On appeal from Public Employment Relations Commission.
King, Brody and Ashbey, JJ. The opinion of the court was delivered by Brody, J.A.D.
The West New York Police Supervisors Association (PSA), an employee organization certified to represent supervisory West New York police officers, appeals from an order of the Public Employment Relations Commission (PERC). The order invalidates a PSA bylaw that requires as a precondition of membership that an applicant pay a "penalty" in an amount equal to the total monthly dues he would have paid had he applied six months after first becoming a supervisory officer. PSA barred John Santa Maria, the charging party, from membership because he refused to pay the penalty.
PERC accepted its hearing examiner's factual findings but rejected his determination that the issue was solely an internal employee organization dispute outside PERC's jurisdiction. PERC concluded that the bylaw was an unfair practice as defined in the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (act), which defines public employee organization unfair practices to include "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act." N.J.S.A. 34:13A-5.4b(1). The act guarantees public employees "the right, freely and without fear of penalty or reprisal, to . . . join . . . any employee organization or to refrain from any such activity . . . ." N.J.S.A. 34:13A-5.3. PERC has "exclusive power" to prevent anyone from engaging in an unfair practice. N.J.S.A. 34:13A-5.4c. We affirm.
Section 3. New members shall submit to the Association an initiation fee of Fifty ($50.00) dollars, and shall pay dues in the amount of Twelve ($12.00) Dollars per month.
(a) any police officer with the present rank of Sergeant or above, may within ninety (90) days join this Association by submitting the initiation fee. Thereafter, a penalty of Twelve ($12.00) Dollars per month shall be paid in addition to the initiation fee.
(b) any police officer promoted, in the future, shall be subject to the same ninety (90) day grace period, beginning with the date of promotion.*fn1 Thereafter, he shall be subject to the same penalty as in (a) above.
Although PSA had been formed over a year earlier, supervisory officers were still represented by the West New York Police Benevolent Association (PBA), the certified representative for all West New York police officers, when Santa Maria was promoted to Sergeant. He was an officer and an active member of PBA and declined to join PSA when he was promoted. At the time, PSA was challenging PBA for the right to represent supervisory officers. As soon as PERC certified PSA as the majority representative of supervisory officers, Santa Maria applied to PSA for membership but was rejected when he refused to pay the penalty.
We begin by noting that we must give "due deference" to PERC's interpretation of the act, which the Legislature has assigned it to enforce. In re Bridgewater Tp., 95 N.J. 235, 244 (1984). PERC's determination will stand "unless it is clearly demonstrated to be arbitrary or capricious." ...