Matter of Fitzpatrick v City of New York

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Matter of Fitzpatrick v City of New York 2012 NY Slip Op 31769(U) June 29, 2012 Supreme Court, New York County Docket Number: 102604/12 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 71912012 [* 1] J - - -. >' SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY M A N U U J . MENDEZ Justke PART In the Matter of the Appllcatlon of INDEX NO. SEAN FITZPATRICK, as Buslness Representative and on behalf of Local Unlon No. 3, I.B.E.W. and Its members, Petitloners, MOTION DATE MOTION 8EQ. NO. MOTION CAL. NO. For a Judnment and Order Pursuant to Article 780f the Clvll Practlce Law and Rules, 13 102804l12 06-1 3-1 2 0 1 0 UNFILED JUDGMENT This judgment has not been entered by the County Clerk - agalnstand notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative CITY OF NEW YORK, MICHAEL BLOOMBERG, a8 in at the Judgment clerk's Desk (Room Mayor of the CITY OF NEW YORK CITY;NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE 141B). SERVICES; EDNA WELLS HANDY, as Commlsoloner of the New York Clty Department of Cltywide Adminlstratlve Servlces, Respondents. PAPER8 NUMBERED Notlce of Motlonl Order to Show Cause Answerlng Affldavlts - Exhlblts - Affldavlts - Exhlblts ... cross motlon 3-6 6 Replylng Affidavits Cross-Motion: 1-2 Yes X No Upon a reading of the foregoing cited papers, it is ordered and adjudged that thla Article 78 petition Is granted, Personnel Orders No. 2012/1 and 2012/2 dated April 11,2012 are annulled. Respondents' administrative actions resulted in Personnel Orders No. 201211 and 201212 dated April 11,2012, which approve and result In an amendment to Rule X of the Personnel Rules and Regulations of the Clty of New York. The amendments to Rule XI reclassify 106 ungraded prevalllng rate titles Into fourteen (14) new occupational titles, wlth four grade levels wlthin each service ciasrrificatlon affecting salaries and benefits. Petitioners pursuant to Labor Law 9220, engaged in prevalllng wage bargaining a8 ungraded clvll service titles. They had entered into consent orders wlth the Comptroller of the City of New York, which explred prior to the amendment to Rule X. Petltloners seek Judlclal review of the administrative actlon and to annul Personnel Orders No. 201211 and 201212, claiming the determinations were unllateral, arbitrary and capricious, [* 2] in violation of Labor Law 9220, and the reclassification provisions of New York Civil Service Law 520. An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and la not arbitrary and capricious (Matter of Peii v. Board of Education, 34 N.Y. 2d 222, 356 N.Y.S. 2d 833, 313 N.E. 2d 321 [1974]). Deference is generally given to an administrative agency s decision, however, a decision that, runs counter to the clear wording of e statutory provlsion, should not be given any weight (Metropolitan Movers Ass n, Inc. v. Liu, 95 A.D. 3d 596, 944 N.Y.S. 2d 529 Dept., [N.Y.A.D. lrt 20121 cltlng to Roberts v. Tishman Speyer Props., L.P., 13 N.Y. 3d 270 918 N.E. 2d 900,890 N.Y.S. 2d 388 [2009]). The legislative intent of Labor Law Q 220, is to impose upon the state and municipal corporations the same obligations of paying the prevailing rate of wages to laborers, workmen and mechanics employed in public works, in ungraded or noncompetitive employment as private employers (Gaston v. Taylor, 274 N.Y. 359, 9 N.E. 2d 9 [1937]). The scope of obligation under Labor Law 5220, is for the state to hold Ita territorial subdivisions to a standard of social justice for dealing with laborers, workmen and mechanics (Austin v. City of New York, 258 N.Y. 113,179 N.E. 313 [1932]). Labor Law 5220, is to be construed, with the liberality needed to carry out Its beneflcent purposes... (Bucci v. Village of Port Chester, 22 NY 2d 195, supra). Salary based grading of titles is used to establish the type and quality of work performed based on merit and to avoid automatic promotion. Salary fixation is ineffectual where there is no valid classification (Corrigan v. Joseph, 304 N.Y. 172, 106 N.E. 2d 593 [1952] rearg. denied, 304 NY 759,108 N.E. 2d 618 [1962]). A reclassification of titles Is lawful, ...where It conforms the civil service structure to the situation which actually existed In operation of the agency prior to the reclassification... (Joyce v. Ortiz, 108 A.D. 2d 168, 487 N.Y.S. 2d 746 [N.Y.A.D. I Dept., 19851). A civil service title may be abollshed In good faith based on economy and eMciency, but not as subterfuge for avoiding statutory protections provided to civil sewants (Matter of Hartman v. Erie 1 BOCES Bd. of Educ., 204 A.D. 2d 1037,614 N.Y.S. 2d 90 [N.Y.A.D. 4 h Dept., 19941 and Gorman v. Von Essen, 294 A.D. 2d 209,742 N.Y.S. 2d 236 [N.Y.A.D. lmt Dept., 20021). Reclassification is not to be used as a means of clrcumventlng the constitutlonal mandates for appolntment to a civli service title or validating out of title work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701,775 N.Y.S. 2d 539 [N.Y.A.D. 2 d Dept., 20041 and Crlscolo v. Vaglanells, 50 A.D. 3d 1283, 866 N.Y.S. 2d 265 [N.Y.A.D. 3rdDept., 20081). The New York State Constitution, Article VI section 6, requires that appointments and promotions made in the Civil Service be based on merit and fltness, which to the extent it is practicable, is to be ascertained by competitive examination. Clvll Service Law §20[2] requires notice, hearing, and approvals to promote consistency and statewide adherence to the constltutional provisions of Article V, Section 6 (Offlce of the Attorney General Formal Opinion No. 98-F3, 1998 N.Y. Op. Atty. Gen. 8, citing to Kiipp v. New York State Civ. Sew. Commn., 42 Mlsc. 2d 35, 247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19641, aff d, 22 A.D. 2d 854 [N.Y.A.D. 2 d Dept., 19641, affd 15 N.Y. 2d 880 [1965]). [* 3] R classific tion c n onl! be accomplished in the manner set forth In Civil Service Law 920, whlch requires notice, a hearing, revlew and approval by the State Clvll Service Commission. There is no merit to the contention that the New York City Charter in conJunctlonwith Civil Service Law 920[1], exempts the procedural mandates of Clvll Service Law 920[2] (Joyce v. Ortiz, 108 A.D. 2d 158, supra). Petitioners claim that Personnel Orders No. 201211 and 201212 are the result of unilateral actions taken by the respondents to classify ungraded civil service tltles whlch are subject to Labor Law 5220 application of prevalllng rate wages and supplemental beneflts. Petitioners have engaged In prevailing wage collective bargaining In a manner that has been established for over 100 years, as part of the bargaining process they entered into Consent Orders with the City Comptroller. After the most recent Consent Orders explred, the respondents acted by effectively deleting their classifications and reclassifled the 106 ungraded prevailing rate titles affecting approximately 10,000 employees into fourteen ( I 4) new Maintenance and Operation Services" tltles. Personnel Orders No. 201211 and 201212 were adopted and immediately made effective after the Mayor s signature, altering many of the provlsions of the Consent Orders. Petitioners claim that relrpondents reclassification is arbitrary and caprlclous because it mass[vely restructures the classification system without any effort to comply with either the provisions of Labor Law 5220, or the requirements of Civil Service Law 520[2] regardlng notice, public hearings, and approval from the New York State Civil Service Commlssion. Respondents oppose the petitlon claiming that they complied with Civil Sewlce Law 5 20 [I] when they allocated titles within a salary grade construct because they did not change a jurisdictional classlflcatlon. They claim that Civil Service Law 5 20 only applies when a tltle is changed from competitive to noncompetitive or exempt class. Respondents claim that the Department of Citywide Admlnistratlve Services (DCAS) has authority to act as a municipal civil service commisslon pursuant to the New York City Charter, to revlew salaries and titles, grade and classify them, and remove them from the scope of Labor Law s220, subJect to the Mayor s approval. Respondents state that the regradlng removes the prevailing rate titles from the scope of Labor Law 5220. They claim that the grading of competitive class titles was ratlonal because It Is wlthln the City s managerial prerogative, therefore notice, public hearings and New York State Civil Service Commission approval are not required. DCAS conducted an Investigation without consulting the Comptroller s Offlce, the State Civil Service Commission, or conductlng a hearlng. DCAS determined that the prevailing rate applicable to petitioners titles through negotiations conducted by the Comptroller s Office resulted in inequttably high salaries, and should be replaced wlth competitive titles whlch would then be negotlated through the collective bargaining process under the New York City Collectlve Bargalnlng Law (NYCCBL). DCAS conceded that some of the positions were seasonal in nature, but determined that because they are filled on a full time, per annum basls, the prevailing wage for seasonal work in the private sector was lower (Verlfled Ana., Exh. A, p. 2). DCAS based the new titles on graded salary plans for public sector employees that it determined were slmllar, in the Federal and New York Metropolitan Area. [* 4] The DCAS memorandum dated April 3, 2012, under Subject: Proposal: states, In the Competltlve Class, Rule X: (1) reclassify all titles under the Skilled Craftsman and Operative Service, Part [038] Into one of the followlng new occupatlonal servlces... (Verified Ans., Exh. A). The Skilled Craftsman and Operative Service titles were on DCAS s recommendation reclassifled Into fourteen (14) new Malntenance and Operatlon Services titles, with four grades in each title designated as, (I) helperlentry level, (11) journey-level, (111) supervlsor and (1V)supervlslng supervlsor. Personnel Order No. 201211 lists the new titles and provides the maxlmum and minimum allotted salary under each grade. Certain grades within all titles have no stated salary provisions. In the Press Operatlon Servlce Pay Plan, and Equlpment Operatlon Service Pay Plan, only the journey level grade has a maxlmum and mlnlmum salary provlsion, the other grades are listed as n1a. (Verified Ans., Exh. B). With the exception o the Electrical f Service Pay Plan, no salary is listed under Supervising Supervisor. Promotions within the new titles are to the minimum salary range of a graded title or $1,000.00, whichever Is hlgher. . A review of Personnel Orders No. 201211 and 201212 dated Aprll 11, 2012, demonstrates that changes made in time and leave have been substantially altered. Employees slck day accruals have been halved; termlnal leave currently accumulatlng up to 100 days is modlfled to 70 days; Lincoln s Birthday was eliminated as a holiday; Election Day Is only a paid hollday durlng those years when there Is a presidentlal election; and payment to employees not covered under workers compensation has been eliminated along with contributions to the Welfare and Retiree Fund for unionized employees. In those instances where the maximum range for grades in a competitive title salaries are substantially lower, salarles wlll not be recovered on merit. Some examples of drastic change in salary from Consent Orders are, a Bollermaker Supervlsor currently earning approximately $114,587.20 wlll have a range of $85,000.00 to $106,000.00; a Blacksmlth Supervlsor earnlng approximately $1 14,587.20 will have a range of $98,000.00- $114,OO.OO. The maximum range provlded under the new titles and grades amount to demotions. It provides no basis for employees under those titles to compete for titles based on fltness whlle employed in the public sector. Across most tltlea the mlnlmum salary rate applied in the grades is less than current salarles but the maximum range is higher. Petitioners have not been provided a means of determining the manner In which they will be able to acquire the maxlmum range for each grade. Individuals that have acqulred llcenses and seniority in a title that has been reclassifled have no means of determlnlng the manner of promotion. As of the Aprll 1I 2012, effective date, incumbent employees are permitted to , maintain the status quo concerning salaries, time, and leave but newly hired employees in the revised titles are immediately affected by the changes. The status quo for incumbent employees is subject to alteratlon when collective bargalnlng negotiations are conducted pursuant to NYCCBL procedures. Incumbent employees that have accumulated salary, time and leave under their Consent Orders, wlll not get to keep those accruals. They wlll be requlred to accept lower salarles based on the ranges In the [* 5] grade for their job titles and bargain for increases under new collective bargaining contracts. Salary, time and leave accrued under Consent Order8 have been removed and unilaterally altered by the respondents without any notice, hearing or determination by the New York State Civil Service Commissioner. The Consent Order8 were valid based on hearings, Investigations and negotiations between the Comptroller and representative unions, that evaluated prevailing wages in both the private and public sector. The revisions to and removal of salary, time and leave affecting both new and Incumbent employees without notice, hearing or a determination confirming the adherence to state-wide standards of merit and fltness has no rational basis. Petitioners have been placed in a position of trying to obtain accrued salary, time and benefits without being afforded the statutory protection8 of civil servants. Respondents' reclassification does not have a rational basis and is arbitrary and capricious. Upon review of all the papers submitted, this Court finds that the changes proposed and implemented by the respondents resulted in not just grading but reclasslflcatlon of job titles subject to the provlslons of Civil Service Law 5 20. Accordingly, It i8 ORDERED and ADJUDGED that the petition is granted and Personnel Orders No. 201211 and 2012/2 dated April I , I 2012 are annulled. This constitutes the decision and judgment of this court. ENTER: MANUEL MENDEZ, J. Dated: June 29,2012 Check one: J.S.C. X FINAL DISPOSITION Check if appropriate: NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE UNFILED JUDGMENT This Judgmenthas not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must e r in person at the Judgment Clwk's oesk (Room 141B. )

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