On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J.
A number of civil service employees whose names had been improperly removed from a promotion list sought retroactive pay for the period between the removal of their names from the list and their eventual promotions. In a ruling reversed by the Law Division but ultimately reinstated by the Appellate Division, the arbitrator awarded the employees back pay for that period. We reverse. We hold that the arbitrator lacked the authority to make such a back-pay award, which was not authorized by the parties' collectively negotiated agreement.
The underlying facts and procedural history may be summarized briefly as follows. In August, 1975, the Department of Civil Service (Department) announced a promotional examination for the position of income maintenance specialist (IMS) with the Monmouth County Welfare Board. A job description on file with the Department listed graduation from a four-year course at an accredited college as one of the eligibility requirements for the position. Apparently, the examination announcement did not mention this educational requirement; rather, it listed as an eligibility requirement successful completion of the "Public Welfare Training Program." In fact, no Public Welfare Training Program had ever been established.
Approximately seventeen persons who were employed by the Monmouth County Board of Social Services (Board) as income maintenance technicians (IMTs), the position immediately inferior to IMS, applied for, took, and passed the civil service promotional examination. An IMS promotion list containing the names of those employees and others was certified on December 21, 1976 and January 18, 1977.
The Board protested the certifications of the employees in question because they did not have bachelor's degrees. In approximately March, 1977, the Department ordered that the names of those individuals be removed from the employment list.
The employees appealed to the Civil Service Commission (Commission). The Commission held that substitution of work experience for the college degree constituted sufficient qualification for the position since there was no Public Welfare Training Program and the announcement of the examination had made no specific mention of the alternative requirement of a bachelor's degree. The Commission therefore ordered that the names be restored to the list.
The Board's appeal to the Appellate Division was unsuccessful, and on November 1, 1979, the Department ordered that the individuals be restored to the list and be given "permanent appointments within the normal time period prescribed by Civil Service regulations." The Department also stated: "Permanent appointees will be afforded retroactive seniority to the dates of December 21, 1976 and January 18, 1977." No provision was made for a back-pay differential for the period between the date that their names had first appeared on the promotion list and the date of their actual promotions.
In December, 1979 the employees filed a grievance with the Department seeking retroactive pay. The Manager of Local Government Services in the Department rejected their application, stating that the Commission had no jurisdiction over county compensation plans, that the Commission could not determine retroactive pay, and that "the only avenue of recourse available * * * is through the courts." He also advised the parties that if they had any objections, they should appeal to the Director of Local Government Services within twenty days.
The Communication Workers of America (CWA), the collective representative of the Board's employees, including the individuals involved, instead sought to arbitrate the issue of back pay pursuant to its agreement with the Board. The Board objected and sought to enjoin the arbitration by filing a complaint and Order to Show Cause in the Superior Court, Chancery Division. The court refused to issue an injunction and
ruled that the grievance was arbitrable. It retained jurisdiction.
The arbitrator declined to consider the arbitrability of the dispute because the court had already decided that issue. The arbitrator found that the employees had been promoted to the position of IMS on or about November 28, 1979, with retroactive seniority to December 21, 1976 and January 18, 1977, the dates their names first appeared in the promotion eligibility list. She nevertheless characterized the issue in terms of the effect of the "retroactive ...