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In re New Jersey

Decided: March 9, 1989.

IN THE MATTERS OF STATE OF NEW JERSEY, PUBLIC EMPLOYER-APPELLANT, AND NEW JERSEY STATE FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION, PETITIONER-RESPONDENT, AND COMMUNICATION WORKERS OF AMERICA, LOCAL 1037 AND LOCAL 195-IFPTE, INTERVENORS-APPELLANTS


On certification to the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 475 (1988).

For reversal and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J. Chief Justice Wilentz and Justices Clifford, Pollock, Garibaldi and Stein join in this opinion. Justice Handler did not participate.

O'hern

[114 NJ Page 317] The question in this case is whether certain State firefighters (that is, employees of departments of State government having firefighting duties) should be included in the broad-based bargaining units representing most other state employees or be severed for representation by separate firefighter bargaining units. The case requires us to weigh competing policies underlying the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21, as amended by the Fire and Police Interest Arbitration Act, N.J.S.A. 34:13A-14 to -21. The Employer-Employee Relations Act establishes statutory policy for public-sector labor relations and creates a Public Employment Relations Commission (PERC), which, in addition to other duties, determines the appropriate bargaining units for public employees. N.J.S.A. 34:13A-5.2. The Fire and Police Interest Arbitration Act provides for compulsory arbitration of salary disputes between public employers and police and "firefighters * * * included in a negotiating unit exclusively comprised of firefighting employees." N.J.S.A. 34:13A-15. For convenience, we shall refer to the amended New Jersey Employer-Employee Relations Act as the "PERC law." Although the PERC law provides that police may not ordinarily join an employee organization that admits employees other than police to membership,

N.J.S.A. 34:13A-5.3, there is no similar prohibition against firemen joining mixed negotiating units.

We hold that it was at least reasonable for PERC to conclude that the State firefighters need not be severed. PERC found that the firefighters "interact more frequently with nonfirefighters in their respective departments than they do with the firefighters in other departments," and they would not have "a significantly greater community of interest in the petitioned-for firefighter units as measured against the community of interest which exists in the broad-based State employee units where the firefighters are presently situated." PERC additionally found that the firefighters' current representation has not been wanting. On this record PERC's denial of the firefighters' petition for severance from their existing units does not violate legislative intent as expressed in the PERC law. We therefore reverse the judgment of the Appellate Division invalidating PERC's determination that the State firefighters should remain so represented, and reinstate PERC's judgment.

I

For purposes of this appeal, we shall incorporate the factual version of the New Jersey State Firemen's Mutual Benevolent Association (FMBA), the organization that seeks to represent the State firefighters as a separate bargaining unit. (Actually, two units are proposed, one for rank-and-file and one for supervisors. We shall speak of a single unit.) The case arises from FMBA's filing of two petitions with PERC seeking to be certified as the collective-negotiations representative for ten classifications of employees of the State of New Jersey. The classifications include employees of three state departments: forest firefighters in the State Department of Environmental Protection and other firefighters in the Departments of Community Affairs and Human Services.

Most of the approximately twenty-five supervisory and sixty nonsupervisory employees included in the ten classifications are

currently divided among two units represented by the Communication Workers of America Local 1037 (CWA) and two units represented by Local 195-IFPTE (Local 195). Both CWA and Local 195 intervened in the proceedings before PERC. Each represents rank-and-file and supervisory-level negotiating units, which include both firefighting and nonfirefighting employees in many different classifications throughout the entire State bureaucracy. FMBA seeks to sever the firefighting employees from the four existing collective negotiating units in order to create two separate units consisting of firefighting supervisors and rank-and-file firefighters employed by the State in the ten classifications.

FMBA argued to PERC that separate firefighter units are necessary in order to effectuate the rights of firefighter employees under the PERC law, particularly the firefighters' entitlement to compulsory arbitration under the Police and Fire Interest Arbitration Act.*fn1 Essentially, FMBA argued that (1) firefighters had no community of interest with other employees of their departments, (2) the firefighters had a unique community of interest among themselves, and (3) they had not received responsible representation from their current representatives.

FMBA also asserted that these firefighters are entitled to separate negotiation units because the Legislature had declared as the public policy of the State that firefighting employees are entitled to compulsory interest arbitration inasmuch as they do

not enjoy the right to strike. According to FMBA, the interest-arbitration provisions were enacted to sustain the high morale of these employees and the efficient operation of fire departments by affording firefighting employees an alternative and binding procedure for the resolution of salary disputes. FMBA contended that this statutory right is frustrated because the firefighters are included in the broader-based collective negotiation units, which cannot avail themselves of binding interest arbitration of salary disputes. It urged that firefighters must be allowed to create separate negotiation units in order to be afforded their statutory rights to interest arbitration.

PERC's hearing officer, relying on PERC's decision in In re County of Hudson, 10 NJPER 114 (para. 15059 1984), found that there is a presumption in favor of severing firefighting employees from broader-based collective bargaining units and creating separate bargaining units for these employees because of their entitlement to interest arbitration. Noting, however, that under PERC policy this presumption can be overcome when the record reveals that labor stability, as evidenced by a long history of successful negotiations and adequate representation, would be better served by their continued inclusion in the broad mixed unit, he recommended that the firefighters not be severed. He concluded that although all of the employees are firefighters within the meaning of the Act, the petitioned-for unit is inappropriate because (1) there had been a decade of stable collective negotiations, (2) the petitioners had not established that they possessed a unique community of interest among themselves, and (3) the petitioners had not established that the existing majority representative had failed to fairly and adequately represent them.

PERC adopted the hearing officer's report and recommendation and declined to allow severance of the firefighting employees. It noted particularly that the hearing officer had found a high degree of job contact with nonfirefighting employees in their departments, common departmental rules, facilities, working conditions and equipment, and a common supervisory chain

of command. Finally, although acknowledging that the nature of their services is unique in that they fight fires, PERC found that from a larger perspective "in contrast to local fire departments, these firefighters work in three separate departments and interact more frequently with non-firefighters in their respective departments than they do with the ...


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