The charge was processed pursuant to the Commission = s rules and it appearing to the Commission = s Director of Unfair Practice Proceedings that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on September 22, 1976. In its Answer the Respondent denied commission of the unfair practices alleged.

Pursuant to the Complaint and Notice of Hearing a plenary hearing was held before the undersigned on December 17, 1976 and April 22, 1977. At the outset, the Charging Party was granted leave, without objection, to amend the Complaint to add to the class of employees it claimed were denied their regular increments, subject to the additional names of employees being placed on the record through the introduction in evidence of County payroll records during the course of the hearing. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce relevant evidence.

Briefs were submitted by the Respondent and Charging Party on June 2 and June 8, 1977 respectively, and have been carefully considered.

Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following:

The Charging Party conceded that the practice of providing unit employees with regular increments after the first and third years of employment had never been memorialized in a collective negotiation agreement between the parties. However, it maintained that the practice was longstanding and had been recognized and its retention confirmed at the close of negotiations for both the 1972-73 and 1974-75 agreements.

With respect to the history of the practice, official county payroll records introduced into evidence show the receipt by county patrolmen, of $600 increases in salary effective on their first and third year anniversary dates of employment as early as 1971 and continuing into 1975. ^3/ Until late 1974, the forms prepared by the County authorizing the payments of the increments characterized the increases as A Longevity pay, as per union agreement. @ Phyllis Harvey, head clerk of the County Police Department for twenty-four years and responsible for maintaining all of its official financial records testified for the Charging Party. She stated that she prepared the forms to be executed by the County officials authorizing these payments predicated upon a A past contractual practice, @ although the original basis for their receipt in prior years were resolutions adopted by the County Board of Chosen Freeholders. Mrs. Harvey also maintained a running summary of dates of effective appointment of members of the force, upon which she noted the payments of increments as they became due and were made by the County.

Patrolman Thomas Cross also testified without contradiction that when hired by the Police Department in June, 1973, he was informed by Captain Nealon, head of personnel, that he would receive, in addition to any salary increases negotiated under the collective agreement, an incremental raise at the completion of his first year and a final one raising him to maximum level at the end of his third year. Detective William Klod, a member of the PBA negotiating committee, also confirmed the existence of the practice.

During the 1972 negotiations which resulted in the 1972-73 agreement, Attorney David Solomon represented the PBA and Attorney Robert Murray was the main spokesman for the County. During the negotiations the issue of increments was not raised by either party. However, according to Solomon, a Charging Party witness, when he and Detective Klod appeared at Murray = s office in Elizabeth for the contract signing after its preparation by Murray, the subject of increments came up in the following manner. Solomon, who had been representing the PBA for the first time in negotiations, had earlier attended the PBA ratification meeting where the salary increases, under the agreement, as well as the two increments provided pursuant to the practice were presented to the membership in order to provide the members with their actual salaries during its term dependent upon their years of service.

According to Solomon, the meeting was held the morning of the day that the Board of Freeholders were to meet to consider adoption of the contract by resolution. Solomon, whose attention was drawn to the matter by a PBA committee member, raised the contract = s failure to spell out actual salary levels. Murray replied that rather than having his secretary retype the page, since everyone understood that the employees were entitled to increments, why not leave the agreement A as is @ containing the across-the-board increases and there would be no problems. Murray further advised the PBA not to worry, that the practice concerning increments was clear and the clause in the contract (Art. III, par. 3.3) providing in pertinent part that A Payment of these annual salaries shall be in accordance with the current practices as existing on the date of the signing of this agreement... @ provided protection for continuing the past practice of providing the increments.

The contract was signed and in fact there were no problems. The men continued to receive their increments for the 1972-73 contract term.

Solomon also represented the PBA in the 1974-75 contract negotiations. Robert Murray again represented the County. Throughout that set of contract negotiations again there was no mention of changing the practice of granting increments although agreement was not reached until after completion of mediation and fact finding under the Commission = s Impasse Procedures.

An agreement on the 1974-75 contract was eventually reached during a meeting held in the office of the Hudson County Personnel Director, Raymond A. Kierce in late November or early December 1974. After the parties had agreed on what the across- the-board salary increases would be and whatever other benefits and increases would be received by the PBA, Solomon testified he then stated that A this time @ the salary steps should be set forth specifically in the contract the way they would be received by the members. As related by Solomon, Murray then indicated that the PBA had given up the increments during the course of the negotiations. Solomon reminded Murray that it was PBA 109, the employee organization that represented the County correction officers, which had negotiated away their increments; PBA 51 had never discussed or negotiated increments with the County and obviously Murray was confusing the two locals.

Murray then called Solomon out into the hall and told him that he, Murray, was supposed to get back all the increments from all the groups. Solomon indicated that this was an important issue and the PBA would never sign a contract or never agree to give up increments. As testified by Solomon, Murray then said, A Listen this thing has to be wrapped up...all right, we = ll continue the increments for the duration of this contract, and again you = ll be protected by that same language that talks about current practices; but you = ll agree that the question of increments can be open for negotiations for the next contract. @

Solomon then responded, A Mr. Murray, any terms and conditions of employment that you wish to propose to us for negotiations, we = ll negotiate on just like any terms and conditions of employment that we propose for negotiations, certainly we expect to negotiate on it; and if you propose to negotiate on increments in 1976, then we = ll have to negotiate with you on that subject. It = s part of salary. @

Based upon this understanding, Murray and Solomon returned to Kierce = s office and the contract terms were finally settled. The contract executed on December 12, 1974, was made effective from January 1, 1974 to December 31, 1975. Like its predecessor, this contract did not contain specific language about the increments. ^4/ It merely mentioned the two agreed upon across- the-board salary increases - $600 on January 1, 1974 and $750 on January 1, 1975. The day following the signing, on December 13, 1974, in response to Murray = s request made during their early December meeting Solomon sent a letter to Murray confirming their understanding regarding increments so as to avoid confusion in the future. Solomon stated:

A This will confirm the agreement reached between the County of Hudson and the P.B.A. Local 51 Negotiating Committee to the effect that all men who are presently on the payroll will receive in addition to their raise, the step increment to which they are entitled on their anniversary. Of course, men who are presently on top grade will receive only the negotiated increases.

This is to further confirm that at the expiration of the Contract, all items are again open for negotiating including the increment system. @

On December 17, 1974, Murray forwarded a copy of Solomon = s letter to Personnel Director Kierce for his information.

It is undisputed that the increments were given to the eligible members of the unit in 1974. Moreover, in 1975, pursuant to an arbitrator = s award dated June 16, 1975 which specifically recognized the practice of awarding increments, ^5/ the County voluntarily complied and granted first year increments to two members of the bargaining unit who were to have received them on January 4, 1975. Then on October 25, 1975, after negotiations had already commenced for a successor agreement, the County failed to pay patrolman John M. Coffey his first year increment.

According to Solomon, at the next negotiating session for a 1976-77 contract, probably held on December 22, 1975, he notified the representative of the County that one of the members of the unit was denied his normal increment and was told that he was not entitled to it; that the increments were given up in the last contract negotiations. Solomon stated that this was not the case, that increments were specifically preserved in his discussions with Murray at the signing of the 1974-75 contract and also alluded to the Arbitrator = s award which had recognized the practice of providing increments. Attorney John Meagher, law partner of Robert Murray who was representing the County on these negotiations instead of Murray, indicated that looking through the 1974-75 contract he saw nothing that would protect the increments or provide for them. Solomon then related to Meagher the discussion he had held with Murray which had led to their oral agreement supplemental to the written contract for 1974-75. He also indicated to Meagher that if he goes back as far as the 1972-73 contract, he still would not see any provision for increments, yet they had been paid. Meagher responded that he would discuss this with Murray and get back to Solomon on the issue. Solomon was not contacted again on this matter. Solomon testified that he did not believe the issue was ever discussed again in the 1976-77 contract negotiations but admitted that he was not present at two or three negotiation sessions.

No unfair labor practice charge was filed on behalf of Officer Coffey who resigned from the department after he was denied his first year increment in October, 1975. However, in March, 1976 when a group of officers were denied their normal third year increments, the present charge was filed.

According to Solomon = s testimony, other than the discussion of increments at the October, 1975 negotiating session for the 1976-77 contract regarding Officer Coffey, there was never any further discussion relating to increments in negotiations. Solomon had specifically advised the PBA negotiating committee not to bring up the subject of increments in negotiations but rather to file the charge which is the subject of this Report, alleging the unilateral change in terms and conditions of employment by refusing to pay the increments. Moreover, Solomon further testified that the County never brought up the subject of increments at any of the 1976-77 negotiating sessions, nor was there any mention of increments by the PBA. That issue was specifically reserved for the unfair practice hearing.

The parties are presently operating under a Memorandum of Agreement prepared by Murray = s office which extends the 1974-75 agreement between the County and the PBA from January 1, 1976 through December 31, 1977. In an addendum attached to the Memorandum of Agreement the PBA specifically preserves its rights to pursue the instant charge, noting, in part, that the signing of the memorandum A shall not constitute a waiver by the Hudson County PBA Local 51 to its position with the litigation currently pending before the Public Employment Relations Commission concerning increments. @

Robert Murray = s testimony with respect to the sequence of events just described at the conversations between himself and David Solomon on these occasions differs markedly from Solomon = s. Murray testified that he represented the Hudson County Board of Chosen Freeholders as Special Labor Counsel, and Chief Negotiator for the 1972-73 and 1974-75 contract negotiations with the PBA. While he recalled a meeting in his office with PBA representatives, including Solomon, to review the final draft of the 1972-73 agreement prior to its signing, he did not recall any discussion with Solomon on the subject of increments. Furthermore, Murray stated that prior to the hallway discussion with Solomon at the close of the 1974-75 negotiating sessions he A was not aware that there was any question of increments or that any of the men would get an increment. @ ^6/ Murray also noted his recollection that in 1972 all meetings of the Board of Freeholders were held in the morning. Consequently, he could not have been motivated by any desire to submit an agreement to the Freeholders for approval that very afternoon in 1972 when the contract was signed as Solomon had implied.

Murray testified that he participated in the negotiations for the 1974-75 contract along with Raymond Kierce, Personnel Director for Hudson County. He stated that the subject of increments did not come up at all during negotiations except at the very last meeting in December, 1974. At that meeting, the County made its last offer to the PBA and its Committee caucused to review the offer. Then A for the very first time @ Solomon came back into Kierce = s office, where the negotiations were being conducted, and asked whether in addition to the County = s offer of a $600 across-the-board raise in 1974 and a similar $750 raise in 1975 the men would get their increments. Murray stated his response was negative, that the County did not have increments and that was something that the County did not offer in their proposal.

According to Murray, Solomon indicated that there were only a few men involved who would receive the increments and that the issue was important to them. Solomon was asked to step out of the room and Murray conferred in private with Kierce. During this time, Personnel Director Kierce checked certain payroll records in order to verify the number of employees who would be affected by the increments and the amount of money involved.

Murray stated that since the sum of money to be paid was very small, no more than $6000, and recognizing that the County had settled with every other bargaining unit in the County of Hudson, he placed a value on reaching a settlement with PBA 51. As it appeared that the contract would not be signed without it, Murray concluded that the County would, on a one time basis only, go along with Solomon = s proposal for this small group of men, for this additional sum of money.

He then asked Solomon to step back in at which point he told him that the County would pay the increment to this handful of men who were involved in 1974. ^7/ Murray testified that he made it very clear that this concession was not going to be considered a reinstitution of the increment program. It was on a one time basis only.

During the hearing, the County introduced Solomon = s letter dated December 13, 1974, which Murray interpreted as memorializing their oral agreement that as far as the future was concerned, it would be up to the parties to negotiate increments and it was the understanding that this adjustment applied to only a handful of men who were involved at that time in 1974. As far as the next round of negotiations for a 1976 contract was concerned, the County indicated to the PBA that it could bring up anything it wanted to bring up, including the increment system.

At the hearing, Murray was asked if it was his understanding that by paying these eight or nine officers an increment for 1974 it represented the first time in the history of the department that they were going to receive increments and on a one time only basis. Murray testified that the consideration he gave to the proposal was that it was limited to resolving the contract. He testified that he was not aware of any prior history relating to increments and it did not enter into his consideration.

The Respondent maintains that increments were a main contention of the PBA in the 1976 negotiating sessions and were raised by it at every negotiation meeting. As to the addendum to the 1976-77 memorandum agreement in which the PBA sought to foreclose waiver of its rights to receive increments, the Respondent maintains that it was offered, but never accepted by the County. Therefore, it did not constitute an agreement by Hudson County to preserve that issue. However, when questioned whether the addendum accurately reflected an agreement between the parties that the question concerning increments would be reserved for the Commission to make a determination for the 1976- 77 contract, Raymond Kierce responded in the affirmative.

Kierce testified for the County that he advised Murray in December, 1974, after Solomon had raised the payment of increments in 1974-75 and while Solomon was out of the room. He placed a limited dollar value on the payments in 1974, and also informed Murray there would be none in 1975. At that time Kierce was unaware that patrolman Coffey would be completing his first year of employment on October 25, 1975. While Kierce, like Murray, disclaimed any knowledge of the increment program until Solomon brought it up at the December, 1974 meeting, he also testified that his department advised the Police Chief to inform the bookkeeper to grant increments for those employees who were due them in 1974, so he could furnish them directly to Mrs. Harvey to prepare the personnel action forms.

As earlier noted, in 1974 prior to December, 17 employees had already received such increments. Kierce also failed to raise any question with Murray or any County official as to the accuracy of Solomon = s December 13, 1974 letter which he had received from Murray in which Solomon recited the agreement that all men presently on the payroll would receive the step increment on their anniversary and that at the contract = s expiration, all items including increment are again open for negotiating.

Finally, Kierce, who claimed the PBA kept raising the issue of increments in the 1976 negotiations, also admitted toward the end of 1975 the PBA complained at meetings which he and County Attorney Meagher attended that the County had unilaterally changed the increment program. While he did not recall whether the PBA advised it would file charges he did recall the PBA spokesmen say they were going to grieve the matter.

Solomon = s letter of December 13, 1974 to Murray, offered by the County in support of its position, not only fails to support the County but rather tends to support the PBA = s position that increments were to be granted during the full term of the 1974-75 contract. In the first paragraph, reference is made to A all men who are presently on the payroll @ as recipients of the step increment and the second paragraph makes clear that A at the expiration of the contract, @ the increment system would be a negotiable item. It is noteworthy that although Solomon = s letter did not correspond to Murray = s interpretation of his understanding with Solomon regarding payment of increments, neither Murray nor Kierce, to whom the letter was referred, disputed its accuracy in memorializing the understanding reached.

I am also unwilling to conclude that the County = s Special Labor Counsel, Robert Murray, was not aware of the longstanding practice of granting increments to the members of the PBA and regarded the agreement to give increments in 1974 as merely a A one shot @ concession to A wrap things up. @ Increments were a substantial cost factor which involved payouts often several times during a calendar year. ^10/ The County = s substantial payments to employees in 1974 belies Murray = s contention that the agreement was confined to a limited, one time payment. As a sophisticated practitioner and labor negotiator, Murray must have known that the practice of granting such increments was not a novel or unprecedented practice. Furthermore, as Kierce = s testimony makes clear, in corroboration of Solomon = s, one of Murray = s objectives in the negotiations was to terminate increments, to remove them from the cost picture entirely. Murray = s attempt to do so, admittedly at the last meeting of the parties for the 1974-75 agreement, in December, 1974, was doomed to failure, given the PBA = s unwillingness to agree to their revocation under such circumstances and the pressures to reach agreement at that time, almost 12 months after the effective date, whether or not the Board of Freeholders were meeting later that same day.

Moreover, the actions of the County in 1975 do not comport with what they claimed the 1974-75 oral agreement provided. Rather than refusing to pay any increments in 1975, the County voluntarily complied with the Arbitrator = s Award dated June 16, 1975, and patrolmen Lynch and Rivchin had their salaries increased accordingly. Such increases included their normal first year increments which became due and payable on January 4, 1975. In accordance with standard arbitration law, the meaning of the contract language as to salaries was established by the Arbitrator = s interpretation, and would govern the subject in future dealings between the parties. ^11/

It is noteworthy that the Arbitrator found at page 2 of his Award that A police also get increments of $600 from their hiring date until they reached their maximum salary in four years. @ If the County believed that this statement was inaccurate and that the increment system was abolished for 1975, it failed to contest this finding by either withholding payment (both men received their first year increments) or by seeking to vacate, correct or modify the award (no applications to the court was made). See N.J.S.A. 2A:24-7,24-8.

When patrolman Coffey was denied his first year increment in October, 1975, negotiations for the 1976-77 contract were already underway. The PBA was not required to arbitrate this matter and there was no waiver by it not doing so. Rather, the PBA brought the denial to the attention of the County at a December 22, 1975 negotiation session as a A grievance meeting @ concerning a violation of the 1974-75 contract and not as a subject of negotiations. Other than this instance, there appear to have been no further discussions concerning increments at the 1976-77 negotiating table, Kierce = s general, unspecified testimony to the contrary notwithstanding. After Coffey = s resignation and after further unilateral withholding of increments after the contract had expired, the PBA was warranted in seeking vindication before the Commission by the filing of the instant charge.

In The Matter of Piscataway Township Board of Education, P.E.R.C. No. 91, 1 NJPER 49 (1975), appeal dism. as moot, __ N.J. Super . ___ (App. Div. 1976), pet. for cert. den. ___ Sup. Ct. ___ (1976), the Commission adopted the generally accepted principle of both public and private sector labor relations that the unilateral alteration of terms and conditions of employment during the course of collective negotiations constitutes an illegal refusal to negotiate. ^12/ Lack of good faith may reasonably be inferred since the alteration of a particular term or condition of employment in and of itself contradicts the concept of collective negotiations. The A Piscataway @ doctrine was recently accorded judicial approval in Galloway Twp. Bd. of Ed. v. Galloway Twp. Assoc. of Ed. Secs ., P.E.R.C. No. 76-31 (1976), aff = d. in part, rev = d. in part, 149 N.J. Super . 346 (App. Div. 1977), pet. for cert. granted, Sup. Ct. Docket No. 1300819.

Since increments had been provided since at least 1972 and were to be continued through the 1974-75 contract term, they constituted part of the status quo of terms and conditions of employment and the County was precluded from altering this status quo while engaged in collective negotiations.^{13 /} The practice was not required to be incorporated in the parties = agreement for it to have become a term or condition of employment of the employees affected. As made clear in Galloway Township Board of Education, supra , at page 6 of its Decision and Order, A the commission is attempting to maintain > those terms and conditions of employment in effect = regardless of whether those terms are derived from a contract or some other source. @ In accord: Burlington City Board of Education, P.E.R.C. No. 77-4, 2 NJPER 256 (1976).

I will now discuss two other defenses Respondent raised in its brief, (1) that increments were a subject of negotiations for the 1976-77 contract, thus reinforcing the County = s contention that the PBA waived its right in negotiations for the 1974-75 to automatic increments and (2) that the County desired to reach agreement on a successor agreement and therefore negotiated in good faith.

The Respondent maintains that increments were brought up by the PBA at every negotiating session for 1976-77. This is strongly denied by the Charging Party which maintains that at no time were increments discussed. Since members of the PBA, with the exception of Coffey, had received their increments in 1974- 75, it is doubtful that the PBA would have sought to raise the increments in negotiations. Rather, if the issue were to be raised at all it would appear to be the County who would seek to raise it in order to attempt to negotiate increments away from the PBA. However, the County stated that its negotiators never raised the issue since they interpreted the 1974-75 oral agreement as providing that the PBA had the right to bring up whatever they wanted in negotiations, including the increment system. Furthermore, even if the PBA has raised the unilateral denial of increments at the 1976-77 sessions, that fact, alone, fails to support the County = s case. It is clear that the County unilaterally discontinued the increment to patrolman Coffey before ever notifying the PBA or negotiating as to the subject matter. It continued to deny increments as of March 1, 1976, without having notified the PBA of its intended continued denial or negotiated the subject. And clearly no genuine impasse was ever reached on increments, although there is some evidence in the record that the parties utilized the Commission = s impasse procedures for 1976-77 on other subject matters. Thus, the County can not assert that it was justified in implementing a unilateral withdrawal of increments, see In The Matter of City of Jersey City , P.E.R.C. No. 77-58 (1977). Neither can the County claim a waiver in the absence of evidence of a specific waiver of the subject, and in light of the PBA = s specific reservation of rights it formally attached to the 1976-77 memorandum of understanding.

The fact that the County negotiated with the PBA on all other matters and genuinely desired to reach an agreement is not an issue here. Even in the absence of evidence of a pattern of bad faith in its negotiating posture, the County = s unilateral alteration of the terms and conditions during negotiations for a successor agreement was and is inconsistent with its obligation to collectively negotiate the same subject matter and must be found violative of its negotiating obligation. When the County unilaterally chose to deny increments to those police officers in March, 1976 it violated N.J.S.A. 34:13A-5.4(5) and (1).

Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following recommended:

2. The Respondent = s improper conduct, although not apparently motivated by any specific anti-union animus, necessarily has had a restraining influence and attendant coercive effect upon the free exercise of the rights of the affected members of the unit represented by Hudson County PBA Local 51 guaranteed to them by the Act, and the said Respondent has thus engaged in and is engaging in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(1).

I shall also recommend that the Respondent be ordered to restore the increment system subject to further collective negotiations between the parties.

1. Cease and desist from:

a. Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by the Act.

b. Refusing to negotiate collectively in good faith with the Hudson County PBA Local 51, as the majority representative of all patrolmen, detectives, photographers and Traffic Signal Supv. concerning terms and conditions of employment of such employees.

c. Unilaterally altering terms and conditions of employment of its aforesaid employees during the course of collective negotiations with the Hudson County PBA Local 51.

2. Take the following affirmative action which is necessary to effectuate the policies of the Act:

a. Upon request, negotiate collectively in good faith with the Hudson County PBA Local 51 concerning an increment system for the employees in the above described negotiating unit.

b. During the course of collective negotiations with the Hudson County PBA Local 51 concerning an incremental system, pay retroactively to March 1, 1976 to those of its employees in the above described unit on the payroll as of December 13, 1974 the regular increments due them under the practice as it existed prior to the Respondent = s unilateral alteration.

c. Preserve and, upon request, make available to the Commission or its agents for examination and copying all relevant payroll records, personnel records and all other records necessary to determine which individual officers are entitled to receive increments due under the terms of this Order.

d. Post immediately, in plain sight, at the offices of the Hudson County Board of Chosen Freeholders and at the location or locations where employees of the Hudson County Police Department report for duty or daily assignment, copies of the attached notice marked A Appendix Z @ . Copies of said notice on forms to be provided by the Director of Unfair Practice Proceedings of the Public Employment Relations Commission, shall, after being duly signed by Respondent = s representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices will not be altered, defaced or covered by any other material.

e. Notify the Chairman, in writing, within twenty (20) days of receipt of this Order what steps the Respondent has taken to comply herewith.

_____________________________

Robert T. Snyder
Hearing Examiner
Dated: Newark, New Jersey
August 31, 1977
1/ These subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. @
2/ The parties stipulated and I find that the County is a public employer and the PBA is an employee organization both within the meaning of the Act. As of the 1974-75 agreement, the parties added Traffic Signal System Supervisor to the recognized unit.
3/ The practice for the year 1975, disputed by the Respondent, will be discussed at a later point in this Report.
4/ Inasmuch as the record makes clear that the salary provision of the 1974-75 agreement, lacking any reference to increments, did not fully set forth the salary levels for the employees during its term, Solomon = s testimony regarding his conversation and understanding reached with Murray is admissible and may be relied upon, if credited, to clarify the intent of the parties to the agreement. See, with respect to the applicability of the parole evidence rule, Flintkote Co. v. Textile Workers Union of America, 243 F. Supp . 205 (D.C. N.J. 1965); Allen v. Metropolitan Life Ins. Co., 83 N.J. Super. 223, 199 A. 2d 254 (App. Div.), rev. on other grds., 44 N.J. 294, 208 A. 2d 638 (1964).
5/ After a hearing held on May 19, 1975 Arbitrator Joseph F. Wildebush had awarded increments as well as contractual salary increases to two employees who had commenced employment effective January 4, 1975, rejecting a County Claim that because the claimants were not on the payroll as of January 1, 1974, they were not entitled to the raise. The Arbitrator noted, inter alia , that Paragraph 3.3 requiring payment of annual salaries in accordance with the current practices existing on the date of the signing of the agreement, referred to by the PBA, supported his award, inasmuch as the practices show that there are no different rates of pay. With regard to increments, the Arbitrator found A Police also get increments of $600 from their hiring date until they reach their maximum salary in four years. @ Award, at page 2.
6/ This testimony is at variance with that of another Respondent witness, Personnel Director Kierce, who swore that at the conclusion of the 1974-75 negotiations, Murray responded to Solomon = s demand to place the salary levels including increments in the contract with the statement, inter alia, that A the increment program is out. @
7/ Contrary to Murray = s understanding of the County = s limited financial obligations for increments in 1974, County records show that since January 1, 1974, the effective date of the new agreement, until December, 1974, the County had already paid out in increments, more than ten thousand dollars, representing $600.00 to each of eight employees who completed their first year on March 1 and nine who completed their year on June 7. Furthermore, in December, 1974, alone, the County would pay out another $7800 representing increments to seven employees who were scheduled to and did receive their third year increments effective December 23 and six others who completed their third year and received increments effective December 21.
8/ In 1976, the record shows that in addition to the eight employees who failed to receive third year increments on March 1, nine others completed their third year on June 7, 1976 and six more completed their third year December 21. Thus, 23 employees were eligible for increments in 1976 had the County continued the practice.
9/ The record contains no evidence that increments were dealt with by the mediator or raised before the fact finder.
10/ For instance in calendar year 1974, first year increments were paid to eight officers on March 1, at $600 per man for a total of $4800; again on June 7 nine officers received increments totaling $5400; on December 21, six officers received increments totaling $3600; and on December 23, five officers received third year increments for a total of $3000.
11/ See, e.g. Standard Oil Development Co. Emp. Union v. Esso Research and Engineering Co .,38 N.J. Super. 293 (App. Div. 1956), 118 A. 2d 712 and Todd Shipyards Corp. v. Industrial Union of Marine and Shipbuilding Workers of America, Local 15, AFL-CIO , 242 F. Supp. 606 (D.C. N.J. 1965).
12/ See NLRB v. Katz, 369 U.S. 736, 50 LRRM 2117 (1962) where the Supreme court held that an employer = s unilateral change in terms or conditions of employment which were the subject of negotiations is a circumvention of the duty to negotiate and thereby constitutes a violation of the bargaining duty under the comparable federal statute.
13/ The Commission has held that salary increments are a term and condition of employment. See Galloway Twp. Bd. of Ed. v. Galloway Twp. Education Assn ., P.E.R.C. No. 76-32, rev= d. on other grounds, 149 N.J. Super. 352 (App. Div. 1977); East Brunswick Bd. of Ed. and East Brunswick Administrators Assn ., P.E.R.C. No. 77-6, 2 NJPER 279 (1976).
14/ In Galloway Twp. Bd. of Ed. v. Galloway Twp. Assoc. of Ed. Secs ., P.E.R.C. No. 76-31 (19767), aff = d. in part, rev = d. in part, 149 N.J. Super . 346 (App. Div. 1977), pet. for cert. granted, Sup. Ct. Docket No. 1300819, the Court voided the Commission = s order requiring the employer to make payment to employees whose hours were unilaterally reduced in violation of the employer = s negotiation obligation under the Act. The Court voided such payments as ultra vires because made for services not rendered. In the instant matter, the police were denied their proper salary for a time actually worked.