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Robert Vogt, Gracia Hernandan v. City of Jersey City

April 4, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5496-07.

Per curiam.


Argued January 5, 2011

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Plaintiffs are a group of former and present public health officers employed by defendant Jersey City (the City). They assert that they have been victimized by the failure of the City to comply with the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, and the regulations of the Department of Personnel, N.J.A.C. 4A:1-1.1 to 10-3.2. Plaintiffs appeal from a September 25, 2009 order granting summary judgment in favor of the City, dismissing their complaint with prejudice. Plaintiffs contend the City reclassified positions without notice or approval of the Commissioner of the Department of Personnel (the Commissioner) and that the City has failed to place employees in accordance with proper salary and labor grades. On the City's motion for summary judgment, Judge Bernadette DeCastro concluded among other things that plaintiffs have failed to invoke or to complete the grievance procedures contemplated by applicable collective bargaining agreements, and they had failed to seek relief under the procedures set forth in the Civil Service Act. Accordingly, the court granted defendant's motion to dismiss for plaintiffs' failure to exhaust their grievance and administrative remedies. Additional counts alleging fraud were dismissed for lack of specificity in the pleadings and the absence of proofs establishing the elements of fraud. We affirm the judgment of the Law Division, substantially for the reasons in the September 25, 2009 written opinion by Judge DeCastro. However, we remand for referral of the dispute to the grievance procedure provided in the parties' collectively negotiable agreement or for transfer to the Civil Service Commission, Department of Personnel for the plaintiffs to pursue contractual and administrative remedies as may be available pursuant to the collective bargaining agreements or under regulations promulgated under the Civil Service Act.


The City is governed by the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and is a civil service municipality whose personnel actions are subject to Civil Service Commission review. N.J.A.C. 4A:4-1.10(a). The Faulkner Act provides, in pertinent part, that "the mayor shall . . . fix the amount of salary, wages or other compensation to be paid to employees of the administrative departments of the municipal government . . .[,]" except for department directors and officers whose salaries are required by law to be fixed by ordinance. N.J.S.A. 40:69A-43a. Pursuant to the Faulkner Act, the Mayor of Jersey City has promulgated labor grades that include a number of job titles. Each civil service employee of the City is placed in a labor grade based on the job functions of the given title, the importance of the job, and the labor grades of other titles within the same City department. Barring a promotion, demotion or a decision by the City to move the title to a different labor grade, an employee may remain in the same grade throughout the course of his or her employment. The City pays its employees in relation to the job titles and within the salary ranges of labor grades. Plaintiffs allege that the City has not updated the labor grade system since 1992.

In 1994, four of the plaintiffs in this action*fn1 filed a lawsuit against the City seeking an adjustment of their salaries, relying on N.J.S.A. 26:3-25.1.*fn2 That statute provides that:

[E]very person holding a license . . . who is employed in a position for which this license is required by any board of health, municipality or group of municipalities shall receive the maximum salary in the person's range, within five years from the date of appointment to the position if the majority of the person's job performance evaluations are satisfactory.

On April 10, 1996, we issued an opinion in which we ruled in plaintiffs' favor. Brown v. City of Jersey City, 289 N.J. Super. 374 (App. Div. 1996). We directed at that time that the salaries of each of the plaintiffs, which were at the top of their respective labor grades, be raised because as the maximum of the range increases, so does the protected health officer's salary. Id. at 380-81.

In recognizing that health officers receive both the benefit of union-negotiated raises as well as the benefit of the statute, we stated:

[O]n those occasions when the City responds to union-negotiated increases by congruently adjusting the maximums of the salary ranges, there is no inevitable tension at all between the collective negotiation agreement and the Title 26 provision. That is to say, by reason of that provision, the health officer is already entitled to receive the current maximum for his labor grade's salary range. If, when the increase in salary is negotiated and the maximum is concomitantly increased, the employee simultaneously, with one raise, gets the benefit of both the contract and the statute. [Id. at 379-80.]

We held:

We are satisfied . . . that the concept of "maximum" is fluid rather than fixed. That is to say, we disagree with the apparent view of the City that once a health officer has reached the maximum following his five years of service, the statutory purpose and directive has been fulfilled and there is no statutory mandate thereafter to increase the employee's salary as the salary range itself is increased . . . . The whole point of the statute is to prevent the freezing of a health officer's salary below whatever the current maximum is. Moreover, it would obviously abrogate the plain intent of the statute if a health officer's salary were frozen at whatever the maximum was five years after his appointment irrespective of how often and by how much the range thereafter increased, irrespective of what new similarly titled employees were to be paid, and irrespective of what those new employees would be entitled to five years hence. [Brown, supra, 289 N.J. Super. at 379.]

In the present action, the Jersey City Public Employees' Association, Inc., Local 246 (Local 246) is the exclusive representative for white collar workers within the City, which includes plaintiffs Gracia Hernandan, Timothy Hurley, Charles Mays, Michael Perchun and Vera Smith. The collectively negotiated agreement between the City and Local 246 (the CNA) sets forth a grievance procedure as the exclusive method for resolving disputes between the City and Local 246 and its members. Article 24 of the Local 246 CNA provides, in pertinent part:

B. Definition. The term "grievance" as used herein means any controversy arising over the interpretation or adherence to the specific and ...

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