P.E.R.C. No. 2025-25, NJ/State

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY, Public Employer, -and- Docket Nos. CU-2012-017 CU-2016-029 CU-2016-031 CU-2019-018 CU-2019-024 CU-2020-003 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, Petitioner, -and- COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Intervenor. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the State’s request for review of a Director of Representation decision on consolidated clarification of unit petitions filed by the CWA and AFT. As these petitions concern over 1,000 employees of state colleges and universities and whether they should be included in one of the CWA or AFT’s N.J.S.A. 34:13A-5.10 statutorily-defined statewide units, the Director made a first- round decision on 29 of the petitioned-for employees to show the parties the legal standards that will be applied for the remaining employees. The Commission grants the request for review because it raises a substantial question of law concerning application of the Act’s managerial executive, supervisory, and confidential employee exemptions. The Commission finds that the Director properly applied the standards for managerial executive and supervisory status to the petitioned-for employees. As for confidential employee status, the Commission reverses one of the Director’s determinations, finding that a certain Kean University employee is “confidential” under the Act due to her functional responsibilities related to the collective negotiations process. Finally, the Commission adopts the Director’s determinations on the appropriate unit placement of certain employees that both the CWA and AFT sought to include in their units. ¶

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 STATE OF NEW JERSEY, Public Employer, -and- Docket Nos. CU-2012-017 CU-2016-029 CU-2016-031 CU-2019-018 CU-2019-024 CU-2020-003 COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, Petitioner, -and- COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Intervenor. ¶

AppearancesAppearances: ¶

For the Public Employer, Matthew J. Platkin, Attorney General (Kevin K.O. Sangster, Deputy Attorney General) ¶

For the Petitioner, Weissman & Mintz, LLC (Kevin P. McGovern, Esq.) ¶

For the Intervenor, Weissman & Mintz, LLC (Patricia A. Villanueva, Esq.) ¶

DECISION ¶

Procedural History ¶

These consolidated clarification of unit petitions come before the Commission on requests for review filed by the State of New Jersey (State), the Council of New Jersey State College Locals, AFT (AFT), and the Communications Workers of America, AFL-CIO (CWA) to a Director of Representation (Director) decision. See D.R. No. 2024-6, 50 NJPER 445 (¶109 2024). These six clarification of unit petitions involve over one thousand employees of the State’s colleges and universities that the AFT and CWA seek to include in their statewide negotiations units.1/ The State seeks to exclude certain petitioned-for employees/titles based on their alleged managerial executive, supervisory, or confidential status under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act). ¶

All of the units involved in this petition (one AFT unit and four CWA units) are statutorily defined statewide units pursuant to N.J.S.A. 34:13A-5.10 of the Act.2/ The AFT represents the State colleges and universities unit, while the CWA represents the administrative and clerical, professional, primary level supervisory, and higher level supervisory units referred to in N.J.S.A. 34:13A-5.10(b)(1). N.J.S.A. 34:13A-5.10(b)(2) provides that the Governor’s Office of Employee Relations (GOER) may place titles that do not perform managerial, executive, or confidential duties into one of these twelve units. However, “[s]uch placements may be challenged through a unit clarification procedure” before the Commission.” N.J.S.A. 34:13A-5.10(b)(2). ¶

The earliest of these six clarification of unit petitions (Docket No. CU-2012-017) was filed by the AFT on February 17, 2012 after an amendment to N.J.S.A. 34:13A-3 narrowed the definition of “managerial executive” for state employees. The CWA intervened pursuant to N.J.A.C. 19:11-2.7. As managerial executives are excluded from the Act’s definition of an “employee,” the AFT and CWA sought to include additional employees in their statewide units based on the narrowed definition of managerial executive. However, the Commission held that, while the GOER is the employer for purposes of collective negotiations, college employees are not state employees for purposes of N.J.S.A. 34:13A-3(f) because the respective college boards of trustees are the actual employers. State v. Council of N.J. State College Locals, AFT, P.E.R.C. No. 2013-52, 39 NJPER 301 (¶101 2013), aff’d in part, rev’d and rem’d in part (App. Div. 2015), certif. den., 221 N.J. 565 (2015). The Appellate Division affirmed the Commission’s holding that the amendment did not apply to state college and university employees, and remanded to the Commission to “conduct a thorough fact-finding investigation, with hearing, in accordance with its regulations . . . to determine if any of the employees are managerial executives as defined for ‘public employers other than the State of New Jersey.’” State v. CNJSCL, *20-21. ¶

The Director of Representation assigned the matter to a hearing officer, who conducted numerous conferences with the parties over several years during which the parties submitted information regarding the titles sought for unit inclusion and narrowed down the list of disputed titles. The petition was consolidated with the other AFT and CWA clarification of unit petitions involving state college and university employees and was reassigned to a Commission Staff Agent for investigation on July 23, 2020. The matters were held in abeyance multiple times at the parties’ mutual request for reasons related to the COVID- 19 pandemic and because the parties were engaged in settlement discussions. The Staff Agent held numerous conferences with the parties in 2021 and 2022 and required them to submit information about the titles and employees still in dispute. ¶

On January 10, 2023, an Assistant to the Director of Representation conducted a conference to discuss the status of settlement discussions, the parties’ exchange of information, and what titles have been resolved or remain disputed. Determining that a more systematic approach was necessary to resolve the remaining disputed titles more efficiently, the Director advised the parties that he would seek a finalized list of employees and objections, then issue an initial decision for a select first- round group of employees showing the parties the legal standards to be used for the remaining employees.3/ ¶

On February 17, 2023, the Director requested that the State provide lists of all current non-unionized employees of all the schools and the asserted bases for exclusion of any employees. The parties were advised that employees not identified for unit inclusion would be withdrawn, and employees for which no exclusion was asserted would be deemed non-contested. By March 24, the State provided all school lists, which the Director advised would be considered prima facie exhaustive lists of current employees. On April 20, the AFT and CWA submitted lists of employees they were seeking to include in their respective units. The parties were again advised that employees not identified for inclusion were deemed withdrawn, and employees for which no exclusion was asserted would be deemed non-contested. ¶

On July 10, 2023, the Director selected a group of employees from Kean, Montclair, and TCNJ for the first-round decision. Following a July 12 conference call, the parties provided updated information concerning the status of some of the employees and the first-round list ultimately included 29 employees. On October 2, the State filed a brief, certifications, and exhibits concerning each employee from the first-round list. On October 23, the CWA filed a brief with exhibits and the AFT filed its brief. On October 30, the AFT filed a supplemental brief, certification of counsel, and exhibits. On October 31, the CWA filed a supplemental brief. The State did not file a supplemental brief. Finding no disputed substantial material facts warranting an evidentiary hearing, the Director conducted an administrative investigation. N.J.A.C. 19:11-2.2 and -2.6. ¶

Summary of Director of Representation Decision ¶

On April 30, 2024, the Director issued a 99-page decision clarifying the appropriate unit placement of the disputed titles. The Director’s decision set forth the applicable law concerning the Act’s managerial executive, supervisory, and confidential employee exclusions and analyzed the parties’ evidentiary submissions and legal arguments. The Director found that the petitioned-for employees share a community of interest with the other state college and university employees represented by the AFT and CWA units. The Director thoroughly reviewed the relevant evidence concerning the job duties of the 29 employees in dispute in light of the applicable legal standards and found 28 of them to be properly included in the unit because no statutory exclusions applied. The Director found one employee to be properly excluded based on the parties’ mutual agreement that the employee is a managerial executive under the Act and would have a supervisory conflict of interest if placed in the unit. Finally, the Director determined the most appropriate unit placement for certain titles that the AFT and CWA both sought to include. ¶

On June 10, 2024, the CWA filed a request for review challenging the placement of certain titles into the AFT unit. On June 10 (amended June 11), the AFT filed a request for review challenging the placement of one title into the CWA unit. On June 11, the State filed a request for review challenging many of the Director’s determinations, particularly his conclusions regarding its managerial executive, supervisory, and confidential employee claims. On June 24, the CWA, AFT, and State each filed briefs in opposition to the other parties’ requests for review. On July 15, the State filed a reply brief to the CWA and AFT’s briefs in opposition to the State’s request for review. ¶

Standard of Review ¶

Pursuant to N.J.A.C. 19:11-8.2(a), “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. ¶

We find that the State has raised a substantial question of law concerning the interpretation of the Act in terms of how to apply the Act’s managerial, supervisory, and confidential employee exemptions to titles that the majority representatives for certain statutorily defined statewide units seek to include in their respective units pursuant to N.J.S.A. 34:13A-5.10. ¶

Analysis ¶

Clarification of Unit Proceedings and Standards ¶

The Commission determines the appropriate collective negotiations unit when questions concerning representation of public employees arise. N.J.S.A. 34:13A-6(d). Historically, “clarification of unit proceedings were generally limited to resolving questions regarding the inclusion or exclusion of employees from a unit based on the existing unit definition in a Certification of Representative or the fairly attributable mutual intent of the parties reflected in their conduct and understanding as set forth in a recognition provision of a CNA, and based on the applicability of statutory provisions of the Act that might warrant exclusion.” Union Cty. Vo. Tech. Sch. Bd. of Ed., D.R. No. 2023-5, 49 NJPER 505, 506 (¶122 2022); Newark State-Operated Sch. Dist., P.E.R.C. No. 2017-16, 43 NJPER 115 (¶34 2016). Clarification of unit procedures were not generally utilized to enlarge the scope of a unit to include previously unrepresented employees except in cases of changed circumstances such as changes in an employee’s job functions, creation of a new title, or creation of a new operation. City of Jersey City (App. Div. 2021), aff’ g P.E.R.C. No. 2020-24, 46 NJPER 232 (¶54 2019); and Clearview Reg. H.S. Bd. of Ed., D.R. No. 78-2, 3 NJPER 248 (1977). ¶

However, the “Workplace Democracy Enhancement Act,” P.L. 2018, c. 15, (WDEA), enacted May 18, 2018, created a new basis for enlargement of the negotiations unit through a clarification of unit petition, separate from the language of a recognition provision. Under the WDEA, all regular full-time and part-time employees who perform “negotiations unit work” performed by any negotiations unit employee “shall be included in the negotiations unit” regardless of job title, job classification, or the number of work hours previously required under the CNA. N.J.S.A. 34:13A-5.15. Thus, unit placement is determined by what unit work is performed, not a contractual recognition clause the parties may have previously agreed to. Rutgers University, P.E.R.C. No. 2024-1, 50 NJPER 119 (¶30 2023). The WDEA maintained the Act’s statutory exclusions from representation for managerial executives, confidential employees, elected officials, members of boards/commissions, and excluded casual employees. N.J.S.A. 34:13A-5.15(b); N.J.S.A. 34:13A-3(d). ¶

Timeliness and Waiver ¶

Initially, we address the State’s assertion that the unions’ petitions are untimely or that they have waived their ability to challenge the State’s unit placements. “There are no time restrictions on the filing of a unit clarification petition.” Warren Cty., P.E.R.C. No. 89-66, 15 NJPER 30 (¶20013 1988). Neither our Act nor our regulations contain time restrictions for clarification of unit petitions. N.J.S.A. 34:13A-6(d); N.J.S.A. 34:13A-5.10(b); N.J.A.C. 19:11-1.5 and -2.8. Rather, the issue of “timeliness” in clarification of unit petitions concerns whether a union has, for the duration of the current CNA, waived its claim to represent a title that was not included in the recognition clause even though it might have fallen within the parties’ intended definition of unit employees. See Union Cty. Vo. Tech. Sch. Bd. of Ed., D.R. No. 2023-5, supra; Bergen Pines Hospital, D.R. No. 80-20, 6 NJPER 61 (¶11034 1980) (union “must exercise due diligence” in identifying employees “who are within the definitional scope of its collective negotiations unit.” ) Where such waiver has occurred, the union may still seek to add employees through a representation petition. Jersey City, D.R. No. 2020-7, 46 NJPER 159 (¶38 2019), aff’d, P.E.R.C. No. 2020-24, supra; and N.J. Transit, P.E.R.C. No. 2000-6, 25 NJPER 370 (¶30160 1999). While a clarification of unit determination made during an existing CNA will not be effective until the CNA’s expiration, it is effective immediately if the dispute was raised prior to the current CNA. State of N.J. (Montclair State University), P.E.R.C. No. 2018-42, 44 NJPER 398 (¶111 2018); Springfield Tp., P.E.R.C. No. 85-88, 11 NJPER 138 (¶16061 1985). ¶

Here, several factors make the traditional waiver framework for clarification of unit petitions inapplicable. First, these petitions were filed pursuant to N.J.S.A. 34:13A-5.10 to challenge the State’s exclusion of employees from the twelve statutorily-defined units. Under this section of the Act, as the State has discretion to make unit placements, the unions are effectively not in a position to waive inclusion of titles in the CNA’s recognition clauses. Furthermore, under the WDEA, unit placement is no longer determined by the parameters of a CNA’s recognition clause. Parties cannot waive the legislative mandate that all regular employees “who perform negotiations unit work shall be included in the negotiations unit. . .” N.J.S.A. 34:13A-5.15(a). Thus, regardless of how many years certain titles were excluded from the AFT and CWA contracts, nothing in the Act precludes them from now seeking to expand their units pursuant to the WDEA through a clarification of unit petition. See, e.g., Union Cty. Vo. Tech. Sch. Bd. of Ed., D.R. No. 2023-5, supra (determinations of whether union should have previously known of new teaching positions and sought to include them in the unit “are obviated” because the union argued they should be included under the WDEA because they perform unit work). ¶

Director’s Administrative Investigation ¶

Next, we find that the Director properly conducted an administrative investigation and that there were no material factual disputes warranting a hearing. The Commission has “a consistent policy of resolving representation questions after administrative investigations unless substantial and material facts are in dispute.” County of Somerset, P.E.R.C. No. 2014-88, 41 NJPER 55, 56 (¶15 2014). N.J.A.C. 19:11-2.6(e) specifically empowers the Director to render his conclusions in a representation matter based on an administrative investigation, and N.J.A.C. 19:11-2.6(f) provides the Director with the discretion to determine whether to conduct a hearing. ¶

Here, after the Director initially assigned the matter to a hearing officer on remand from the Appellate Division, the Director and the parties used the pre-hearing process to engage in multiple conferences, exchanges of information, and mutual requests for abeyance to conduct settlement negotiations. Those efforts by the parties and Commission staff significantly narrowed the dispute and created a robust factual record from which to render a decision. The Director’s lengthy investigation yielded a record comprised mostly of the State’s submissions of lists of all non-unionized employees of all the schools, supplemented by certifications and exhibits pertaining to the groups of employees that the Director stated he would consider in this first-round unit clarification decision. (D.R. at 2-6). The State has not demonstrated that any “substantial and material factual issues exist” which warranted the Director’s exercising his discretion to conduct a hearing. N.J.A.C. 19:11-2.6(f); see City of Jersey City (App. Div. 2021), aff’ g P.E.R.C. No. 2020-24, 46 NJPER 232 (¶54 2019). ¶

Statutory Exclusions ¶

We next address the State’s asserted statutory exclusions based on the disputed employees being a managerial executive or confidential employee, or having a supervisory conflict of interest. Consistent with the Supreme Court’s declaration that the Act’s public policy favors the organization of all employees desiring collective negotiations, the Commission strictly construes asserted exclusions to an employee’s eligibility for representation by a majority representative. State of N.J. and CWA, P.E.R.C. No. 86-18, 11 NJPER 507 (¶16179 1985); State v. Professional Assn. of New Jersey Dept. of Ed., 64 N.J. 231, 253 (l974); N.J. Const. Art. I, ¶19. Thus, the party asserting a statutory exclusion to an employee’s placement in a negotiations unit bears the burden of establishing such claim. See N.J. Transit, P.E.R.C. No. 2024-18, 50 NJPER 264 (¶59 2023); Rutgers and HPAE, D.R. No. 2024-4, 50 NJPER 329 (¶79 2024); and City of Burlington, H.O. No. 2002-1, 28 NJPER 1 (¶33000 2001). ¶

Managerial Executive ¶

Managerial executive employees are excluded from the Act’s definition of “employee” and do not enjoy the Act’s protections. N.J.S.A. 34:13A-3(d). N.J.S.A. 34:13A-3(f) provides the following definition of “managerial executive” for public employers other than the State of New Jersey: ¶

In the case of any public employer other than the State of New Jersey, “managerial executives” of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district. ¶

[N.J.S.A. 34:13A-3(f).] ¶

In New Jersey Turnpike Authority and AFSCME Council 73, 150 N.J. 331 (1997), the Supreme Court described managerial executive status as follows: ¶

A person formulates policies when he develops a particular set of objectives designed to further the mission of a segment of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means, and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer’s hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. ¶

[Turnpike Authority at 356.] ¶

Here, the Director thoroughly considered the State’s evidence concerning the petitioned-for employees’ job duties and determined that they do not exercise sufficient levels of independence in formulating or directing the effectuation of management policies and practices. The State asserts that the Director’s determinations that employees are not managerial executives placed too much weight on the fact that they report to superiors on certain managerial job responsibilities. It argues that the Director placed too much weight on the fact that these employees do not have final responsibility for signing off on policies and practices without higher level review. ¶

We find that the Director did not apply an unduly restrictive definition of managerial executive but applied the standards dictated by N.J.S.A. 34:13A-3(f) as further explicated in Turnpike Authority and other precedent. The Director appropriately considered (1) the relative position of the employee in the employer’s hierarchy; (2) the employee’s functions and responsibilities; and (3) the extent of discretion the employee exercises in either formulating policy or directing the effectuation of policy. Turnpike Authority, 150 N.J. at 356. The Director relied on the record evidence in determining that the petitioned-for employees do not exercise the requisite discretion over effectuating management policy based on their positions in their employer’s hierarchy and the levels of independent oversight and review by superiors. (D.R. at 32-37, 39-45, 57-59, 64-71, 76-82, and 88-95). ¶

These determinations are supported by Commission precedent holding that a managerial executive must independently decide or effectively recommend policies or procedures without independent review from others, and that managerial authority that is circumscribed by existing policies or requires deferral to a superior for non-routine matters may be insufficient for managerial executive status. State of N.J. (Public Defender) , P.E.R.C. No. 99-60, 25 NJPER 55 (¶30022 1998), recon. den., P.E.R.C. No. 2000-35, 25 NJPER 462 (¶30201 1999); Burlington Cty., P.E.R.C. No. 2019-25, 45 NJPER 237 (¶62 2019); NJ State (DEP), P.E.R.C. No. 99-59, 25 NJPER 48 (¶30021 1998); and Washington Tp. Fire Dist. #1, D.R. 2003-16, 29 NJPER 152 (¶44 2003), req. for rev. den., P.E.R.C. No. 2003-84, 29 NJPER 221 (¶66 2003). We therefore concur with the Director that none of the petitioned-for titles are managerial executives under the Act, except for Montclair’s Executive Director of Residence Life, which the CWA and AFT concede is a managerial executive. ¶

Supervisory Employee Exclusion from Non-Supervisory Unit ¶

The Act defines a supervisor as an employee who has the authority to hire, discharge, discipline or to effectively recommend the same. N.J.S.A. 34:13A-5.3; Cherry Hill Tp., Dept. of Public Works, P.E.R.C. No. 30, NJPER Supp. 114 (¶30 1970). Supervisors have representation rights under the Act, but may not be represented by an employee organization that includes non-supervisory personnel. N.J.S.A. 34:13A-5.3; N.J.S.A. 34:13A-6(d); New Jersey Turnpike Auth., P.E.R.C. No. 98-28, 23 NJPER 511 (¶28249 1997). If a supervisor’s inclusion in a unit “creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisor is not present.” West Orange Bd. of Educ. v. Wilton, 57 N.J. 404, 425 (1971). A determination of supervisory status requires more than a job description or assertion that an employee has the power to hire, discharge, discipline, or effectively recommend the same. State of N.J. (MSU), P.E.R.C. No. 2018-42, supra. “An indication that the power claimed to be possessed is exercised with some regularity is needed” because “the mere possession of the authority is a sterile attribute unable to sustain a claim of supervisory status.” Id. ¶

Here, the Director reviewed the State’s certifications and exhibits concerning the job duties of the petitioned-for employees and determined that they are not supervisors under the Act. The State argues that the Director did not fully appreciate the employees’ supervisory duties or their involvement in performance evaluations or the grievance process. First, we note that the regular supervisory duties cited by the State such as directing, assigning, and supervising the work of other employees are not determinative of supervisory status within the meaning of the Act. “Acting in a lead capacity, or overseeing and directing the work of other employees, without more, does not render an employee a statutory supervisor.” City of Linden, D.R. No. 2011- 12, 38 NJPER 159 (¶46 2011); Academy Urban Leadership Charter High School, D.R. No. 2018-16, 44 NJPER 253 (¶72 2018). ¶

Next, we find that the Director properly determined that employees’ involvement in conducting performance evaluations appealable to higher level employees, and recommending discipline, does not reach the threshold for effectively having the authority to hire, discharge, or discipline. See N.J. Turnpike Auth., P.E.R.C. No. 94-23, 19 NJPER 459 (¶24217 1993) (conflict of interest de minimis where there was no independent disciplinary authority and evaluations did not amount to authority to fire); State of New Jersey (MVC), D.R. No. 2007-14, 33 NJPER 177 (¶62 2007) (no supervisory conflict for employees who investigate unit members and produce reports with disciplinary recommendations subject to further review). Furthermore, we find that the Director properly found that none of the petitioned-for employees exercise independent decision- making as part of the grievance process, but may only be informally involved at early stages of the grievance process, to provide factual history, or serve as a witness. (D.R. at 36, 44, 55-56, 71-72, 74, 80-83, and 91-92). The Commission has found that an employee’s involvement in the first step of the grievance procedure, which may require them to “informally resolve the grievance of another unit member,” does not warrant exclusion from the unit. Mainland Reg. Bd. of Ed., P.E.R.C. No. 87-79, 13 NJPER 72 (¶18032 1986); Lower Alloways Creek Tp. Bd. of Ed., P.E.R.C. No. 87-103, 13 NJPER 195 (¶18083 1987). Based on the foregoing, we concur with the Director’s determination that none of the petitioned-for employees are supervisors under the Act. ¶

Confidential Employee ¶

Confidential employees are excluded from the Act’s definition of “employee” and do not enjoy the Act’s protections. N.J.S.A. 34:13A-3(d). N.J.S.A. 34:13-3(g) provides the following definition of “confidential employee” for public employers other than the State of New Jersey: ¶

“Confidential employees” of a public employer means 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. ¶

[N.J.S.A. 34:13A-3(g).] ¶

The Commission narrowly construes the term confidential employee. Ringwood Bd. of Ed., P.E.R.C. No. 87-148, 13 NJPER 503 (18186 1987), aff’d, NJPER Supp. 2d 186 (¶165 1988). In State of New Jersey, P.E.R.C. No. 86-18, 11 NJPER 507 (16179 1985), recon. den., P.E.R.C. No. 86-59, 11 NJPER 714 (16249 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.] ¶

In New Jersey Turnpike Authority v. AfSCME, Council 73, 150 N.J. 331 (1997), the Supreme Court approved the standards articulated in State of New Jersey and explained: ¶

The baseline inquiry remains whether an employee’s functional responsibilities or knowledge would make their membership in any appropriate negotiating unit incompatible with their official duties. N.J.S.A. 34:13A- 3(g); see also State of New Jersey, supra, 11 NJPER 507 (¶16179 1985). . . [M]ere physical access to information without any accompanying insight about its significance or functional responsibility for its development or implementation may be insufficient in specific cases to warrant exclusion. The test should be employee- specific, and its focus on ascertaining whether, in the totality of the circumstances, an employee’s access to information and knowledge concerning its significance, or functional responsibilities in relation to the collective negotiations process make incompatible that employee’s inclusion in a negotiating unit. We entrust PERC in the first instance the responsibility for making such determinations on a case-by- case basis. ¶

[Id. at 358.] ¶

Absent a demonstration that the confidential duties are actually performed, we will not find confidential status. City of Camden Housing Authority, D.R. No. 2014-7, 40 NJPER 219 (¶84 2013). ¶

Here, the Director reviewed the State’s arguments concerning alleged confidential status and determined that the State did not meet its burden of demonstrating knowledge of confidential collective negotiations information warranting exclusion from the units. (D.R. at 37-38, 45-46, 54-55, and 91). The State asserts that Munshi (Kean Director III/Associate Director, Student Research & Innovation) is a confidential employee because she analyzes faculty workloads and assignments to determine the appropriate compensation that is then utilized by Kean’s labor counsel in negotiating faculty salaries with the AFT. ¶

The Director found that the State waived its confidential employee claim regarding Munshi because it did not assert it until its brief before him. (D.R. at 37-38). We disagree that the State’s claim should be considered waived. The Commission is charged with determining statutory exemptions from the Act and the clarification of unit process is an investigatory, non- adversarial process through which the Director can make unit determinations “based on sufficient competent evidence in the record.” Rutgers University, P.E.R.C. No. 2024-1, supra; State of N.J. (OER), P.E.R.C. No. 90-22, 15 NJPER 596 (¶20244 1989), aff’d (App. Div. 1991). ¶

Here, we find that the record supports the State’s claim that Munshi is a confidential employee. Munshi works closely with Kean’s labor counsel in analyzing and negotiating faculty compensation questions. (D.R. at 37). When negotiating workload and compensation issues with the AFT, Kean’s labor counsel relies on Munshi’s opinion on what is appropriate compensation based on her analysis of faculty workload and assignments. Id. “The key to finding confidential status is the employee’s knowledge of materials used in the labor relations process, including contract negotiations, contract administration, grievance handling and preparation for these processes.” Pompton Lakes Bd. of Ed., D.R. No. 2005-16, 31 NJPER 73 (¶33 2005). The duties performed by Munshi concerning proposed appropriate faculty compensation levels do not just provide her with access to labor relations information, but demonstrate that she has some “functional responsibility for its development” and her work with the labor counsel provides her with “insight about its significance . . . in relation to the collective negotiations process.” Turnpike Authority, 150 N.J. at 358; Paramus Bd. of Ed., D.R. No. 2014-6, 40 NJPER 169 (¶64 2013) (payroll coordinator is “confidential employee” because she does more than just prepare raw data, but prepares scattergrams for negotiations and has knowledge of Board’s negotiations positions). We therefore find that Munshi is a confidential employee within the meaning of the Act and should continue to be excluded from the AFT unit. ¶

CWA and AFT Unit Placement Disputes ¶

The CWA asserts that Montclair’s Center for Research and Evaluation on Education and Human Services (CREEHS) employees, except the Director, belong in the CWA. The Director determined that CREEHS employees are more appropriately included in the AFT unit because they provide research and evaluation services for internal and external clients in support of Montclair’s academic and curricular function. (D.R. at 83-84). The Director found support from the record of the petitioned-for employees’ job duties, which involve providing and presenting information about relevant research and evaluation results and trends, designing and overseeing research studies and activities, and conducting applied research in the education and human services fields. (D.R. at 83-84, 88, 92-93). We find that the CWA has not demonstrated a substantial factual or legal basis for disturbing the Director’s determination. ¶

The Director also considered the CWA’s assertion that Kean’s Managing Assistant Director II/Production Supervisor (McMullin) belongs in the CWA rather than the AFT. (D.R. at 56-57). The Director noted that, while student interaction with this title is not part of the academic curriculum, the students appear to be workers alongside outside professionals, which provides the students with experiential opportunities. Id. The AFT asserts that most of McMullin’s duties have historically been AFT duties in the Professional Service Specialist 3 title and that he works closely with the AFT Stage Technician. We concur with the Director that Kean’s Managing Assistant Director II/Production Supervisor is more appropriately included in the AFT unit. ¶

Finally, we consider the AFT’s challenge to the Director’s placement of Kean’s Managing Assistant Director III/Director of Marketing and Audience Development in the CWA. The AFT asserts this position engages in artistic activities related to Kean’s academic mission. The CWA asserts that MAD III is not integrally related to Kean’s academic functions. The Director considered the parties’ arguments and the facts surrounding Hoffman’s job duties and reasonably determined that she is more appropriately included in the CWA unit than the AFT unit. (D.R. at 46-47). The Director found that Hoffman is primarily responsible for the business operations of Kean’s performing arts programs, which are not primarily student-led and which are marketed to all patrons. The Director appropriately determined that just because an AFT unit at Montclair includes a similar position due to clarification of unit petition in which the CWA did not intervene, does not mean that the MAD II position at Kean must also be included in the AFT. We concur with the Director that MAD III is appropriately included in the CWA unit because it is primarily responsible for the business operations of Kean’s performing arts programs, which are not primarily student-led and are marketed to all patrons. (D.R. at 46-47). ¶

OrderORDER ¶

The State’s request for review is granted. The Director’s unit clarification determinations in D.R. No. 2024-6 are adopted, except as to Kean University’s Director III/Associate Director, Student Research & Innovation (Munshi). We find that Munshi is a “confidential employee” within the meaning of the Act, and thereby excluded from any collective negotiations unit. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Higgins and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Kushnir recused themselves. ¶

ISSUED: January 30, 2025 ¶

Trenton, New Jersey ¶

Note1/ The state colleges and universities at issue include: The College of New Jersey (TCNJ), Kean University (Kean), Montclair State University (Montclair), New Jersey City University (NJCU), Ramapo College of New Jersey (Ramapo), Rowan University (Rowan), Stockton University (Stockton), Thomas Edison State University (TESU), and William Paterson University (WPU). ¶

2/ N.J.S.A. 34:13A-5.10(b)(1) provides that there shall only be the following twelve negotiations units for civilian employees of the Executive Branch of State government: administrative and clerical; professional; primary level supervisory; high level supervisory; operations, maintenance and services; crafts; inspection and security; health care and rehabilitation services; State colleges and universities; State colleges and universities adjuncts; deputy attorneys general; and State government managers. ¶

3/ See State of New Jersey (DEP), P.E.R.C. No. 86-59, 11 NJPER 714 (¶16249 1985) ( “[T]he parties targeted titles in the hope that a decision would guide settlement discussions over other titles in dispute. . . . Thus, we provided the parties with numerous examples to guide their settlement discussions.” ) ¶