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In the Matter of Noah Formey

July 30, 2012

IN THE MATTER OF NOAH FORMEY, ROBERT BRUNTON, BRIAN ZENGEWALD, UNION COUNTY.


On appeal from New Jersey Civil Service Commission, Docket Nos. 2010-4062, 2010-4063, 2010-4064.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2012

Before Judges Sabatino and Kennedy.

Noah Formey, Robert Brunton and Brian Zengewald appeal from the January 21, 2011 final agency decision of the Civil Service Commission (CSC) denying reconsideration of an earlier decision of the CSC which, in turn, denied a challenge to their layoffs from employment with Union County. Appellants contend that the CSC erred when it rejected their claim that Union County was equitably estopped from laying them off from their positions as "Engineering Aide" because the county allegedly misled them into believing that they had been permanently appointed as "Traffic Maintenance Workers", a position for which appellants claim they had more favorable lateral and demotional displacement layoff rights under N.J.A.C. 4A:8-2.2.

I.

Appellants were hired in 1996 by Union County as engineering aides within the Department of Engineering and Public Works. In 1999, all engineering aides were moved to a traffic maintenance facility while a new engineering facility was being constructed. During this period, appellants reported to the traffic maintenance "Supervisor" and performed mostly traffic maintenance duties. Both the Bureau of Traffic Safety and the Division of Engineering are within the Department of Engineering and Public Works, however.

By 2000, the new engineering facility had been completed, but appellants were advised they would continue working at the traffic maintenance facility and would perform traffic maintenance duties. They claimed they were advised in 2001 that Union County created a "new title" for them to be known as "Engineering Aide/Traffic" and adjusted their hours and salaries.

In October 2001, a "Request for Personnel Action/Interim Profile" was executed for each appellant designating their title as "Engineering Aide/Traffic", setting forth their salaries and a forty hour work week. The form, in the section for "Explanations" stated, "Changes made to title and hours as well as salary per Council 8 Agreement." Frank Dann, who signed as "Department Head" on Zengewald's form, stated the purpose of the form was to "solidify [appellants'] permanent transfer from the Bureau of Engineering to the Bureau of Traffic Maintenance to the position of Engineering Aide/Traffic." It was Dann's "belief" that after submission of the form, appellants were working under the title of "Traffic Maintenance Workers."

The Council 8 and Union County Collective Negotiations Agreement (CNA) specifically provided in Article 5, Section 4 that, "Engineering Aides assigned to the Traffic Bureau shall work 40 hours per week and shall receive a pro rata adjustment . . . . The Classification shall be Engineering Aide/Traffic 40 hours." The salary range memorialized in appellants' 2001 request for personnel action forms was the salary range for "Engineering Aide/Traffic" set forth in the CNA. This salary differed from the salary range set forth in the CNA for the title of "Traffic Maintenance Worker."

Appellants contend that they thereafter worked exclusively within the Traffic Bureau, were always included in meetings and notices for "Traffic Bureau Staff" and performed the services ordinarily undertaken by those with the title of "Traffic Maintenance Workers." They assert that their actual title was not changed, however, because Union County failed to submit to the CSC the 2001 request for personnel action forms.

In the spring of 2009, Union County announced it would implement a layoff of employees within three of its departments, including the Department of Engineering and Public Works. Those employed with the title of "Engineering Aide" were among those identified for layoffs. Appellants thereupon requested the CSC to undertake a position classification review of their jobs and title. In April 2009, the CSC determined that Formey and Bruton were performing the duties of the title "Traffic Enumerator/Traffic Maintenance Worker" and that Zengewald was performing the duties of the title "Traffic Maintenance Worker." Each was determined to "be serving provisionally in the title" noted, effective April 11, 2009, but the CSC found that such determination would not affect their layoffs from the title "Engineering Aide."

Appellants then appealed their layoffs to the CSC which denied their claims in a detailed decision dated April 30, 2010. In August 2010, appellants sought reconsideration of that decision and submitted additional materials. They argued, among other things, that Union County should be equitably estopped from laying them off as "Engineering Aides" because it failed to submit the personnel action forms in 2001, and for years thereafter appellants performed all the tasks pertinent to the title of "Traffic Maintenance Worker."

In a lengthy final agency decision dated January 21, 2011, the CSC rejected these arguments and determined that appellants had not presented a sufficient basis to justify a retroactive change in title. With respect to ...


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