Matter of Bilello v City of NY

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Matter of Bilello v City of NY 2012 NY Slip Op 31785(U) June 29, 2012 Sup Ct, New York County Docket Number: 102603/12 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART I 3 MANUEL J. MENDEZ Justice In the Matter of the Application of INDEX NO. MICHAEL BILELLO, In his capacity as EXECUTIVE SECRETARY-TREASURER O f NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, MOTION DATE MOTION SEQ.NO. 102803l12 o w 3-12 001 MOTION CAL. NO. UNFILED JUDGMENT Petltlonen, For an Order Pursuant to Artlcle 78 of the Civil Practice Law and Rules, - agalnst- This judgment has not been entered by the County Clerk $wid ndioe dentry m m t be served basad hsrm, To W.ainenby,crnmd warcpmmnWve mud ogge#A person atthe J ~ c l e r l c oesk (Ram s 141B). THE CITY OF NEW YORK, MICHAEL R. BLOOMBERG, In his capacity as Mayor of the City of New York; THE NEW YORK CITY OFFICE OF LABOR RELATIONS, JAMES F. HANLEY, In his capacity as COMMISSIONER OF THE NEW YORK CITY OFFICE OF LABOR RELATIONS, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, EDNA WELLS HANDY, In her capaclty as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, JAMES HEIN, In his capacity as DEPUTY COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents. The followlng papers, numbered Ito& were read on thls petltlon tolfor Art. 78 PAPERS NUMBeRED Notlce of Motlonl Order to Show Cause Answering Affldavlts - Exhibits - Affldavlts - Exhlblts ... cross motion Replying Affldavlts Cross-Motion: 1-2 3-5 6 Yes X No Upon a readlng of the foregolng clted papers, It Is ordered and adjudged that this Article 78 petition is granted, Personnel Orders No. 201211 and 201212 dated April 11, 2012 are annulled. Respondents administrative actions resulted In Personnel Orders No. 201211 and 201212 dated Aprll 11, 2012, which approve and redult In an amendment to Rule X of the Personnel Rules and Regulatlons of the City of New York. The amendments to Rule X, [* 2] .. I reclassify 100 ungraded prevailing rate titles into fourteen (14) new occupational titles, with four grade levels within each service clasdification affecting salaries and benefits. Petitioners pursuant to Labor Law 5220, engaged in prevailing wage bargaining as ungraded civil service titles. They had entered into consent orders with the Comptroller of the City of New York, which expired 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, In violation of Labor Law 5220, and the reclassiflcation provisions of New York Civil Service Law 920. An administrative decision will withstand Judicial scrutiny If it is supported by substantial evidence, has a rational basis and is hot 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 given to an administrative agency s decision, however, a decision that, runs counter to the clear wording of a statutory provision, should not be given any weight (Metropolitan Movers Ass n, inc. v. Liu, 95 A.D. 3d 596, 944 N.Y.S. 2d 629 [N.Y.A.D. lat 20121 citing to Roberts v. Tishman 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 § 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 privatg 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 9220, is to be construed, with the liberality needed to carry out ita beneficent purposes... (Bucci v. Village of Port Chester, 22 NY 2d 196, supra). Salary based grading of titles is used to establish the type and quailty of work performed based on merit and to avoid automatic promotion. Salary flxation is ineffectual where there is no valid classification (Corrigan v. Joseph, 304 N.Y. 172,106 N.E. 2d 593 [I9521 rearg. denied, 304 NY 759,108 N.E. 2d 618 [1952]). A reclassiflcation of titles I lawful, ...where it conforms the civil service s structure to the situation which actually existed In operation of the agency prlor to the reciassiflcation. .. (Joyce v. Ortlz, 108 A.D. 2d 158,487 N.Y.S. 2d 746 [N.Y.A.D. lot Dept., 19851). A civil service title may be abolished in good faith based on economy and efficiency, but not as subterfuge for avoiding statutory protections provided to civil 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 236 [N.Y.A.D. lot 20021). Reclassification is not to be used as 8 means of Dept., circumventing the constitutional mandate8 for appointment to 8 civil service title or validating out of title work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701,776 N.Y.S. 2d 539 [N.Y.A.D. Znd Dept., 20041 and Criscolo v. Vagianelis, SO A.D. 3d 1283,856 N.Y.S. 2d 265 [N.Y.A.D. 3 d Dept., 20081). [* 3] The New York State Constitution, Article VI section 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 520[2] requires notice, hearing, and approvals to promote consistency and statewide adherence to the constitutional provisions of Article VI Section 6 (Office of the Attorney General Formal Opinion No. 98-F3, 1998 N.Y. Op. Atty. Gen. 8, citing to Kiipp v. New York State Civ. Serv. Commn., 42 Mlsc. 2d 35,247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19641, aff d, 22 A.D. 2d 864 [N.Y.A.D. 2ndDept., 19641, affd 16 N.Y. 2d 880 [1965]). 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 Commission. There is no merit to the contentlon that the New York City Charter in conjunction with Civil Service Law §20[1], exempts the procedural mandates of Civil Service Law 520[2] (Joyce v. Ortiz, 108 A.D. 2d 158, supra). Petitioners clalm that Personnel Orders No, 2012/1 and 201212 are the result of unilateral actions taken by the respondents to classify ungraded civil service titles which are subject to Labor Law g220 application 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 City Comptroller. After the most recent Consent Orders expired, the respondents acted by effectively deleting their classlflcations and reclassifled 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 2012/2 were adopted and immediately made effective after the Mayor s signature, altering many of the provisions of the Consent Orders. Petitioners clalm that respondents reclassification 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 920[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 [l] when they allocated titles within a salary grade construct because they did not change a jurisdictional classification. They claim that Civil Service Law 5 20 only applies when a title is changed from competitive to noncompetitive or exempt class. Respondents claim that the Department of Citywide Admlnlstrative 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 g220, subject to the Mayor s approval. Respondents state that the regrading removes the prevailing rate titles from the scope o Labor Law 9220. They f claim that the grading of competitive class titles was rational because it is within 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 conducting a hearing. DCAS determined that the prevailing rate applicable to petitioners titles through negotiations conducted by the [* 4] Comptroller s Office resulted In inequitably hlgh salaries, and should be replaced with competltlve tltles which would then be negotiated through the collective bargalnlng process under the New York City Collectlve Bargaining Law (NYCCBL). DCAS conceded that some of the posltlons were seasonal In nature, but determined that because they are fllled on a full time, per annum basis, the prevalllng wage for seasonal work In the private sector was lower (Verified Ana., Exh. A, p. 2). DCAS based the new titles on graded salary plans for public sector employees that It determlned were similar, in the Federal and New York Metropolitan Area. . The DCAS memorandum dated April 3, 2012, under Subject: Proposal: states, In the Competitive Class, Rule X: ( I ) reclassify all titles under the Skilled Craftsman and Operative Servlce, Part [038] into one of the following new occupatlonal services ... (Verlfled Ans., Exh. A). The Skllled Craftsman and Operative Service titles were on DCAS s recommendation reclassified Into fourteen (14) new Maintenance and Operation Services titles, with four grades in each title deslgnated as, (I)helper/entry level, (11) journey-level, (111) supervisor and (1V)supervirring swpervlsor. Personnel Order No. 201211 lists the new titles and provldes the maximum and mlnlmum allotted salary under each grade. Certain grades within all titles have no stated salary provlslons. In the Press Operation Service Pay Plan, and Equipment Operation Service Pay Plan, only the journey level grade has a maximurn and minimum salary provision, the other grades are llsted as Wa. (Verified Ans., Exh. B). Wlth the exception of the Electrical Service Pay Plan, no salary Is llsted under Supervising Supewlsor. Promotions within the new titles are to the minimu m salary range of a graded title or $1,000.00, whichever is higher. A review of Personnel Orders No. 201211 and 201212 dated April 11, 2012, demonstrates that changes made In time and leave have been substantially altered. Employees sick day accruals have been halved; terminal leave currently accurnulatlng up to 100 days Is modifled to 70 days; Lincoln s Birthday was ellminated as a holiday; Election Day is only a paid hollday duslng those years when there Is a presldentlal election; and payment to employees not covered under workers compensation has been eliminated along with contrlbutlons to the Welfare and Retiree Fund for unlonlzed employees. In those instances where the maximum range for grades In a competitive title salaries are substantially lower, salariee will not be recovered on merlt. Some examples of drastic change in salary from Consent Orders are, a Boilermaker Supervisor currently earning approximately $114,587.20 will have a range of $85,000.00 to $105,000.00; a Blacksmith Supervisor earning approximately $114,587.20 will have a range of $98,000.00- $114,OO.OO. The maximum range provided under the new titles and grades amount to demotions. It provldes no basls for employees under those titles to compete for titles based on fitness while employed in the publlc sector. Across most tltles the mlnlmum salary rate applied in the grades is less than current salaries but the maximum range IS higher. Petitioners have not been provlded a means of determining the manner In which they will be able to acquire the maximum range for each grade. Individuals that have acqulred llcenses and seniority In a tltle that has been reclassifled have no means of determining the manner of promotion. [* 5] As of the Aprll II , 2012, effective date, Incumbent employees are permitted to malntaln the status quo concerning salarles, 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 alteration when collectlve bargaining negotiatlons are conducted pursuant to NYCCBL procedures. lncumbant employees that have accumulated salary, time and leave under their Consent Orders, will not get to keep those accruals. They will be required to accept lower salaries based on the ranges In the grade for their job titles 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, hearing or determination by the New York State Clvll Servlce Commissioner. The Consent Orders were valid based on hearings, investigations and negotlatlons between the Comptroller and representatlve unions, that evaluated prevailing wages In both the private and public sector. The revisions to and removal of salary, time and leave affectlng both new and Incumbent employees without notice, hearlng or a determination confirming the adherence to state-wlde standards of merit and fitness has no rational basis. Petitioners have been placed in a position of trying to obtaln accrued salary, time and beneflts wlthout being afforded the statutory protections o civil sewants. Respondents f reclassification does not have a ratlonal basis and is arbitrary and caprlclous. Upon review of all the papers submltted, thls Court flnds that the changes proposed and Implemented by the respondent8 resulted In not Just grading but reclassification of job titles subJect to the provlslons of Civil Service Law Q 20. Accordingly, it is ORDERED and ADJUDGED that the petition is granted and Personnel Orders No. 201211 and 2012/2 dated April II, 2012 are annulled. f Thls constltutes the decision and judgment o this court. ENTER: M U E L J. MENDEZ m-- . J.S.C. MANUEL MENDEZ, J. Dated: June 29,2012 J.S. C. Check one: X FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: c DO NOT POST ] c REFERENCE ] UNFILED JUDGMENT This judgment has not been entered by the County C M and &o entry cannot be served based hereon. To f oMain entry, counsel or authorbsd representative must W r in person at the JudgmentcLerk s Desk (Room 141B).

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