NJ Court Upholds Officers Being in Same Bargaining Unit as Firefighters

The Appellate Division of New Jersey Superior Court has upheld a ruling of the New Jersey Public Employment Relations Commission concluding that lieutenants can be included with firefighters in a collective bargaining unit. The case involved a challenge brought by the Borough of Carteret seeking to separate lieutenants from the rank-and-file firefighters in Local 67, Firefighters Mutual Benevolent Association.

Lieutenants had been members of Local 67 since its formation in 1965. In 2019, the borough argued that having supervisors in the same bargaining unit as firefighters posed a conflict of interest. As a result, the borough refused to bargain with the local with representative of both groups present.  That prompted both the local as well as the borough to file unfair labor practices charges with the PERC.

The PERC advised the borough to file a clarification of unit (CU) petition. The PERC’s Director of Representation granted the borough’s petition, concluding “the long history of the combined unit was not enough to overcome the potential conflict of interest created by having lieutenants and rank-and-file firefighters represented by the same unit.”

However, the full PERC reversed, concluding “there was no actual or potential conflict of interest as to require severing a combined unit that has been in existence since 1965.” That prompted the borough to appeal to the Appellate Division.

In agreeing with the PERC that lieutenants and firefighters can be in the same bargaining unit, the Appellate Division concluded as follows (citations and quotation marks removed for clarity):

• We presume that in paramilitary organizations, such as fire departments, an inherent potential conflict of interest exists between superior officers and rank-and-file uniformed personnel.
• The presumption is not dependent upon a finding of the supervisory status of superiors or upon the presence of actual conflict among the groups.
• An exception may be found in small units if the duties and authority of superiors and rank-and-file are virtually identical so that any potential for conflict between the ranks is de minimis.
• This situation is normally found in a very small public safety departments, where the lines of demarcation between ranks is slight.
• The Board concluded, it is clear that under N.J.S.A. 34:13A-5.3, the lieutenants would not qualify as supervisors having the power to hire, discharge, or discipline unless they possess the power to “effectively recommend” such actions.
• On this question, there must be at least some evidence, which is not present here, demonstrating the lieutenants exercised the “effectively recommend” authority.
• The Board acknowledged that even absent the power to effectively recommend, unit bifurcation may be required here if there is evidence that the lieutenants otherwise exercise significant authority over the rank-and-file.
• But as the Board ultimately concluded, the record in this matter does not contain such evidence.  
• We see no basis upon which to overturn that finding.

Here is a copy of the decision: