Roberts v City of New York

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Roberts v City of New York 2012 NY Slip Op 31768(U) June 29, 2012 Supreme Court, New York County Docket Number: 102601/12 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, MENDE2 Justlce PRESENT: PART 13 in the Matter of the Application of LiLlAN ROBERTS, as Executlve Director of District Council 37, AFSCME, AFL-CIO, JAMES TUCCiARELLi As President of Local 1320, an afflllated Local of District Council 37, and KYLE SIMMONS, as President of Local 924, an affiliated Local of District Council 37, MARK ROSENTHAL, as President of Local 983, an affiliated Local of District Council 37, MANUEL ROMAN, as President of Local 1087, an affiliated Local of Dlstrlct Council 37, MICHAEL COPPOLA, as President of Local I157, an afflllated Local of District Council 37,JON BAILEY, as President of Local 2906, an affiliated Local of District Council 37, ANTHONY CARTER and CORNELL HEYWARD, Individually and INDEX NO. MOTION DATE MOTION SEQ. NO. 102601/12 06-1 3-12 001 MOTION CAL. NO. - againstCITY OF NEW YORK, MICHAEL R. BLOOMBERG, As Mayor, THE NEW YORK CITY OFFICE OF LABOR RELATIONS, JAMES F. HANLEY, as Commissioner, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; EDNA WELLS HANDY, As Commissioner, JAMES HEIN, As Deputy Comrnlosioner, Respondents. PAPER$ NUMBERED Notice of Motlonl Order to Show Cause Answering Affidavits - Exhibits - Affidavlts - Exhibits ... cross motion Replying Affldavits Cross-Motion: 1-2 3-6 6 Yes X No Upon a reading of the foregoing cited papers, it is ordered and adjudged that thia Article 78 petition Is granted, Personnel Orders No. 2012/1 and 2012/2 dated April 11, 2012 are annulled. [* 2] Respondents admlnlstrative 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 XI reclasslfy 106 ungraded prevailing rate tltles Into fourteen (14) new occupatlonal tltles, wlth four grade levels within each service classlflcatlon affecting salaries and beneflts. Petitioners pursuant to Labor Law g220, engaged In prevalllng wage bargaining as ungraded civil service titles. They had entered into consent orders wlth the Comptroller of the City of New York, which expired prior to the amendment to Rule X. Petitioners seek judicial review of the admlnistratlve action and to annul Personnel Orders No. 201211 and 201212, claiming the determlnatlons were unilateral, arbitrary and caprlclous, In violation of Labor Law 5220, and the reclasslflcatlon provlslons of New York Civil Service Law 920. An admlnlstrative decision will wlthstand Judicialscrutiny If it is supported by substantial evidence, has a ratlonal basis and is not arbitrary and caprlclous (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 welght (Metropolitan Movers Ass n, Inc. v. Llu, 95 A.D. 3d 596, 944 N.Y.S. 2d 529 [N.Y.A.D. lmt Dept., 20121 citing to Roberts v. Tlshman Speyer Props., L.P., 13 N.Y. 3d 270 918 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 obllgatlons of paylng the prevailing 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 obllgatlon under Labor Law 5220, is for the state to hold its territorial subdivisions to a standard of social Justlce for deallng wlth laborers, workmen and mechanics (Austin v. City of New York, 258 N.Y. 113, 179 N.E. 313 [1932]). Labor Law 5220, is to be conlltrued, wlth the llberallty needed to carry out its beneficent purposes... (Bucci v. Village of Port Chester, 22 NY 2d 195, supra). Salary based gradlng of tltles is used to establish the type and quality of work performed based on merit and to avoid automatic promotion. Salary fixation 1 ineffectual where there Is no valld s classification (Corrigan v. Joseph, 304 N.Y. 172, 106 N.E. 2d 593 [la521 rearg. denied, 304 NY 759,108 N.E. 2d 618 [1952]). A reclassification of tltles Is lawful, ...where It conforms the civil service structure to the situation which actually existed In operatlon of the agency prlor to the reclassification... (Joyce v. Ortiz, 108 A.D. 2d 168,487 N.Y.S. 2d 740 [N.Y.A.D. 1 Dept., 19851). A civil service title may be abolished In good falth 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 E8sen, 294 A.D. 2d 209,742 N.Y.S. 2d 235 [N.Y.A.D. lot 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 tltle work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701,775 [* 3] N.Y.S. 2d 539 [N.Y.A.D. 2ndDept., 20041 and Criscolo v. Vagianelis, 50 A.D. 3d 1283, 866 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[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 Klipp v. New York State Clv. Serv. Commn., 42 Misc. 2d 35,247 N.Y.S. 2d 632 [Sup. Ct. Suffolk Co., 19841, affd, 22 A.D. 2d 854 [N.Y.A.D. 2 dDept., 19641, affd 15 N.Y. 2d 880 [1965]). Reclassiflcation can only be accomplished in the manner set forth in Civil Service Law 920, which requires notlce, a hearing, review and approval by the State Civil Servlce 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. Ortiz, 108 A.D. 2d 158, supra). Petitioners claim that Personnel Orders No. 201211 and 201212 are the result of unilateral actlons taken by the respondents to classify ungraded civil service titles which are subject to Labor Law 5220 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 classifications 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. 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 classification system without any effort to comply with either the provisions of Labor Law 9220, or the requirements of Civil Service Law 520[2] regardlng notlce, public hearings, and approval from the New York State Civil Service Commission. Respondents oppose the petition claiming that they complied with Civil Service Law Q 20 [ when they allocated titles within a salary grade construct because they did I ] not change a jurisdictional classification. They claim that Civli Service Law Q 20 only applies when a title is changed from competitive to noncompetitive or exempt class. Respondents claim that the Department of Citywide Adminlatratlve 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 9220, 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 Ci ty s managerial prerogative, therefore notice, public hearings and New York State Civil Service Commission approval are not required. [* 4] Y DCAS conducted an Investigation without consultlng the Comptroller s Offlce, the State Clvll Servlce Commlssion, or conducting a hearing. DCAS determlned that the prevalllng rate appllcable to petitioners titles through negotiations conducted by the Comptroller s Offlce resulted in inequitably high salaries, and should be replaced wlth competitive titles which would then be negotlated 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 fllled on a full tlme, per annum basis, the prevailing wage for seasonal work In the private sector was lower (Verlfled Ans., 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 Aprll 3, 2012, under Subject: Proposal: states, In the Competitive Class, Rule X: ( I ) recla8slfy all tltles under the Skllled Craftsman and Operatlve Servlce, Part [038] Into one of the following new occupational services... I (Verified Ans., Exh. A). The Skllled Craftsman and Operatlve Service titles were on DCAS s recommendation reclassified into fourteen ( I 4) new Maintenance and Operatlon Services" tltles, wlth four grades In each title designated as, (I) helpedentry level, (11) Journey-level,(111) supervisor and (1V)supervlslng supervlsor. Personnel Order No. 2012/1 lists the new titles and provides the maxlmum and mlnlmum allotted salary under each grade. Certain grades within all titles have no stated salary provisions. In the Press Operation Service Pay Plan, and Equlpment Operatlon Service Pay Plan, only the journey level grade has a maximum and minimum salary provision, the other grades are listed as Wa. (Verified Ans., Exh. B). With the exception of the Electrlcal Service Pay Plan, no salary Is listed under Supervising Supewlsor. Promotions wlthln 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. 2012/1 and 2012/2 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 la modifled to 70 days; Llncoln a Blrthday was ellmlnated as a hollday; Election Day is only a paid holiday during those years when there la a presidentlal election; and payment to employees not covered under workers compensation 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 tltle salaries are substantlally lower, salarles wlll not be recovered on merit. Some examples of drastic change In salary from Consent Orders are, a Boilermaker Supervisor currently earnlng approximately $114,587.20 will have a range of $85,000.00 to $105,000.00; a Blacksmith Supervisor earning approxlrnately $114,587.20 wlll have a range of $98,000.00- $1 14,OO.OO. The maxlmum range provided under the new titles and grades amount to demotions. It provides no basis for employees under those tltles 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 salarles but the maxlmum range Is higher. Petitioners have not been provlded a means of determlning the manner - - - [* 5] In which they will be able to acquire the maximum range for each grade. Individuals that have acquired licenses and senlorlty In a title that has been reclassified have no means of determining the manner of promotion. As of the April 1I , 2012, effective date, incumbent employees are permitted to maintain the status quo concerning 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 aubJectto 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 prevalllng 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 confirming the adherence to state-wide standards of merit and fltness has no rational basis. Petitioners have been placed In a polrition of trying to obtain accrued salary, time and beneflts without being afforded the statutory protections of civil servants. Respondents' reciassiflcation does not have a rational basis and is arbitrary and capricious. Upon review of all the papers submitted, this Court flnds that the changes proposed and implemented by the respondenta resuited in not just grading but reclassification of job titles subject to the provision8 of Civil Service Law Q 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 decision and judgment of this court. UNFILED JUDGMENT Thls Judgmenthas not been entered by the Comty C'er+NTER. and notice of entw cannot be served based hereon. To obtain entry, courkel or authorized representative must appear in person at the Judgment Clerk's Oesk (Roam 141E). MANUEL 3. kfiENDE2 J.5 c. - MANUEL J. MENDEZ, Dated: June 29,2012 J.S.C. Check one: X FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: DO NOT POST 0 REFERENCE

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