On appeal from the Public Employment Relations Commission, Docket No. RO-2007-089.
The opinion of the court was delivered by: Lewinn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
"[E]xcept 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." N.J.S.A. 34:13A-5.3. The Public Employment Relations Commission (PERC) has determined that assistant superintendents and apprentice assistant superintendents employed in the Burlington County Weights and Measures Department are policemen simply because a public employee holding that position has the statutory authority to arrest if a provision of the Weights and Measures Law, N.J.S.A. 51:1-1 to 51:1-133, is violated in his or her presence. N.J.S.A. 51:1-106. We conclude that PERC has given greater effect to N.J.S.A. 34:13A-5.3 than the Legislature intended and, for that reason, reverse and remand to permit PERC to reconsider.
On June 26, 2007, the New Jersey State Policemen's Benevolent Association, Local 203 (PBA Local 203) filed a petition with PERC seeking to represent Burlington County's assistant superintendents and apprentice assistant superintendents of weights and measures. The employees holding the positions were then represented by the Communications Workers of America, Local 1034 (CWA), but they had expressed interest adequate to permit consideration of PBA Local 203's application. See N.J.A.C. 19:10-1.1; N.J.A.C. 19:11-1.1; N.J.A.C. 19:11-2.1.
On May 16, 2008, following precedent established by PERC in In re County of Warren, 12 NJPER 357 (¶17134 1986), the Director determined that the employees were "policemen" within the meaning of N.J.S.A. 34:13A-5.3, severed them from the CWA, which admits employees other than policemen to membership, and directed an election to permit them to choose between no representation and representation by PBA Local 203. While the Director adhered to PERC's decision in County of Warren, he observed that the facts of this case might warrant PERC's reconsideration of that precedent. Burlington County and CWA sought review by PERC, and PERC stayed the election and granted review. N.J.A.C. 19:11-8.2(a)(1). On September 25, 2008, PERC issued its final decision, reaffirming County of Warren and affirming the Director's application of its holding, dissolving the stay and remanding the matter to schedule the election.
On October 31, 2008, PERC conducted the election, which resulted in a unanimous vote in favor of representation by PBA Local 203. The Director certified the results of this election on November 12, 2008, establishing PBA Local 203 as the elected representative of all full-time and part-time weights and measures assistant superintendents and apprentices employed by Burlington County.
CWA now appeals and challenges PERC's determination that the employees affected are "policemen" within the meaning of N.J.S.A. 34:13A-5.3 and, therefore, prohibited from belonging to a union that admits non-police employees to membership. PERC and PBA Local 203 have submitted briefs in support of PERC's determination, and we granted the New Jersey State PBA leave to participate as amicus curiae.
The history of the union membership and the duties, responsibilities and authority of officers employed by the Burlington County Weights and Measures Department as assistant superintendents are not in dispute. In his May 16, 2008 decision, the Director made the following pertinent findings of fact:
1. The County and CWA have signed a series of collective negotiations agreements which have included the weights and ...