On appeal from a final decision of the Civil Service Commission.
Bischoff, J. H. Coleman and Gaulkin.
[191 NJSuper Page 2] The crucial question raised by this appeal is whether N.J.A.C. 4:1-15.7 and N.J.A.C. 4:1-16.2 require all provisional and probationary employees of a State Agency to be discharged before permanent employees are exposed to a lateral transfer, demotion or layoff. The Civil Service Commission concluded that the provisional and probationary employees need not be discharged
before "touching" the permanent workers. The Union has appealed. We now affirm.
On or about May 8, 1981 all employees in the Department of Labor and Industry (L & I) received a notice of layoff advising that due to budget cuts there would be a reduction in force effective September 21, 1981, which would be achieved by "reassignment, demotion or separation." The layoffs were necessitated by significant state and federal cuts in the department's budget. The layoff was to be effected in two stages. The first stage occurred on June 29, 1981 at the close of the last pay period before the beginning of the 1982 state fiscal year. The second stage took effect on September 21, 1981 at the end of the final pay period before the federal 1982 fiscal year commenced on October 1, 1981.
The Department of L & I determined how many positions in particular job classifications would be abolished and the locations throughout the State where these positions would be eliminated. Some of the positions selected for abolition were occupied by permanent employees and some by provisionals or probationaries. Some positions not slotted for abolition were occupied by provisionals or probationaries.
Upon determination of what positions were to be eliminated, permanent employees in affected positions were interviewed and advised of their lateral displacement, demotional or special reemployment rights. They were advised of comparable positions and/or lower level titles throughout L & I over which they possessed superior employment rights and were given an independent choice as to which position he or she would exercise those rights against.
Provisional and probationary employees in non-abolished positions were not affected by the immediate reduction in force. They would be divested of their positions only if bumped by a permanent employee.
Plaintiffs agree that as a practical matter, some permanent employees were unable to accept positions occupied by provisionals and probationaries because of the geographic diversity. An interviewer in Atlantic City, for example, would find it difficult to accept a similar position currently held by a provisional in Hackensack.
Among other job positions, it was determined prior to the commencement of the employee interviews that 66 interviewer positions in the Division of Employment Services were to be abolished by the department. As of August 4, 1981, there were 74 provisional interviewers. As a result of the layoff procedure used by the department, approximately 17 permanent interviewers were targeted for layoff on September 21, 1981 and approximately 45 permanent interviewers were to be demoted. Approximately 11 provisional interviewers were to be retained.
There are two regulations implicated in this appeal. N.J.A.C. 4:1-15.7 provides:
(a) The change of an employee from a position in one class to another position in the same class in the same organization unit shall be called an assignment or reassignment and may be made at any time as the needs of the service require. Such assignment or ...