For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Francis, J.
After the Legislature adopted the New Jersey Employer-Employee Relations Act, L. 1968, c. 303, N.J.S.A. 34:13A-1 et seq., certain administrative employees of the West Orange Board of Education organized the Administrators Association of the West Orange Public Schools and requested the Board to recognize it as the collective negotiating unit for all supervisory personnel, except the Superintendent of Schools. N.J.S.A. 34:13A-5.3. On February 10, 1969, the Board recognized the Association as negotiating representative for principals, assistant principals, subject matter directors, and administrative assistants but excluded from the unit "Directors who act in supervisory capacity" over such personnel. Pursuant to this resolution, the Board refused to accept the Association as the appropriate negotiating unit for Elizabeth Wilton who holds the supervisory position of Director of Elementary Education.
The Association then filed a petition with the Public Employment Relations Commission asking that it be designated as the exclusive representative of all supervisory personnel of the Board, including Miss Wilton. N.J.S.A. 34:13A-6(d). Miss Wilton who had become a member of the Association joined in the petition. By way of answer, the Board of Education admitted that it had accepted the Association as the negotiating unit for the employees in the described categories. However, it asserted that the unit was not appropriate for Miss Wilton because her status as Director of Elementary
Education invested her with such supervision over the other employees included therein and such intimacy with the managerial aspects of the Board's operation that she should be excluded. The Commission referred the matter to a Hearing Officer for the taking of testimony and the making of a report and recommendation.
At the hearing, the Board's position was that Miss Wilton is a top echelon supervisor and as such does not belong in the same negotiating unit with principals, assistant principals, subject matter directors and administrative assistants because her duties require her to supervise them in the interest of the Board's management and control of the school system. On the other hand the Association, relying on N.J.S.A. 34:13A-3(d) and 34:13A-5.3, contended that all employees of the public school system, including those who have supervisory duties over teachers, excepting only the superintendent of schools, are eligible under the Act to join an employee organization. Section 13A-3(d) provides among other things that the term "employee" shall include any person holding "employment in the service of a public employer * * * provided that in any school district this shall exclude only the superintendent of schools or other chief administrator of the district." And under Section 13A-5.3 public employees are granted the right to join an employee organization, provided, however, that the right shall not extend to "any managerial executive" except that in a school district such executive "shall mean the superintendent of schools or his equivalent." It is provided also that "except where established practice, prior agreement, or special circumstances dictate the contrary," no "supervisor having the power to hire, discharge, discipline, or to effectively recommend the same" shall "have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership, and the fact that any organization has such supervisory employees as members shall not deny the right of that organization to represent the appropriate unit in collective negotiations * * *." The
section further directs that the "negotiating unit shall be defined with due regard for the community of interest among the employees concerned * * *."
N.J.S.A. 34:13A-6(d) contains a further direction to the Commission with respect to the ascertainment of the appropriate unit. It says that "except where dictated by established practice, prior agreement, or special circumstances, no unit shall be appropriate which includes * * * both supervisors and nonsupervisors * * *." It may be noted in passing that no teachers actively engaged as such in the West Orange schools are members of this Association; its members are drawn exclusively from the administrative echelons. Moreover, there is no issue here concerning the propriety of including principals and assistant principals in the same negotiating unit. The possibility of conflict arising out of the principals' duty to supervise assistant principals, which might arise in certain settings (which we do not consider in this case), is not involved because the Board of Education has raised no issue with respect to this joint membership in the Association.
Substantial evidence was adduced before the Hearing Officer to show Miss Wilton's place in the administrative structure of the school system. Under Article V. Section 1 of the Board of Education Policy Manual, the Board appoints a Director of Elementary Education and a Director of Secondary Education "who shall be directly responsible to the Superintendent of Schools in the performance of all duties." To qualify for such appointment, the Directors must have experience at their respective levels in teaching, supervision and administration, and "a broad knowledge of educational problems." The Board's organization chart shows the Director of Elementary Education (Miss Wilton) on a higher plane in the administrative hierarchy than elementary school principals. In the chain of authority, it positions the Director on a direct line above the principals below whom it places the "teachers, nurse, pupils, secretaries and custodians." The Director of Secondary Education is shown on
the chart on the same plane as the Director of Elementary Education. In a direct line below the Director of Secondary Education (and on the same level as the elementary principals) are the secondary principals, below whom appear assistant principals, administrative assistant, department chairman, counselors, teachers, nurse, pupils, secretaries, custodians and cafeteria staff. The Board's Policy Manual, already referred to, reveals that among other things the Directors have the duties (1) of making recommendations and advising the Superintendent as to "needed extensions or readjustments of the educational program, services and activities of the school," (2) of assisting "teachers, principals, and other members of the professional staff in the improvement of instruction," (3) of encouraging the "continuous study of curriculum problems by principals" and promoting "all efforts for curriculum development and improvement in keeping with the best current practices and thought," and (4) of assisting "the Superintendent in the recruitment, selection, assignment, and transfer of teachers."
Each elementary or secondary school principal is in charge of a school building, and he in turn is "directly responsible to either the Director of Elementary Education or the Director of Secondary Education." Each principal has the further duty of making "all reports for his school as required by law or by the Directors of Education, and the Superintendent." In the area of secondary education where assistant principals are appointed, such persons are directly responsible to the building principal who is charged with the assignment of their duties.
In his testimony, the Superintendent of Schools outlined Miss Wilton's position as a supervisor in the administrative hierarchy of the West Orange schools. He said that as Director she is responsible for the administration of the elementary schools; she supervises the work of each of the nine elementary school principals and evaluates their performance for purposes of recommending tenure and salary increments for them to the Superintendent and the Board of Education.
In this connection the Board of Education pointed out that its by-laws provide that:
Favorable reports by the Superintendent of Schools and those charged with supervisory responsibility, and approval by the Board of Education are prerequisite to the granting of all increases in salary. There shall be no automatic increments or increases in salary.
The Superintendent also pointed out that, as Director, Miss Wilton holds regularly scheduled monthly meetings with the elementary school principals and she is responsible for the instructional program and curriculum development in the elementary schools. She reviews the budget proposals of all principals. She recruits teachers for elementary schools, interviews the candidates and recommends them to the Superintendent for appointment; she recruits or screens the staff personnel of the schools and recommends them to the principal. In turn, the principals will interview and observe candidates recommended by Miss Wilton, but if she recommends a person for a teaching post in a particular school and the principal does not wish such person, she would have the final say in the matter, subject, of course, to approval of her recommendation by the Superintendent or the Board of Education.
The Superintendent gave a number of examples of Miss Wilton's exercise of the duties and authority he described, including written evaluation reports of principals. Although she does not have the final power to either hire or discharge or to deny either tenure or a salary increment, no one in the case cited a single example of the refusal of the Superintendent or the Board to accept her recommendation. In this connection also, it may be noted that as an incident of her assigned tasks she is a regular attendant at the public meetings of the Board of Education. The principals of the various schools attend such meetings only on occasional request to discuss a particular subject.
In explaining why she had joined the Association and wished to have it represent her as well as the other supervisory
personnel who became members, Miss Wilton said each principal of an elementary school performs the same function, i.e., the supervision of the teacher and other employees in his individual building, as she does for the entire elementary school system. In her opinion she has most in "common" with the supervisory personnel who are members of the Association. Her testimony as to her duties to the Board is worthy of specific mention:
Q. * * * Now, isn't it a fact that for all practical purposes that you are the so-called 'boss' of these people?
A. I prefer to be called the co-ordinator of these people. They are all well trained, educational leaders and I really try to co-ordinate their activities.
Q. Let me put it this way. The organizational charts, Exhibit number 5, * * * these people report to you. Isn't that correct?
Q. So you are their immediate supervisor? * * *
Q. So basically when you testified that the principals performed the same function on a building level as you do in the essential office level, you didn't mean to imply there that these people were on the same level as yourself and [in?] the table organization?
A. No. They were performing the same duties on the building level as I perform on a system wide basis.
Q. Do you have any supervisory authority over the principals?
Q. And what is that supervisory authority?
A. I evaluate their performance with them; the same as a principal evaluates the performance of Vice-Principals, Administrative Assistants and teachers in his building.
Q. You make this evaluation for whom?
A. I make it for the Superintendent.
Q. And what is the basis of your evaluation? What factors are taken into consideration?
A. The way the Principal performs his staff. How well he does his job in the building. The way he works with his constituents; his parents.
Q. Now, as to Principals that are not on tenure, do you evaluate those?
A. Yes, I do. And every other Principal every three years the same as everyone else in the school system.
Q. Now, if a Principal was not performing up to the required standards, I assume your evaluation would be in the negative?
Q. And would it still be in the negative if that meant he would get tenure or ...