PERC Has Jurisdiction to Protect Employees’ Right to “Assist” Their Unions

In re Probation Ass’n of New Jersey, 442 N.J. Super. 185 (App. Div. 2015).  N.J.S.A. 34:13A-5.4(b)(1) prohibits interference with a right guaranteed by the Employer-Employee Relations Act, and the Act explicitly protects the right to ‘assist’ in a labor organization.  N.J.S.A. 34:13A-5.”  The Public Employment Relations Commission is the agency charged with protecting rights under the Act, including against wrongful actions by employee organizations, such as unions, as well as employers.

Two probation officers, members of the union for probation officers, the Probation Association of New Jersey (“PANJ”), engaged in a bitter union election campaign.  They lost the election, and the winners caused union disciplinary hearings to be commenced against them based on their conduct during the election.  The union suspended both of the probation officers and imposed other penalties.  They appealed to PERC, asserting that PANJ had committed an unfair labor practice.  PANJ moved for summary judgment, asserting that the issues all related merely to “intra-union” disputes that did not implicate the Act.  A Hearing Examiner agreed with PANJ, and PERC affirmed.  The officers appealed to the Appellate Division, which reversed PERC.  Judge Accurso wrote the panel’s opinion.

Though an agency’s interpretation of a statute that it enforces is normally subject to “substantial deference,” no deference is given when “an agency’s statutory interpretation is contrary to the statutory language, or if the agency’s interpretation undermines the Legislature’s intent.”  Judge Accurso found that to be the case here.  She canvassed prior PERC decisions upon which PERC and the Hearing Examiner had relied.  Those decisions, PANJ contended, meant that PERC had jurisdiction only where employees are “expelled or permanently excluded from union membership.”  Appellants were prevented from “assisting” their union by virtue of the suspensions.  As a result, PERC had jurisdiction.  The panel remanded the case to PERC without addressing the merits.

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