Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Bayonne appeals from a judgment of the Civil Service Commission ordering salary increases to be paid employees in the city sewer department on the ground that the withholding of such increases was discriminatory.
The city is governed by a board of commissioners under the Walsh Act, R.S. 40:70-1 et seq. Alfred V. Brady was
elected commissioner at the May 1955 municipal election. The Department of Revenue and Finance was assigned to him as Director. The sewer and water utilities, combined in one operation, were part of the department, as were the offices of the city treasurer, tax collector and city attorney. The total number of persons employed in the department, permanent as well as a few temporary, was 140. On February 10, 1958 Commissioner Brady granted a "general" salary increase of about $200 to some 70% of the employees in his department. All of the water service employees, about 92 in number, received the increase. None of the 27 sewer service employees was so benefited, except for one who had been designated foreman. All raises were within the common salary range of $3,909-$5,079.
The sewer department employees complained to Commissioner Brady and the Civil Service Commission about their failure to receive a raise. The Commission was then in the process of conducting a reclassification survey in Bayonne. It investigated the complaint and, as a result, a conference with Commissioner Brady was held in September 1958, attended by Executive Assistant Merrigan, in charge of the Commission's Newark office, Civil Service Chief Examiner and Secretary Farrell, and the employees' legal representative, among others. The purpose of the conference was to determine the basis for the complaint and whether the problem could be resolved without formal hearing. At this conference the Civil Service representatives suggested the possibility of abolishing the "swing shift" differential paid to sewer employees for working on less desirable shifts, and using the money so saved to give them the increase they wanted. It was pointed out that this would improve their pension status. The differential amounted to about $291 a year for each employee. Commissioner Brady eventually adopted the suggestion; the differential was abolished, and on January 27, 1959 a $200 increase was given to all sewer department employees except three supervisory personnel and two laborers. The increase was not retroactive to February 10,
1958, the date when the water employees had gotten their raise.
On March 26, 1959 Commissioner Brady ordered salary increases of $100 to $300 for employees in the finance and water departments. No sewer employee was included.
Subsequently the individual respondents appealed to the Civil Service Commission, alleging discrimination in that the sewer department employees were denied normal salary increases granted to all other employees in the Department of Revenue and Finance as of February 10, 1958. At the Commission hearing Commissioner Brady testified that the sewer department was established about July 1954, and no employee there was in the city service before that time; that although all of the water department employees had considerably more service, their salaries for equivalent work were lower than those in the sewer department; and that in granting increases to the former in February 1958 it was for the purpose of bringing their salaries more into line with those of the sewer personnel. He said that even after those increases were given, the salaries of the water department employees were still generally lower than those in the sewer department. The Commissioner denied there was any favoritism in giving the increases; he had taken into consideration recommendations of the division heads and used his own judgment; he said he was motivated by no other reasons than those stated.
However, respondents Collins and Lavan testified that when they went to see Commissioner Brady on behalf of the sewer employees to learn why they had been left out of the February 1958 general salary increase, they were told that the only reason was that a sewer employee "came up and was looking for his holiday premium time"; that the Commissioner's curiosity was aroused and he asked how much money was involved; that he was told it would be less than $2,000; and that he said, "As a matter of fact, you were within ten minutes of getting the raise, only I ordered the plates pulled because this man came up looking for holiday
pay." The Commissioner denied having made any statement to the effect that he had ordered the plates pulled. He also denied that he withheld the pay increase from the sewer employees because, as was suggested in Collins' testimony, he was irked by their seeking overtime pay. (The employees had been pressing their claim for overtime pay due for the last 4 1/2 months of 1957; they did not receive it until March 1959.) In any event, the fact remains that the sewer employees were not given their $200 increase until January 27, 1959, and it was non-retroactive.
Executive Assistant Merrigan testified at the Civil Service hearing that when he and Farrell met with Commissioner Brady in September 1958 and inquired why he had not given a salary increase to the sewer employees, he said that "a possible reason was that the employees in the sewage plant were not competent and therefore not entitled to the increases. * * * He didn't say it was actually the reason, but it might be one of the reasons why increases were not granted." That reason was not ...