Matter of Colangelo v City of NY

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Matter of Colangelo v City of NY 2012 NY Slip Op 31789(U) June 29, 2012 Sup Ct, New York County Docket Number: 102608/12 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 M A N U J . MENDEZ PRESENT: PART I3 Justice In the Matter of the Appllcatlon of JOSEPH COIANGELO, I# Presldent of and on behalf of Local Unlon No. 24B.E.I.U. and I t s members, Petltloners, INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. 12012 4681 06-1 3-12 001 PAPERS NUMBERED Notlce of Motion/ Order to Show Cause Answerlng Affldavlts - Exhlblts -Affldavlts - Exhlblts ... cross motlon 3-8 8 Replylng Affldavlts Cross-Motion: 1-2 Yes X No Upon a reading of the foregolng clted papers, it is ordered and adjudged that thls Artlcie 78 petition is granted, Personnel Orders No. 201211 and 2012/2 dated April II, 2 are annulled. 201 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 City of New York. The amendments to Rule X, reclassify 106 ungraded prevailing rate titles into fourteen (14) new occupational titles, with four grade levels wlthln each service classification affecting salaries and benefits. Petitioners pursuant to Labor Law 5220, engaged in prevailing wage bargalnlng as ungraded clvll service tltles. They had entered into consent orders with the Comptroller of the City of New York, whlch expired prior to the amendment to Rule X. Petitioners seek judicial review of the administrative actlon and to annul Personnel Orders No. 201211 and 201212, claiming the determinations were unilateral, arbitrary and capricious, [* 2] in violation of Labor Law 9220, and the reclassiflcatlon provislons of New York Civll Service Law 520. An adminlstrative decision will withstand judlcial scrutiny If it is supported by substantial evldence, has a rational basis and is not arbitrary and capricious (Matter of Pel1 v. Board of Educatlon, 34 N.Y. 2d 222,366 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 provlslon, should not be given any weight (Metropolitan Movers Ass n, Inc. v. Llu, 95 A.D. 3d 596, 944 N.Y.S. 2d 629 [N.Y.A.D. lot 2012) clting 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 5 220, 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 publlc works, In ungraded or noncompetitive employment as private employers (Gaston v. Taylor, 274 N.Y. 369, 9 N.E. 2d 9 [193q). The scope of obligation under Labor Law 5220, is for the state to hold Its territorial subdivlsions to a standard of soclal justice for dealing with laborers, workmen and mechanlcs (Austin v. City of New York, 258 N.Y. 113,179 N.E. 313 [1932]). Labor Law 5220, I to be construed, with the liberality needed to carry out its beneficent s purposes... (Bucci v. Village of Port Chester, 22 NY 2d 196, 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 classlfication (Corrigan v. Joseph, 304 N.Y. 172,106 N.E. 2d S93 [1952] rearg. denied, 304 NY 769,108 N.E. 2d 618 [1952]). A reclassification of tltles I lawful, ...where it conforms the civll sewice s structure to the situatlon which actually existed In operation of the agency prior to the reclassification... (Joyce v. Ortlz, 108 A.D. 2d 158,487 N.Y.S. 2d 746 [N.Y.A.D. lrt Dept., lS85J). A civll service title may be abollshed in good faith based on economy and efficiency, but not as subterfuge for avoiding statutory protections provided to civil servants (Matter of Hartrnan v. Erie I BOCES Bd. of Educ., 204 A.D. 2d 1037,014 N.Y.S. 2d 90 [N.Y.A.D. 4thDept., 19941 and Gorman v. Von Essen, 294 A.D. 26 209,742 N.Y.S. 2d 235 [N.Y.A.D. lmt Dept., 20021). Recia8slfication Is not to be used as a means of circumventing the constitutional mandates for appointment to a civil 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 dDept., 20041 and Crlscolo v. Vagianelis, 60 A.D. 3d 1283,856 N.Y.S. 2d 265 [N.Y.A.D. Dept., 20081). The New York State Constitution, Article V, section 6, requlres that appointments and promotlons made in the Civil Service be based on merlt and fltness, which to the extent It is practicable, is to be ascertalned by competltive examination. Civil Service Law 520[2] requires notice, hearing, and approvals to promote consistency and statewide adherence to the constltutlonal provislons 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 Clv. Sew. Commn., 42 Misc. 2d 36,247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19641, affd, 22 A.D. 2d 854 [N.Y.A.D. 2ndDept., 1964], affd 15 N.Y. 2d 880 [ISSS]). [* 3] Reclasslflcatlon can only be accomplished In the manner set forth in Clvll Servlce Law 520, which requlres notice, a hearing, review and approval by the State Civll Service Commlsslon. There is no merit to the contention that the New York City Charter in conjunction with Clvll Servlce Law 920[1], exempts the procedural mandates of Civll Service Law 520[2] (Joyce v. Ortiz, 108 AD. 2d 158, supra). Petitioners claim that Personnel Orders No. 2012/1 and 201212 are the result of unilateral actions taken by the respondents to classify ungraded civil service titles whlch are subject to Labor Law 9220 application of prevalllng rate wages and supplemental benefits. Petitioners have engaged in prevailing wage collective bargalnlng In 8 manner that has been established for over 100 years, as part of the bargalnlng process they entered into Consent Orders wlth the City Comptroller. After the most recent Consent Orders explred, the respondents acted by effectively deleting their classlflcations and reCla88ified the 106 ungraded prevailing rate titles affecting approximately 10,000 employees into fourteen (14) new Malntenance and Operation Services" titles. Personnel Orders No. 201211 and 2012/2 were adopted and Immediately made effective after the Mayor s signature, alterlng many of the provlslons of the Consent Orders. Petltloners claim that respondents reclassification Is arhltrary and capricious because It massively restructures the classification system without any effort to comply with either the provlslons of Labor Law 5220, or the requirements of Clvll Service Law 520[2] regarding notice, public hearings, and approval from the New York State Civil Service CommIsslon. Respondents oppose the petitlon clalming that they compiled with Civil Servlce Law Q 20 [l] when they allocated tltles within a salary grade construct because they did not change a jurisdlctlonal classification. 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 Cltywlde Administrative Services (DCAS) has authority to act as a munlclpal civll service commission pursuant to the New York City Charter, to review salaries and tltles, grade and classlfy 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 notlce, public hearings and New York State Clvll Servlce Commlsslon approval are not required. DCAS conducted an lnvestlgation without consulting the Comptroller s Offlce, the State Clvll Service Commlsslon, or conducting a hearing. DCAS determined that the prevailing rate applicable to petitioners titles through negotiations conducted by the Comptroller s Ofice resulted In Inequitably high salaries, and should be replaced with competitlve 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 posltlons were seasonal in nature, but determined that because they are fllled 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 determlned were slmllar, 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: (1) reclassify all titles under the Skilled Craftsman and Operative Service, Part [038] into one of the followlng new occupatlonai servkes...I (Verified Ans., Exh. A). The Skilled Craftsman and Operatlve Service tltles were on DCAS s recommendation reclassified Into fourteen (14) new Maintenance and Operation Services" titles, wlth four grades In each title designated as, (I)helperlentry level, ( 1 1) journey-level, (111) supervlsor and (1V)supervising supervisor. Personnel Order No. 201211 lists the new titles and provides the maximum and minimum allotted salary under each grade. Certain grades within all titles have no stated salary provisions. in the Press Operation Service Pay Plan, and Equipment Operatlon Servlce Pay Pian, only the Journey level grade has a maxlmum and minimum salary provlsion, the other grades are llsted as nla. (Verified Ana., Exh. E). With the exception of the Electrical Service Pay Plan, no salary is llsted under Supervislng Supervisor. Promotions within the new titles are to the minimum salary range of a graded title or $1,000.00, whichever Is higher. A revlew of Personnel Orders No. 201211 and 2012/2 dated April 11,2012, demonstrates that changes made in time and leave have been substantially altered. Employees slck day accruals have been halved; termlnal leave currently accumulating up to I 0 0 days is modified to 70 days; Lincoln s Blrthday was ellminated as a hoilday; Election Day is only a paid holiday during those years when there is a presldential election; and payment to employees not covered under workers compensatlon has been eliminated along wlth contrlbutions to the Welfare and Retlree Fund for unionlzed employees. In those instances where the maxlmum range for grades in a competitive title salaries are substantially lower, saiarles will not be recovered on merit. 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 $86,000.00 to $105,000.00; a Blacksmith Supervisor earning approximately $114,587.20 wlli have a range of $98,000.00- $114,OO.OO. The maximum range provlded under the new titles and grades amount to demotions. it provldes no basis for employee8 under those titles to compete for titles based on fitness whlle employed In the public sector. Across most tltles the minimum salary rate applied In the grades is less than current salaries but the maximum range is higher. Petitioners have not been provided a means of determlnlng the manner in which they will be able to acquire the maximum range for each grade. Individuals that have acquired llcenses and seniority In a title that has been reclassifled have no means of determining the manner of promotion. As of the April 11, 2012, effective date, incumbent employees are permitted to mdntain 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 negotiations are conducted pursuant to NYCCBL procedures. Incumbent employees that have accumulated salary, time and leave urider their Consent Orders, will not get to keep those accruals. They will be required to accept lower salaries 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 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 hearlngs, investigations and negotiations between the Comptroller and representative unions, that evaluated prevaliing wages in both the private and public sector. The revisions to and removal of salary, tlme and leave affecting both new and incumbent employees without notice, hearing or a determination confirmlng the adherence to statewide standards of merit and fitness 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 protections of civil servants. Respondents' reciassiflcation does not have a ratlonal 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 of Job titles subject to the provisions of Civll 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 11,2012 are annulled. This constitutes the decislon'and judgment o this court. f ENTER: MANUEL J. MENDEZ m J.S.C. .. Dated: June 29,2012 Check one: MANUEL J. MENDEZ, J.s. c. X FINAL DISPOSITION Check if appropriate: 0 NON-FINAL DISPOSITION DO NOT POST REFERENCE UNFILED JUDGMENT T l judgment has not been entered by the County Clerk hs and notice of entry cannot be served based hereon. T O obtain enby"coullsel o authomsd representetlve muit r appear in ah JWQITW clerk's De& (Rmm t e 141B).

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