶

Under N.J.A.C. 19:11-8.2, 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. ¶

Section 5.3 of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., affords public employees the right "to form, join and assist any employee organization." Confidential employees, however, are excluded from the Act’s definition of “employee” and do not enjoy the Act’s protections. N.J.S.A. 34:l3A-3(d). N.J.S.A. 34:13A-3(g) defines "confidential employees" as: ¶

[E]mployees 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. ¶

In State of New Jersey, P.E.R.C. No. 86-18, 11 NJPER 507 (¶16179 1985), we explained our approach in determining whether an employee is confidential: ¶

We scrutinize the facts of each case to find for whom each employee works, what he does, and what he knows about collective negotiations issues. Finally, we determine whether the responsibilities or knowledge of each employee would compromise the employer’s right to confidentiality concerning the collective negotiations process if the employee was included in a negotiating unit. [Id. at 510] ¶

See also Ringwood Bd. of Ed., P.E.R.C. No. 87-148, 13 NJPER 503 (¶18186 1987), aff’d NJPER Supp.2d 186 (¶165 1988). ¶

The IAFF argues that there is a factual dispute over the duties the secretary performed in the past that warranted an evidentiary hearing. We agree and grant review because the Director’s ruling may have resulted in prejudicial error. ¶

The employer argued that the appearance of the secretary’s initials on executive session minutes proves that the secretary is a confidential employee. The secretary has filed a certification denying that her initials on certain minutes indicated that she attended those meetings or typed the minutes. She claims that a template was used with her initials by whomever typed the minutes. She also states that she may have typed minutes from someone else’s notes after those minutes were no longer confidential. ¶

This case involves the important question of whether a public employee should be excluded from the protections of the Act because of confidential employee status. Because the secretary is in a two-person unit, her removal from that unit would also have the effect of denying the single remaining unit member the ability to engage in collective negotiations. Borough of Shrewsbury v. Mass, P.E.R.C. No. 79-42, 5 NJPER 45 (¶10030 1979), aff’d 174 N.J. Super. 25 (App. Div. 1980), certif. den. 85 N.J. 129 (1980). Given the factual dispute over what duties she actually performed and the importance of this determination, we will remand this matter to the Director to conduct an evidentiary hearing. A related unfair practice charge has also been filed (CO-2008-180). Should a complaint issue in that matter, the Director may consolidate the matters for hearing. ¶

OrderORDER ¶

The request for review is granted. The matter is remanded to the Director of Representation for an evidentiary hearing. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Branigan, Buchanan, Colligan, Fuller and Watkins voted in favor of this decision. None opposed. Commissioner Joanis was not present. ¶

ISSUED: June 25, 2009 ¶

Trenton, New Jersey ¶