Communications Workers of America, CSC Docket No. 2019-2982

BackgroundThe Division of Agency Services (Agency Services), on behalf of the Governor's Office of Employee Relations, requests that the provisions of N./AC. 4A:3-4.20 be relaxed in order to implement a Settlement Agreement and Release (2019 Settlement) between the State and the Communications Workers of America, AFL-CIO (CWA).

By way of background, the CWA represents State employees in the Administrative/Clerical, Professional, Primary Supervisors and Higher Level Supervisors Units. Between July 1, 2011 and June 30, 2015, employees in these bargaining units were covered under a collective bargaining negotiations agreement (2011 Agreement) which stated, in relevant part, that employees eligible for normal increments under the State Compensation Plan would receive them during the term of the contract. The State and the CWA were unable to reach a new agreement prior to the 2011 Agreement’s June 30, 2015 expiration date. After June 30, 2015, the State ceased providing annual incremental pay increases to employees in covered titles. On April 16, 2018, the State and the CWA executed a Memorandum of Agreement (MOA) in order to settle certaim issues concerning the CWA's collective bargaining negotiations agreement, including increments. The parties agreed that the MOA would have an effective date of April 4, 2018. Section B(2)(b) of the MOA provided that “[ajll employees on payroll as of the effective date of [the] MOA, who were eligible to receive increments between July 1, 2015 and the effective date of the [MOAj]” would receive the increments they would have been given if increments had been paid on their anniversary dates. Section B(2)(c) of the MOA stated that:

Persons who retired between duly 1, 2015 and the effective date of th[e] MOA and who, during that period, were entitled to receive one or more increments, shall receive a lump sum payment of $650 in licu of the increment(s). This lump sum payment shail not be treated as pensionable income and shall not affect their retirement benefit.

Further, Section B(3) of the MOA provided that:

All employees, who are on the payroll as of the date effective date of this MOA, who were hired prior to July 1, 2015, and who are not eligible to receive an increment between July 1, 2015 and the effective date of his MOA, shall receive a bonus of $650. The prior sentence shall not apply to employees hired after July 1, 2015.

Moreover, Section B(7)(f) of the MOA stated that the State would commit to making all retroactive payments for increments and across-the-board increases between the April 16, 2018 date of ratification of the MOA and October 2018.

After ratification of the MOA, multiple issues arose which led the CWA to file a series of grievances challenging its implementation. On February 27, 2019, the parties entered into the 2019 Settlement. Specifically, it was agreed that:

The State will provide retroactive pay and the bonus payments, if applicable, to individuals (1) whose separations were resignations in good standing or general resignations unrelated to discipline, even if not for the reason of death or retirement, (2) whose separations were the result of layoffs, (3) whose separations were the result of the discontinuation or abolishment of programs or offices, [or] (4) whose separations were the result of a transfer between departments. Retroactive pay and/or the bonus will not be paid to those removed during probation, removed at the end of the test period, those removed as an at-will employee for disciplinary reasons, those terminated, those resigning in lieu of removal/discipline, those resigning by settlement, those unauthorized to work, forfeiture of employment, and/or any other resignation not in good standing.

Further, with regard to bonuses, it was agreed that:

Employees who were not eligible to receive an increment under Article 6(a)(4)-(6) of the 2015-2019Agreements [sic] and employees who were demoted between July 1, 2015 and April 4, 2018, for reasons other than discipline, shall receive a $650 bonus. Personnel actions resulting in increases or decreases in compensation, including promotions and non-disciplinary demotions, shall not disqualify employees, otherwise eligible under section B(3) of the MOA, from receiving a $650 bonus.

Agency Services states that the 2019 Settlement is intended to provide retroactive pay and bonus payments to individuals covered by the MOA who separated from State service between the MOA’s April 4, 2018 effective date and the October 26, 2018 date of the retroactive payments made thereunder, due to a resignation unrelated to discipline, a layoff, or the discontinuation or abolition of programs or offices. Accordingly, it maintains that it is necessary for the Civil Service Commission (Commission) to relax the provisions of N.J.A.C. 4.A:3-4.20 in order to implement these terms.

CONCLUSION

RuleN.J.A.C, 4A:3-4.20 provides:

Personnel actions having retroactive effective dates shall apply only to employees who remain on a State payroll on the date of the retroactive payment and employees who retire or die during the period of retroactive application.

N.J.A.C, 4A:1-1.2(c) provides that a rule may be relaxed for good cause in a particular circumstance in order to effectuate the purposes of Title 11A, New Jersey Statutes. Although the terms of the 2019 Settlement were agreed upon by the State and the CWA, absent a relaxation of N.J.A.C. 4A:3-4.20, the State will not be able to make retroactive payments to covered employees not on a State payroll as of the date of the payment, except to those who retired or died during the retroactive application period. Therefore, in order to effectuate the terms of the 2019 Settlement, good cause has been established in this case to relax the provisions of N.J.A.C, 4A:3-4.20 to permit the retroactive pay and bonus payments to be implemented in accordance with the terms of the attached 2019 Settlement between the State and the CWA.

ORDER

Therefore, it is ordered that this request be granted and retroactive payments for covered employees be processed in accordance with the terms of the attached Settlement Agreement and Release between the State and the CWA.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.