Matter of Murphy v City of NY

Annotate this Case

Download PDF

Matter of Murphy v City of NY 2012 NY Slip Op 31790(U) June 29, 2012 Sup Ct, New York County Docket Number: 102636/12 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 MANUEL J, MENDEZ PRESENT: PART 13 Jusflce In the Matter of the Appllcatlon of INDEX NO. MOTION DATE JOHN MURPHY, a8 Flnanclal Secretary Treasurer and on behalf of, LOCAL I, THE UNITED ASSOCIATION MOTION SEQ. NO. OF MOTION CAL. NO. OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO; PATRICK DOWN, as Presldent and on behalf of LOCAL 638, ENTERPRISE ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO; ROBERT WALSH as Business Manager and on behalf of LOCAL 40, INTERNATIONAL ASSOClATlON OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, AFL-CIQ DANIEL LLAMBELIS, DENNIS DELANEY, JOHN TADDEO, ALFONSO TARATINO, NEIL QOLDFARB, THOMAS BARTH, FELIX VELEZ JR., GEAN PILIPAK, SHAWN AHERN AND FRED DOYLE, as employees of the CITY OF NEW YORK In thelr lndlvldual capacity and on behalf of those olmllarly altuated, 1 Z 3 / 2 D g 8 1 08-1 $1 2 001 UNFlLEO JUDGMENT nlsjuament has not been entered by the County c,erk and entry cannot be served hereon, Petltloners, For an Order and Judgment Pursuant to Artlcle 78 of the Clvll Practlce Law and Rules, munsel Or authorized ~ ~ ~ n ~ t i v e must ''pear in W S O ~ at the Judgment Desk 1416). - agalnstCITY OF NEW YORK, MICHAEL R. BLOOMBERG, In his capacity as Mayor of the City of New York, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; EDNA WELLS HANDY, as Commlssloner of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES and, JAMES HEIN, as Deputy Commlssloner of the Dlvlslon of Cltywlde Personnel o the NEW YORK CITY DEPARTMENT OF f CITYWIDE ADMINISTRATIVE SERVICES, Respondents. cn c w The followlng papers, numbered Ito& were read on thlo petltlon tolfor Art. 78 cn U s 0 F 0 3i PAPERS NUMBERED Notlce of Motlonl Order to Show Cause Anowerlng Affldavlts - Exhlblts -Affldavlto - Exhlblts ... cross rnotlon Replying Affidavits Cross-Motion: Yes X No 1-2 3-6 [* 2] Upon a reading of the foregoing cited papem, 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 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 occupational titles, with four grade levels within each service classlflcatlon affecting salaries and benefits. Petitioners pursuant to Labor Law 5220, engaged in prevailing wage bargaining as ungraded civil sewice 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. Petltioners seek Judlciai 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 9220, and the reclassification provisions of New York Civil Servlce Law 520. An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational 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 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 529 [N.Y.A.D. lot 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 5 220, is to impose upon the state and municipal corporations the same obligations of paylng the prevalllng 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 its territorial su bdlvlslons to a standard of social justice for dealing with laborera, 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 llberailty needed to carry out Its beneflcent purposes... (Bucci v. Village of Port Chester, 22 NY 2d 1 M I supra). Salary based grading of titles is used to establlsh the type and quality of work performed based on merit and to avoid automatlc promotion. Salary fixation Is ineffectual where there is no valid classlflcation (Corrigan v. Joseph, 304 N.Y. 172, 106 N.E. 2d 593 [1952] rearg. denied, 304 NY 769,108 N.E. 2d 618 [1952]). A reclassification of titles Is lawful, ...where it conforms the civil service structure to the situation whlch actually existed in operation of the agency prior to the reclassiflcatlon ... I (Joyce v. Ortiz, 108 A.D. 2d 158,487 N.Y.S. 2d 746 [N.Y.A.D. Imt Dept., ISSS]). A civil 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 Hartman v. Erie I BOCES Bd. of Educ., 204 A.D. 2d 1037,614 N.Y.S. 2d 90 [N.Y.A.D. qfhDept., 19941 and Gorman v. Von Essen, 294 A.D. 2d 209,742 N.Y.S. 2d [* 3] 235 [N.Y.A.D. Iat 20021). Reclassification is not to be used as a means of Dept., 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. 2ndDept., 20041 and Criscoio v. Vagianelis, 60 A.D. 3d 1283,856 N.Y.S. 2d 265 [N.Y.A.D. 3rdDept., 20081). The New York State Constitution, Article V, section 6, requires that appointments and promotions made In the Civil 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[23 requires notice, hearing, and approvals to promote conslstency 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 Kllpp v. New York State Civ. Sew. Commn., 42 Misc. 2d 35, 247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19641, affd, 22 A.D. 2d 854 [N.Y.A.D. 2 dDept., 19641, affd 15 N.Y. 2d 880 [ISSS]). Reciassiflcatlon can only be accomplished in the manner set forth in Civil Senrice 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 §20[2] (Joyce v. Ortlr, 108 A.D. 2d 158, supra). Petitioners claim that Personnel Orders No. 201211 and 201212 are the result of unilateral actions taken by the respondent8 to classify ungraded civil service titles which are subject to Labor Law 5220 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 ciassiflcations and reclassifled the 106 ungraded prevailing rate titles affecting approximately 10,000 employees into fourteen (14) new Maintenance and Operation Services titles. Personnel Order8 No. 201211 and 201212 were adopted and immediately made effective after the Mayor s signature, altering many of the provirrions of the Consent Orders. Petitioners claim that respondents reciassiflcation is arbitrary and capricious because it massively restructures the classification system without any effort to comply with either the provisions of Labor Law 9220, or the requirements of Civil Service Law 520[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 Sewice Law Q 20 [I] when they allocated titles within a salary grade construct because they did not change a Jurisdictional ciassiflcation. 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 [* 4] City s managerlal prerogatlve, therefore notice, public hearlngs and New York State Clvll Service Commission approval are not required. DCAS conducted an lnvestlgatlon without consultlng the Comptroller s Office, the State Clvll Servlce Commission, or conductlng a hearing. DCAS determlned that the prevailing rate appllcable to petitioners 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 Collectlve Bargaining Law (NYCCBL). DCAS conceded that some of the positions were seasonal In nature, but determined that because they are fllled on a full time, per annum basls, 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 publlc sector employees that it determined were slmllar, 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 ) reclasslfy all tltles under the Skilled Craftsman and Operatlve Servlce, Part [038] into one of the following new occupational sewices... (Verlfled Ans., Exh. A). The Skilled Craftsman and Operative Service titles were on DCAS s recomrnendatlon reclassified into fourteen (14) new Malntenance and Operation Services titles, with four grades In each tltle designated as, (I)helperhntry level, (11) journey-level, (111) supervlsor and (IV)supervlslng supervlsor. Personnel Order No. 201211 llsts the new titles and provides the maximum and mlnlmum allotted salary under each grade. Certain grades wlthln all tltles have no stated salary provMon8. 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 An&, Exh. B). Wlth the exceptlon of the Electrical Service Pay Plan, no salary is listed under Supervising Supervlsor. Promotlons wlthln the new titles are to the, minimum 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 tlme and leave have been substantially altered. Employees sick day accruals have been halved; terminal leave currently accumulatlng up to I00 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 presldentlal election; and payment to employees not covered under workers compensation has been ellmlnated along wlth contributions to the Welfare and Retiree Fund for unlonlzed employees. In those instances where the maxlmum range for grades In a competitlve title salaries are substantially lower, salaries will not be recovered on merit. Some examples of drastic change In salary from Consent Ordem are, a Bollermaker Supervisor currently earning approximately $114,587.20 will have a range of $86,000.00 to $105,000.00; a Blacksmith Supervlsor earning approxlrnately $114,587.20 wlll have a range of $98,000.00- $114,OO.OO. The maxlmum range provided under the new titles and grades amount to demotions. It provldes no basis for employees under those tltles to compete forditles based on fitness while employed in the publlc sector. Across most titles the [* 5] minimum salary rate applied in the grades Is less than current salarles but the maximum range is higher. Petltioners have not been provided a means of determlnlng the manner In whlch they will be able to acquire the maximum range for each grade. Individuals that have acquired licenses and seniority In a title that has been reclasslfled have no means of determining the manner of promotion. As of the April 11,2012, effective date, Incumbent employees are permitted to malntaln the status quo concernlng 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, will not get to keep those accruals. They wlll be required to accept lower salaries based on the ranges in the grade for their job titles and bargaln for Increases under new collective bargaining contracts. Salary, time and leave accrued under Consent Orders have been removed and unllaterally altered by the respondents wlthout any notice, hearing or determlnation by the New York State Clvll Service Commissloner. The Consent Orders were valid'based on hearings, investigations and negotiations between the Comptroller and representative unlons, that evaluated prevailing wages In both the private and publlc 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 standards of merit and fitness has no ratlonal basis. Petitioners have been placed in a position of trylng to obtain accrued salary, time and beneflts without belng afforded the statutory protections of clvii servants. Respondents' reclassification does not have a rational basis and is arbltrary and capricious. Upon review of all the papers submitted, thla Court flnds that the changes proposed and implemented by the respondents resulted in not Justgrading but reclassification of job title8 subject to the provisions of Civil Service Law 5 20. Accordingly, It Is ORDERED and ADJUDGED that the petition Is granted and Personnel Orders No. 201211 and 201212 dated April 11, 2012 are annulled. This constitutes the decislon and Judgment of thls court. UNFILED JUDGMENT This Judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. TENTER. obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 141B). Dated: June 29,2012 M U E L J. MEND= m- . - J.S.C. M A ~ U E L MENDEZ, J. J.S. C. Check one: X FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.