Matter of Floyd v City of New York

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Matter of Floyd v City of New York 2012 NY Slip Op 31770(U) June 29, 2012 Supreme Court, New York County Docket Number: 102673/12 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] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY MANUEL J, MENDEZ Justlce PRESENT: PART I3 In the Matter of the Appllcatlon of INDEX NO. GREGORY FLOYD, as Presldent of and on behalf of Local Unlon No. 23TB.T., MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. 102673112 06-1 3-12 001 Petitioners, For an Order and Judgment Pursuant to Artlcle 78 of the Civil Practice Law and Rules, - agalnst- UNFILED JUDGMENT r)rb judgment has not been entered by the County clerk and mtice of entry cannot be served based hemon. To obtain mtry, counsel or authorized representative muet person at the Judgment Clerk's De* (m CITY OF NEW YORK, MICHAEL BLOOMBERQ, as Mayor of the CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE 1414 SERVICES; EDNA WELLS HANDY, as Commlssloner of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents. PAPERB- Notice of Motlonl Order to Show Cause - Affldavlts Answerlng Affldavlts - Exhlbits cross motion Replylng Affldavlts Cross-Motion: - Exhlbtts ... 1-2 3-5 6 Yes X No Upon a reading of the foregolng cited papers, It is ordered and adjudged that this Article 78 petition is granted, Personnel Order8 No. 201211 and 201212 dated April II, 2 are annulled. 201 Respondents' administrative actions resulted In Personnel Orders No. 201211 and 201212 dated Aprll 11, 2012, whlch approve and result In an amendment to Rule X of the Personnel Rules and Re~ulations the Clty of New York. The amendments to Rule X, of reclassify 106 ungraded prevailing rate titles into fourteen (14) new occupational titles, with four grade levels wlthln each service classification affecting salaries and beneflts. Petltloners pursuant to Labor Law 9220, engaged In prevalllng wage bargaining as ungraded civil service titles. They had entered into consent orders with the Comptroller of the Clty of New York, which explred prior to the amendment to Rule X. Petitioners seek judicial review of the administrative action and to annul Personnel Orders No. 201211 and 201212, claiming the determinations were unilateral, arbitrary and capricious, [* 2] In violation of Labor Law 5220, and the reclassification provlslons of New York Civil Service Law 520. An administrative decision will wlthstand judicial scrutiny if it I supported by s substantial evidence, has a ratlonal basis and is not arbitrary and capricious (Matter of Pel1 v. Board of Education, 34 N.Y. 2d 222,356 N.Y.S. 2d 833, 313 N.E. 2d 321 [1974]). Deference is generally glven to an administrative agency s declslon, however, a decision that, runs counter to the clear wording of a statutory provision, should not be glven any weight (Metropolitan Movers Ass n, Inc. v. Llu, 95 A.D. 3d 596, 944 N.Y.S. 2d 529 [N.Y.A.D. lot 20121 cltlng to Roberts v. Tlshman Speyer Props., L.P., 13 N.Y. 3d 270 Dept., 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 paylng the prevailing rate of wages to laborers, workmen and mechanics employed in public works, In ungraded or noncompetitive employment as prlvate employers (Gaston v. Taylor, 274 N.Y. 359,9 N.E. 2d 9 [1937]). The scope of obligatlon under Labor Law 5220, is for the state to hold its terrltorlal subdivisions to a standard of social Justice for dealing with laborers, workmen and mechanics (Austin v. Clty of New York, 268 N.Y. 113,179 N.E. 313 [1932]). Labor Law 9220, is to be construed, with the llberallty needed to carry out Its beneficent purposes... (Buccl v. Village of Port Chester, 22 NY 2d 196, supra). Salary based gradlng of titles is used to establish the type and quality of work performed based on merit and to avoid automatic promotlon. Salary fixation is ineffectual where there Is no valid classification (Corrigan v. Joseph, 304 N.Y. 172, 106 N.E. 2d 693 [I9521 rearg. denled, 304 NY 759,108 N.E. 2d 618 [1962]). A reclasslflcation of titles is lawful, ...where it conforms the civll aervlce structure to the situation whlch actually exlsted 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. lot Dept., 19851). A clvll service title may be abolished In good faith based on economy and efficiency, but not as subterfuge for avoiding statutory protectlons provided to clvll servants (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. 4thDept., 19941 and Gorman v. Von Essen, 294 A.D. 2d 209,742 N.Y.S. 2d 23s [N.Y.A.D. I Dept., 20021). Reclassification is not to be used as a means of circumventing the constitutional mandates for appointment to a civil service title or validating out of tltle work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701,775 N.Y.S. 2d 539 [N.Y.A.D. 2ndDept., 20041 and Crlscolo v. Vaglanells, 50 A.D. 3d 1283, 856 N.Y.S. 2d 20s [N.Y.A.D. 3rdDept., 20081). ... The New York State Constltutlon, Artlcle V, sectlon 6, requires that appointments and promotions made in the Clvll Service be based on merit and fitness, which to the extent it is practicable, is to be ascertained by competitive examination. Civil Service Law 920[2] requires notice, hearing, and approvals to promote conslstency and statewide adherence to the constltutlonal provlslons of Article V, Section 0 (Office of the Attorney General Formal Opinion No. 98-F3, 1998 N.Y. Op. Atty. Gen. 8, cltlng to Kllpp v. New York State Civ. Sew. Commn., 42 Mlsc. 2d 35, 247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19641, affd, 22 A.D. 2d 854 [N.Y.A.D. 2ndDept., 19641, affd 15 N.Y. 2d 880 [1965]). [* 3] Reclassification can only be accomplished in the manner set forth in Civil Service Law 520, which requires notice, a hearing, review and approval by the State Civil Service Cornmission. There is no merit to the contention that the New York City Charter in conjunction with Civil Service Law 520[1], exempts the procedural mandates of Civil Service Law 520[2] (Joyce v. Ortlz, 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 titles which are subject to Labor Law 5220 appllcatlon of prevailing rate wages and supplemental benefits. 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 Clty Comptroller. After the most recent Consent Orders expired, the respondents acted by effectively deleting their classifications and reclassified the 106 ungraded prevailing rate titles affecting approximately 10,000 employees into fourteen (14) new Maintenance and Operation Services titles. Personnel Orders No. 2012/1 and 201212 were adopted and immediately made effective after the Mayor s signature, altering many of the provisions of the Consent Orders. Petitioners claim that respondent$ reclasslflcation is arbitrary and capricious because it massively restructures the classlflcation system without any effort to comply with either the provisions of Labor Law 5220, or the requirements of Civil Service Law §20[2] regarding notice, public hearings, and approval from the New York State Civil Service Commission. Respondents oppose the petition claiming that they complied with Civil Service Law 5 20 [I] when they allocated titles wlthin a salary grade construct because they did not change a jurisdictional classification. They clalm that Civil Service Law Q 20 only applies when a title is changed from competitive to noncompetitive or exempt class. Respondent8 claim that the Department of Citywide Administrative Services (DCAS) has authority to act as a municipal civil service commission pursuant to the New York City Charter, to review salaries and titles, grade and classify them, and remove them from the scope of Labor Law 5220, subject to the Mayor s approval. Respondents state that the regrading removes the prevailing rate titles from the scope of Labor Law 5220. They claim that the grading of competitive class titles was rational because it is within the Clty s managerial prerogative, therefore notice, public hearings and New York State Civil Service Cornmission approval are not required. DCAS conducted an investlgatlon without consulting the Comptroller s Office, the State Clvli Service Commission, or conducting a hearing. DCAS determined that the prevalling rate applicable to petittoners titles through negotiations conducted by the Comptroller s Office resulted in inequitably high salaries, and should be replaced with competitive titles which would then be negotiated through the collective bargaining process under the New York City Collective Bargaining 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 basis, the prevailing wage for seasonal work in the private sector was lower (Verified Ans., Exh. A, p. 2). DCAS based the new titles on graded salary plans for public sector employees that it determined were similar, in the Federal and New York Metropolitan Area. [* 4] The DCAS memorandum dated April 3, 2012, under SubJect: Proposal: states, In the Competitive Class, Rule X: ( I ) reclassify all titles under the Skllled Craftsman and Operative Service, Part [038] Into one of the following new occupational servlces... I (Verlfied Ans., Exh. A), The Skllled Craftsman and Operative Servlce tltles were on DCAS s recommendation reclassified into fourteen (14) new Maintenance and Operation Sewlces titles, with four grades In each title designated as, (I)helperlentry level, (11) journey-level, (111) supervlsor and (IV)supervlslng supervisor. Personnel Order No. 201211 lists the new titles and provides the maximum and minimum allotted salary under each grade. Certain grades wlthln all titles have no stated salary provlslons. In the Press Operatlon Service Pay Plan, and Equipment Operation Service Pay Plan, only the journey level grade has a maximum and mlnlmum salary provision, the other grades are listed as Wa. (Verlfled Ans., Exh. B). With the exception of the Electrical Service Pay Plan, no salary is listed under Supervlslng Supervisor. Promotions within the new titles are to the minimum salary range of a graded tltle or $1,000.00, whlchever Is higher. A review of Personnel Orders No. 201211 and 201212 dated April II , 2012, demonstrates that changes made in time and leave have been substantially altered. Employees sick day accruals have been halved; terminal leave currently accumulating up to 100 days is modified to 70 days; Lincoln s Birthday was ellmlnated as a holiday; Electlon Day Is only a paid holiday durlng those years when there is a presldentlal electlon; and payment to employees not covered under workers compensation has been elimlnated along with contributlons to the Welfare and Retiree Fund for unlonlzed employees. In those Instances where the maximum range for grades fn a competitive title salaries are substantially lower, salarles will not be recovered on merit. Some examples o drastic change In salary from Consent Orders are, a Bollermaker Supervisor currently f earning approximately $114,587.20 will have a range of $86,000.00 to $105,000.00; a BCacksmlth Supervisor earning approximately $114,587.20 will have a range of $98,000.00- $114,OO.OO. The maximum range provided under the new tltles and grades amount to demotions. It provldes no bash for employees under those titles to compete for titles based on fitness while employed In the publlc sector. Across most titles the minimum salary rate applied in the grades Is less than current salaries but the maximum range Is higher. Petitloners have not been provided a means o determlnlng the manner f in which they will be able to acqulre the maximum range for each grade. Individuals that have acquired licenses and seniority In a title that has been reclassified have no means of determining the manner of promotion. As of the April 11, 2012, effectlve date, Incumbent employees are permitted to maintain the status quo concerning salaries, tlme, and leave but newly hlred employees In the revised titles are Immediately affected by the changes. The status quo for Incumbent employees Is subject to alteratlon when collectlve bargaining negotiations are conducted pursuant to NYCCBL procedures. Incumbent employees that have accumulated salary, tlme and leave under thelr Consent Orders, wlll not get to keep those accruals. They will be requlred to accept lower salaries based on the ranges in the [* 5] grade for their job tltles and bargain for increases under new collective bargaining contracts. Salary, time and leave accrued under Consent Orders have been removed and unilaterally altered by the respondents without any notice, hearlng or determlnatlon by the New York State Civil Servlce Commlasloner. The Consent Order8 were valid baaed on hearings, investigations and negotiations between the Comptroller and representative unlons, that evaluated prevalllng wages in both the private and public sector. The revisions to and removal of salary, time and leave affecting both new and incumbent employees wlthout notice, hearlng or a determlnation conflrmlng the adherence to state-wide standards of merlt and Rtnelrs has no rational baals. Petitioners have been placed In a position of trying to obtrrln accrued salary, time and beneflts wlthout being afforded the statutory protections of civil servants. Respondents' reclasslflcatlon does not have a rational basis and is arbitrary and capricious. Upon revlew of all the papers submitted, thls Court finds that the changes proposed and implemented by the respondents resulted In not just grading but reclasslflcatlon of job titles subject to the provisions of Clvll Service Law 5 20. Accordingly, It is ORDERED and ADJUDGED that the petition is granted and Personnel Orders No. 201211 and 201212 dated April 1I, 2 are annulled. 201 This constitutes the decision and judgment of thls court. ENTER: MANGELJ. MENDEZ, Dated: June 29,2012 J.S. C. Check one: X FINAL DISPOSITION NON-FINAL DISPOSITION Check If appropriate: 0 DO NOT POST REFERENCE

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