Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
In these consolidated appeals the City of Elizabeth seeks to set aside decisions of the New Jersey Public Employment Relations Commission (PERC) and to have it ordered that (1) the appropriate negotiating unit for superior police officers excludes all officers holding the rank of Lieutenant, captain, deputy chief and chief, and (2) the appropriate negotiating unit for officers of the fire department excludes all officers holding the rank of battalion chief, deputy chief and chief. A further directive is sought from the court that new elections be held for both appropriate negotiating units to determine representation.
These consolidated appeals have as their essential issue the interpretation of the term "managerial executive" within the exclusionary language of N.J.S.A. 34:13A-5.3, as applied to the Elizabeth Police and Fire Departments.
That section of the statute provides, in pertinent part, for the formation, without fear of penalty or reprisal, of public employees organizations,
The negotiating unit shall be defined with due regard for the community of interest among the employees concerned. [Emphasis added]
Unfortunately, the Legislature did not define more precisely its reference to a "managerial executive," except in a school district where the term was equated with "superintendent of schools or his equivalent." Nor did the Legislature define "community of interest." Our Supreme Court has considered the probable legislative intent with reference to a school district in Board of Education, Orange v. Wilton , 57 N.J. 404 (Jan. 26, 1971). There the board of education recognized the Administrators Association of West Orange Public Schools as negotiating representatives for principals, assistant principals, subject-matter directors and administrative assistants but excluded from the unit "Directors who act in supervisory capacity" over such personnel. 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.
PERC ruled that Miss Wilton had such a "community of interest" with the other members of the Association as to warrant her inclusion in the collective bargaining unit. It held:
The Act is clear and unambiguous in not proscribing the right of various ranks of supervisors to be combined in the same unit or belong to the same organization.
PERC interpreted the statute to exclude from an employees' unit only the superintendent of schools, as N.J.S.A. 34:13A-5.3 expressly provides, as noted above. It allowed all other supervisors, regardless of the rank of some over others, to be members of the same bargaining unit.
In the opinion Justice Francis noted the need to evaluate two factors in seeking out a proper solution of the question
in Wilton. First, the degree of supervision of principals over assistant principals was without particular bearing because both of these grades of supervisors were members of the Association, and the board of education had raised no issue with respect to their membership. Secondly, PERC referred to Miss Wilton's desire and consent to be a part of the unit. Justice Francis observed, "Her consent is an element which may be considered but, as in the private employment sector, it should not be deemed controlling." The determinative factor is "whether her inclusion in the unit will serve and not subvert the purpose of the Act, i.e. , establishment and promotion of fair and harmonious employer-employee relations in the public service."
There is no unqualified direction in N.J.S.A. 13A-5.3 and 13A-6(d) to permit all supervisory employees to join a single negotiating unit, regardless of gradations of duties of particular supervisors. If performance of assigned duties by a particular supervisor "bespeaks such an intimate relationship with the management and policy-making function as to indicate actual or potential substantial conflict of interest between him and other supervisory personnel in a different or lower echelon of authority, ...