Melish v City of NY

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Melish v City of NY 2012 NY Slip Op 31788(U) June 29, 2012 Sup Ct, New York County Docket Number: 102607/12 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. lNED ON 711012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY MANUEL J, MENDEZ PRESENT: PART 13 Justlce In the Matter of the Appllcatlon of INDEX NO. STEPHEN MELISH, as Business Representatlve and on behalf of LOCAL UNION NO. 1969, CIVIL SERVICE EMPLOYEES, DISTRICT COUNCIL 9, I.U.P.A.T. , AFLCIO and Its members; ANGEL0 SERSE, as Buslness Representatlve and on behalf of STRUCTURAL STEEL AND BRIDGE PAINTERS OF QREATER NEW YORK, LOCAL UNION 806, DISTRICT COUNCIL 9, I.U.P.A.T., AFL-CIO and Its members; and WILLIAM BUDGE, Petitloners, For a Judgment and Order Pursuant to Article 78 of the CM Practlce Law and Rules, MOTION DATE MOTION sea. NO. MOTION CAL. NO. UWFILED JUDGMENT fhis judgment has not been entered by the County Clerk and notice of entry cannot be sewed based hereon, TO obtain entry. counsel o authorized represeotathre m w r in pwson at J -8 ~)esk (m 1416). - agalnst- CITY OF NEW YORK, MJCHAEL BLOOMBERG, as Mayor of the CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE AFFAIRS ; EDNA WELLS HANDY, as Commlssloner of the New York Clty Department of Cltywlds Admlnlrtratlve Servlces, Respondents. The followlng papers, numbered Ito& were read on thls petltlon tolfor Art. 78 PAPEWWRED Notlce of Motion/ Order to Show Cause Answerlng Affldavlts - Exhlblts - Affidavits - Exhlblts ... crosi motlon 1-2 3-6 Replying Affidavits Cross-Motion: Yes X No Upon a reading of the foregoing cited papers, It Is ordered and adjudged that this Article 78 petition Is granted, Personnel Orders No. 201211 and 2012/2 dated April 11, 2012 are annulled. Respondents administrative actions resulted in Personnel Orders No. 2012/1 and 201212 dated April 11, 2012, which approve and result In an amendment to Rule X of the Personnel Rules and Regulation8 of the Clty of New York. The amendments to Rule X, reclassify 106 ungraded prevailing rate titles into fourteen (14) new occupatlonal titles, [* 2] with four grade levels within each servlce classification affectlng salaries and benefits. Petitioners pursuant to Labor Law 9220, engaged In prevailing wage bargalnlng 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 geek judicial review of the administrative action and to annul Personnel Orders No. 201211 and 201212, claiming the determinations were unilateral, arbltrary and capricious, in violation of Labor Law 9220, and the reclasslflcatlon provisions of New York Clvll Servlce Law 520. An admlnlstratlve decision will wlthstand judicial scrutiny if it Is supported by substantial evidence, has a rational basis and is not arbltraiy and capricious (Matter of Pel1 v. Board of Educatlon, 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 declslon, however, a decision that, runs counter to the clear wording of a statutory provlslon, should not be given any weight (Metropolltan Movers Ass n, Inc. v. Llu, 95 A.D. 3d 696, 944 N.Y.S. 2d 529 [N.Y.A.D. Iat 20121 cltlng to Roberts v. Tishman Speyer Props., L.P., 13 N.Y. 3d 270 Dept., 918 N.E. 26 900, 890 N.Y.S. 2d 388 [2009]). The legislative intent of Labor Law Q 220, is to impose upon the state and munlclpal corporations the same obligations of paylng the prevailing rate of wages to laborers, workmen and rnechanlcs 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 Its terrltorlal subdlvlslons to a standard of soclal justlce for dealing with laborers, workmen and mechanlcs (Austln v. Clty of New York, 268 N.Y. 113,179 N.E. 313 [1932]). Labor Law 9220, is to be construed, with the liberality needed to carry out its beneficent purposes ... (Buccl v. Village of Port Chester, 22 NY 2d 195, supra). Salary based grading of titles is used to establish the type and quallty of work performed based on merit and to avold automatic promotion. Salary fixation is Ineffectual where there Is no valid classlflcatlon (Corrlgan v. Joseph, 304 N.Y. 172, 106 N.E. 2d 593 [I9521 rearg. denled, 304 NY 759,108 N.E. 2d 618 [1952]). A reclasslflcatlon of titles is lawful, ...where it conforms the civil servlce structure to the altuatlon whlch actually existed in operation of the agency prlor to the reclassification... (Joyce v. Ortlz, 108 A.D. 2d 158,487 N.Y.S. 2d 746 [N.Y.A.D. I Dept., 19851). A civil service title may be abolished In good falth based on economy and efflclency, 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 235 [N.Y.A.D. lrt 20021). Reclassification is not to be used as a means of Dept., clrcumventlng the constltutlonal mandates for appointment to a civil service title or valldating 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 Criscolo v. Vagianelis, 50 A.D. 3d 1283,856 N.Y.S. 2d 265 [N.Y.A.D. 3 d Dept., 20081). The New York State Constitution, Article V, section 6, requires that appointments and promotions made In the Civil Sewlce be based on merlt and fltness, whlch to the [* 3] extent it is practicable, is to be ascertained by competitive examination. Civil Service Law 920[2] requires notice, hearing, and approvals to promote consistency and statewide adherence to the constitutional 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 Klipp v. New York State Civ. Sew. Commn., 42 Misc. 2d 36,247 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 16 N.Y. 2d 880 [1965]). Reciassiflcation can only be accomplirrhed 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 contention that the New York City Charter in conjunction with Civil Service Law 920[1], exempts the procedural mandates of Civil Service Law 920[2] (Joyce v. Ortiz, 108 A.D. 2d 168, supra). Petitioners claim that Personnel Orders No. 2012/1 and 2012/2 are the result of unilateral actions taken by the re8pondenb to classify ungraded civil service titles which are subject to Labor Law 9220 application of prevailing rate wages and supplemental beneflts. Petitioners have engaged in prevailing wage collective bargaining In a manner that has been established for over I 0 0 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 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. 201211 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 respondents reclassification is arbitrary and capricious because it massively restructures the classlflcatlon 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 [ when they allocated titles within a salary grade construct because they did I ] 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 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 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 Commiaslon, or conducting a hearing. DCAS determined that the prevailing rate applicable to petitioners titles through negotiations conducted by the Comptroller s Offlce resulted in inequitably high salaries, and should be replaced with [* 4] competltlve titles which would then be negotiated through the collective bargalnlng process under the New York City Collective Bargaining Law (NYCCBL). DCAS conceded that some of the positions were seasonal in nature, but determined that becau8e they are fllled on a full time, per annum basls, the prevaillng wage for seasonal work in the private sector was lower (Verified Ans., Exh. A, p. 2). DCAS based the new tltles on graded salary plans for publlc sector employees that it determined 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: (1) reclassify all titles under the Skilled Craftsman and Operative Service, Part [038] Into one of the following new occupational services... (Verified Ans., Exh. A). The Skilled Craftsman and Operatlve Service titles were on DCAS s recommendation reclassified into fourteen ( I 4) new Maintenance and Operation Services titles, with four grades In each tltle designated as, (I)helper/entry level, (11) journey-level, (111) supervisor and (1V)supewising supervisor. Personnel Order No. 2012/1 lists the new titles and provides the maximum and minimum allotted salary under each grade. Certain grades wlthln all tltles have no stated salary provisions. In the Press Operation Service Pay Plan, and Equipment Operatlon Service Pay Plan, only the Journey level grade has a maximum and minimum salary provlslon, the other grades are listed as n/a. (Verlfled Ans., Exh. B). With the exception of the Electrical Service Pay Plan, no salary is listed under Supervising Supervisor." Promotions within the new titles are to the mlnlmum 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 substantlally 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 hollday; Election Day is only a pald holiday during those years when there is a presidentlal election; and payment to employees not covered under workers compensatlon 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, salaries will not be recovered on merit. Some examples of drastlc change In salary from Consent Orders are, a Boilermaker Supewisor currently earnlng approxlmately $114,587.20 will have a range of $85,000.00 to $105,000.00; a Blacksmith Supervisor earnlng approxlmately $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 demotlons. It provldes no basls for employees under those titles to compete for titles based on fltness while employed in the public sector. Across most titles the minimum salary rate applied in the grades Is less than current salarles but the maxlmum range is higher. Petitloners have not been provlded a means of determining the manner In whlch they will be able to acqulre the maximum range for each grade, lndlvlduals that have acquired licenses and seniority in a title that has been reciasslfled have no means of determlning the manner of promotlon. [* 5] As of the April 11, 2012, effective date, incumbent employees are permitted to maintain the status quo concerning salaries, time, and leave but newly hired employee8 in the revised titles are immediately affected by the changes. The status quo for Incumbent employees is subject to alteration when collective bargaining negotiations are conducted pursuant to NYCCBL procedures. Incumbent 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 Civil Service Commissioner. The Consent Orders were valid based on hearings, investigations and negotiations between the Comptroller and representative unions, that evaluated prevailing wages In both the private and pubilc sector. The revisions to and removal of salary, time and leave affecting both new and incumbent employees without notice, hearing or a determination conflrmlng the adherence to state-wide rrtandards of merit and fitness has no rational basis. Petitioners have been placed in a position of trying to obtain accrued salary, time and beneflts without being afforded the statutory protections of civil servants. Respondents' reclassiflcation 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 reclassification o job titles subject to the provisions of Civil Service Law 0 20. f Accordingly, it is ORDERED and ADJUDGED that the petition is granted and Personnel Orders No. 201211 and 2012/2 dated April 11, 2012 are annulled. This constitutes the decision and judgment of this court. - ENTER: MANUEL J. MENDEP J.S.C. ? MANuEL J.'M ENDEZ, J.S. C. Dated: June 29,2012 Check one: X FINAL DISPOSITION [7 NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE UNFILED JUDGMENT This iudament has not been entered by the County Clerk -,and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person a the Judgrrwnt Clerk's Desk (Room t 1416). Y

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