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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
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NEW JERSEY PUBLIC EMPLOYMENT RELATIONS C~M'SSION
1,-/.
In the Matter of Arbitration Between: (
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BOROUGH OF CARTERET
"Borough:
- and -
AFSCME COUNCIL 73 LOCAL 3850
"Union."
Docket No. AR-2005-240
(Art 28, 2M Sentence - Art 33, Past Practice)
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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
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~ILE No.468 10/06 '05 10:39 ID:AFSCME COUNCIL NO.73
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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?
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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
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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
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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."
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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
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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,
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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
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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
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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.
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FILE No.468 10/06 '05 10:41 ID:AFSCME COUNCIL NO.73
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. 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
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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
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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,
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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.
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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
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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,
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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,
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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
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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
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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
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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
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FILE No.468 10/06 '05 10:44 ID:AFSCME COUNCIL NO.73
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''''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
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