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HomeMy Public PortalAboutr 05:298 ¿RBzüluítDlt úf ±fIB ¿ßDrDuB~ úf illtttÍBt£ÍJ ~t 3J- No. 05-298 Date of Adoption October 6, 2005 APPROVING SALARY ADJUSTMENTS FOR MELANIE SIRACUSA WHEREAS, Melanie Siracusa filed a grievance arbitration with the New Jersey Public Employment Relations Commission against the Borough of Carteret and; WHEREAS, an arbitration was held at which evidence was submitted by both Melanie Siracusa and the Borough with regard to same; and WHEREAS, the arbitrator ruled in favor of the Borough on some portions of Melanie Siracusa's grievance and in support of Melanie Siracusa on other portions. NOW, THEREFORE BE IT RESOLVED by the Mayor and Council of the Borough of Carteret as follows: 1. That the appropriate Borough officials are hereby authorized to implement the tenns and provisions of the arbitration award in the above-referenced matter. '. Adopted this 6th day of October, 2005 And certified as a true copy of the Original on October 7, 2005. KATHLEEN M. BARNEY Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NY A.B. COUNCILMAN YES NO NY A.B. x _ Indicate Vote AS - Absent NY - Not Voting XOR - Indicates Vote to Overrule Veto Adopted at a Illee¡jl)g of the Municipal Council ~ October 6, 2005 à ~~(~#'~~ , ' ' CLERK V ~ILE No.468 10/06 '05 10:39 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 NEW JERSEY PUBLIC EMPLOYMENT RELATIONS C~M'SSION 1,-/. In the Matter of Arbitration Between: ( 1-.._' \> ~, BOROUGH OF CARTERET "Borough: - and - AFSCME COUNCIL 73 LOCAL 3850 "Union." Docket No. AR-2005-240 (Art 28, 2M Sentence - Art 33, Past Practice) // " / 0~ . ')! . , ~. l~ Appearances: For the BorouQh: Robert Bergen, Esq. Gill & Chamas For the Union: Paul Mercatanti, Staff Rep AFSCME Councîl73 OPINION-- AND AWARD Before James W. Mastriani Arbitrator PAGE 1/ 22 /!/- 7-tJS ~9í7:~¿t~ ,P'~ o I\.,^, . Q'" \'" .~ \10 ~ILE No.468 10/06 '05 10:39 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 The Borough of Carteret [the "Boroughl and AFSCME Council 73. Local 3850 [the ·Unionl are parties to a collective negotiations agreement [the "Agreement" effective January 1, 2003 through December 31,2007. Under the terms of that Agreement, the Union grieves the Borough's placement of Melanie Siracusa [the "Grievanq as to her job title and her compensation as determined by the Borough. The grievance remained unresolved and was submitted to arbitration by the Union in accordance with terms of their Agreement and the procedures of the New Jersey Public Employment Relations Commission. Thereafter, I was designated to serve a5 arbitrator. An arbitration hearing was held on June 14, 2005 in Carteret, New Jersey. At the hearing, the Borough and the Union argued orally, examined and cross- examined witness Melanie Siracusa, the Grievant, and submitted documentary evidence into the record. Certain facts were not in dispute and received by the arbitrator as stipulations. The record was closed on that date. ISSUE At the hearing, the Borough and the Union agreed to frame the issue to be heard and decided as follows: Did the Borough violate the collective negotiations agreement in respect to the placement of, and the 5alary to be paid to, Melanie Siracusa? If so, what shall be the remedy? 2 PAGE 2/ 22 ~ILE No.468 10/06 '05 10:39 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 RELEVANT CONTRACT PROVISIONS ARTICLE 28 - PROMOTIONS No employee is required to accept a promotion, which would cause a loss of pay. Any employee who is promoted shall receive not less than his or her rate of pay on a promotion from one range to the next. A. PROVISIONAL APPOINTMENTS WITHIN THE BARGAINING UNIT 1. Provisional appointments within the bargaining unit shall be made based upon QUALIFICATIONS OF APPLICANTS AND SENIORITY within the department or division. When provisional appoints are to be made, the Borough shall appoint from among those eligible and interested in taking a test for the position, if any, in accordance with the employee's ability to perform the job as determined by the Borough. The Borough may remove any such provisional appointee for unsatisfactory performance and replace the appointee with the next most qualified and senior employee. Such removal is subject to the Grievance Procedure. B. TEMPORARY ASSIGNMENT TO FILL POSITIONS LEFT VACANT DUE TO ABSENCE OF REGULAR EMPLOYEES ON A DAILY BASIS 1. When the Borough determines to fill a position left temporarily vacant, employees shall be assigned to fill higher-level positions by qualifications and seniority within the department or division. In the event of emergency conditions or the unavailability of qualified manpower from such divisional or department seniority lists, appointments may be made at the sole discretion of the Borough. Employees shall receive the rate of pay for the higher classification upon assignment to the higher classification for one full day or longer. This provision shall apply to the Assistant Municipal Clerk and the Deputy Court Clerk respectively during the absence of either Clerk for one 3 PAGE 3/ 22 fILE No.468 10/06 '05 10:39 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 day or more. Any overtime available should be offered to the person who is filling the higher title first. ARTICLE 33 - NON-DISCRIMINATION There shall be no discrimination by the Borough or the Union against an employee on account of race, color, creed, sex, national origin, religion, political affiliation, or sexual preference. There shall be no discrimination interference, restraint, or coercion by the Borough or any of its representatives against any of the employees covered under this Agreement because of their membership or non-membership in the Union or because of any lawful activities by such employees on behalf of the Union. The Union, its members and agents, shall not discriminate against, interfere with, restrain or coerce any employee covered under this Agreement who is not a member of the Union and shall not solicit membership in the Union or the payment of dues during working time. BACKGROUND The Union filed a grievance contesting the manner in which the Borough classified Melanie Siracusa, the Grievant, and the salary it assigned to her. The Grievant was hired in 1996 and was assigned the job title of Senior Clerk Typist in January of 1997 in the Department of Community Development. According to the Grievant, she is a "secretary by trade: The Grievant testified to her many skills and abilities and the contributions she has made to the Borough including the worl<. she has performed for four (4) departmental directors. The Borough does not dispute the quality of the Grievant's worl<. or her job performance. On April 11, 2002, the Grievant was employed as a Senior Clerk Typist in the Department of Community Development. She reported to John B. Riggio, the Executive Director of the Borough's Community Development Urban Enterprise 4 PAGE 4/ 22 ~ILE No.468 10/06 '05 10:40 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 Program. On this date, Riggio made a formal request to the New Jersey Department of Personnel ["DOP"] to perform a desk audit. Riggio expressed his opinion that the Grievant had been performing the job duties and responsibilities of an "Administrative Secretary". On April 24, 2002, the DOP representative advised the Borough of the results of its classification review_ In pertinent part. the results were set forth as follows: Determination: The review revealed that this employee's current duties and responsibilities are commensurate with the attached job specification for the title Administrative Secretary. The specification is descriptive of the general nature and scope of the functions that may be performed by the incumbent in this position. However, the examples of work are for illustrative purposes and not Întended to restrict or limit performance of related tasks not specifically listed. The relevancy of such specific tasks is determined by an overall evaluation of their relationship to the general classification factors listed in the specification. Ms. Siracusa is considered to be serving provisionally in the title of Administrative Secretary pending promotional examination procedures. The effective date of this action is May 4, 2002. According to the New Jersey Administrative Code (N.J.A.C.) 4A:3-3.5, within 30 days of receipt of the reclassification determination, "the appointing authority shall either effect the required change În the classification of an employee's position; assign duties and responsibilities commensurate with the employee's current title; or reassign the employee to the duties and responsibilities to which the employee has permanent rights." 5 PAGE 5/ 22 FILE No.468 10/06 '05 10:40 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 On June 6, 2002, the Borough provisionally appointed the Grievant in the title of Administrative Secretary in the Department of Community Development effective May 4, 2002_ At the time of this Resolution. the Borough's salary guide was structured by department. Each department contained a classification or job title. In the Police Department there was a job title of Administrative Secretary referred to as Administrative Secretary/Police. The salary guide for this position had a minimum salary WI Year} of $28,317 and a maximum salary of $33,039 (5111 Year). The Department of Community Development did not have an Administrative Secretary position. The only job title was Senior Clerk Typist, the one held by the Grievant. The salary guide for this position had a minimum salary (1st Year) of $27,420 and a maximum salary of $30,352 (5111 Year). At this time, the Grievant was receiving the maximum salary for Senior Clerk Typist. The Borough then created an Administrative Secretary job title in the Department of Community Development with the same minimum and maximum salary as had been in existence for the Senior Clerk Typist position. Thus, the Grievant's salary remained $30,352 after her provisional appointment to the job title of Administrative Secretary. On June 7, 2002, the Union challenged the action of the Borough and submitted a letter to the Borough stating its position: I am writing on behalf of Ms. Melanie Siracusa, provisional Administrative Secretary in the Community Development Department. It has come to my attention the Borough Council did not challenge her appointment by the New Jersey Department of 6 PAGE 6/ 22 FILE No.468 10/06 '05 10:40 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 Personnel, thus granting her the title, also, a salary adjustment was not acted upon by the Council. AFSCME Local 3850 is the exclusive bargaining representative for all white-collar non-supervisory employees. The unit does include the position of Administrative Secretary/Police Department. Ms. Siracusa's title should be included in our unit and receive compensation in accordance with the current salary ordinance retroactive to the effective date of appointment, May4, 2002. On July 1, 2002, the DOP issued a Promotional Announcement for the title Administrative Secretary in the Community Development Department. The OOP listed the salary for this position as having a minimum of $27,317 and a maximum of $33,039, although that salary guide was different than the one the Borough had adopted for the position of Administrative Secretary/Community Development. The Grievant applied for the appointment and the DOP certified her eligibility for permanent appointment to this position on March 10, 2003. On March 14, 2003, the Grievant informed the Borough's Municipal Clerk in writing that she had been notified by the OOP that she was eligible for appointment for the position of Administrative Secretary and that "' hereby serve notice that I am interested in said position." On May 9, 2003, the Borough permanently appointed the Grievant to the position of Administrative Secretary/Community Development Department. The Borough did not change her current base salary of $30,352 and the salary range for this position remained at a minimum of $27,420 and a maximum of $30,352, 7 PAGE 7/ 22 ~ILE No.468 10/06 '05 10:40 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 During this time period, the Union had commenced negotiations with the Borough for a new Agreement to replace the one that expired on December 31, 2002. On March 12, 2003, a tentative agreement was reached providing increases to the pre-existing salary guides of 3% for 2003, 3.5% for 2004, 4% for 2005, 4% for 2006 and 4% for 2007. The Union had also sought to secure individual salary adjustments for several employees including the Grievant. These issues were held over pending review. On October 27, 2003, the Union sent a letter to the Borough outlining its position with respect to the individual salary adjustments. The Union, on the Grievant's behalf, made specific reference in that letter to its position that a salary adjustment was warranted for the Grievant above and beyond the across-the-board increase of 3% for 2003. The letter, in pertinent part, stated: Our final issue is Ms. Melanie Siracusa. As you are aware Ms. Siracusa was granted by the Department of Personnel the Administrative Secretary title retroactive to May 4, 2002. At this time, only one Administrative Secretary title existed on the Borough's salary guide. For whatever reason the Borough took Ms_ Siracusa's previous title and created another salary guide for an Administrative Secretary. The new guide reflects the same salary numbers as the Community Development Department Senior Clerk Typist. By placing Ms. Siracusa on this "new salary guide" the Borough has created two Administrative Secretary guides and did not recognize her retroactive status as stated by the New Jersey Department of Personnel. Your position. I hope I'm accurate on this, is Ms. Siracusa. for January 1, 2003 will receive $31,263.00. This salary is from the new Administrative Secretary salary guide which is the old Senior Clerk Typist salary guide with 3% added to the 5th year salary. On January 1, 2004 she will move to 8 PAGE 8/ 22 FiLE No.468 10/06 '05 10:41 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 the Administrative Secretary guide (Police Department AKA the older, established guide) for a salary of $32,702,00, 3rd year. Local 3850 Collective Bargaining Agreement Article 28, Promotions first Paragraph states "Any employee who is promoted shall receive not less than his or her rate of pay on a promotion from one range to the next." At the end of 2002 Ms. Siracusa's salary was $30,352.00. By creating the "new guide" Ms. Siracusa was never moved to the next pay range. If we follow the Goldsack procedure, Ms. Siracusa would receive a 2% promotional increase ($30,959.00) than slotted on the 4th year of the Administrative Secretary guide for January 1, 2002 at $31,858.00. Due to the fact that she does not have the years of service in the title, January 1, 2003, salary should be $32,814.00. Following this logic, by January 1, 2004 her salary is $33,962.00. By the end of the contract Ms. Siracusa's salary should be $39,619, the maximum for an Administrative Secretary with 5 years of service in her title. The January 1, 2004 salary for Ms. Siracusa should be $33,962.00 as stated in our counter offer. Local 3850 requests the Borough consider our positions on all salary adjustments and contact my office for a mutually agreeable date for our next negotiation session. As reflected in the above letter, the Grievant received a 3% increase to her previous salary effective January 1, 2003 revising her salary from $30,352 to $31,263. She remained at the maximum or 5111 Year salary for the Administrative Secretary/Community Development Department guide which was identical to the Senior Clerk Typist salary guide. According to the Union, on January 1, 2004, the Grievant would be moved to the same Administrative Secretary salary guide that had been previously established and in place for the Administrative Secretary/Police Department salary guide. The October 27, 2003 letter sets forth 9 PAGE 9/ 22 FILE No.468 10/06 '05 10:41 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 the Union's proposal as to how it believed the Grievant should be advanced through the remainder of the contract where she would ultimately, on January 1, 2007, receive a salary of $39,619_ The Borough ultimately responded to the Union on February 11, 2004. In that response, the Borough stated its position with respect to the individual salary adjustments sought by the Union. The letter stated: · MICHELLE BLACKNALL - No increase, She is at the 5111 Step of the 2004 salary ordinance, Principal CashierfTypist. · MELANIE SIRACUSA - No increase. She is at the 5th Step of the 2004 salary ordinance, Community DevelopmenVAdministrative Secretary. · CINDY DeCAMP - No Încrease. She is at the 5th Step of the 2004 salary ordinance, Building Department Senior Permit Clerk. · JANE VANWOEART - No increase. She is at the 5th Step of the 2004 salary ordinance, Omnibus Operator. · PAULETTE HOLMES - $1000.00 increase. She is at the 5th Step, Police Records Clerk. Recommending Increase from $28,208 to $29,208 with the following salary adjustments over the next 3 years: 2004 $28,208 to $29,208 2005 $29,336 to $30,230 2006 $30,509 to $31,288 2007 $31,730 to $32,383 · BRENDA FARNHAM - Recommending Provisional appointment from 5th Step Clerk Typist to 4th Step Records Clerk, $26,942 to $27,162. 10 PAGE 10/ 22 FILE No.468 10/06 '05 10:41 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 . MARIA WLODARCZYK - Recommending Provisional appointment from 5th Step Cashier to 4th Step Principal Cashier Typist, $33,925 to $35,376. On March 1, 2004, the Union responded to the Borough's February 11, 2004 letter. In respect to the Grievant, the Union noted its objection to the Township's position that she receive no increase (other than the across-the- board increases). The Union believed the Borough's position to be inconsistent with the last proposal of the Borough's Finance Committee. In particular, the Union objected to the Borough's failure to slot the Grievant's salary to the salary guide for the job title Administrative Secretary/Police Department. The letter stated: Thank you for the meeting on February 10, 2004 and your February 11, 2004 letter. It was our understanding that the Local would meet with the . Council Finance Committee on February 18111 and 23rd to continue discussions regarding salary adjustments. As you are well aware, both meetings were cancelled and upon receiving an e-mail addressed to Lori Carrico and Gloria Goodrich on February 19th and telephone conversation with Robert Bergen on February 23rd, Local 3850 presents its response to your letter. Three months after our last meeting with the Council, we are assuming that you are the lead negotiator for this issue. I'm encfosing my letter of October 27, 2003 for your review. Your response does not include three employees, Barbara Baumgartner, Patricia Ercolino, and Josephine Vesy. Along with Michelle Blacknall, Cindy DeCamp, and Jane Van Woeart, the Borough has either failed to acknowledge their presence or their continued service to the Borough. For whatever reason they were left off the Goldsack recommendations (also enclosed), Local 3850 requests for their salary adjustments reflect the 11 PAGE 11/ 22 FILE No.468 10/06 '05 10:41 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 increased responsibilities and activities of their job classification and dedicated service to the Borough. As for Paulette Holmes, Brenda Farnham, and Maria Wlodarczyk, the adjustments displayed the past practice of slotting the individual to the proper step on the salary guide while recognizing the employee's service to the public. Although this is not the $2000 individual adjustment requested, it is a fair counter. Finally, vour response to Melanie Siracusa is inconsistent with the last proposal of the Finance Committee. Please refer to mv October 27. 2003 letter, which I believe summarizes the Union and BorouQh position. Your proposal iQnores the siottinq of her salary to the on Iv leqitimate and established salary quide - Administrative SecretarylPolice Department. [undertine added] We appreciate your lead on this issue and hope to continue the dialogue to a mutually acceptable conclusion. Please feel free to contact me at your convenience. The Borough responded to the Union on April 7, 2004. In that letter, set forth below, the Borough reiterated its rejection of the Union's position on behalf of the Grievant by confirming that its position remained what it had been in its February 11, 2004 Jetter. Thus, the Grievant remained on Step 5 of the Administrative Secretary/Community Development Department salary guide and received no individual salary adjustment. The result was that the Grievant received no increase beyond what she would have received had she remained in the position Senior Clerk Typist/Community Development Department. The Borough's response stated: Having reviewed this matter with members of the Council, please accept this in response to your letter 12 PAGE 12/ 22 FILE No.468 10/06 '05 10:42 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 PAGE 13/ 22 of March 1, 2004. My earlier letter, of February 11, 2004 was a follow-up to our meeting on February 10, 2004 and your letter of July 23, 2003. Your letter of July 23, 2003 was the only correspondence or request referenced during our meeting on February 10,2004 and lists the following employees: Michelle Blacknall Melanie Siracusa Cindy DeCamp Jane VanWoeart Paulette Holmes Brenda Farnham Maria Wlodarczyk There was no mention of Barbara Baumgartner, Patricia Ercolino or Josephine Vesey made in yours of July 23, 2003, therefore I cannot make any recommendation regarding their salary at this time if your request did not include them. Furthermore, I agree with you that Michelle Blacknall, Cindy DeCamp, Jane VanWoeart, Barbara Baumgartner, Patricia Ercolino and Josephine Vesey have a history of continued dedicated service to the Borough of Carteret, which the Borough acknowledges through longevity bonuses contained in the current contract. However, I cannot recommend additional salary increases at the present time over and above that received as part of the current negotiated contract. I n the face of a bUdget shortfall and no freeze in State aid, our priorities must be to control spending while at the same time to allow for fair and equitable contractual raises for our union employees. In this regard, it should be noted that the Borough's union employees represented by AFSCME received on average 1%-1 Y:.% more this year than non-union administrative employees. Regarding Paulette Holmes, Brenda Farms and Maria Wlodarczyk, I conclude from your letter that my February 11, 2004 proposal is acceptable. The Melanie Siracusa issue is in fact consistent with all Borough discussions as presented to me, I have read your position as outlined in your October 27, 13 FILE No.468 10/06 '05 10:42 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 2003 letter but the Borough's position differs from that of the union, and the Borough's position is set forth in my February 11, 2004 letter. Thank you for your prompt attention to this letter in hopes of resolving any outstanding issues. The Union maintained its objection to the Borough's position as to the Grievant. On April 30, 2004, while accepting the Borough's final recommendations for individual salary adjustments for other employees, the Union stated to the Borough that "it is an injustice that Melanie not be placed on the Administrative Secretary/Police Department wage scale." Because this matter remained unresolved and because the Union believed that the Borough had violated the Agreement, the Union filed a grievance on July 13, 2004 alleging a violation of Article 28, Article 23 and Past Practice. The grievance was accompanied with an explanation as to the Union's position: Statement of Grievance Violation of Article 28, 2nd Sentence Any employee who is promoted shall receive not less than his or her rate of pay and promotion from one range to the next. Ms. Siracusa received a job classification questionnaire audit from New Jersey Department of Personnel with title certification on March 10,2003 for Administrative Secretary title, Her previous title was Senior Typist, Community Development. The classification change was retroactive to May 4, 2002. Upon promotion Local 3850 contends Ms. Siracusa must be placed on the Administrative Secretary/Police Salary guide; thus changing the Salary ordinance to Community Development/Administrative Secretary. 14 PAGE 14/ 22 FILE No.468 10/06 '05 10:42 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 Due to Ms. Siracusa's years of service and placement on the Senior Clerk Typist guide (1/112002 5th year $30,353.00 annually) and with the sited contract language, Ms. Siracusa must be placed on the 5th year $33,039.00 of the amended Salary Ordinance #71-9 for 2002. Using Salary Ordinance 71-9 Administrative Secretary/Police Ms. Siracusa should be placed on 5th year for year 2003. Local 3850 seeks the proper placement of Ms. Siracusa on the Administrative Secretary/Police Guide, incorporate that guide for Community Development with full back pay. Violation of Article 33 - Non-Discrimination and Violation of Past Practice Local 3850 express deep concern that Ms. Siracusa's rights are being violated as stated in Article 33. One could only speculate why she is singled out as unworthy for the appropriate salary. But speculation has come to my attention of possible political discrimination against Ms. Siracusa. Also Local 3850 questions the Borough's motives when it has given other employees proper salary placement after a promotion. The Borough violates Past Practice due to improper placement on the salary guide for promoted employees. The former Business Administrator recognized the issue when granting salary adjustments to White Collar employees and the Borough recognizes proper placement for other civilian employees. The Union also filed an unfair practice charge against the Borough on February 1, 2005 alleging that the Borough had asked the Union to drop this pending arbitration in exchange for granting the individual salary adjustments that had been agreed to 1. Ultimately, and without the need for litigation on the unfair , That agreement resulted In adjustments for some employees and none for others. None of these matters are within the scope of this proceeding 15 PAGE 15/ 22 FILE No.468 10/06 '05 10:43 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 practice charge, the individual salary adjustments were implemented for other employees while others received no increases and this matter proceeded to arbitration. At the arbitration hearing on June 14, 2005, the Borough and the Union offered argument and documentary evidence in support of their respective positions. Testimony was also received from Melanie Siracusa, the Grievant. The Grievant's testimony confirms the developments that occurred in this matter that are reffected in the documentary evidence. The Grievant's position is that she should have been placed on Step 5 of the Administrative Secretary/Police Department salary guide retroactive to April 11, 2002, the date that her Director made a request to the DOP to perform the desk audit, or to May 4, 2002, the date the DOP considered her to be serving provisionally in the title of Administrative Secretary pending promotional examination procedures. The Borough urges rejection of the grievance pointing to the fact that it never agreed to develop a salary guide for the Grievant that was consistent with the Administrative Secretary/Police Department salary guide, that the Grievant has received all increases that she was entitled to as a result of the across-the-board increases negotiated by the Union as applied to the title Administrative Secretary/Community Development, and that the Union's position had no support in the Agreement, past practice or in the law. The remaining arguments of the parties are set forth in the documentary evidence set forth above or implicit in the statements of positions expressed in those documents, 16 PAGE 16/ 22 PILE No.468 10/06 '05 10:43 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 DISCUSSION I have thoroughly reviewed and carefully considered the arguments and evidence submitted into the record by the Borough and the Union in support of their respective positions, The Union has the burden to prove, by a preponderance of the evidence, that the Borough violated the Agreement in respect to the placement of, and the salary to be paid, to the Grievant. After scrutiny of this record, I am compelled to conclude that the grievance must be sustained in part and denied in part. The Union, by a preponderance of the evidence, has established that the Borough has violated the Agreement in respect to placement of the Grievant and that the Grievant, by way of remedy, must receive an adjustment to salary accompanied by retroactivity. However, that placement and the adjustment to her salary shall not be directed to the commencement date sought by the Union nor shall the adjustment to her salary be according to the exact calculation proposed by the Union. I reach these conclusions for the following reasons. Whatever the practice may be concerning promotions, the relevant facts and circumstances of this particular case are unique and not governed by practice. The parties are well aware of the guiding principles concerning the establishment of a binding past practice, The circumstances must be the same, 17 PAGE 17/ 22 FILE No.468 10/06 '05 10:43 ID:AFSCME COUNCIL NO.73 FRX:609 586 7499 there must be frequency as to the occurrence of those circumstances and the parties' responses to those similar events must be consistent and shown to exist over some significant duration. In this instance, there is, in fact, a "mixed bag: No prior instance of a matter similar to this circumstance appears in evidence. Moreover, the Agreement, at Article 28 - Promotion, is only violated in this instance if a promotion causes a loss of pay. There is no contractual basis, nor one in law, that required the Grievant to have been placed on the Administrative Secretary/Police Department job title nor its salary guide at the 5'" Year step at the time of the completion of the desk audit or the provisional appointment. The Borough was required, at that time, on or about May 1, 2002, to place the Grievant in an "Administrative Secretary" classification on a provisional basis. The Borough did so but created an Administrative Secretary title and a salary guide for that title within the Department of Community Development. The title was in the same range as Senior Clerk Typist. The Grievant did not receive an increase at that time and the Borough was not obligated to grant an increase. The Borough was obligated to participate in collective negotiations over her placement and salary and the record fully reflects that the Borough and the Union did so. The Union forcefully negotiated and disagreed with the Borough over her job title, the salary guide to be applied and the effective date of any increase but no agreement was reached during this time that she was a provisional. During this time, an event of significance occurred. The DOP issued a promotional announcement for the title of Administrative Secretary in the 18 PAGE 18/ 22 FILE No.468 10/06 '05 10:43 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 Community Development Department and certified that the Grievant was eligible for permanent appointment to this position on March 10, 2003. Shortly thereafter, on March 14, 2003, the Grievant notified the Borough that she was eligible for appointment for the position of Administrative Secretary and that "I hereby serve notice that I am interested in said position." On May 9, 2003, the Borough permanently appointed the Grievant to the position of Administrative Secretary/Community Development. Once the Grievant received the permanent appointment to the Administrative Secretary position, the burden at that time shifted to the Borough to establish why the Administrative Secretary position in Community Development should not be accorded the same salary guide as it had established for the position of Administrative Secretary/Police Department. In the absence of a provision in the negotiated Agreement that compelled the Borough to place the Grievant on a similar salary guide up to this point in time, the basis for differentiated treatment of the Administrative Secretary positions by department no longer existed for several reasons. The job title and salary guide structure reflected in the Borough's resolutions must be read to incorporate the parties' agreement in respect to salaries. There is merit to the Union's view that once the Grievant received a permanent appointment, the Borough was obligated to peg the Administrative Secretary position in the Community Development Department with the salary 19 PAGE 19/ 22 FILE No.468 10/06 '05 10:44 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 guide for the same title in the Police Department at least for the remainder of the Agreement. There is nothing in the record to support a finding that the Agreement reserves to the Borough the right to have different salary guides for the same job title simply because the job tittes exist in different departments. For example, the Senior Clerk Typist title exists in the Administrative and Executive Department and the Community Development Department and the salary guide is the same. The Clerk Typist title exists in the Administrative and Executive Department, the Tax Collection Department and the Building Inspector Department and the salary guide is the same. Although there is nothing that prevents the Borough and the Union from negotiating different salary guides, in this particular instance, I conclude that the Union has proven that the Borough had an implied obligation to have the Administrative Secretary titles correspond with one another at the time that an employee, in this instance the Grievant, occupied the title on a permanent basis. If the parties wish to differentiate the salary guides in the future, they may do so through the process of collective negotiations. I next tum to the issue of remedy. The Grievant seeks full back pay determined by her immediate placement at the 5th Year or maximum step retroactive at least to the time of her provisional appointment through the DOP desk audit. Neither the Agreement, the provisional appointment nor established practice dictates such a result. The Grievant points to the fact that the DOP Promotional Announcement dated July 1, 2002 sets forth the higher salary range 20 PAGE 20/ 22 FJLE No.468 10/06 '05 10:44 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 but this document does not govem the parties' contractual rights or obligation on this issue. Further. the Grievant did not have seniority in the new job title in the amount of service in that title to be placed on the salary maximum nor was there any requirement at the time to require a 2% salary increase as apparently recommended by a consultant for situations involving promotions. However, once her appointment became permanent, the Grievant was entitled to be placed at a level that required a salary increase beyond what she had been receiving in her old title. This is consistent with Article 28. I determine that the Grievant is entitled to back pay with the amount to be determined by the following calculation. At the time of her permanent appointment on May 9, 2003, the Grievant was earning $31,263. Her placement on a guide similar to the Administrative Secretary/police Department salary guide required placement to the next highest salary on that guide. That amount is $31,596, a figure that places her on the 3'<1 Year step on that guide. This represents an annual difference Of~ The Grievant should remain on that step during the time she accrues years of service in the job title unless her salary were to otherwise fall below what it would have been under her old job title. Thus, the Grievant shall remain on the 301 Year step for the contract year 2004 and 2005. Her salary or contract year 2004 shall be $32.702, representing an annual difference Her salary for co tract year 2005 shall be $34,010, representing an annual difference 0 $359. or contract year 2006, the ~nt shall move to the _~'\ Year step at a level of $36,734. a difference ~1,~For contract ye(ii;i) the Grievant shall move to $39,619. the salary maximum at the 5th Year step, a 21 PAGE 21/ 22 FILE No.468 10/06 '05 10:44 ID:AFSCME COUNCIL NO.73 FAX:609 586 7499 ''''re"œ "'8 Ba"'" "PO" "'œ fi9"re,. tho 8o"""h ,haD pro,.. retroactive pay increases in the amounts stated retroactive to May 9, 2003. AWARD The Borough violated the Agreement by not placing Melanie Siracusa in an Administrative Secretary job title that was not equivalent to the salary guide for the Administrative Secretary/Police Department position at the time of her permanent appointment to the Administrative Secretary job title on May 9, 2003. As remedy, Melanie Siracusa shall be placed on the 3'd Year step at $31,596 on May 9, 2003, remain at the third year step for 2004 and 2005 at a salary of $32,702 and $34,010 respectively, move to the fourth year step at $36,734 in 2006 and the 5th Year step at $39,619 in 2007. These adjustments shall be retroactive. Dated: August 23, 2005 Sea Girt, New Jersey State of New Jersey J County of Monmouth }ss: On this 23'd day of August, 2005, before me personally came and appeared James W. Mastriani to me known and known to me to be the individual described in and who executed the foregoing instrument and he acknowledged to me that he executed same. Jur~ :£~~ GRETCHEN L. BOONE 22 NOTARY PIJI!OC ofNEW .ÆRSEY My Cot'rin1IsIion EJcpIo'a$ 8/13/2008 PAGE 22/ 22