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In re Negotiation of Labor Contract for Employees of Surrogate

August 31, 1989


Haines, A.j.s.c.



This Opinion holds that the personnel staffing Surrogates' offices are subject to the authority of an Assignment Judge with respect to the negotiation of a labor contract. It concludes that interference with the exercise of that authority is a contempt "in the actual presence of a judge." It discusses the

procedures by which an Assignment Judge may enforce an Administrative Order.

On July 1, 1987 the Burlington County Assignment Judge, the Burlington County Board of Freeholders and the Communications Workers of America entered into a "Memorandum of Understanding". Among other things, the Memorandum provided:

The Assignment Judge of Burlington County is the employer of all judicial employees in Burlington County. "Judicial employees" are identified as all employees working in the Burlington County Probation Department, the Office of the Surrogate of Burlington County, all Court clerks and file clerks working in the office of the Burlington County Clerk and all administrative and other employees on the Superior Court payroll. [emphasis supplied]

The Memorandum recognized the Communications Workers of America, Local 1044, as the exclusive negotiations representative of judicial employees. It also provided that separate employment contracts would be negotiated for judicial and non-judicial employees working in Burlington County commencing in the year 1989. Initial negotiations have honored this understanding. The Board of Freeholders has executed a contract covering non-judicial employees; the contract for judicial employees, including Surrogate's employees, remains at the negotiations stage.

On July 12, 1989, the Assignment Judge received a Memorandum from Charles T. Juliana, Clerk/Administrator of the Board of Freeholders advising in pertinent part as follows:

The Surrogate has designated the Board of Chosen Freeholders to act in his behalf during negotiations with CWA Local 1044. As a result of this designation, commensurate with the signing of the Agreement, employees of the Surrogate will receive compensation in compliance with the Agreement.

Attached to the Memorandum was a copy of a second Memorandum, executed by the Surrogate and dated July 12, 1989, which said, in part: "I hereby authorize the Board of Chosen Freeholders to be the bargaining agent for my employees." It is understood that the Surrogate relied on N.J.S.A. 2A:5-16 as authority for his action. That statute purports to give him authority to engage employees and to recommend their compensation.

The Juliana Memorandum crossed in the mail with one from the Assignment Judge, also dated July 12, 1989, which memorialized the Assignment Judge's understanding that employees of the Surrogate's office are judicial employees to be covered by a separate employment contract. This Memorandum was sent to the Clerk/Administrator and the Surrogate. It stated in part:

I cannot consent to any arrangement which places any group of judicial employees under a contract separate from the contract to be executed on behalf of other judicial employees and will insist upon compliance with my legal and contractual understanding.

On July 14, 1989, the Assignment Judge responded in writing to the Clerk/Administrator's Memorandum of July 12, 1989, briefly explaining the applicable law and advising him "clearly and immediately of my opposition to the indicated arrangement." An Administrative Order executed by the Assignment Judge was attached. That Order provided that no further action was to be taken by the Board of Freeholders in furtherance of its intention to subject personnel of the Surrogate's Office to the labor contract covering non-judicial employees. It authorized the Freeholders to move to set aside the Order on two days' notice and stated that, in the event they so moved, they would be provided with a hearing.

The Freeholders did not make that motion. Later, the Assignment Judge was advised by the County Solicitor, in response to an inquiry, that the Board of Freeholders intended to treat the personnel of the Surrogate's Office as employees covered by the non-judicial contract of employment and intended to pay them under that contract the following day. The Assignment Judge therefore issued an Order to Show Cause why the Freeholders and the Surrogate should not be held in contempt.

It then appeared that the Freeholders were uncertain as to the restraining effect of the Order to Show Cause. Consequently, an additional Order was executed specifically restraining the Freeholders "from taking any action which will violate the Administrative Order of this court including in particular

the issuance of any checks to employees in the Surrogate's Office reflecting any compensation set forth in any contract governing non-judicial employees." The Freeholders agreed to honor that Order and the August 3rd hearing was postponed to August 28, 1989.

On August 16, 1989, the Assignment Judge ordered the Surrogate, through his attorney, to advise the Board of Freeholders that: (1) He recognized the fact the personnel of his office as judicial employees, and (2) agreed with the Assignment Judge that they were to be included in the contract covering judicial employees. A copy of that Order was sent to the attorney for the Board of Freeholders with a letter requesting the Board "once more to advise me that it will honor my Administrative Order and its own Memorandum of Understanding. If that is done, I will discontinue my contempt and injunctive proceedings insofar as the Freeholders are concerned." A certification of the facts upon which the contempt proceedings were based and a legal memorandum setting forth the law upon which the court relied were sent to counsel for the Board and counsel for the Surrogate at the same time.

On August 22, 1989, the Surrogate advised the Board of Chosen Freeholders by letter as follows:

Upon order of the Assignment Judge of Burlington County, in my capacity as Surrogate of Burlington County, I have been directed to advise you and the Surrogate recognizes that:

1. The employees of the Surrogate's Office are judicial employees; and

2. Are to be included in the employees' contract now under negotiation for judicial employees.

On August 23, 1989, the solicitor for the County of Burlington wrote a letter to the Assignment Judge stating:

I am writing to inform you that the Board of Chosen Freeholders at its conference meeting of August 23, 1989 determined that it will honor the Administrative Order issued by you on July 14, 1989. This determination is without prejudice to the Board of Freeholders and reserves to the Board of Freeholders all legal rights provided to it under the law.

On receipt of the letter from the solicitor, the Assignment Judge advised him that the contempt charges against the Board

would be dropped and that the Freeholders were not required to appear before him on August 28, 1989.

On that date the contempt hearing proceeded. The court announced that the Freeholders had purged themselves of any contempt charged against them. The Surrogate was advised that the court would consider any testimony, exhibits and argument that he wished to present. Certain documents, including the Assignment Judge's certification of facts and all correspondence, Orders and memoranda exchanged by the parties, together with certain documents offered by the Surrogate were marked into evidence. The Surrogate testified briefly, taken by him were based upon his belief that statutory authority took precedence over the authority exercised by the Assignment Judge. Argument was presented by his attorney who was permitted to file a post-hearing brief. This Opinion addresses and resolves the various issues raised in the proceedings.

I. Identification of Judicial Employees.

The Memorandum of Understanding of July 1, 1987 identified the judicial employees of the Burlington County Assignment Judge. It included among them, specifically, the personnel of the Surrogate's Office. Prior to 1989, the County's employment contracts did not distinguish between judicial and non-judicial employees. They did, however, recognize the authority of the Assignment Judge over judicial ...

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