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Bankston v. Housing Authority of the City of Newark

June 28, 2001

JOANN BANKSTON, PLAINTIFF-APPELLANT,
v.
HOUSING AUTHORITY OF THE CITY OF NEWARK, AN AGENCY AND INSTRUMENTALITY OF THE CITY OF NEWARK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1588-98.

Before Judges Carchman, Lintner*fn1 and Parrillo.

The opinion of the court was delivered by: Parrillo, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2001

This dispute between plaintiff Joann Bankston and her employer, defendant Housing Authority of the City of Newark (NHA), arises out of the employee's claim that the NHA owes her back-pay from September 1992 to August 1997 for having failed to pay her prevailing or union wages. The motion judge granted summary judgment in defendant's favor and dismissed plaintiff's contract and statutory claims. We affirm.

In 1992, plaintiff, a tenant of public housing owned and managed by the NHA, applied for employment in a "Resident Initiative Program" (program) operated by the NHA. This on-the-job training program was only open to public housing residents and was designed to help them develop marketable skills, attain employment in the private sector, and become self-sufficient.

On September 20, 1992, plaintiff was hired by the NHA, as part of the program, as a temporary employee to perform tile setting and related work. She was designated with the NHA's employee-trainee title of "Pre-Apprentice Tile Setter Helper." After having been hired, plaintiff attended an orientation session where the program was explained along with benefit and salary information. Her initial salary was $7.00 per hour, which was increased to $7.50 per hour in June 1993.

Plaintiff received on-the-job training working on various projects involving NHA properties. Her duties included preparation of floors for tiling, floor measurement, application of adhesive to flooring, and actual cutting and laying of tile. According to plaintiff, NHA supervisors and union journeymen Tile Setters instructed her in these tasks and worked along side her at the NHA housing sites, although at times she was left unsupervised.

Until August 1997 when her title and status changed to Building Maintenance Worker, plaintiff continued working as a Pre- Apprentice Tile Setter Helper, and the NHA's personnel and payroll records designated her as functioning in the agency's employee- trainee title at the hourly rate of $7.50. As a Building Maintenance Worker in August 1997, plaintiff became a member of the Service Employees International Union, Local 617 (union), which was the exclusive representative of the NHA's maintenance employees, and earned union wages. Under the terms of the collective bargaining agreement then in effect between the union and the NHA, "Tile Setter Helper," with a minimum starting salary of $22,000 to $25,000, is included in the list of job classifications. The collective bargaining agreement does not cover employee-trainee "pre-apprentice" job titles.

Plaintiff filed suit against the NHA on February 9, 1998 and contended that she actually functioned in the maintenance employee classification of "Tile Setter Helper," but was not paid at the proper rate of compensation in violation of common law contract principles, the New Jersey Prevailing Wage Act (Act), N.J.S.A. 34:11-56.25 et seq., the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and the New Jersey Equal Pay Act, N.J.S.A. 34:11-56.1 et seq. Plaintiff voluntarily dismissed the latter two claims, and the motion judge dismissed the former two on summary judgment. Plaintiff appeals this determination, arguing that the NHA was obligated to pay her either the prevailing wage under the Act or the union wage paid to the NHA maintenance employees covered by the collective bargaining agreement.

I.

The Act was passed to protect the compensation rates paid to laborers under a public work contract. Horn v. Serritella Bros., Inc., 190 N.J. Super. 280, 283 (App. Div. 1983). The legislative purpose is as follows:

[T]o establish a prevailing wage level for workmen engaged in public works in order to safeguard their efficiency and general well being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to efficiency and well being. N.J.S.A. 34:11-56.25. [Horn, supra, 190 N.J. Super. at 283.]

This court in Cipparulo v. Friedland, 139 N.J. Super. 142 (App. Div. 1976), explained the reasoning behind ...


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