In the Matter of Gregory Floyd, Respondent,v.City of New York, et al., Appellants. (And Ten Other Proceedings.)

Brief

N.Y.September 11, 2014

APL 2013-00243 To be argued by: Robert B. Stulberg New York County Clerk’s Time requested: 30 minutes Index Number: 102602/12 COURT OF APPEALS OF THE STATE OF NEW YORK TOM KLEIN, in his capacity as BUSINESS MANAGER / SECRETARY- TREASURER of BOILERMAKERS LOCAL LODGE NO. 5, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, Petitioner-Respondent, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, - against - THE CITY OF NEW YORK, MICHAEL R.BLOOMBERG in his capacity as MAYOR OF THE CITY OF NEW YORK, THE NEW YORK CITY OFFICE OF LABOR RELATIONS, JAMES F. HANLEY in his capacity as COMMISSIONER OF THE NEW YORK CITY OFFICE OF LABOR RELATIONS, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, EDNA WELLS HANDY in her capacity as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, JAMES HEIN in his capacity as DEPUTY COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents-Appellants. BRIEF FOR PETITIONER-RESPONDENT TOM KLEIN, ETC. BROACH & STULBERG, LLP Attorneys for Petitioner-Respondent Michael Bilello One Penn Plaza, Suite 2016 New York, New York 10119 Tel: (212) 268-1000 Fax: (212) 947-6010 Date: January 8, 2014 i TABLE OF CONTENTS PRELIMINARY STATEMENT ........................................................................... 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED ............................ 5 COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY ..... 6 A. The Consent Determinations ............................................................. 9 B. The City’s Reclassification Plan .....................................................11 C. Procedural History ...........................................................................21 ARGUMENT .........................................................................................................22 POINT I: THE FIRST DEPARTMENT AND THE TRIAL COURT PROPERLY DETERMINED THAT THE CITY’S RECLASSIFICATION PLAN SHOULD BE ANNULLED BECAUSE APPELLANTS FAILED TO COMPLY WITH CSL § 20(2) ..............................................22 A. Appellants’ Reclassification Plan Was Properly Annulled Because Appellants Failed To Comply with the Procedural Requirements of CSL § 20(2) ...........23 B. The Legislature Did Not Supersede this Court’s Determination that Reclassifications of the Type Attempted by Appellants Are Subject to the Procedural Requirements of CSL § 20(2) .................28 C. There Is No Support for Appellants’ Interpretation of CSL § 20 in the New York State Legislature’s Unsuccessful Attempts to Amend that Law ..............34 ii POINT II: THE TRIAL COURT PROPERLY DETERMINED THAT THE RECLASSIFICATION PLAN ABROGATES LEGALLY AND CONTRACTUALLY BINDING AGREEMENTS BETWEEN THE UNION AND THE CITY .......................................................................................36 POINT III: THE TRIAL COURT PROPERLY ANNULLED THE RECLASSIFICATION PLAN AS “AFFECTED BY AN ERROR LAW” AND “ARBITRARY AND CAPRICIOUS” .............................................................54 CONCLUSION ......................................................................................................60 iii TABLE OF AUTHORITIES Cases Acunci v. Ross, 73 A.D.2d 643 (2d Dep’t. 1979) ...................................... 36, 33, 34 Application of Watson, 260 A.D. 77 (1st Dep’t 1940), modified sub nom., Watson v. McGoldrick, 286 N.Y. 47 (1941) ................59 Ass’n of Surrogates and Supreme Court Reporters v. State of New York, 79 N.Y. 39 (1992) .........................................................................................41 Auguti v. City Civ. Serv. Comm’n of the City of N.Y., 9 Misc. 2d 349 (Sup. Ct. N.Y. Cty. 1957) .............................................................................27 Austin v. City of New York, 258 N.Y. 113 (1932) ................................................39 Bailey v. Susquehanna Valley Cent. Sch. Dist. Bd. of Educ., 276 A.D.2d 963 (3d Dep’t 2000) ..................................................................55 Bethel v. McGrath-McKechnie, 95 N.Y. 2d 7 (2000) ............................................49 Borrell v. Genesee County, 73 A.D.2d 386 (4th Dep’t 1980) .......................... 32, 55 Brang Co., Inc. v. State Univ. Const. Fund, 47 A.D.2d 178 (3d Dep’t 1975) .......57 Brukhmam v. Giuliani, 94 N.Y.2d 387 (2000) .......................................................53 Bucci v. Vill. of Port Chester, 22 N.Y. 2d 195 (1968) ............................... 39, 52, 58 Buffalo Bldg. Trades Council of Buffalo Bd. of Educ. Employees v. Bd. of Educ. of the City of Buffalo, 36 N.Y.2d 782 (1975) .............. 33, 52-53 Burke's Auto Body, Inc. v. Ameruso, 113 A.D.2d 198 (1st Dep’t 1985) ..............54 Burri v. Kern, 39 N.Y.S.2d 640 (Sup. Ct. N.Y. Cty. 1943) ....................................27 Calavano v. New York City Health & Hospitals Corp., 246 A.D.2d 317 (1st Dep’t 1998) .................................................................47 iv Casey v. Catherwood, 28 N.Y.2d 702 (1971) .........................................................53 Caslin v. Nassau Cty. Civ. Svc. Comm’n, 2011 WL 3235988 (N.Y. Sup. Ct. Nassau Cty. July 21, 2011) ...................................................33 Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395 (1996) ............................................................................. 39, 52 Cocchiarella v. Joseph, 131 N.Y.S.2d 247 (Sup. Ct. N.Y. Cty. 1954), aff'd sub nom. 286 A.D. 1076 (1st Dep’t 1955) .................................... 39, 55 Corrigan v. Joseph, 304 N.Y. 172 (1952) ........................................................ passim Dashinsky v. Santjer, 32 A.D.2d 382 (2d Dep’t. 1969) ..........................................52 Don v. Joseph, 1 N.Y.2d 708, 710 (1956) ..............................................................37 Evans v. Newman, 71 A.D.2d 240 (3d Dep’t. 1979) aff'd, 49 N.Y.2d 904 (1980) ..........................................................................53 Foy v. Schechter, 1 N.Y.2d 604 (1956) ..................................................................27 Gaston v. Taylor, 274 N.Y. 359 (1937) ...................................................... 37, 53, 58 Golden v. Joseph, 307 N.Y. 62 (1954) ...................................................................37 Hanley v. Thompson, 41 A.D.3d 207 (1st Dep’t 2007) .........................................38 Joyce v. Ortiz, 108 A.D.2d 158 (1st Dep’t 1985) ...................................................32 Kitchings v. Jenkins, 85 N.Y.2d 694 (1995) ..........................................................49 Martin v. Hennessy, 147 A.D.2d 800 (3d Dep’t. 1989) .........................................26 Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149 (2001) .....................................................................................................48 Matter of Pell v. Board of Education of Union Free School District No. 1, 34 N.Y.2d 222 (1974) ...................................................................................54 v McFarland v. City of New York, 23 Misc. 3d 1127(A), 889 N.Y.S.2d 506 (Sup. Ct. N.Y. Cty. 2009) ...............................................44 Roberts v. New York City Office of Collective Bargaining, 114962/09 NYLJ 1202474686473 (11/15/10) (Sup. Ct. N.Y. Cty. Oct. 15, 2010) ...............................................................44 Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603 (1994) ...............47 S. Rd. Associates, LLC v. Int'l Bus. Machines Corp., 4 N.Y.3d 272 (2005) .........47 Servomation Corp. v. State Tax Comm'n, 51 N.Y.2d 608 (1980)..........................26 Smith v. Joseph, 275 A.D. 201 (1st Dep’t), aff’d, 300 N.Y. 516 (1949) ...............38 Soljan v. Bahou, 60 A.D.2d 946 (3d Dep’t 1978) ..................................................54 Tenalp Const. Corp. v. Roberts, 141 A.D.2d 81 (3d Dep’t 1988) .................... 57-58 Town of Southampton v. New York State Pub. Employment Relations Bd., 2 N.Y.3d 513 (2004) ............................................................................... 41, 44 Trager v. Kampe, 99 N.Y.2d 361 (2003) ................................................................32 Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470 (2004) ........47 Yatauro v. Mangano, 17 N.Y.3d 420 (2011) ..........................................................48 Weiss v. City of New York, 95 N.Y.2d 1 (2000) ...................................................26 Wood v. City of New York, 274 N.Y. 155 (1937) .................................................56 Statutes N. Y. Civil Practice Law and Rules Article 78 ................................................. 24, 54 N. Y. Civil Practice Law and Rules § 7803(3) ................................................... 3, 54 N.Y. Civil Service Law § 2 (11) ....................................................................... 25, 26 vi N.Y. Civil Service Law § 20 ............................................................................ passim N.Y. Civil Service Law § 20(1) ....................................................................... passim N.Y. Civil Service Law § 20(2) ....................................................................... passim N.Y. Civil Service Law § 52 (9) ....................................................................... 48, 49 N.Y. Civil Service Law § 200, et seq. ....................................................................43 N.Y. Civil Service Law § 201(7)(a)........................................................................43 N.Y. Civil Service Law § 201(12) ..........................................................................41 N.Y. Civil Service Law § 209 .................................................................................47 N.Y. Civil Service Law § 209-a ..............................................................................41 N.Y. Civil Service Law § 209-a(1)(e) ............................................................ passim N.Y. Labor Law § 220 ..................................................................................... passim N.Y. Labor Law § 220(5) ......................................................................................... 7 N.Y. Labor Law § 220(5)(e) ............................................................................. 31, 38 N.Y. Labor Law § 220(5)(f) ...................................................................................40 N.Y. Labor Law § 220(7) .......................................................................................40 N.Y. Labor Law § 220(8-d) ............................................................................ passim Other Sources 1998 N.Y. Atty. Gen. Op. No. 8, Formal Op. No. 98-F3, 1998 WL 111492, (March 12, 1998). ................................................................................... 29, 33 55 R.C.N.Y. § A, at Rule 5.3.2 ...............................................................................50 Budget Report on Bills, Bill Jacket, L.1976, Ch. 933 ............................................51 vii Governor’s Bill Jacket for L.1960, Ch. 73, Explanatory Memorandum Accompanying Civil Department Bill No. 9 ................................................30 Governor’s Memorandum, Governor’s Bill Jacket for L.1976, Ch. 933 ...............54 Laws of 1976, Ch. 933, Governor’s Memorandum on Legislative Bills Approved ..............................................................................................51 N.Y. City Admin. Code § 12-307(a)(1) ..................................................................44 N.Y. Const. Art. V, § 6 ...........................................................................................48 New York City Charter § 811 .................................................................................23 New York City Charter § 814(a)(2) .................................................................. 50, 47 S4011/A6689 (2001) ...............................................................................................35 S6863-A/A11306 (2002) ........................................................................................35 Triborough Bridge & Tunnel Auth., 5 PERB ¶ 3037 (1972) .................................41 Veto Message, Veto #9 (2002) ...............................................................................36 Veto Message, Veto #51 (2001) .............................................................................35 1 PRELIMINARY STATEMENT On behalf of Petitioner-Respondent Tom Klein, in his capacity as Business Manager / Secretary Treasurer of Boilermakers Local Lodge No. 5, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers ("Respondent" or “the Union”), we submit this brief in opposition to an appeal brought by Respondents-Appellants City of New York (“the City”), Michael R. Bloomberg in his capacity as Mayor of the City of New York (“Mayor”), New York City Office of Labor Relations (“OLR”), James F. Hanley in his capacity as Commissioner of OLR, New York Department of Citywide Administrative Services (“DCAS”), Edna Wells Handy in her capacity as Commissioner of DCAS, and James Hein in his capacity as Deputy Commissioner of DCAS (collectively “Appellants”) of a May 28, 2013 Decision and Order by the New York State Supreme Court, Appellate Division, First Department (“First Department”), which unanimously affirmed a June 29, 2012 Decision and Judgment by New York State Supreme Court Justice Manuel Mendez (“the Trial Court”). 1 For more than a century, employees employed by the City in maintenance 1Appellants’ appeal in Klein v. City, et al., has been consolidated with their appeal in ten other cases, bearing Index numbers 102447/12, 102601/12, 012603/12, 102604/12, 102605/12, 102606/12, 102607/12, 102608/12, 102673/12, and 102636/12. Appellants have filed their consolidated appeal under the caption Floyd v. City, et al. We respectfully refer the Court to the briefs submitted by the Respondents in the ten other appeals for a recitation of the facts and proceedings pertaining to those appeals. 2 and construction titles, including those represented by the Union, have had their wages and benefits determined in accordance with Section 220 of the New York Labor Law (“L. L.”). Pursuant to L. L. § 220(8-d), enacted in 1976, the City and the covered employees’ bargaining representatives have bargained in good faith over those employees’ wages and supplemental benefits, and have entered into binding agreements compromising the prevailing rates of wages and supplemental benefits to be paid and provided to those employees. On April 11, 2012, however, Appellants unilaterally announced a plan to modify and amend the City’s Personnel Rules and Regulations by eliminating the entire pay classification under which wages and benefits for those employees, including Boilermakers, Blacksmiths, and related trades represented by the Union, are determined pursuant to L. L. § 220(8-d). Appellants’ plan called for reclassifying those employees - currently totaling approximately 10,000 in 106 titles - into newly-created “graded” pay and position classifications, with minimum salaries far lower than those that the City is contractually and legally bound to pay, and eliminating or reducing the welfare, annuity, leave and other benefits that the City is contractually and legally bound to provide. On May 28, 2013, the First Department unanimously affirmed a June 29, 2012 Decision and Judgment by the Trial Court that annulled Appellants’ sweeping and unlawful reclassification plan. The First Department held that 3 Appellants’ plan was properly annulled because Appellants had modified and amended the City’s Personnel Rules and Regulations without providing notice, conducting a public hearing, or obtaining the New York State Civil Service Commission’s approval, as required by Section 20(2) of the New York Civil Service Law (“CSL”). While the First Department and the Trial Court determined that Appellants’ violation of CSL § 20(2) was sufficient to invalidate the plan, the Trial Court found additional grounds for annulling the plan. Namely, it determined (a) that the plan abrogated binding, collectively bargained agreements that the City entered into with the Union pursuant to L. L. § 220(8-d), which set wages and supplemental benefits for the Union’s bargaining unit members, and which remain in effect pursuant to CSL § 209-a(1)(e); and (b) that the plan was affected by an error of law and had no rational basis, and was, therefore, “arbitrary and capricious” within the meaning of Section 7803(3) of the New York Civil Practice Law and Rules (“CPLR”). For the following reasons, Appellants’ baseless arguments challenging the First Department’s and Trial Court’s decisions should be soundly rejected. First, the First Department and the Trial Court properly annulled the reclassification plan because Appellants failed to comply with CSL § 20(2). That statute provides that the City can only modify or amend its Personnel Rules after providing notice, conducting a public hearing, and obtaining the New York State 4 Civil Service Commission’s approval. Appellants, however, imposed the reclassification plan through unilaterally-issued Executive Orders, thereby depriving the public of an opportunity to be heard, and evading State Civil Service Commission review. Contrary to Appellants’ claim, the changes to the City’s Personnel Rules and Regulations set forth in the reclassification plan -- including elimination and creation of pay classifications and creation of new position classifications-- are modifications and amendments to the City’s Personnel Rules and Regulations that are not exempt from the procedural requirements of CSL § 20(2). Second, the Trial Court properly found that the reclassification plan breached binding, collectively bargained agreements that the City entered into with the Union pursuant to L. L. § 220(8-d), and remain in effect as a matter of contract and law, by imposing significantly diminished wages and benefits for employees in titles covered by those agreements. Appellants do not, as they claim, have a “managerial power” to abrogate those agreements and thereby subvert the mandate and purpose of L. L. § 220(8-d) and CSL § 209-a(1)(e), by unilaterally reclassifying the Union’s members into “graded” pay classifications. On the contrary, Appellants are bound, by contract, L. L. § 220(8-d), and CSL § 209- a(1)(e), to pay the agreed-to wages and supplemental benefits until they are replaced by other negotiated terms. 5 Third, the Trial Court properly annulled the reclassification plan as “arbitrary and capricious” because Appellants acted in violation of CSL § 20(2), L.L. § 220(8-d) and CSL § 209-a(1)(e), and failed to provide a rational basis for assigning employees in the affected titles to graded pay classifications, thereby diminishing their wages and benefits and effectively demoting them. While Appellants claim that it is “inequitable and sub-optimal” for the affected employees to be paid “private sector rates,” those employees’ wages and benefits, in fact, are determined through collective bargaining with the City pursuant to L. L. § 220(8-d), and represent a mutually agreed compromise of private sector prevailing rates. The inequity in the instant case is not the parties’ negotiated agreements, but the City’s attempt, in breach of statutory procedures and contractual and legal obligations, to renounce those binding contracts by Mayoral fiat. For the reasons set forth herein, the First Department’s decision should be affirmed. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the First Department properly affirm the Trial Court’s decision to annul Appellants’ reclassification plan, when that plan modified and amended the City’s Personnel Rules and Regulations, but Appellants failed to provide notice, 6 conduct a public hearing, and obtain the approval of the New York State Civil Service Commission before issuing the plan, as required by CSL § 20(2)? 2. Did the Trial Court properly annul Appellants’ reclassification plan, when that plan abrogated binding agreements setting wages and supplemental benefits for titles represented by the Union, which the City has negotiated and entered into with the Union pursuant to L. L. § 220(8-d), and which remain in effect pursuant to CSL § 209-a(1)(e)? 3. Did the Trial Court properly annul Appellants’ reclassification plan as “arbitrary and capricious,” when the plan was affected by errors of law and Appellants failed to provide a rational basis for the plan? COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY For more than a century, City employees in skilled trades titles, including those represented by the Union, have had their wages and benefits determined in accordance with L. L. § 220. (Record on Appeal (“R.”) 838 ¶ 1). This practice is set forth in the City’s Personnel Rules and Regulations, promulgated by DCAS (“DCAS Rules”), which establish, among other things, pay classifications for civil service employees. (R. 843 ¶ 16). Rule X of the DCAS Rules governs the civil service employees employed in titles represented by the Union, and specifies, in a pay classification identified as “Part 38,” that those employees’ wages and benefits will be established in accordance with L. L. § 220. (Id.). By contrast, City 7 employees employed in titles that are not covered by “Part 38” are paid in accordance with a pay structure known as “the Career and Salary Plan.” (Id.). As set forth on pages 37 to 39 herein, L. L. § 220 was enacted to protect and provide social justice for “laborers, workers and mechanics” who perform public work by ensuring that they receive the “prevailing” rates of wages and “supplements” that are paid to private sector employees in the same occupation and locality.1 The protections set forth in L. L. § 220 apply to all “laborers, workmen or mechanics” who perform public work in the City, whether they are employed directly by the City or by public work contractors. (See pages 37 and 58 herein). For nearly four decades, the procedure for determining the wages and supplemental benefits for City employees covered by L. L. § 220 has been set forth in L. L. § 220(8-d). That law states, in pertinent part, Notwithstanding any inconsistent provision of this chapter or of any other 1 L. L. § 220(5) defines the “prevailing” wage rate as: the rate of wage paid in the locality. . . by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector, performing public or private work provided that said employers employ at least thirty per centum of workers, laborers or mechanics in the same trade or occupation in the locality where the work is being performed. L. L. § 220(5) defines “supplements” as: all remuneration for employment paid in any medium other than cash, or reimbursement for expenses, or any payments which are not "wages" within the meaning of the law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay life insurance, and apprenticeship training. 8 law, in a city of one million or more, where a majority of laborers, workmen or mechanics in a particular civil service title are members of an employee organization which has been certified or recognized to represent them pursuant to the provisions of article fourteen of the civil service law or a local law enacted thereunder, the public employer and such employee organization shall in good faith negotiate and enter into a written agreement with respect to the wages and supplements of the laborers, workmen or mechanics in the title. If the parties fail to achieve an agreement, only the employee organization shall be authorized to file a single verified complaint pursuant to subdivision seven herein, on behalf of the laborers, workmen or mechanics so represented. . . . Any order, compromise, or settlement determining the issues raised upon such a proceeding, which has not been taken up for review by the employee organization, shall be binding upon the laborers, workmen or mechanics represented by the employee organization. L. L. § 220(8-d)(emphasis added). Thus, contrary to Appellants’ assertion, L. L. § 220(8-d) does not mandate that covered employees “have wages set at private sector levels.” (Appellants’ Brief (“App. Brief”) at 2). Rather, L. L. § 220(8-d) requires the City and its employees’ representatives to negotiate “in good faith” and attempt to “achieve an agreement” as to employees’ wages and supplemental benefits. Through this mandated bargaining process, the City and its employees’ representatives - including the Union - have reached a series of collectively bargained wage and benefit agreements, which have been entered by the Comptroller as Consent Determinations. (R. 845 ¶ 20). As provided in L. L. § 220(8-d), and as explained at pages 37 to 38 herein, Consent Determinations are binding contracts that “compromise” or “settle” the parties’ disputes over the wages and benefits to be paid to the covered employees. 9 Further, under CSL § 209-a (1)(e),2 Consent Determinations remain in full force and effect until they are superseded by successor agreements. As explained at pages 40 to 42 herein, under this provision of the CSL, known as the “Triborough Doctrine,” public employees, in lieu of having a right to strike, are assured that the terms and conditions of employment set forth in expired collective bargaining agreements cannot be unilaterally abrogated or altered during negotiations over successor agreements. A. The Consent Determinations The Union’s bargaining unit members at issue consist of employees in the civil service titles Blacksmith, Blacksmith Helper, Supervisor Blacksmith, Boilermaker, Supervisor Boilermaker, and Boilermaker’s Helper. There are approximately 33 employees in these titles combined. (R. 841 ¶ 9). On or about April 17, 2008 the Union submitted Verified Complaints to the New York City Comptroller, pursuant to L. L. § 220(5)(f), (7), and (8-d), asserting that employees in the civil service titles represented by the Union had not been paid at prevailing rates of wages and supplemental benefits. (R. 845 ¶ 20). 2 CSL § 209-a (1)(e) provides that It shall be an improper practice for a public employer or its agents deliberately . . . to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, unless the employee organization which is a party to such agreement has, during such negotiations or prior to such resolution of such negotiations, engaged in conduct violative of subdivision one of section two hundred ten of this article. . . . CSL § 209-a (1)(e). 10 Following collective bargaining mandated by L. L. § 220 (8-d), the Union and OLR, acting on behalf of the City and certain other public employers, entered into agreements compromising and settling the Union’s complaint concerning the hourly rates of wages paid to, and supplemental benefits provided to, or on behalf of, all current and future employees in the civil service titles represented by the Union. (R. 845 ¶ 21). On May 27, 2009, those agreements, which for the Blacksmith series of titles covered the period August 3, 2008 through August 2, 2010, and for the Boilermaker series of titles covered the period February 3, 2008 to February 2, 2010, were entered by the New York City Comptroller as Consent Determinations (hereinafter “the Consent Determinations”), pursuant to L. L. § 220 (8-d). (Id.; R. 859-91). The Consent Determinations provide that “The basic rates and supplemental benefits herein are not to be construed as true prevailing rates and supplemental benefits but shall be considered rates and benefits in compromise and settlement of all issues of law and fact.” (R. 863, 880). Each Consent Determination includes a “General Release and Waiver,” in which the Union agrees to release the City from claims that the Union has or might have against it under L. L. § 220. (R. 845 ¶ 21, 865, 882). The General Release and Waiver states that the Union agrees to waive its rights under L. L. § 220 in consideration for the wage rates and supplemental benefit rates set forth in the Consent Determination, which is referred to as a “collective bargaining 11 agreement.” (Id.). The Consent Determinations require that the City make certain payments to the Union’s Welfare Fund and Retiree Welfare Fund for the titles covered by the agreement. (R.845-46 ¶ 22). These funds provide, among other things, medical benefits and life insurance to the Union’s members. (Id.). Each Consent Determination also contains an “Appendix A,” which sets forth additional economic terms and conditions for the covered titles, including the parties’ understandings with respect to employees’ annual leave, sick leave, terminal leave, leaves of absence, and holidays. (Id.). Pursuant to CSL § 209-a (1)(e), the provisions of the Consent Determinations have remained in effect since their covered periods ended, and will remain in effect until they are superseded by successor agreements. (R. 846 ¶ 23). To date, no successor Consent Determinations covering any of the titles represented by the Union have been agreed to or entered by the New York City Comptroller. (Id.). B. The City’s Reclassification Plan On April 11, 2012, DCAS issued a document entitled “Determination of Personnel Commissioner’s Calendar” (“DCAS Determination”). (R. 846 ¶ 27, R. 893-900). The DCAS Determination completely eliminated Part 38 (applicable to employees covered by L. L. § 220) from the pay classifications in DCAS’s Rules, 12 thereby affecting approximately 10,000 public employees in approximately 106 titles, including those represented by the Union. (R. 26, 846 ¶ 24). In an item labeled D-153, the DCAS Determination states: The classification of the Classified Service of the City of New York is hereby amended, effective April 11, 2012, under the headings and rules and under the pay plans indicated below, and with the salary grades indicated in the classification resolution . . . [b]y deleting from the Competitive Class, under Rule X, the heading SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassifying the titles thereunder as indicated herein. (R. 846 ¶ 24, 894) (emphasis added). Having amended the DCAS Rules to eliminate Part 38, the DCAS Determination proceeded to reclassify each civil service title that had been covered under that pay classification. (R. 846 ¶ 26). It reclassified the civil service titles Boilermaker and Supervisor Boilermaker into a new pay classification entitled “Plant Maintenance Service” that is subject to a “Plant Maintenance Service Pay Plan.” (Id.). The title Boilermaker’s Helper is not mentioned. (Id.). The DCAS Determination also reclassified the civil service titles Blacksmith and Blacksmith’s Helper into a new classification entitled “Metal Work Service” that is subject to a “Metal Work Service Pay Plan.” (R. 846-47 ¶ 26). It did not mention the title Supervisor Blacksmith. (R. 847 ¶ 26). Also on April 11, 2012, the Mayor issued two Executive Orders: Mayor’s Personnel Order 2012/1 (“MPO 2012/1") and Mayor’s Personnel Order 2012/2 (“MPO 2012/2") (collectively “the Executive Orders”). (R. 847 ¶ 28, 902-08, 910- 13 18). The Union first learned about the DCAS Determination and the Executive Orders when they were issued on April 11, 2012. (R. 849 ¶ 34). At no point before Appellants issued the DCAS Determination and Executive Orders did any person acting on Appellants’ behalf notify the Union, conduct a public hearing, or otherwise solicit any input from the Union. (Id.). Appellants also promulgated the reclassification plan without providing public notice, conducting a public hearing, or obtaining the approval of the New York State Civil Service Commission. (Id.). MPO 2012/1 purports to establish a series of new pay plans upon the recommendation of the DCAS Commissioner, pursuant to Section 814 of the New York City Charter, collectively referred to as the “Maintenance and Operations Services Pay Plans.” (R. 847 ¶ 29). Among the pay plans created by MPO 2012/1 are the Plant Maintenance Service Pay Plan and the Metal Work Service Pay Plan. (Id.). As explained above, the DCAS Determination reclassified civil service titles represented by the Union into these pay plans. (Id.). The Plant Maintenance Service Pay Plan consists of four grades. (Id.). Three of the four grades, “Journey- Level,” “Supervisor,” and “Supervising Supervisor” are assigned minimum and maximum salaries. (Id.). The other grade, “Helper/Entry-Level,” is marked “n/a” and does not have a salary range. (Id.). The Metal Work Service Pay Plan also consists of a series of four grades. (Id.). Three of the four grades, “Helper/Entry- Level,” “Journey-Level” and “Supervisor,” are assigned minimum and maximum 14 salaries. (Id.). The other grade, “Supervising Supervisor,” is marked “n/a” and does not have a salary range. (Id.). MPO 2012/1 states that employees in each title reclassified by the Executive Order, other than incumbent employees, will be subject to the “Alternative Career and Salary Plan Regulations.” (R. 847-48 ¶ 30). Under MPO 2012/1, employees hired on or after April 11, 2012 “shall initially receive a salary within the applicable grade of the applicable pay plan, subject to a final determination of the salary range for such services pursuant to procedures set forth in applicable provisions of Article 14 of the Civil Service Law and the New York City Collective Bargaining Law.” (R. 848 ¶ 30). Thus, under Appellants’ plan, employees hired on or after April 11, 2012 in any of the affected titles will not be paid the wages that the City and the Union agreed, in the Consent Determinations, to pay employees in those titles, even though the Consent Determinations covering those titles have remained in effect since June 30, 2008 pursuant to CSL § 209- a(1)(e). Appellants did not, as they claim, “maintain the status quo with respect to salaries and time and leave for all present incumbents of the affected titles.” (App. Brief at 11). Under MPO 2012/1, those incumbent employees will be paid for work that they performed before April 11, 2012 in accordance with L. L. § 220. (R. 848 ¶ 31, 907). For work performed after April 11, 2012, however, incumbent 15 employees “shall initially receive the wages applicable to his/her title for the period immediately prior to the effective date of this Order until the salary range for the grade is determined pursuant to procedures set forth in applicable provisions of Article 14 of the Civil Service Law and the New York City Collective Bargaining Law.” (Id.). MPO 2012/1 directs that L. L. § 220 will not apply to bargaining for the period April 11, 2012 forward. (Id.). MPO 2012/1 contains additional provisions for determining salary increases for employees who are promoted into a title covered by the Maintenance and Operations Services Pay Plans. Under MPO 2012/1, those employees will receive the greater of either the lowest salary in the new title, or a $1,000 per year salary increase. (R. 848 ¶ 32). Under the Executive Orders, therefore, current Civil Service employees who promote into a title covered by the Maintenance and Operations Services Pay Plans, like employees newly-hired into those titles, will not be covered by the Consent Determinations containing the negotiated wage and benefit rates for that title. (Id.). Appellants are incorrect when they claim that “grading is all that the City has done in this case.” (App. Brief at 19). MPO 2012/2 establishes Leave Regulations for employees in titles covered by the pay plans created by MPO 2012/1 who are appointed on or after April 11, 2012. (R. 848 ¶ 33). The Leave Regulations cover, among other things, annual leave, sick leave, terminal leave, 16 leaves of absence, and holidays. (Id.). The Leave Regulations in MPO 2012/2 replace those set forth in Appendix A to the Consent Determinations for employees hired or promoted into covered titles on or after April 11, 2012. (R. 848-49 ¶ 33). Further, although MPO 2012/1 states that the Leave Regulations in MPO 2012/2 do not apply to incumbent employees, it does not state whether the leave and other benefit provisions in Appendix A to the Consent Determinations will remain in effect for these employees, or whether those provisions will be subject to renegotiation for the period April 11, 2012 forward. (R. 907). Nor do MPO 2012/1 or MPO 2012/2 state whether the provisions of the Welfare Fund agreements and the Annuity Fund agreements will remain in effect for any employees covered by those agreements (whether incumbent, newly-hired, or promoted into a title) after April 11, 2012. The terms of employment that the City unilaterally imposed on civil service titles represented by the Union under MPO 2012/1 and MPO 2012/2 are far less favorable and far less protective than those that were agreed upon and set forth in the Consent Determinations, and that remain in effect pursuant to CSL § 209- a(1)(e). (R. 849 ¶ 35). While the Consent Determinations require that covered employees be paid on an hourly basis, MPO 2012/1 makes these employees salaried, setting a minimum and a maximum salary for each grade in each newly-created pay 17 classification. (R. 849 ¶ 36). The lowest end of the salary ranges in the pay plans covering the civil service titles Blacksmith’s Helper3 and Blacksmith4 amount to reductions in pay, compared with what employees in those titles had earned under the agreed-upon wage rates in the Consent Determinations. As the Trial Court specifically noted (R. 27), for employees in the titles Boilermaker,5 Supervisor Boilermaker6 , and Supervisor Blacksmith7, even the highest end of the salary 3 The most recent straight-time pay rate for a Blacksmith’s Helper under the Consent Determination is $36.18 per hour. (R. 850 ¶ 36). Under the Consent Determination, Blacksmith’s Helpers who are paid for 8 hours of work every weekday will earn approximately $75,212.80. (Id.). The minimum annual salary range for a Helper/Entry Level worker in the Metal Work Maintenance Service Pay Plan established by MPO 2012/1, however, is $72,000. (Id.). 4 The most recent straight-time pay rate for a Blacksmith under the Consent Determination is $48.24 per hour. (R. 850 ¶ 36). Under the applicable Consent Determination, Blacksmiths who are paid for 8 hours of work every weekday will earn approximately $100,339.20 per year. (Id.). The minimum annual salary range for a Journey-level worker in the Metal Work Maintenance Service Pay Plan established by MPO 2012/1, however, is $90,000. (Id.). 5 The most recent straight-time pay rate for a Boilermaker under the applicable Consent Determination is $48.24 per hour. (R. 849 ¶ 36). Under the Consent Determination, Boilermakers who are paid for 8 hours of work every weekday will earn approximately $100,339.20 per year. (Id.). The annual salary range for a Journey-level worker in the Plant Maintenance Service Pay Plan established by MPO 2012/1, however, is between $65,000 and $86,000. (R. 849-50 ¶ 36). 6 The most recent straight-time pay rate for a Supervisor Boilermaker under the applicable Consent Determination is $55.09 per hour. (R. 849 ¶ 36). Under the Consent Determination, Supervisor Boilermakers who are paid for 8 hours of work every weekday will earn approximately $114, 587.20 per year. (Id.). The annual salary range for a Supervisor in the Plant Maintenance Service Pay Plan established by MPO 2012/1, however, is between $85,000 and $105,000. (Id.). 7 The most recent straight-time pay rate for a Supervisor Blacksmiths under the Consent Determination is $55.09 per hour. (R. 850 ¶ 36). Under the Consent Determination, Supervisor Blacksmiths who are paid for 8 hours of work every weekday will earn $114,587.20 per year. (Id.). The annual salary range for a Supervisor in the Metal Work Maintenance Service Pay Plan established by MPO 2012/1, however, is between $98,000 and $ 114,000. (Id.). 18 ranges is less than what those employees had earned. For the title Boilermaker’s Helper,8 MPO 2012/1 contains no corresponding salary range. (R. 847 ¶ 29). MPO 2012/2 severely restricts the amount of annual leave that covered employees receive, compared with the amounts they receive under the Consent Determinations. (R. 851 ¶ 37). The Consent Determinations for the Boilermaker series of titles gives Boilermakers 24 annual leave days, Boilermaker’s Helpers 22 annual leave days, and Supervisor Boilermakers 25 annual leave days. (Id.). The Consent Determinations for the Blacksmith series of titles gives Blacksmiths 26 annual leave days, Blacksmith’s Helpers 24 annual leave days, and Supervisor Blacksmiths 27 annual leave days. (Id.). Under MPO 2012/2, however, employees in every one of these titles who work 40 hours per week will receive 80 hours (10 days) of annual leave in their first to fourth years, 120 hours (15 days) of annual leave starting their fifth year, and 160 hours (20 days) starting their 11th year. (Id.). MPO 2012/2 cuts the number of employee sick days in half. (R. 851 ¶ 38). Appendix A of the Consent Determinations provides employees with one sick day per one month of service; MPO 2012/2 provides employees with one day of sick leave for every two months of service. (Id.). 8 The most recent straight-time pay rate for a Boilermaker’s Helper under the applicable Consent Determination is $36.18 per hour. (R. 849 ¶ 36). There is no annual salary range for a Helper/Entry Level worker in the Plant Maintenance Service Pay Plan established by MPO 2012/1. (Id.). 19 Appendix A of the Consent Determinations allows employees to choose either one month of terminal leave for every ten years of service, or one day of terminal leave for every two unused sick days, up to a maximum of 100 terminal leave days. (R. 851 ¶ 39). MPO 2012/2 provides employees with one day of terminal leave for every three unused sick days, to a maximum of 70 days of terminal leave. (Id.). Appendix A of the Consent Determinations provides that “Upon reinstatement of an employee to a permanent position, unused sick leave and vacation balance at the time of resignation or layoff, shall be restored to his credit.” (R. 851 ¶ 40). MPO 2012/2 eliminates this provision. (Id.). Appendix A of the Consent Determinations permits employees not covered by Worker’s Compensation who are disabled on the job to have a leave of absence with pay for up to one year, and permits employees covered by Worker’s Compensation who are disabled on the job to have a one-week absence with pay. (R. 851-52 ¶ 41). MPO 2012/2 eliminates these provisions. (Id.). Appendix A of the Consent Determinations includes Lincoln’s Birthday and Election Day as annual, paid holidays. (R. 852 ¶ 42). Under MPO 2012/2 Lincoln’s Birthday is no longer a paid holiday, and Election Day is only a paid holiday in a presidential election year. (Id.). While the Consent Determinations require City employers to make Welfare 20 Fund and Annuity Fund contributions on behalf of covered employees, the Executive Orders omit these requirements. (R. 852 ¶ 43). Without contributions from the City on behalf of covered employees, the Welfare Fund and the Annuity Fund will not be able to provide the benefits referenced above. (Id.). Thus, according to the Executive Orders, all employees hired or promoted into titles covered by the reclassification plan on or after April 11, 2012 will not receive the wages and benefits provided in the Consent Determinations covering these titles, but instead will receive the dramatically less favorable terms set forth in the Executive Orders. (R. 852 ¶ 44). Further, although Appellants say they will bargain with the Union over wages and benefits to be paid and provided to newly hired and promoted employees, such bargaining over wages will be restricted to the “graded” wage ranges set forth in the MPO 2012/1, and to the drastically reduced benefit limits and other terms of employment contained in MPO 2012/2. (Id.). Similarly, although the Executive Orders state that, while bargaining for new wages and benefits proceeds under MPO 2012/1 and MPO 2012/2, incumbent employees will receive the same terms and conditions of employment they received before April 11, 2012 this bargaining will be restricted to the “graded” wage ranges set forth in MPO 2012/1, and to the drastically reduced benefit limits and other terms of employment contained in MPO 2012/2. (R. 852 ¶ 45, 907). 21 Further, under the Executive Orders, such bargaining will not be conducted pursuant to L. L. § 220(8-d), which the City has effectively disavowed, along with the negotiated agreements it has entered into pursuant to that statute. (Id.). C. Procedural History On May 4, 2012, the Union challenged Appellants’ reclassification plan by submitting a Verified Petition by Order to Show Cause, pursuant to Article 78 of the CPLR. (R. 834-36). Several other unions whose members would be affected by the reclassification plan initiated similar actions on or about the same day. The Union’s Order to Show Cause contained a request for a Temporary Restraining Order (“TRO”) enjoining Appellants from implementing the reclassification plan. (Id.). On May 4, 2012, the Trial Court heard the parties’ arguments and granted the Union’s request for a TRO. (R. 832). The Trial Court heard oral arguments on the Verified Petition on June 13, 2012. On June 29, 2012, the Trial Court issued a Decision and Judgment annulling the City’s reclassification plan. (R. 24-28). The Trial Court found that Appellants had failed to comply with the procedural requirements of CSL § 20(2), and that the “reclassification does not have a rational basis and is arbitrary and capricious.” (R. 28). On August 9, 2012, Appellants submitted a Notice of Appeal of the June 29, 2012 Decision and Judgment. (R. 21-22). 22 On May 28, 2013, the First Department unanimously affirmed the Trial Court’s June 29, 2012 Decision and Judgment, upholding the Trial Court’s determination that Appellants had violated the procedural requirements of CSL § 20(2). (R.2821-23). It explained that Pursuant to the subject Mayoral Personnel Orders, the City issued rules reclassifying ungraded civil service titles subject to prevailing wage bargaining under Labor Law § 220 as graded workers subject to bargaining under the New York City Collective Bargaining Law without complying with the procedures mandated by Civil Service Law § 20, i.e., notice, a public hearing, and approval by the State Civil Service Commission, which are applicable to those rules (see Matter of Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924 [1953]). (R. 2823). On August 29, 2013, this Court granted Appellants’ Motion for Leave to Appeal the First Department’s May 28, 2013 Decision and Order. (R. 2819). ARGUMENT POINT I THE FIRST DEPARTMENT AND THE TRIAL COURT PROPERLY DETERMINED THAT THE CITY’S RECLASSIFICATION PLAN SHOULD BE ANNULLED BECAUSE APPELLANTS FAILED TO COMPLY WITH CSL § 20(2). Under CSL § 20, personnel rules for civil service employees cannot be adopted or modified until the public has been notified of the proposal and provided with an opportunity to be heard, and the New York State Civil Service Commission has given the proposal its approval. Appellants, however, adopted and modified DCAS’s rules by Executive Order, depriving the public of prior 23 notice and the opportunity to be heard concerning the plan, and evading State Civil Service Commission oversight. The First Department and the Trial Court properly determined that Appellants’ sweeping reclassification plan was subject to the procedural requirements of CSL § 20, and must be annulled for Appellants’ failure to comply with those requirements. (R. 37, 2823). A. Appellants’ Reclassification Plan Was Properly Annulled Because Appellants Failed to Comply with the Procedural Requirements of CSL § 20(2) In New York City, DCAS administers the CSL pursuant to Chapter 35 of the New York City Charter, which invests DCAS with “all of the powers and duties of a municipal civil service commission.”9 CSL § 20 authorizes and directs DCAS to promulgate, amend and enforce personnel rules for civil service employees. CSL § 20(1) states: Each municipal civil service commission shall prescribe, amend and enforce suitable rules for carrying into effect the provisions of this chapter and of section six of article five of the constitution of the state of New York, including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, for the position classification of such offices and employments, for examinations therefor 9 Section 811 of the New York City Charter provides that The [DCAS] commissioner shall be responsible for citywide personnel matters, as set forth in this chapter, and shall have all the powers and duties of a municipal civil service commission provided in the civil service law or in any other statute or local law other than such powers and duties as are by this chapter assigned to the mayor, the city civil service commission or the heads of city agencies[.] New York City Charter § 811 (emphasis added). 24 and for appointments, promotions, transfers, resignations and reinstatements therein, all in accordance with the provisions of this chapter. CSL § 20(1) (emphasis added). CSL § 20(2) contains a specific procedure for adopting or modifying personnel rules: Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. . . . The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor or a deputy mayor designated in writing by the mayor, such designation to be filed in the offices of the state civil service commission, and the municipal civil service commission, or city manager or other authority, as the case may be, having the general power of appointment of city officers and employees, and the state civil service commission; CSL § 20(2) (emphasis added). Appellants’ reclassification plan is subject to CSL § 20(2) because it modified DCAS’s rules, and adopted new DCAS rules. Specifically, (a) the DCAS Determination modified DCAS’s rules by completely eliminating an entire pay category (Part 38) from DCAS’s pay classifications, and by reclassifying the civil service title that had been covered under the eliminated pay classification into numerous newly-created pay classifications (R. 998 ¶¶ 28-29); (b) MPO 2012/1 adopted new DCAS rules by creating new pay classifications (R. 999 ¶ 32); and (c) MPO 2012/2 modified DCAS’s rules and adopted new DCAS rules by establishing new Leave Regulations for employees in titles covered by the new pay 25 classifications created by MPO 2012/1 who are appointed on or after April 11, 2012 (R. 1000 ¶ 36). In addition, the procedural requirements of CSL §§ 20(1) and (2) expressly apply to adoption of, or changes to, employees’ “position classification[s],” which are defined, at CSL § 2(11), as “a grouping together, under common and descriptive titles, of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements therefor.” By the DCAS Determination MPO 2012/1 and MPO 2012/2, Appellants altered employees’ “position classification” by grouping them into newly-created position classifications, based on their asserted character, duties, responsibilities and qualification requirements. (R. 999 ¶ 32). Indeed, in an April 3, 2012 memorandum, DCAS’s Director of Classification and Compensation acknowledged as much, stating that, in formulating the reclassification plan, DCAS “reviewed each set of titles in a promotion series, considering the tasks performed, the training and experience required to perform those tasks, required licenses and certifications and other factors related to the kind of work to be performed by employees in those titles” and, based on that information, “determined that the affected titles had commonalities supporting the creation of” new classifications that “group titles together by the nature of their work and by their lines of promotion.” (R. 1444-45). Accordingly, in their brief, Appellants acknowledge 26 that “ DCAS reviewed all of the specified titles, considering tasks performed, the training and experience required to perform those tasks, required licenses and certifications and other similar factors” and “determined that the affected titled had commonalities supporting the creation of fourteen services.” (App. Brief at 8-9) Thus, Appellants admittedly modified “position classifications” for the affected titles, within the meaning of CSL § 20(1) and CSL § 2(11), without complying with the procedural requirements of CSL § 20(2), which explicitly apply to such modifications. At no point before issuing the DCAS Determination or the Executive Orders did Appellants comply with the procedural requirements of CSL § 20(2) by conducting a public hearing on at least three days’ notice, and by obtaining the approval of the New York State Civil Service Commission. (R. 849 ¶ 34). “It is well settled that ‘[a]n administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature.’” Martin v. Hennessy, 147 A.D.2d 800, 810 (3d Dep’t 1989) (holding that an agency resolution reclassifying employees without following the procedural requirements of CSL § 20 was invalid) (quoting Servomation Corp. v. State Tax Comm'n, 51 N.Y.2d 608, 612 (1980); see Weiss v. City of New York, 95 N.Y.2d 1, 4-5 (2000)(“It is a fundamental principle of administrative law that an agency cannot promulgate rules or regulations that contravene the will of the Legislature. . . If an agency rule 27 or regulation is ‘out of harmony’ with an applicable statute, the statute must prevail.”). The First Department’s decision to annul the reclassification plan for failing to comply with the procedural requirements of CSL § 20 should therefore be affirmed. The First Department’s decision cited to, and is consistent with, Corrigan v. Joseph, 304 N.Y. 172, 185 (1952), in which this Court determined that the New York City Municipal Civil Service Commission’s decision to reclassify civil service employees from ungraded to graded pay classifications was invalid because the procedural requirements of CSL § 11 (1909), the predecessor to CSL § 20(2), had not been satisfied. (R. 2823). Specifically, this Court held that the wage grades for the new classifications were ineffective because they had not been approved by the Mayor and the State Civil Service Commission. Id. at 185; see Foy v. Schechter, 1 N.Y.2d 604, 610 (1956); Auguti v. City Civ. Serv. Comm’n of the City of N.Y., 9 Misc 2d 349, 351-52 (Sup. Ct. N.Y. Cty. 1957)(holding that a civil service title could not be reclassified from the “Part 38” ungraded pay plan to a graded pay plan, so long as the reclassification had not been approved by the State Civil Service Commission); Burri v. Kern, 39 N.Y.S.2d 640, 644 (Sup. Ct. N.Y. Cty. 1943)(holding that the reclassification of civil service employees’ pay grades was invalid without the approval of the New York State Civil Service Commission). 28 B. The Legislature Did Not Supersede this Court’s Determination that Reclassifications of the Type Attempted by Appellants Are Subject to the Procedural Requirements of CSL § 20(2) In their appeal, Appellants erroneously claim that a 1960 amendment to CSL § 20 exempts the reclassification plan from the procedural requirements of CSL § 20(2) and supersedes this Court’s interpretation of that law in Corrigan. That argument should be rejected because it is contrary to the text and legislative history of CSL § 20, and the case law interpreting that statute. The 1960 amendment provides that the rules of a municipal civil service commission need not name or list specific positions in the competitive class, or specify the salary grade to which a position in any jurisdictional class is allocated. It states: Nothing in this chapter or any other law shall be construed to require that positions in the competitive class be specifically named or listed in such rules, or that the salary grade to which a position in any jurisdictional class is allocated be specified in such rules. CSL § 20(1). On its face, the text of this amendment provides no support for Appellants’ claim that the City was exempt from the procedural requirements of CSL § 20(2) when it modified its personnel rules by reclassifying 10,000 of its employees in 106 titles into newly-created graded pay and position classifications. The 1960 amendment merely allows civil service commissions to not list competitive class civil service titles and salary grade information in their rules. Having established a pay classification (i.e., Part 38) requiring that employees in 29 that classification be paid in accordance with L. L. § 220, however, Appellants cannot eliminate that pay classification and reclassify employees into new, graded pay classifications without complying with CSL § 20(2). Corrigan, 304 N.Y. at 185; see 1998 N.Y. Atty. Gen. Op. No. 8, Formal Op. No. 98-F3, 1998 WL 111492, (March 12, 1998) (determining that the City of New York must comply with CSL § 20(2) before creating new titles and reclassifying existing titles). Similarly, having established position classifications for the employees in question (the Skilled Craftsman and Operative Service, Part 38, including Blacksmith, Blacksmith Helper, Supervisor Blacksmith, Boilermaker, Supervisor Boilermaker, and Boilermaker’s Helper), Appellants cannot regroup those employees into entirely new position classifications (e.g., “the Plant Maintenance Service” and “the Metal Work Service”) without complying with CSL § 20(2). Id. The elimination of the Part 38 classification from DCAS’s Rules, and the reclassification of employees from Part 38 to new, graded pay classifications and new position classifications, plainly modified the DCAS Rules and, as such, triggered the procedural requirements of CSL § 20(2). Further, the legislative history of the 1960 amendment demonstrates that the Legislature did not intend to exclude the type of reclassification at issue here from the requirements of CSL §20(2). An Explanatory Memorandum contained in the Bill Jacket for the 1960 amendment explains that the enactment was intended to 30 relieve municipal civil service commissions from obtaining State Civil Service Commission approval of routine, non-controversial changes to job titles and salary grades, which were then being submitted for approval at a rate of six per month. Governor’s Bill Jacket for L.1960, Ch. 73, Explanatory Memorandum Accompanying Civil Department Bill No. 9. The Explanatory Memorandum explains that “Obviously the rules [in CSL §20(2)] were designed to cover matters that are truly legislative in character rather than pronouncements of a routine administrative nature.” Id. Appellants’ reclassification plan is not a “pronouncement of a routine administrative nature.” Appellants did not simply change employees’ job titles or modify their preexisting salary ranges. Instead, Appellants changed the entire method by which the wages and benefits of approximately 10,000 public employees in approximately 106 titles are determined. (R. 26). Breaking more than 100 years of precedent, Appellants also declared that they would (a) cease bargaining with dozens of certified labor unions under L. L. § 220(8-d), (b) abrogate labor contracts that they had agreed to in negotiations with those unions pursuant to L. L. § 220(8-d), (c) terminate the requirement that covered employees’ wage rates and benefits be established in accordance with L. L. § 220(8-d), and (d) seize the authority to determine those employees’ wage rates and benefits, in the absence of a negotiated agreement, from the “fiscal officer” under L. L. § 220(8-d) 31 (in New York City, the Comptroller (L. L. § 220(5)(e)). These actions represent a seismic policy shift that is “legislative in character,” and that cannot be shielded from the notice, public hearing and State Civil Service Commission approval requirements of CSL § 20(2). Appellants attempt to dismiss this legislative history by claiming that only changes in jurisdictional classification (i.e., employees’ status in the competitive, non-competitive, exempt, or labor class) or “similar changes” are “legislative in character” and subject to the procedural requirements of CSL § 20(2). (App. Brief at 23). There is no support for this claim in the text or legislative history of the statute. Rather, the statute’s plain language makes clear that adoption of or change to any rule of a municipal civil service commission or city personnel office must comply with CSL § 20(2). The 1960 amendment to CSL § 20(1) did not change that requirement. It merely permitted municipalities to not list positions in the competitive class and salary grades for positions in any jurisdictional class from their civil service rules, in order to obviate the need to comply with the procedural requirements of CSL § 20(2) when routine changes to such positions or salary grades are made. As explained above, however, Appellants’ reclassification plan is not affected by the 1960 amendment because it eliminates an entire pay classification from the DCAS Rules, reclassifies employees in that classification into newly-created pay classifications, and creates and modifies “position 32 classifications” in the DCAS Rules -- actions which are unquestionably subject to the procedural requirements of CSL §20(2) (see pages 23 to 25, supra). There is no case law supporting Appellants’ claim that the Legislature superseded this Court’s interpretation of CSL § 20(2) in Corrigan. Rather, court decisions issued after the 1960 amendment continue to hold that any change or adoption or modification of a civil service rule is subject to the procedural requirements of CSL § 20(2). In Trager v. Kampe, 99 N.Y.2d 361, 365 (2003), for example, this Court held that a county Civil Service Commission’s decision to change the residency requirement for a civil service position was invalid because the Commission failed to conduct a public hearing, as required by CSL § 20(2). Also, the court in Borrell v. Genesee County, 73 A.D.2d 386, 390 (4th Dep’t 1980) determined that a decision by a county Civil Service Commission to place a civil service employee into a lower pay grade was a “de facto” reclassification of that employee that was invalid for failing to comply with any of the procedural requirements in CSL § 20(2). See Joyce v. Ortiz, 108 A.D.2d 158, 164 (1st Dep’t 1985) (holding that a resolution by the Personnel Director of the New York City Department of Personnel (DCAS’s predecessor) reclassifying a position from the competitive to the noncompetitive or exempt class was invalid for failing to comply with CSL § 20(2), and affirming that “resolutions purporting to reclassify titles are invalid where they are not adopted in accordance with the statutory 33 requirements”); Caslin v. Nassau Cty. Civ. Svc. Comm’n, 2011 WL 3235988 (N.Y. Sup. Ct. Nassau Cty. July 21, 2011)(holding that changes to civil service examination requirements were invalid for failing to comply with CSL § 20(2)); see also 1998 N.Y. Atty. Gen. Op. No. 8, Formal Op. No. 98-F3, 1998 WL 111492, (March 12, 1998). In lieu of citing to any case supporting its erroneous interpretation of CSL § 20, Appellants rely upon two cases that, as they acknowledge, do not refer to the procedural requirements of that law at all. (App. Brief at 18). Those cases -- Buffalo Bldg. Trades Council of Buffalo Bd. of Educ. Employees v. Bd. of Educ. of the City of Buffalo, 36 N.Y.2d 782, 784 (1975) and Acunci v. Ross, 73 A.D.2d 643 (2nd Dep’t 1979) -- resolved disputes as to which public agency in a given municipality had the authority to assign salary grades to civil service employees, but they did not address the process by which that authority must be executed. Appellants baselessly presume that because there was no mention of the procedural requirements of CSL § 20(2) in those cases, that statute does not apply in the instant case. (App. Brief at 18). There is no support for that tortured presumption. In Buffalo Bldg. Trades Council, this Court held that the Buffalo Board of Education, and not exclusively the Buffalo Municipal Civil Service Commission, had the power to classify its employees and assign them grades. Buffalo Bldg. Trades Council, 36 N.Y.2d at 784-85. Similarly, the court in Acunci determined 34 that the Village of Mt. Kisco had the power to assign salary grades to certain of its employees. Acunci, 73 A.D.2d at 643. In neither case, however, did the court hold that a public agency may adopt or amend a rule of a municipal civil service commission, as Appellants attempted to do here, without following the procedural requirements of CSL § 20(2). C. There Is No Support for Appellants’ Interpretation of CSL § 20 in the New York State Legislature’s Unsuccessful Attempts to Amend that Law Appellants attempt to bolster their erroneous claim that their reclassification plan is exempt from the procedural requirements of CSL § 20(2) by pointing to an irrelevant 2001 bill that proposed to amend CSL § 20, but was not enacted. That bill, and its legislative history, provides no support for Appellants’ misinterpretation of CSL § 20. The 2001 bill would have amended L. L. § 220 to require the City to comply with certain additional procedural requirements, beyond those already required by CSL § 20(2), before reclassifying employees whose wages and benefits are determined under L. L. § 220. Specifically, the bill would have required the City to obtain the consent of the bargaining representatives of the affected employees and, 90 days before the public hearing mandated by CSL § 20(2), provide the following information to the affected employees in the notice mandated by CSL § 20(2): (a) the titles to be reclassified, (b) the reasons for the reclassification, and (c) 35 the salary and benefits associated with the reclassified titles. S4011/A6689 (2001). Appellants speculate, without citing any supporting authority, that this bill would have been unnecessary if civil service rule changes of the type that Appellants have proposed were subject to the procedural requirements of CSL § 20(2). (App. Brief at 21). To the contrary, the 2001 bill simply would have added to the procedural requirements of CSL § 20(2), which remain in effect and apply to Appellants’ reclassification plan for the reasons set forth above. Appellants also are incorrect when they claim that New York Governor George Pataki “believed that the law as it currently stands does not require that grading prevailing wage titles requires state approval.” (App. Brief at 21). Governor Pataki vetoed the 2001 bill not because, as Appellants claim, he believed that the City could grade employees without following the procedural requirements of CSL § 20(2), but, as he explained in his Veto Message, “because of the provision requiring the consent of the collective bargaining unit to the reclassification.” Veto Message, Veto #51 (2001). Further, Appellants neglect to mention in their brief that in 2002 the Legislature passed another bill that was identical in almost all respects to the 2001 bill, but that eliminated the requirement that the City obtain the consent of the affected employees’ bargaining representatives. S6863-A/A11306 (2002). 36 Governor Pataki vetoed that bill because it would have applied retroactively. Veto Message, Veto #9 (2002). In a Veto Message, he explained that While it is extremely uncommon, laborers, workmen and mechanics who work for governmental employers in ungraded (non-salaried) positions are entitled to prevailing wages and supplements under Labor Law § 220 in one narrow set of circumstances: when the work would be subject to prevailing wage laws if it were performed by a private contractor on public works. However, these positions can be reclassified by municipal civil service agencies into the classified civil service following the procedures contained in Civil Service Law § 20, in which case the positions would be paid a salary and would not be entitled to prevailing wage. Id. (emphasis added). Governor Pataki, therefore, expressly recognized that reclassification of employees whose wages and benefits are determined under L. L. § 220 is subject to “the procedures contained in Civil Service Law § 20” - as this Court held in Corrigan, and as the First Department and the Trial Court correctly held in the instant case. POINT II THE TRIAL COURT PROPERLY DETERMINED THAT THE RECLASSIFICATION PLAN ABROGATES LEGALLY AND CONTRACTUALLY BINDING AGREEMENTS BETWEEN THE UNION AND THE CITY The First Department affirmed the Trial Court’s decision to annul the reclassification plan on the sole basis that Appellants implemented the plan in violation of the procedural requirements of CSL § 20(2). If this Court determines that the First Department and the Trial Court correctly held that Appellants 37 violated those procedural requirements, it will not be necessary to consider any of Appellants’ other arguments defending its reclassification plan. If, however, this Court disagrees with the First Department’s and the Trial Court’s holdings under CSL § 20(2), it should nevertheless affirm the annulment of Appellants’ reclassification plan because, as the Trial Court properly determined, that plan is legally invalid for additional reasons. The Trial Court properly found that the City’s reclassification plan was unlawful because it abrogated the Consent Determinations, which are binding contracts agreed to by the City, and entered by the New York City Comptroller, compromising and settling the Union’s claims against the City under L. L. § 220. (R. 27-28). In doing so, Appellants subverted L. L. § 220(8-d), which requires the City to negotiate in good faith with the Union over its members’ wages and benefits. When public employees who perform construction and maintenance work are classified in ungraded civil service titles, as the employees in the civil service titles represented by the Union are and have been for decades, their wages and benefits are to be determined in accordance with L. L. § 220. Golden v. Joseph, 307 N.Y. 62, 67-68 (1954); see Don v. Joseph, 1 N.Y.2d 708, 710 (1956); Gaston v. Taylor, 274 N.Y. 359, 363 (1937) (holding that L. L. § 220 applies to “laborers, workmen and mechanics” whether they are employed by a municipality or a public 38 work contractor); Hanley v. Thompson, 41 A.D.3d 207, 208 (1st Dep’t 2007); Smith v. Joseph, 275 A.D. 201, 203 (1st Dep’t), aff’d, 300 N.Y. 516 (1949). In New York City, the procedure for determining wages and benefits for civil service titles covered by L. L. § 220 is set forth in L. L. § 220(8-d).10 Under L. L. § 220(8- d), the Union and the City are required to “in good faith” negotiate and endeavor to “enter into a written agreement with respect to the wages and supplements of the laborers, workmen or mechanics in the title.” L. L. § 220(8-d). The City and the Union may compromise and settle their disputes concerning covered employees’ wages and benefits by entering into binding written agreements that are entered, on consent, by the “fiscal officer,” which for the City is the Comptroller. L. L. §§ 220(5)(e), (8-d). As explained in the Statement of Facts, such written agreements are known as Consent Determinations. If the City and the Union cannot reach an agreement, L. L. § 220(8-d) provides that the Union may file a complaint with the “fiscal officer,” who is authorized to conduct an investigation and determine the prevailing rates of wages and benefits applicable to the titles represented by the Union. Id. L. L. § 220 “has been characterized as ‘an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with 10 L. L. § 220 (8-d) applies to civil service “laborers, workmen or mechanics” who are members of a certified or recognized employee organization in a “city of one million or more.” L. L. § 220 (8-d). 39 laborers, workmen, and mechanics.’” Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 402 (1996) (quoting Austin v. City of New York, 258 N.Y. 113, 117 (1932)) (emphasis in original); see Bucci v. Vill. of Port Chester, 22 N.Y. 2d 195, 201 (1968). As this Court has explained, L. L. § 220 “has as its entire aim the protection of workingmen against being induced, or obliged, to accept wages below the prevailing rate from a public employer.” Bucci, 22 N.Y. 2d at 201. For that reason, this Court has instructed that the law “must be construed with the liberality needed to carry out its beneficent purposes.” Id. Section 220 of the Labor Law is a remedial statute and was designed to augment the earnings of the laborer which were deemed inadequate under the then existing conditions and under well settled canons of statutory construction should be liberally construed to carry out the legislative intent, and the court should not be astute to devise or discover ways and means to deprive him of the benefits which the legislature intended he should have. Cocchiarella v. Joseph, 131 N.Y.S.2d 247, 253 (Sup. Ct. N.Y. Cty. 1954), aff'd sub nom., 286 A.D. 1076 (1st Dep’t 1955). As explained in the Statement of Facts, for decades the City and the Union have negotiated a series of collectively bargained agreements pursuant to L. L. § 220(8-d) compromising and settling the wages and benefits to be paid to employees in titles represented by the Union. (R. 845 ¶ 20, 979 ¶ 22). Those agreements have been entered as Consent Determinations by the Comptroller. (R. 844 ¶ 17). 40 The Consent Determinations currently covering the titles represented by the Union emerged from the L. L. § 220(8-d) bargaining process. On or about April 17, 2008, the Union submitted Verified Complaints to the Comptroller, pursuant to L. L. § 220(5)(f), (7), and (8-d), asserting that employees in the civil service titles it represents were not being paid at prevailing rates of wages and benefits. (R. 845 ¶ 20). The Union and OLR, acting on behalf of the City and related public employers, then negotiated over terms and conditions of employment for employees in those titles, as required by L.L. § 220(8-d). (R. 845 ¶ 21). Following those negotiations, the Union and OLR reached an agreement and executed Consent Determinations setting, among other things, the hourly rates of wages and supplemental benefits to be paid to, or on behalf of, all current and future employees in each civil service title that is represented by the Union. (Id.). As explained in the Statement of Facts, each Consent Determination also contains an “Appendix A,” which sets forth additional economic terms and conditions for the covered titles, including the parties’ understandings as to annual leave, sick leave, terminal leave, leaves of absence, and holidays. (R. 996 ¶ 21). The Consent Determinations were entered by the Comptroller on or about May 27, 2009. (R. 845 ¶ 21). Although the Consent Determinations’ covered period ended on August 2, 2010 and February 2, 2010, respectively, those agreements have remained in effect 41 past that date pursuant to CSL § 209-a (1)(e). That law provides that agreements between employee representatives and the City must remain in effect after their terms expire until they are superseded by successor agreements. Ass’n of Surrogates and Supreme Court Reporters v. State of New York, 79 N.Y. 39, 45 (1992)(determining that the Legislature passed CSL § 209-a (1)(e) in order to extend contractual obligations under expired collective bargaining agreements).11 As this Court has explained, under what is known as the “Triborough Doctrine,” CSL § 209-a (1)(e) assures public employees, who do not have the right to strike in New York State, that the terms and conditions of employment set forth in expired collective bargaining agreements cannot be unilaterally abrogated or altered during negotiations over successor agreements. Town of Southampton v. New York State Pub. Employment Relations Bd., 2 N.Y.3d 513, 521, 813 (2004) (citing Triborough Bridge & Tunnel Auth., 5 PERB ¶ 3037 (1972)). As the Trial Court properly determined, Appellants, by issuing the reclassification plan, improperly abrogated the Consent Determinations. (R. 27- 28). They did so by (a) declaring that the City will no longer pay the wages and benefits agreed upon in the Consent Determinations to employees hired or 11 The Consent Determinations are “agreements” within the meaning of CSL § 209-a. CSL § 201 (12) defines an “agreement” as “the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract.” The Consent Determinations fit this definition precisely because the City agreed to pay certain wages and benefits to covered employees in exchange for the Union waiving its legal claims under L. L. § 220 against the City. (R.845 ¶ 21; 865; 882). 42 promoted into titles covered by the Consent Determinations on or after April 11, 2012, but will instead reclassify those employees into newly-created pay classifications and bargain with the Union, based on the diminished terms and conditions of employment created for newly hired or promoted employees, over wages and benefits to be paid and provided for the incumbents after April 11, 2012 (R. 847 ¶ 29, 849 ¶ 35); and (b) declaring that the City will no longer pay the wages and benefits agreed upon in the Consent Determinations to incumbent employees in titles covered by the Consent Determinations for work that they perform on or after April 11, 2012, but will instead bargain with the Union based on the diminished terms and conditions of employment created for newly hired or promoted employees (R. 848 ¶ 31, 907). In sum, both current and future employees in titles covered by the Consent Determinations will see their bargained-for terms and conditions of employment worsen under the reclassification plan. Indeed, Appellants admit that the primary purpose of the plan was to correct what they determined to be “inequitable and sub-optimal” rates of covered employees’ wages and benefits (App. Brief at 8) - a purpose that is explicitly prohibited by CSL § 209-a(1)(e), so long as the Consent Determinations have not been succeeded by negotiated agreements permitting such wage and benefit cuts. This Court should reject Appellants’ baseless arguments challenging the 43 Trial Court’s determination that Appellants’ reclassification plan abrogated legally-binding contracts with the Union. First, Appellants make the unprecedented claim that the Consent Determinations do not remain in effect pursuant to CSL § 209-a (1)(e) because, they claim, the Union is not covered by the Taylor Law (CSL § 200, et seq.). (App. Brief at 41-42). As explained at page 11 above, Appellants have honored the Consent Determinations past their expiration date throughout the parties’ bargaining histories. Now, for the first time, Appellants claim that they are under no obligation to do so because employees whose wages are determined by L.L.§ 220 are not covered by CSL § 209-a (1)(e). There is no basis for that argument. The Taylor Law covers “public employees,” which are defined as any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include . . . judges and justices of the unified court system, persons holding positions by appointment or employment in the organized militia of the state and persons who may reasonably be designated from time to time as managerial or confidential. CSL § 201(7)(a). There is no dispute that the Union members affected by Appellants’ reclassification plan fall within this definition. Appellants, nevertheless, base their claim that those employees are not covered by the Taylor Law on irrelevant cases holding that the New York City Comptroller, and not the New York City Board of Collective Bargaining, has jurisdiction to hear allegations that the City breached its duty to bargain in good faith with representatives of 44 employees covered by L.L. § 220. McFarland v. City of New York, 23 Misc. 3d 1127(A), 889 N.Y.S.2d 506 (Sup. Ct. N.Y. Cty. 2009); Roberts v. New York City Office of Collective Bargaining, 114962/09 NYLJ 1202474686473 (11/15/10)(Sup. Ct. N.Y. Cty. Oct. 15, 2010). Those decisions stem from a provision in the New York City Collective Bargaining Law stating that “with respect to those employees whose wages are determined under section two hundred twenty of the labor law, the duty to bargain in good faith over wages and supplements shall be governed by said section.” N.Y. City Admin. Code § 12- 307(a)(1). Indeed, L.L. § 220(8-d) contains a mandate to bargain in good faith, and, as the cases cited by Appellants explain, its procedures for resolving disputes as to payment of wages and benefits supersede the procedures set forth in CSL § 209 and the New York City Collective Bargaining Law. It does not follow from that provision of the New York City Collective Bargaining Law, however, that public employees covered by L.L. § 220 are excluded from every other provision of the Taylor Law, including CSL § 209-a (1)(e). Moreover, Appellants’ brief fails to address the logical consequence of their baseless argument: If public employees in ungraded titles are not entitled to have their collective bargaining agreements enforced post-expiration under the Triborough Doctrine, then they retain the right to strike. See Town of Southampton, 2 N.Y.3d 513 at 813. 45 Second, Appellants suggest that the reclassification plan does not violate the Consent Determinations because incumbent employees will be “grandfathered.” (App. Brief 33-34). As explained above, however, under the reclassification plan, the Consent Determinations will not apply to work performed by incumbents after April 11, 2012. (R. 848 ¶ 31, 907). Further, as the Trial Court correctly found (R. 28), the rates that incumbents will be paid for work performed on or after April 11, 2012 will be determined through bargaining based on severely diminished terms: 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. (R. 28) (see footnotes 3 to 8, supra). Thus, Appellants are incorrect when they claim that “DCAS elected to maintain the status quo with respect to salaries and time and leave for all present incumbents of the affected titles” and that the salary ranges contained in the newly-created pay classifications only apply to new hires. (App. Brief at 10-11). Moreover, Appellants ignore the fact that they also have abrogated the Consent Determinations with respect to newly hired employees, who are expressly covered by those agreements (R.859, 876), which state: “Any new employee who may be hired by the City of New York during the term of this settlement shall be required to comply with all terms and conditions herein upon the payment of the rates and supplemental benefits herein.” (R.863, 880). The 46 reclassification plan, therefore, directly abrogates the Consent Determinations for newly-hired, promoted, and incumbent employees employed in titles covered by those agreements. 12 Third, Appellants incorrectly claim that the reclassification plan does not violate the Consent Determinations because the City did not “waive[] its powers to grade titles, a power which derives from State law and the City Charter.” (App. Brief at 42). The text of the Consent Determinations demonstrates otherwise. In the General Release and Waiver appended to the Consent Determinations, the Union agrees to release the City from claims that the Union has or might have against it under L. L. § 220, in exchange for the City’s express promise to pay the Union’s members at agreed wage and benefit rates so long as the Consent Determination remain in effect. (R.845 ¶ 21, 865, 882). If, as Appellants claim, the City surreptitiously reserved the right to unilaterally alter those wage and benefit rates at any time by reclassifying the covered employees into graded pay classifications, then the City’s promise to the Union when it executed the Consent Determinations was meaningless. Moreover, the City’s interpretation of the Consent Determinations is contrary to the long-recognized public policy favoring 12 Appellants are also incorrect when they claim that only High Pressure Plant Tenders and Construction Laborers will, under the reclassification plan, be subject to maximum wage grades below their current salaries. (App. Brief at 10, 33). As the Trial Court specifically noted, for employees in the titles Boilermaker, Supervisor Boilermaker, and Supervisor Blacksmith, the highest end of their assigned salary ranges is less than what those employees presently earn. (R. 27). Moreover, as explained above, the reclassification plan failed to assign employees in the title Boilermaker’s Helper to any pay classification at all. (R. 847 ¶ 29). 47 the enforcement of settlement agreements (Calavano v. New York City Health & Hospitals Corp., 246 A.D.2d 317, 318 (1st Dep’t 1998) (citing Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 616 (1994))) and the well- established principle that “when parties set down their agreement in a clear, complete document, their writing should ...be enforced according to its terms” (S. Rd. Associates, LLC v. Int'l Bus. Machines Corp., 4 N.Y.3d 272, 277 (2005) (quoting Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470,475 (2004))). Thus, if the Consent Determinations are to have any meaning, they must be interpreted to bar the contract nullification that the City is attempting to accomplish through its illegal reclassification plan. As to Appellants’ reference to the City’s power to grade titles under the City Charter, DCAS’s authority under New York City Charter § 814(a)(2) to “grade and establish classes of positions” is limited by L. L. § 220(8-d), which requires the City and the covered employees’ bargaining representatives to bargain in good faith over those employees’ wages and benefits, and CSL § 209-a(1)(e), which requires the City to honor the agreements that it makes with employees’ bargaining representatives, so long as those agreements have not been succeeded by other negotiated agreements. New York City Charter § 814(a)(2) must be harmonized with L. L. § 220(8-d) and CSL § 209-a(1)(e) in order to give those statutes force and meaning. Thus, New York City Charter § 814(a)(2) cannot be construed to 48 permit Appellants to abrogate Consent Determinations that were agreed to pursuant to L. L. § 220(8-d) and that remain in effect pursuant to CSL § 209- a(1)(e). Yatauro v. Mangano, 17 N.Y.3d 420, 427 (2011)( “Courts must harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible”) (quoting Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 153 (2001)). Fourth, there is no support for Appellants’ claim that this Court’s decision in Corrigan, 304 N.Y. 172, compelled Appellants to implement their unlawful reclassification plan, since the portion of the decision that Appellants rely upon is inapplicable and predates L. L. § 220(8-d). Corrigan did not hold, as Appellants contend, “that setting wages by reference to private sector wages runs contrary to the overarching merit and fitness requirements of the State’s civil service scheme.” (App. Brief at 30). Rather, in Corrigan, this Court was asked to determine whether employees classified in graded titles could remain in graded titles, but at the same time have their wages and benefits determined pursuant to L. L. § 220. Id. at 178. This Court held that because, under CSL § 16 (7) (which is now CSL § 52 (9)), an increase in pay is the “statutory indica of a promotion” for graded employees, if graded employees were to receive wage increases as a result of an increase in the prevailing wage rate, they would be promoted in violation of the constitutional mandate that “appointments and promotions in the civil service of the state and all 49 of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness.” N.Y. Const. Art. V, § 6; Corrigan, 304 N.Y. at 182. That portion of Corrigan is not relevant to the instant case, however, because the statute that it relied upon, CSL § 52 (9), only applies to employees in graded titles. It states: For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder, beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion. CSL § 52 (9)(emphasis added).13 This Court made clear in Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. that for employees in ungraded titles, there is no conflict between determining those employees’ wages in accordance with L.L. § 220 and the merit and fitness requirements of the CSL or the New York State Constitution. Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs., 89 N.Y.2d at 404-05 (holding that that because certain employees were in ungraded titles, “awarding them increases in remuneration to the level of prevailing wage rates would not effectively grant them a promotion to above-grade salary levels” and, accordingly, “no violation of Civil Service Law principles of merit and fitness 13 This Court has held that pay increases that do not exceed the upper limit of a salary grade are not “promotions” within the meaning of CSL § 52 (9). Bethel v. McGrath-McKechnie, 95 N.Y. 2d 7, 13 (2000); Kitchings v. Jenkins, 85 N.Y.2d 694, 698 (1995). 50 promotions are implicated by application of Labor Law § 220.”). 14 Thus, because the employees affected by Appellants’ reclassification plan are ungraded, Appellants cannot rely on Corrigan to support their claim that the Civil Service Law or New York State Constitution compelled Appellants to remove them from the coverage of L. L. § 220, in violation of statutory procedures, in breach of collectively bargained agreements, and in violation of statutory provisions keeping collectively bargained agreements in place post-expiration by operation of law. Moreover, Corrigan predates the enactment of L.L. § 220(8-d), which precludes the City from unilaterally reclassifying employees covered by that law into ungraded pay classifications by mandating that the City to bargain in good faith with those employees’ representatives over wage and benefit rates and enter into binding wage and benefit contracts with those representatives when an agreement is reached. The legislative history of L.L. § 220(8-d) demonstrates that it was intended to protect the City’s ungraded employees from such a reclassification. As Appellants acknowledge, in 1971 the New York State 14 Appellants’ suggestion that determining public employees’ wages under L. L. § 220 is incompatible with the goal of setting pay in accordance with employees’ merit and fitness is further undermined by DCAS’s own rules, which state: An increase in the salary or other compensation of any person . . . beyond the limit fixed for the grade of such position . . . shall be deemed a promotion except as provided otherwise in a labor contract, a labor relations order or personnel order and be subject to the prohibition of this paragraph. 55 R.C.N.Y. § A, at Rule 5.3.2 (emphasis added). 51 Legislature passed an early version of L. L. § 220(8-d), which was vetoed by then- Governor Nelson Rockefeller on the grounds that it would “overrule the holding in the Corrigan case.” Governor’s Memorandum, Governor’s Bill Jacket for L.1976, Ch. 933. The amendment was reintroduced in 1976. A Senate Budget Report noted, in a list of “possible objections” to the bill, that it could be seen as “apply[ing] the prevailing wage provisions of section 220 of the L. L. to the graded salary provisions of the Civil Service Law,” thereby superseding Corrigan. Budget Report on Bills, Bill Jacket, L.1976, Ch. 933. In his statement approving the bill, however, Governor Hugh Carey explained: In approving this bill, I am mindful of the Court of Appeals decision in Corrigan v. Joseph (305 NY 172) which held that municipal employees in graded positions in the competitive class of Civil Service may not have their wages determined by the prevailing wage formula and the procedure described in Section 220 of the Labor Law. I am advised by officials of the City of New York that workmen, laborers and mechanics employed by the City in particular Civil Service titles, to be covered by the provisions of this bill, occupy ungraded titles. Laws of 1976, Ch. 933, Governor’s Memorandum on Legislative Bills Approved (emphasis added). Thus, in concluding that L. L. § 220(8-d) could coexist with Corrigan, the Governor relied upon the City’s own assurances that the ungraded status of “workmen, laborers and mechanics,” for whom the bill’s protections were intended, precluded a Corrigan-type conflict between the doctrines of prevailing wage and merit and fitness. By unilaterally reclassifying those same employees into graded pay classifications, and claiming that this unilateral action has removed 52 those employees from the protection of L. L. § 220, Appellants now essentially renounce the legislative intent and plain language of L. L. § 220(8-d), and presume to nullify that statute by making it inapplicable to the very class of individuals it was intended to protect. That presumption is contrary to the tenets of statutory construction. Dashinsky v. Santjer, 32 A.D.2d 382, 387 (2nd Dep’t 1969) (“[A] statute designed to protect a particular class ‘is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’”). It is also contrary to the longstanding principle that L. L. § 220 is a remedial statute that must be liberally construed. Bucci, 22 N.Y. 2d at 201; Cocchiarella, 131 N.Y.S.2d at 253.15 Appellants cite to several court decisions that, they claim, support the application of Corrigan’s interpretation of L. L. § 220 to this case. However, none of the cases to which Appellants cite address L. L. § 220(8-d) at all. Most of those cases predate L. L. § 220(8-d) and/or concern municipalities not covered by L. L. § 220(8-d), which only applies to public employees employed by a city with a population of one million or more, i.e., New York City. See Buffalo Bldg. Trades 15 Appellants claim that the Governor’s decisions to veto the 2001 and 2002 bills amending L. L. § 220, which are discussed at pages ___ above, somehow demonstrate “the continuing vitality of Corrigan.” (App. Brief at 29-30). However, neither the 2001 or 2002 Veto Message mentions Corrigan at all. Appellants also make the nonsensical claim that because the legislative history of a 1984 amendment to L. L. § 220 fails to mention Corrigan, it somehow demonstrates that the 1976 amendment makes Corrigan relevant to this case. (App. Brief at 28-29). The 1976 and 1984 amendments, however, have different purposes, and nothing in the legislative history of the 1984 amendment cited by Appellants makes Corrigan applicable to the instant case. 53 Council of Buffalo Bd. of Educ. Employees, 36 N.Y.2d at 783 (1975) (predating L. L. § 220(8-d) and concerning employees of the Board of Education of the City of Buffalo); Casey v. Catherwood, 28 N.Y.2d 702 (1971) (predating L. L. § 220(8-d) and concerning employees of the New York State Thruway Authority); Wood v. City of New York, 274 N.Y. 155, 158 (1937) (predating L. L. § 220(8-d)). Although Brukhmam v. Giuliani, 94 N.Y.2d 387, 391 (2000) concerned employees of New York City, it did not address L. L. § 220 and, therefore, is not applicable to this proceeding. In Brukhmam, public assistance beneficiaries who were assigned to a work program claimed that they were entitled to payment of prevailing wage rates under Article I, Section 17 of the New York State Constitution. Id. at 390. The Court rejected that claim on the ground that the cited constitutional provision applied to employees of private contractors, not public employees. Id. at 394. Evans v. Newman, 71 A.D.2d 240 (3rd Dep’t 1979), aff'd, 49 N.Y.2d 904 (1980), is inapplicable because it concerned New York City employees who were outside the protection of L. L. § 220, and therefore did not address L. L. § 220. Finally, Appellants suggest that L. L. § 220 is somehow incompatible with the CSL, or that the civil service system mandates that employees be placed in graded classifications. (App. Brief 16). The Court of Appeals rejected that argument in Gaston, 274 N.Y. at 363. 54 POINT III THE TRIAL COURT PROPERLY ANNULLED THE RECLASSIFICATION PLAN AS “AFFECTED BY AN ERROR LAW” AND “ARBITRARY AND CAPRICIOUS” The Trial Court properly invalidated the City’s reclassification plan, as it was affected by an error of law and arbitrary and capricious, within the meaning of CPLR § 7803(3). As explained in Points I and II above, the reclassification plan was affected by an error of law because Appellants issued the plan without following the procedural requirements of CSL § 20(2) and because the plan violates agreements that the City entered into with the Union pursuant to L. L. § 220(8-d), which remain in effect pursuant to CSL § 209-a(1)(e). The Trial Court also properly invalidated the City’s reclassification plan as arbitrary and capricious because there was no rational basis for the “graded” salary ranges that the City assigned to employees whose pay had been determined under L. L. 220. (R. 37). The terms "arbitrary" and "capricious," as set forth in CPLR § 7803(3), refer to action taken "without sound basis in reason" and "without regard to the facts." Matter of Pell v. Board of Education of Union Free School District No. 1, 34 N.Y.2d 222, 231 (1974). CPLR Article 78 empowers courts to annul decisions by public agencies when they fail to furnish a rational basis for those decisions. 55 Burke's Auto Body, Inc. v. Ameruso, 113 A.D.2d 198, 200 (1st Dep’t 1985); Soljan v. Bahou, 60 A.D.2d 946, 946 (3rd Dep’t 1978). After examining the extensive record of the parties’ bargaining history and the City’s reclassification plan, the Trial Court correctly found that there was no rational basis for the “graded” salary ranges that the City assigned to affected employees because, under the City’s reclassification plan, employees in certain titles will be effectively demoted, without regard to merit. (R. 36-37). The Trial Court based this finding on the undisputed fact that those employees’ maximum annual salary in their newly-assigned grade will be lower than their current annual salary. (R. 36). The Trial Court also determined that Appellants failed to provide a rational basis on which affected employees could be promoted to the maximum salaries within their newly-assigned grades. (Id.). As the Trial Court held: Petitioners have not been provided a means of determining the manner in which they will be able to acquire the maximum [salary] range for each grade. Individuals that have acquired licenses and seniority in a title that has been reclassified have no means of determining the manner of promotion. (Id.). The Trial Court’s decision should be upheld because, as explained at pages 14 to 20 supra, employees in titles covered by the Union will see their wages and benefits substantially diminished without a rational justification. (R. 849-52 ¶¶ 35- 45). Appellate courts have consistently invalidated personnel decisions reducing public employees’ wages and benefits as de facto “demotions” without due 56 process. See Bailey v. Susquehanna Valley Cent. Sch. Dist. Bd. of Educ., 276 A.D.2d 963, 965 (3rd Dep’t 2000); Borrell, 73 A.D.2d at 391. In their appeals before the First Department and this Court, Appellants do not respond to these findings by the Trial Court. They also fail to provide any reasons justifying their plan to cut affected employees’ sick days, terminal leave, annual leave, leaves of absence, Welfare Fund benefits, and Annuity Fund benefits. The explanations that Appellants do offer for their plan to reduce employees’ wages by reclassifying them into graded pay classifications fail to provide a rational basis for that plan, and should be rejected by this Court, as they were rejected by the Trial Court. Although Appellants claim that the employees affected by the reclassification plan “have wages set at private sector levels” and “[t]he City determined that there was no valid basis to continue to treat these City workers uniquely” (App. Brief at 2), this claim is based on an error of law. Neither Part 38 nor L. L. § 220(8-d) mandates that covered employees’ wages be determined by exclusive reference to rates paid to private sector employees, nor do they require that the City provide the Union’s public sector members with the same wages as those provided to private sector workers. On the contrary, L. L. § 220(8- d) requires covered employees’ representatives to bargain with the City over wage rates and fringe benefits that compromise the prevailing wage rates and supplements set pursuant to L. L. § 220. As explained in detail above, the Union 57 and the City have consistently agreed, in L. L. § 220(8-d) bargaining, to wages and fringe benefits that differ from those provided to private sector employees. (R. 979 ¶ 22). Indeed, in the Consent Determinations, the parties acknowledge that “The basic rates and supplemental benefits herein are not to be construed as true prevailing rates and supplemental benefits but shall be considered rates and benefits in compromise and settlement of all issues of law and fact.” (R. 863, 880)(emphasis added) Further, the “General Release and Waiver” appended to each of the Consent Determinations describes that document’s terms as “the wage rates and supplemental benefit package negotiated and agreed upon by the Union and the City of New York as set forth in a collective bargaining agreement for the period beginning July 1, 2005 and terminating June 30, 2008.” (R. 865, 882)(emphasis added). Only in the event that the parties cannot reach an agreement does L. L. § 220(8-d) permit those employees to petition for a hearing seeking payment of prevailing rates. While Appellants suggest that there is something inequitable about bargaining with some, but not all, public sector employees pursuant to L. L. § 220, that approach reflects a policy decision by the Legislature when it drafted the statute. L. L. § 220 is designed to ensure that “laborers, workmen, and mechanics” performing public work are paid adequate wages. Brang Co., Inc. v. State Univ. Const. Fund, 47 A.D.2d 178, 179 (3rd Dep’t 1975); see Tenalp Const. Corp. v. 58 Roberts, 141 A.D.2d 81, 84 (3rd Dep’t 1988). Further L. L. § 220 has been held to apply to “laborers, workmen, and mechanics,” performing public work, whether employed directly by a public employer or by a public contractor. Gaston, 274 N.Y. at 363. As this Court has explained, the Legislature intended to impose also upon the State and its municipal corporations or civil subdivisions the same obligations to pay the prevailing rate of wages to laborers, workmen and mechanics upon its ‘public’ works, in ‘ungraded’ or non-competitive employment in the classified public service, that it imposes upon persons or corporations constructing public works by contract with the State or a civil division thereof. Id. Moreover, as explained above, L. L. § 220(8-d) specifically contains a process for negotiating wages and benefits for “laborers, workmen, and mechanics” employed by the City. Appellants’ claim that that statute advances no “sound policy” (App. Brief at 8) ignores the well-settled principle that in applying L. L. § 220 to publically employed “laborers, workmen, and mechanics,” the Legislature established, as public policy, a prohibition on such employees “being induced, or obliged, to accept wages below the prevailing rate from a public employer.” Bucci, 22 N.Y. 2d at 201; see Tenalp Const. Corp., 141 A.D.2d at 84-85 (“The protection of the wage rate is a legitimate State concern.”). In any event, Appellants’ policy objections to L. L. § 220 must be addressed in an appropriate forum (whether the Legislature or a CSL § 20(2) public hearing), rather than be imposed by Mayoral fiat. 59 Finally, Appellants claim, without any supporting evidence, that prevailing rates for private employees are inflated because they “often work on a seasonal or project basis.” (App. Brief at 8). This baseless assumption, asserted without any evidence, as to a broad and diverse range of workers, cannot suffice as a rational basis for reclassifying all public employees whose wages and fringe benefits are determined pursuant to L. L. § 220(8-d). Further, even if the City had evidence to support that assumption, its concerns could be addressed in bargaining, rather than through an illegally imposed reclassification plan. Moreover, courts have rejected work schedule distinctions as a basis for paying publicly employed “laborers workmen, and mechanics” lower wage rates than employees of public work contractors. Application of Watson, 260 A.D. 77, 78 (1st Dep’t 1940) modified sub nom. Watson v. McGoldrick, 286 N.Y. 47 (1941) (“[N]o distinction may be made between the rate of wage to be paid to workmen employed by the City and those employed by private contractors merely because those in the service of the City are employed for a greater number of days in each year.”). Thus, this rationale does not provide a rational basis for the City’s illegal reclassification plan. 60 CONCLUSION For the foregoing reasons, Respondent respectfully requests that this Court affirm the First Department’s Decision and Order in its entirety. Dated: January 8, 2014 New York, New York Respectfully submitted, BROACH & STULBERG, LLP By:__________________________ Robert B. Stulberg Michael H. Isaac Attorneys for Petitioner-Respondent One Penn Plaza, Suite 2016 New York, New York 10119 Tel: (212) 268-1000 Fax: (212) 947-6010