On appeal from the Public Employment Relations Commission.
Petitioner New Jersey State Firemen's Mutual Benevolent Association (FMBA) appeals from the denial of its petition to the Public Employment Relations Commission (PERC) for certification as public employee representative of two negotiating units, one of 60 nonsupervisory state-employed firefighters and one of 25 supervisory state-employed firefighters (state firefighters). The state firefighters are presently members of two negotiating units within the Communications Workers of America (CWA), Local 1037, and two negotiating units within the International Federation of Professional and Technical Engineers (IFPTE), Local 195, each of which contains several thousand members and is horizontally organized among state professional and supervisory employees.
CWA and IFPTE have intervened and cross-appeal from PERC's holding that pursuant to N.J.S.A. 34:13A-14 "a presumption exists" that firefighters should be severed from a mixed negotiating unit of firefighters and non-firefighters. We agree with PERC that there is a presumption in favor of severability of firefighters but disagree with its application by PERC on this record. Accordingly, we dismiss both cross-appeals. As to the main issue on appeal, we reverse.
N.J.S.A. 34:13A-14 provides for the right of compulsory arbitration for police and firefighters:
It is the public policy of this State that in public fire and police departments, where public employees do not enjoy the right to strike, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.
It is undisputed that the state firefighters here are "firefighting employees" entitled to compulsory arbitration, if members of a separate negotiating unit. N.J.S.A. 34:13A-15 limits compulsory arbitration for firefighters as follows:
"Public fire department" means any department of a municipality, county, fire district or the State or any agency thereof having employees engaged in
firefighting provided that such firefighting employees are included in a negotiating unit exclusively comprised of firefighting employees.
That statute was enacted in 1977, nine years after enactment of the New Jersey Employer-Employee Relations Act. N.J.S.A. 34:13A-5.3, which was adopted as part of the 1968 enactment, provides that, "except where established practice, prior agreement, or special circumstances dictate the contrary, no policeman shall have the right to join an employee organization that admits employees other than policemen to membership." No parallel legislative proscription bars firefighters from membership in mixed negotiating units.
In our view, the provision in N.J.S.A. 34:13A-15 limiting the right of compulsory arbitration to firefighters in separate negotiating units was adopted by the legislature in recognition that, at that time, some firefighters were in mixed negotiating units and might voluntarily choose to remain in them. However, we cannot read into N.J.S.A. 34:13A-15 a legislative intent that firefighters in mixed negotiating units at the time of its enactment were to be frozen permanently in such units and thereby deprived of the benefits of compulsory arbitration, in light of the strong public policy supporting compulsory arbitration for firefighters and the legislatively enacted liberal construction favoring such compulsory arbitration. The objective of compulsory arbitration under N.J.S.A. 34:13A-14 is to protect the public safety by assuring the availability and continuity of firefighters' services without strikes or work stoppages. The PERC decision on appeal does not go as far as to preclude effectuation of that policy solely because of a preexisting mixed negotiating unit, but it does deny the state-employed firefighters severance into separate negotiating units, based upon some degree of community of interest between firefighters and non-firefighters in the mixed negotiating units, a history of stability of labor relations and of adequate representation on behalf of firefighters by the mixed negotiating units.
In deciding this case, PERC relied on its prior decision in In re County of Hudson, 10 NJPER 114 (para. ...