Matter of Martiniello v City of NY

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Matter of Martiniello v City of NY 2012 NY Slip Op 31787(U) June 29, 2012 Sup Ct, New York County Docket Number: 102606/12 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 Justice PRESENT: PART I 3 In the Matter of the Appllcatlon of AUGUST MARTINIELLO, as Business Representatlve and on behalf of LOCAL UNION NO. 15, INTERNATIONAL UNION OF OPERATING ENGINEERS, and I t s members; and EDWARD DINQEE, Petitioners, INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. For an Order and Judgment Pursuant to Artlcle 78 of the Clvll Practlce Law and Rules, 06-1 3-12 001 UNFILED JUDGMENT This Judgmenthas not been entered by the county Clerk - agalnstand notice of entry cannot be served based hereon. To obtain eptry, counsel o authorized representative mu& r CITY OF NEW YORK, MICHAEL BLOOMBERG, as appear in pwson at the Jq~m ems (m i411)r Mayor of the CITY OF NEW YORK CITY; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMlNlSTRATlV AFFAIRS; EDNA WELLS HANDY, as Commissioner of the New York Clty Department of Citywlde Admlnlstratlve QerVIces, Respondents. The foilowlng papers, numbered 1to& were read on thls petltlon tolfor Art, 78 pAPFR$ NUMBERED Notlce of Motlonl Order to Show Cause -Affidavits Answerlng Affldavlts - Exhlblts cross motlon 1-2 3-5 6 Replying Affldavlts Cross-Motion: - Exhlblts ... Yes X No Upon a readlng of the foregoing cited papers, It Is ordered and adjudged that this Article 78 petltlon Is granted, Personnel Ordem No. 201211 and 201212 dated April 11, 2012 are annulled. Respondents' adminiatratlve actlons 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, reclasslfy 106 ungraded prevailing rate titles into fourteen (14) new occupatlonal tltles, with four grade levels withln each sewlce classification affecting salaries and benefits. Petitioners pursuant to Labor Law 9220, engaged In prevalllng wage bargalnlng as ungraded clvll sewice titles. They had entered into consent orders with the Comptroller of the Clty of New York, which expired prior to the amendment to Rule X. Petitioners seek judicial review of the admlnlstratlve actlon and to annul Personnel Orders No. 201211 and 201212, claiming the determlnatlons were unllaterrrl, arbltrary and caprlclous, . [* 2] In violation of Labor Law 5220, and the reclassification provisions of New York Clvll Service 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 Mover8 Ass n, Inc. v. Liu, 95 A.D. 3d 596,944 N.Y.S. 2d 529 [N.Y.A.D. lrt 20121 citing to Roberts v. Tlshman Speyer Props., L.P., 13 N.Y. 3d 270 Dept., 918 N.E. 2d 900, 890 N.Y.S. 2d 388 [2009]). The legislatlve intent of Labor Law Q 220, Is to Impose upon the state and municipal corporations the same obligations of paying the prevalllng rate of wages to laborers, workmen and mechanics employed In public works, in ungraded or noncompetltive 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 subdlvisions to a standard of social Justice for dealing with laborers, workmen and mechanics (Austln v. City of New York, 258 N.Y. 113,179 N.E. 313 [1932]). Labor Law 5220, is to be construed, wlth the liberality needed to carry out its beneficent purposes ... (Buccl v. Village of Port Chester, 22 NY 2d 196, supra). Salary based gradlng of titles is used to establish the type and quality of work performed based on merlt 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. denled, 304 NY 759,108 N.E. 2d 618 [1952]). A reclassification of titles is lawful, ...where it conforms the civil sewlce structure to the situation which actually existed In operation of the agency prior to the reclassification ... (Joyce v. Ortiz, 108.A.D. 2d 158,487 N.Y.S. 2d 746 [N.Y.A.D. 1 Dept., 19851). A civil servlce title may be abolished In good faith based on economy and efficlency, 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. qfhDept., 19941and Gorman v. Von Essen, 294 A.D. 2d 209,742 N.Y.S. 2d 235 [N.Y.A.D. lBt Dept., 20021). Reclassification is not to be used as a means of circumventing the constltutlonal mandates for appointment to a clvll sewice title or validating out of title work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701,775 N.Y.S. 2d 639 [N.Y.A.D. 2 dDept., 20041 and Criscolo v. Vaglaneiis, 60 A.D. 3d 1283,856 N.Y.S. 2d 265 [N.Y.A.D. 3rdDept., 20081). The New York State Constitution, Article V, aection 6, requires that appointments and promotions made in the Civil Service be based on merlt and fitness, which to the extent it is practicable, is to be ascertained by competitive examhation. Civil Service Law 920[2] requires notice, hearing, and approvals to promote consistency and statewide adherence to the constltutlonal provisions of Article V, 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 Civ. Sew. Commn., 42 Mlsc. 2d 36, 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]). [* 3] Reclasslflcation can only be accompllshed in the manner set forth In Civil Servic Law 920, which requires notice, a hearing, review and approval by the State Civil Service Cornmission. 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 520[2] (Joyce v. Ortlz, 108 A.D. 2d 158, supra). Petitioners claim that Personnel Orders No. 201Ul and 201212 are the result of unilateral actions taken by the respondents 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 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 classiflcatlons and reclassified the 106 ungraded prevailing rate titles affecting approximately 10,000 employees into fourteen (14) new Matntenance and Operation Services titles. Personnel Orders No. 2012/1 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 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 classlflcation. 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 a8 a municipal civil servlce 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 requlred. 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 negotlatlons conducted by the Comptroller s Offlce resulted in inequitably high saiarles, and should be replaced with competitive titles which would then be negotiated through the collective bargaining process under the New York City Collective Bargaining Law (NYCCBL). DCAS conceded that some of the positlons 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 (Verifled Ans., Exh. A, p. 2). DCAS based the new titles on graded salary plans for public sector employees that It determined were simliar, 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: ( I ) reclassify all tltles under the Skllled Craftsman and Operative Service, Part [038] Into one o the following new occupational servlces... f (Verlfled Ans., Exh. A). The Skilled Craftsman and Operative Service tltles were on DCAS s recommendation reclassified into fourteen (14) new Malntenance and Operation Sendces titles, wlth four grades In each title deslgnated as, (I)helperhtry level, (11) Journey-level,(111) Supervisor and (IV)supewlslng supewlsor. Personnel Order No. 2012/1 Ilsts the new titles and provides the maxlmum and mlnlmum allotted salary under each grade. Certain grades wlthln all titles have no stated salary provlslons. In the Press Operation Servlce Pay Plan, and Equipment Operation Servlce Pay Plan, only the Journey level grade has a maximum and minimum aalary provision, the other grades are llsted as nla. (Verlfled Ans., Exh. B). With the exceptlon of the Electrlcal Sewlce Pay Plan, no salary is listed under Supervising Supervisor. Promotlons within the new tltles are to the mlnlmum salary range of a graded title or $1,000.00, whichever is higher. A revlew of Personnel Ordem No. 201211 and 2012/2 dated April 11, 2012, demonstrates that changes made in time and leave have been substantlally altered. Employees slck day accruals have been halved; termlnal leave currently accumulating up to 100 days is modified to 70 days; Llncoln s Birthday was ellmlnated as a holiday; Election Day is only a pald holiday durlng those years when there I a presidentlal s election; and payment to employees not covered under workers cornpensatlon 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 competltlve title salaries are substantlally lower, salarles will not be recovered on merit. Some examples of drastic change in salary from Consent Orders are, a Boilermaker Supervisor currently earning approximately $114,687.20 will have P range of $85,000.00 to $105,000.00; a Blacksmith Supervisor earning approximately $1 14,587.20 will 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 baaed on fltness while employed In the public sector. Across most tltles the minimum salary rate applied in the grades I less than current salaries but the maximum s range is higher. Petitioners have not been provided a means of determlnlng the manner In which they will be able to acquire the maxlmum range for each grade. Individuals that have acquired licenses and seniority in a title that has been reclassifled have no means of determining the manner of promotlon. As of the Aprll 11, 2012, effective date, incumbent employees are permitted to maintain the status quo concerning salarlea, time, and leave but newly hlred employees 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 [* 5] grade for their job titles and bargain for increases under new collectlve 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 public 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 position of trying to obtain accrued salary, time and beneflts without being afforded the statutory protections of civil servants. Respondents reclassification does not have a rational basis and is arbitrary and capricious. Upon review of all the papera submitted, this Court finds that the changes proposed and implemented by the respondents resulted in not just grading but reclassiflcatlon of job titles subject to the provisions of Civil Servlce 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. ENTER: MANUEL J. MENDEZ J.S.C. Dated: June 29,2012 MANUEL J. MENDEZ, J.S.C. Check one: X FINAL DISPOSITION Check if appropriate: I 0 NON-FINAL DISPOSITION 0 DO NOT POST REFERENCE LJNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized represemtive must appear in person at the Judgment Clerk s Desk (Room 1416).

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