NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1394-08T11394-08T1
COMMUNICATIONS WORKERS OF
AMERICA, LOCAL 1034,
Appellant,
v.
NEW JERSEY STATE POLICEMEN'S
BENEVOLENT ASSOCIATION, LOCAL
203, and COUNTY OF BURLINGTON,
Respondents.
__________________________________
Argued November 17, 2009 - Decided
Before Judges Wefing, Grall and LeWinn.
On appeal from the Public Employment Relations Commission, Docket No. RO-2007-089.
Jason L. Jones argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Jones, on the brief).
David Grossman argued the cause for respondent, New Jersey State Policemen's Benevolent Association, Local 203 (Cohen, Leder, Montalbano & Grossman, L.L.C., attorneys; Bruce D. Leder, of counsel; Mr. Grossman, on the brief).
Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for amicus curiae New Jersey State Policemen's Benevolent Association (Paul L. Kleinbaum, on the brief).
Don Horowitz, Deputy General Counsel, argued the cause for New Jersey Public Employment Relations Commission.
The opinion of the court was delivered by
LEWINN, J.A.D.
"[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.
I.
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 (