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Apostolico v. County of Essex

Decided: June 16, 1976.


Bischoff, Botter and Gaulkin.

Per Curiam

[142 NJSuper Page 298] Defendants appeal from an order requiring the parties to submit this dispute to the Public Employment Relations Commission (PERC) for binding arbitration. The dispute concerns plaintiffs' claims for compensation for the one-half hour extension of their work day ordered by the Essex County Prosecutor to meet the change in court hours effective January 31, 1972. As a result the prosecutor required employees to report to work from 8:30 A.M. instead of 9:00 A.M. Plaintiffs assert that the normal working hours

theretofore were 9:00 A.M. to 4:00 P.M. Essex County refused to compensate them for the change in working hours.

An appeal was taken to the Civil Service Commission which held that the extension of the work day without additional compensation was a reduction without good cause, contrary to N.J.S.A. 11:22-38. The determination was reversed on appeal to this court. Prosecutor's Detectives & Investigators Ass'n v. Hudson County Bd. of Chosen Freeholders , 130 N.J. Super. 30, certif. den. 66 N.J. 330 (1974). The court held that the change in hours affecting employees indiscriminately was not a "reduction" in salary or status cognizable by the Civil Service Commission within the contemplation of N.J.S.A. 11:22-38. Rather, it viewed the controversy as one over terms and conditions of employment which should be negotiated by the parties. "If an impasse is reached, either party may seek the aid of the Public Employment Relations Commission to assist in effecting a voluntary resolution." 130 N.J. Super. at 45, (Emphasis added.) The opinion also referred to other possible judicial avenues of relief, including court compulsion, if the parties fail to negotiate in good faith.

In saying that the dispute should be negotiated, the court did not imply any position on the merits of the claim. It merely recited the contention of the employees that the 9:00 A.M. starting time was an "implied term of employment," and the contention of defendants that the hours of work were to be determined by each department head. Id. at 47. The employment agreement between the county and the prosecutor's detectives and investigators covering the period from April 1, 1970 to March 31, 1972 did not specify the hours of employment; it fixed annual salaries and provided that, "in view of the within salary adjustments, no employee shall make any claim for overtime payment." It did not provide for arbitration of disputes. There was no written agreement with the clerical and stenographic employees.

After denial of a petition for certification, 66 N.J. 330 (1974), plaintiffs requested the Essex County Board of Freeholders to negotiate the dispute. Although there were several meetings with county representatives, and with the board of freeholders at an executive session, the board of freeholders ultimately rejected the claim for back pay. The reason given was:

The Board of Chosen Freeholders has continually indicated to the bargaining employees unit involved that the County would not compensate them for the half hour primarily because the Prosecutor's Office is ostensibly a twenty-four hour operation, has no provisions for overtime and furthermore, it is under the jurisdiction of the court and is subject to office hours based upon those of the court.

Plaintiffs filed a complaint in the Chancery Division in May 1975 and, by order dated June 18, 1975, defendants were directed: to commence negotiations "on the question of adequate compensation to those employees in the Essex County Prosecutor's Office whose work day was extended"; to designate agents with "full authority" to negotiate, and to "attempt to meet at least once a week." In August the board of freeholders designated Herbert Gladstone, Personnel Director of Essex County, to represent them. A meeting was held on August 13 and Gladstone indicated he would report plaintiffs' proposals to the board of freeholders at its September meeting. Another meeting was held on September 16 at which Gladstone conveyed the board of freeholders' position that no "new facts" had been presented which would warrant an offer of compensation for the extra hours of work.

Despite the pendency of this dispute, and these various proceedings, employment contracts with the county were entered into in 1973 and 1974, negotiated by the Prosecutor's Detectives and Investigators Association of Essex County as the representative of all county detectives and investigators. These contracts provided for increases in salary and contained the same provision as the 1970 contract, that

no employee would make any claim for overtime. The 1974 contract also provided for a cost of living adjustment. The 1973 and 1974 contracts did provide grievance procedures and arbitration of disputes regarding the interpretation and application of "a specific provision" of the contracts. See N.J.S.A. 34:13A-5.3 which authorizes the parties to provide for binding arbitration as a means of resolving disputes.

Contending that defendants did not negotiate in good faith, plaintiffs moved on September 26, 1975 for an order granting the following supplemental relief: (a) committing defendants to the county jail until they complied with the order of June 18, 1975 which compelled negotiation of the dispute; (b) fining defendants for each day of non-compliance; (c) ordering payment of counsel fees; (d) ordering binding arbitration, and (e) ordering other relief deemed just and equitable. In response, the trial judge on October 21, 1975 entered the order under appeal directing the submission of the dispute to PERC for binding arbitration. Plaintiffs have ...

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