In the Matter of Gregory Floyd, Respondent,v.City of New York, et al., Appellants. (And Ten Other Proceedings.)BriefN.Y.September 11, 2014To be Argued by: CAROL O’ROURKE PENNINGTON (Time Requested: 15 Minutes) APL 2013-00243 New York County Clerk’s Index Nos. 102673/12, 102601/12, 102602/12, 102603/12, 102604/12, 102605/12, 102606/12, 102607/12, 102608/12, 102447/12 and 102636/12 Court of Appeals of the State of New York In the Matter of the Application of GREGORY FLOYD, as President and on behalf of Local Union No. 237, I.B.T., et al., Petitioners-Respondents, For a Judgment and Order Pursuant to Article 78 of the Civil Practice Law and Rules - against - CITY OF NEW YORK; MICHAEL BLOOMBERG, as Mayor of the City of New York; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; EDNA WELLS HANDY, as Commissioner of the New York City Department of Citywide Administrative Services, Respondents-Appellants. BRIEF FOR PETITIONERS-RESPONDENTS JOHN MURPHY, et al. Of Counsel: CAROL O’ROURKE PENNINGTON MICHAEL D. BOSSO COLLERAN, O’HARA & MILLS L.L.P. Attorneys for Petitioners-Respondents John Murphy, et al. 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 Tel.: (516) 248-5757 Fax: (516) 742-1765 Date Completed: January 8, 2014 CORPORATE DISCLOSURE STATEMENT LOCAL 1, OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO; LOCAL 638, ENTERPRISE ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO; and LOCAL 40, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, AFL-CIO; have no corporate parents or subsidiaries. Dated: Garden City, New York January 8, 2014 Respectfully submitted, I By: __ ~~~~~~~~dU~~~_ CAROL O'ROURKE PENNIN Murphy Petitioners (102636/12) Colleran, O'Hara & Mills L.L.P. 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 516-248-5757 516-742-1765 i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 STATEMENT OF FACTS ........................................................................................ 3 1. The New York City Department of Citywide Administrative Services (“DCAS”) proposed “reclassifying” all titles under the Skilled Craftsman and Operative Service. ................................................................................................... 3 2. The Mayor Adopted the Personnel Orders Without Notice, a Hearing, and Approval by the State Civil Service Commission or Negotiations with the Impacted Labor Organizations. ............................................................................... 7 3. Petitioners-Respondents Challenged the Implementation of the Mayor’s Personnel Orders. .................................................................................................... 9 ARGUMENT ........................................................................................................... 11 I. THE CITY’S ISSUANCE OF PERSONNEL ORDERS 2012/1 and 2012/2 WITHOUT NOTICE, A HEARING, AND APPROVAL OF THE STATE CIVIL SERVICE COMMISSIONER VIOLATES CIVIL SERVICE LAW §20 ... ........................................................................................................................ 11 A. Civil Service Law §20 Requires Notice, a Hearing and Approval by the State Civil Service Commission as Procedural Safeguards Against Arbitrary Changes to the Civil Service System Prior to Implementing the Personnel Orders. ................................................................................................................ 12 B. The Personnel Orders are Subject to the Procedural Requirements of Civil Service Law §20. ............................................................................................... 14 C. The 1960 Amendment to N.Y. Civ. Serv. Law §20 Does Not Excuse the City’s Failure to Comply with the Statute’s Procedural Requirements. ........... 20 II. THE PERSONNEL ORDERS ARE ARBITRARY AND CAPRICIOUS BECAUSE THEY ARE EXECUTIVE ACTS THAT ARE AN IMPROPER ASSUMPTION OF POWER AND CONFLICT WITH LABOR LAW §220 (8- d) 23 A. Labor Law §220(8-d). ................................................................................. 23 ii B. Corrigan ....................................................................................................... 26 III. THE PERSONNEL ORDERS VIOLATE THE CITY’S COLLECTIVE BARGAINING OBLIGATIONS TO PETITIONER-RESPONDENT’S UNDER NEW YORK STATE LAW AND THE APPLICABLE CONSENT DETERMINATIONS. .......................................................................................... 30 CONCLUSION ........................................................................................................ 35 iii TABLE OF AUTHORITIES Cases Auguti v. City Civil Serv. Comm'n of City of New York, 9 Misc. 2d 349, 169 N.Y.S.2d 675 (Sup. Ct. 1957) .................................. 15,16, 20 Austin v. City of New York, 258 N.Y. 113, 179 N.E. 313 (1932) ............................................................... 24, 29 Bd. of Educ. of City Sch. Dist. of City of New York v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660, 554 N.E.2d 1247 (1990).............................................................. 30 Broidrick v. Lindsay, 39 N.Y.2d 641, 350 N.E.2d 595 (1976) ................................................................ 26 Bucci v. Vill. of Port Chester, 22 N.Y.2d 195, 239 N.E.2d 335 (1968) ................................................................ 24 Buffalo Teachers Fed'n v. Tobe, 464 F.3d 362 (2d Cir. 2006) ................................................................................. 31 Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 676 N.E.2d 854 (1996) ................................................................ 24 Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 582 N.E.2d 568 (1991) ................................................................ 26 Cohoes City Sch. Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 358 N.E.2d 878 (1976) ................................................................ 30 Corrigan v. Joseph, 304 N.Y. 172, 106 N.E.2d 593 (1952) .......................................... 20, 26, 27, 28,29 Gaston v. Taylor, 274 N.Y. 359, 9 N.E.2d 9 (1937) .......................................................................... 24 Joyce v. Ortiz, 108 A.D.2d 158, 487 N.Y.S.2d 746 (1985) .......................................................... 14 Levitt v. Bd. of Collective Bargaining of City of New York, Office of Collective Bargaining, 79 N.Y.2d 120, 589 N.E.2d 1 (1992) .................................................................... 30 McFarland v. City of New York, 23 Misc. 3d 1127(A), 889 N.Y.S.2d 506 (Sup. Ct. 2009) .................................... 32 iv New York State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Carey, 99 Misc. 2d 565, 416 N.Y.S.2d 697 (Sup. Ct. 1979)............................................ 33 Rapp v. Carey, 44 N.Y.2d 157, 375 N.E.2d 745 (1978) ................................................................ 25 Town of Southampton v. New York State Pub. Employment Relations Bd., 2 N.Y.3d 513, 813 N.E.2d 602 (2004) .................................................................. 31 Under 21 v. City of New York, 65 N.Y.2d 344, 482 N.E.2d 1 (1985) .................................................................... 25 Wright v. State, 223 N.Y. 44, 119 N.E. 83 (1918) .......................................................................... 24 Statutes N.Y. Civ. Serv. Law § 2 ........................................................................................... 19 N.Y. Civ. Serv. Law § 20 ................................................................................. passim N.Y. Civ. Serv. Law § 20(1) ............................................................................. 20, 21 N.Y. Civ. Serv. Law § 209(a)(1)(e) ......................................................................... 31 N.Y. Civ. Serv. Law §2 Paragraph 11 ..................................................................... 16 N.Y. Civ. Serv. Law §209 ........................................................................................ 30 N.Y. Lab. Law § 220(7) ........................................................................................... 30 N.Y. Lab. Law § 220(8)(d) ...................................................................................... 15 N.Y. Lab. Law § 220(8-d) .......................................................................... 22, 23, 30 N.Y. Lab. Law §220 ............................................................................................ 1, 17 1 PRELIMINARY STATEMENT On April 11, 2012, Respondent-Appellant Michael Bloomberg, as Mayor of the City of New York, issued Personnel Orders 2012/1 and 2012/2 (“Personnel Orders”) drastically altering the manner and method by which wages, benefits, and other terms and conditions of employment would be determined for an entire class of City employees. The Personnel Orders deleted the Skilled Craftsman and Operative Service classification from Part [038] of Rule X and created fourteen new occupational services and reclassified all prevailing wage personnel into one of those services and making fourteen new pay plans for those occupational services. (R. at 2786)1. Through the Personnel Orders, the City attempted to remove approximately 10,000 current City employees from the coverage of New York State’s Prevailing Wage Law as codified in N.Y. Lab. Law §220. The City’s implementation of the Personnel Orders was enjoined by Order of the Supreme Court in eleven separate actions. The Personnel Orders mark a radical shift in policy that would fundamentally alter the manner and method by which the terms and conditions of employment are determined and would impose a new wage and benefit structure on employees. It is undisputed that this radical change was undertaken without notice or a public hearing. It is also undisputed that the City did not seek the 1 All citations to (R. at ____) refer to pages in the Record of Appeal. 2 approval of such changes from the State Civil Service Commission, as required by N.Y. Civ. Serv. Law § 20. Additionally, the City admits that it did not notify or bargain with the certified representatives of the impacted employees prior to implementing the Personnel Orders. The City’s defense rests on its premise that it does not have to comply with N.Y. Civ. Serv. Law § 20 because it simply “graded” titles and those requirements do not apply to “grading”. (R. at 2762, ¶46, ¶71) The City claims that the application of the prevailing wage law to these 10,000 employees was an “historical anomaly” that was corrected by the “grading” of those titles in the Personnel Orders. (R. at 2782). The City’s defense vastly understates the action undertaken in the Personnel Orders. Regardless of how the City attempts to label its actions under the Personnel Orders, it is clear that the City engaged in a comprehensive reclassification of its entire prevailing wage workforce into fourteen new occupational services with fourteen new pay plans and then graded the reclassified workforce. These actions required the City to amend and modify Rule X of the Personnel Rules and such actions require notice, a hearing, and approval of the State Civil Service Commission pursuant to N.Y. Civ. Serv. Law § 20. The City’s action was arbitrary and capricious as it violates N.Y. Civ. Serv. Law § 20 and is inconsistent with the state’s prevailing wage law and collective bargaining laws. 3 QUESTIONS PRESENTED 1. Whether the Court below properly determined that the City’s actions required compliance with N.Y. Civ. Serv. Law § 20 to provide notice and a hearing, as well as receive a determination from the New York State Civil Service Commissioner prior to amending and modifying Rule X of the Personnel Rules by deleting the Skilled Craftsmen and Operative Service and creating fourteen new occupational services with fourteen new pay plans and reclassifying approximately 10,000 City employees and altering the method by which wages, benefits and terms and conditions for such employees are set? The Murphy Petitioners-Respondents respectfully submit the answer is yes. 2. Whether the Court below properly determined that the City’s action was arbitrary and capricious? The Murphy Petitioners-Respondents respectfully submit the answer is yes. STATEMENT OF FACTS 1. The New York City Department of Citywide Administrative Services (“DCAS”) proposed “reclassifying” all titles under the Skilled Craftsman and Operative Service. On April 3, 2012, Barbara Carnival, the Director of Classification and Compensation at DCAS issued a memorandum to DCAS’s Chief Human Capital officer, Maria DiPaolo. (R. at 2780). The subject of the memorandum stated: 4 Proposal: In the Competitive Class, Rule X: (1) reclassify all titles under the Skilled Craftsman and Operative Service, Part [038] into one of the following Services: Metal Work Service, Electrical Service, Mechanical Maintenance Service, Plant Maintenance Service, Plumbing Service, Building Maintenance Service, Infrastructure Maintenance Service, Carpentry Service, Painting Service, Equipment Operation Service, Structural Maintenance Service, Building Construction Service, Press Operation Service and Maritime Service and delete the Skilled Craftsman and Operative Service, Part [038]; (2) in the Labor Class, Rule X: put City Laborer into a graded pay plan; and (3) establish a graded pay plan for each new occupational service. Id. (emphasis added). The memorandum states that the authority for this proposal stems from §814(a) of the City Charter at paragraphs 2 and 10. The memorandum states that pursuant to the City Charter, “the Commissioner of the New York City Department of Citywide Administrative Services has the responsibility to classify and reclassify titles for employees in the City of New York and to develop and recommend to the Mayor ‘career, salary and wage plans, providing for the creation, abolition and modification of positions and grades’...” DCAS and the Office of Labor Relations (“OLR”) reviewed the titles classified in Competitive Class, Rule X, under the Skilled Craftsman and Operative Service, Part [038], which “encompassed all Competitive Class titles (classes of positions) classified by DCAS as titles to be paid pursuant to Labor Law Section 220.” (R. at 2780). Pursuant to its review, DCAS proposed reclassifying the titles under the Skilled Craftsman and Operative Service Part [038] into one of fourteen 5 new services under Rule X and assign grades under newly established pay plans, thereby “removing the titles from the scope of New York State Labor Law § 220.” (R. at 2781). Notably, the Skilled Craftsman and Operative Service, Part [038] was initially created by the New York City Board of Estimate prior to 1947 to include all of the titles that had wages set pursuant to New York State Labor Law §220. (R. at 2781). Specifically, DCAS noted the differences in the collective bargaining process and impasse procedures for prevailing wage employees and other competitive class employees. (R. at 2781). DCAS went on to state, without support, why DCAS “ . . .determined that there is no sound public policy basis for continuing the anomalous method of wage determination for the titles in the Skilled Craftsman and Operative Service. . .” (R. at 2782). DCAS proposed that a “graded structure be established for these titles” in the Skilled Craftsman and Operative Service for the express purpose of removing them from Labor Law §220. (R. at 2782). Director Carnival’s Memorandum reveals that DCAS recognized that these titles could not be placed in “a graded structure” without a comprehensive reclassification and amendment to Rule X. (R. at 2782-2784). DCAS recommended “that the titles currently classified under the Skilled Craftsman and Operative Service, Part [038] be reclassified into one of [the] fourteen new graded services under Rule X, be excluded from the Career and 6 Salary Plan, be assigned salaries and leave benefits under newly established graded pay plans and covered by the new Leave Regulations for Maintenance and Operation Services employees.” (R. at 2783). After recommending reclassification of the Skilled Craftsman and Operative Service, DCAS recommended a grading construct within each of the fourteen new classifications consisting of helper/entry- level titles; journey-level titles; supervisor titles; and supervising supervisor titles with a minimum and maximum salary range for each grade. (R. at 2783). The DCAS Memorandum recommends “incumbents of one of the reclassified titles…to maintain their salaries and benefits as determined under New York State Labor Law §220 in the titles they hold…” Id.2 However, such employees will no longer have their salaries and benefits determined by New York State Labor Law §220. (R. 2783-2784) Id. “Employees hired into these titles on or after the adoption of this reclassification” will be subject to the new pay plans and leave regulations established for the graded positions. (R. at 2784) (emphasis added). In the closing 2 While incumbents’ wages will not be immediately reduced by the Personnel Orders, they will be deprived of future wage increases they have a reasonable expectation of receiving. Currently, the consent determinations setting forth the wage rates received by Petitioner-Respondents members are expired. Under New York State Labor Law §220, these wage rates are based on the rates set forth in collective bargaining agreements (“CBAs”) that Petitioner-Respondents’ negotiate with private employers. The private sector CBAs are not expired and provide for current and future wage increases. As the wage rates in the consent determinations are based on the wage rates in the CBAs, and as the wage increases in the consent determinations have generally mirrored the increases in the CBAs, Petitioner-Respondents members have reasonably expected to receive the wage increases negotiated in the private CBAs when the consent determinations are re-negotiated. The Personnel Orders deprive Petitioner-Respondents from these reasonably expected wage increases. 7 paragraph to its memorandum, DCAS recommends approval of the “Classification Resolutions.” Id. DCAS’s “Determinations of Personnel Commissioner’s Calendar” for week ending Wednesday, April 11, 2012 contains a heading entitled “Classification.” (R. at 2730-2731). Paragraph D-153 states “the classification of the Classified Civil 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 as follows: I. By deleting from the Competitive Class, under Rule X, the heading SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassifying titles thereunder as indicated herein. II. By including in the Competitive Class, subject to Rule X, the new [fourteen new operational services listed] XVI. Terms and Conditions: This reclassification shall be effective on April 11, 2012…. (R. at 2731 and 2736) (emphasis added). 2. The Mayor Adopted the Personnel Orders Without Notice, a Hearing, and Approval by the State Civil Service Commission or Negotiations with the Impacted Labor Organizations. Eight days after the DCAS Memorandum, On April 11, 2012, New York City Mayor Michael Bloomberg issued Mayor’s Personnel Order No. 2012/1 and Mayor’s Personnel Order 2012/2. (R. at 2786 and 2793). Personnel Order 2012/1 adopted the recommendations of DCAS and established fourteen new operational 8 service classifications, and provided graded pay plans for each of “the classes of positions under Personnel Rule X”; and set minimum and maximum salaries for each class of positions. (R. at 2786-2790). The Order outlines the manner by which the “[w]ages of an employee who is an incumbent of a title reclassified under one of these services by the companion Department of Citywide Administrative Services classification resolution” will be paid, as well as the process by which such wages will be established in the future. (R. at 2790). Personnel Order 2012/2 issued on the same day unilaterally imposes new time and leave provisions immediately applicable to all employees in the newly established service classifications. (R. at 2793-2801). Order 2012/2 establishes Annual Leave Allowance, Sick Leave Allowance, Pay for Leave upon Separation from City Service, Other Authorized Absences with Pay, Leaves of Absence without Pay, Absence Due to Injury Incurred in the Performance of Official Duties, and Holidays with Pay. Id. The City’s comprehensive reclassification of its entire prevailing wage work force would have become effective on April 11, 2012, by virtue of the Mayor’s execution of the Personnel Orders had it not been enjoined. (R. at 2786 and 2793). The comprehensive reclassification of an entire class of services, the removal of every City employee in the Skilled Craftsman and Operational Service from the auspices of New York State Labor Law §220, and the unilateral creation of a new 9 pay plan as well as time and leave regulations were created without notice, without a hearing, and without the approval of the New York State Civil Service Commissioner. (R. at 2722 ¶’s 40 and 41; R. at 2761 ¶’s 40 and 41). The City unilaterally implemented the reclassification structure, new pay plans, new time and leave regulations, and new process for establishing wages, benefits and other terms of conditions of employment in the future without notifying or bargaining with any of the labor organizations effected by the Personnel Orders (R. at 2722 ¶’s 40 and 41; R. at 2761 ¶’s 40 and 41), despite the fact that incumbent and new employees were represented by certified labor organizations. (R. at 2781 and 2792 ¶6). 3. Petitioners-Respondents Challenged the Implementation of the Mayor’s Personnel Orders. On May 8, 2012, Petitioners-Respondents, John Murphy, as Financial Secretary Treasurer and on behalf of Local 1, of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Patrick Dolan as President and on behalf of Local 638 Enterprise Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Robert Walsh as Business Manager and on behalf of Local 40, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO along 10 with various members of the three different labor organizations (“Murphy Petitioners-Respondents”) filed the underlying Article 78 proceeding through an Order to Show Cause claiming that the City’s unilateral action was arbitrary, capricious and unlawful.3 On May 8, 2012, the Supreme Court granted a temporary restraining order enjoining and restraining the City from reclassifying any of the Murphy Petitioners-Respondents’ titles pending the outcome of the proceeding. On June 29, 2012, the Supreme Court determined that the City failed to comply with its obligations to provide notice, a hearing, and receive a determination by the New York State Civil Service Commissioner as required by N.Y. Civ. Serv. Law § 20 in order to implement the Personnel Orders. The Court annulled the Personnel Orders finding the City’s actions to be arbitrary and capricious. An appeal to the Appellate Division - First Department followed. A Decision and Order of the Appellate Division - First Department was entered on May 28, 2013, wherein the Appellate Division, affirmed the eleven orders of the Supreme Court, which had annulled the Personnel Orders 2012/1 and 2012/2, and the Classification Resolutions of DCAS amending the Rule X {Part 38} by deleting the Skilled Craftsman and Operative Service and establishing fourteen 3 Eleven separate actions were brought against the city by multiple labor organizations and individuals challenging the Mayor’s Personnel Orders. The eleven separate actions were each given the following index numbers: 102601/12, 102447/12, 102602/12, 102603/12, 102604/12, 102607/12, 102608/12, 102636/12, 102673/12, 102605/12, 102606/12. These actions were consolidated for limited purposes on appeal by a Stipulation allowing each petitioner-respondent to file separate briefs. This brief is filed on behalf of the “Murphy Petitioners,” who brought the Article 78 Petition that was designated index no.: 102636/12. 11 new operational services. ARGUMENT I. THE CITY’S ISSUANCE OF PERSONNEL ORDERS 2012/1 and 2012/2 WITHOUT NOTICE, A HEARING, AND APPROVAL OF THE STATE CIVIL SERVICE COMMISSIONER VIOLATES CIVIL SERVICE LAW §20 The Personnel Orders first eliminated the Skilled Craftsman and Operative Service Part [038], created fourteen new classifications, established pay scales and time and leave regulations for those new classifications, then graded each of the classifications into four separate levels (helper, journeyman, supervisor, and supervising supervisor). If not enjoined, the City’s action would have reclassified approximately ten-thousand (10,000) city employees and fundamentally changed the process and method by which future wages, benefits, and terms of conditions of employment for each of these ten-thousand employees are negotiated. The City would have removed those employees from the protection of New York State Labor Law §220 and placed them under New York City’s Collective Bargaining Law. This is a comprehensive scheme that first required amendment/modification of Rule X, Part 38, and a reclassification of all of the positions in that Skilled Craftsman and Operative Service. The City’s assertion that they simply allocated positions to a grading structure requires this Court to ignore the steps the City took to get to the grading part of their action. In order to “grade” the City itself recognized its need to engage in a comprehensive reclassification plan. Such a 12 wholesale restructuring requires notice, a hearing, and approval of the New York State Civil Service Commissioner under Civil Service Law §20. A. Civil Service Law §20 Requires Notice, a Hearing and Approval by the State Civil Service Commission as Procedural Safeguards Against Arbitrary Changes to the Civil Service System Prior to Implementing the Personnel Orders. New York Civil Service Law §20 states: 1. Scope of rules. 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 of employments, for examination therefore and for the appointments, promotions, transfers, resignations and reinstatements therein, all in accordance with the provisions of this chapter. 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. 2. Procedure for adoption of rules. Such rules, and any modifications thereof, shall be adopted only after 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 . . . and the state civil service commission. . . N.Y. Civ. Serv. L. §20. 13 The statute requires municipal civil service commissions, such as DCAS, to prescribe, amend, and enforce rules to carry into effect the Civil Service Law. Id. The statute then provides examples of the types of rules municipal civil service commissions can prescribe or amend. Id. The list is not exhaustive, but includes rules for the jurisdictional classification, position classification, the examination for such positions, and rules for appointments, promotions, transfers, resignations and reinstatements into such positions of offices and employments. The actual names of the positions created, or the salary grade for a position does not have to be specifically set forth in such rules. The rules can only take effect after notice, a hearing, approval of the Mayor and approval of the State Civil Service Commission. The procedural requirements of N.Y. Civ. Serv. Law § 20 were enacted to “cause local commissions to give thoughtful consideration to amendments of their rules and to foster greater interest in and understanding of the rules by the public.” 1998 N.Y. Op. Att'y Gen. 8 (1998) (citing Memorandum from Commission to Governor Lehman, Bill Jacket, L 1941 ch 933). The requirements received support because a public hearing and state approval “would prevent local commissions from making many changes to their rules on very short notice, which often left employees uncertain as to what rules governed their employment.” 1998 N.Y. Op. 14 Att'y Gen. 8 (citing April 12, 1941 and April 14, 1941 letters to Governor Lehman, Bill Jacket, L 1941 ch 933). Here, the public was afforded no opportunity to learn about or understand the Personnel Orders. The rules were amended without any notice to the public, the unions, or those employees impacted by the changes. The changes to Rule X in this case required amendment and/or modification to accomplish the restructuring that the City set out to do, as proven by the City’s own documents. (R. at 2757-2801). In addition, the City intended to change the entire process by which future wage rates, benefits, and other terms and conditions of employment would be established; undermining the very collective bargaining process that the City purportedly seeks to promote. It is undisputed that the City of New York failed to provide notice or a hearing, and failed to seek approval of the State Civil Service Commission prior to issuing Personnel orders 2012/1 and 2012/2. B. The Personnel Orders are Subject to the Procedural Requirements of Civil Service Law §20. The Courts of New York have held that a reclassification requires compliance with the civil service law. See Joyce v. Ortiz, 108 A.D.2d 158, 164, 487 N.Y.S.2d 746 (1st Dept. 1985). More specifically, it has been held that a 15 reclassification resolution removing a title from the prevailing wage category in Part 38 and placing it within a salary grade of a Career and Salary Plan can only be effective upon compliance with the procedural safeguards found in N.Y. Civ. Serv. Law § 20. See Auguti v. City Civil Serv. Comm'n of City of New York, 9 Misc. 2d 349, 351, 169 N.Y.S.2d 675 (Sup. Ct. 1957). In Auguti, the City sought to remove the position of Climber and Pruner from the prevailing wage category in Part 38 and place it within salary grade 7 of the Career and Salary Plan through a resolution of the Municipal Civil Service Commission. Id. at 677. The Court noted that such rules, and the modifications thereof, shall only take effect after a public hearing is held, the rule or modification is approved by the mayor, and the rule or modification is approved by the State Civil Service Commission. Id. at 678. Auguti is a case involving reclassification of a position within the competitive class. As the procedural requirements in N.Y. Civ. Serv. Law § 20 must be followed to remove one position from the prevailing wage category in Part 38 and place that position into a career and salary plan, then certainly these procedural requirements must be followed to remove all prevailing wage classifications from the Career and Salary Plan and Part 38, eliminate those positions, and reclassify the employees in those positions into fourteen newly created occupational services and pay plans effectively nullifying N.Y. Lab. Law § 220(8)(d) in the process. The 16 City’s “modification” of Rule X Part 38 is clearly subject to the procedural requirements of Civil Service Law §20. Section 2, paragraph 10 of the Civil Service Law defines the term “jurisdictional classification” as “the assignment of positions in the classified service to the competitive, noncompetitive, exempt or labor classes”. The positions in the Skilled Craftsman and Operative Service were assigned to the competitive class and the fourteen new services are as well. The City claims that since the jurisdictional classification of these positions in the competitive class has not been changed, it had no obligation to comply with N.Y. Civ. Serv. Law § 20. (See Verified Answer, P 85; Appellant’s Brief at pp.11, 23-24.) The City argues that changes to jurisdictional classifications are the type of “paradigmatic”, “legislative” change N.Y. Civ. Serv. Law § 20 applies to. Id. at 23. The City asserts that “. . . grading and changes within the competitive classes are in fact excluded. . .” from the procedural safeguards of § 20 (Id.) This is quite simply wrong and ignores the plain language of the statute. See Auguti, 9 Misc.2d at 351-352. N.Y. Civ. Serv. Law § 20 expressly applies to rules “for the position classification of such offices of employments.” N.Y. Civ. Serv. Law §2 Paragraph 11 of Section 2 defines the term “position classification” 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 therefore”. 17 There can be no serious doubt that the City engaged in “position re-classification” and amended and modified Rule X with respect to the “position classification” of the prevailing wage positions. In the April 3, 2012 Memorandum, DCAS proposed reclassifying all titles in the Skilled Craftsman and Operating Service Part 38, creating new occupational services, as well as establishing grades for those new occupational services. (R. at 2780). The Personnel Orders references the reclassification of these positions throughout the fourteen new services. (R. at 2780- 2801). In fact, the DCAS memorandum is replete with references to the classification of these positions into Part [038] and the reclassification of them into the fourteen new services, including the following provisions: “Subject: Proposal in the Competitive Class, Rule X: (1) reclassify all titles under the Skilled Craftsman and Operative Service, Part [038] into one of the following new occupational services. . .”, (R. at 2780) “Part [038] encompasses all competitive Class titles (classes of positions) classified by DCAS as titles to be paid pursuant to N.Y. Lab. Law § 220.” Id.; “The Skilled Craftsman and Operative Service, Part [038], was created by the NYC Board of Estimate prior to 1947 to include all titles in the City’s classification system which were to have wages set pursuant to N.Y. Lab. Law § 220. Titles, and often related supervisory titles, were classified under Part [038] and 18 have continued as ungraded Part [038] titles ever since.” (R. at 2781); “Therefore, although the titles classified under the Skilled Craftsman and Operative Service are in the Competitive Class . . . Id. “. . . we recommend that the titles currently classified under the Skilled Craftsman and Operative Service, [038] be reclassified to one of these fourteen new graded services under Rule X. . .” (R. at 2783). Personnel Order 2012/1 also makes multiple references to position classification, such as: “Wages for an employee who is an incumbent of a title reclassified under one of these services by the companion Department of Citywide Administrative Services classification resolution on the effective date of this Order (“grandfathered incumbent”):” (R. at 2790); “. . . a grandfathered incumbent of a title subject to the new classification and grading systems set forth in this Order. . .” Id. The City claims this conduct is merely “grading” in order to escape the procedural requirements of the law. The Personnel Orders completely removed an entire class of ungraded titles from Part 38 of the competitive class, eliminated the class, and created fourteen new graded services, for the express purpose of removing the protections of the prevailing wage law for approximately 10,000 employees. As acknowledged by the City, it “created a comprehensive grading and classification construct which places each title in a grade in one of fourteen new 19 services . . .” (R. at 2763, ¶53)(emphasis added). The City admits that its actions were motivated by a desire to end a so-called “anomalous practice” of setting the wages for public sector titles by exclusive reference to private prevailing wages. Id. at 2771, ¶87; see also R. at 2781-2782. The Appellant’s Brief to this Court describes the City’s action as follows: “In Conjunction with the Mayor’s Office of Labor Relations (“OLR”), DCAS reviewed all the specified titles, considering tasks performed, the training and experience required to perform those tasks, required licenses and certifications and other similar factors. . . DCAS determined that the affected titles had commonalities supporting the creation of fourteen services, which would then be graded.” Appellant’s Brief, at 8-9 (emphasis added). This description, in fact, is precisely “position classification”, as defined in the N.Y. Civ. Serv. Law § 2. (See also, Personnel Rules and Regulations of the City of New York, 55 RCNY Appendix A, Rule 1, definitions “Position. Position means a particular office or employment in the civil service. Position Classification. Position classification is a grouping together under common or descriptive titles of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements thereof. Position Reclassification. Position reclassification is the reassignment of a position or positions from one class of positions to a different class of positions”). 20 It is clear that before it graded positions, the City created new services, classified positions in those services and removed them from the Career and Salary Plan and placed them in the Maintenance and Operative Services, and only then graded them. The fact that the City’s ultimate objective was to grade those positions that it reclassified does not exempt its actions from the Civil Service Law §20 procedural safeguards for amendments and modifications to Rule X. See N.Y. Civ. Serv. Law § 20(1) and the reference therein to “position classification”; See also Auguti, 9 Misc.2d 351-352; Corrigan v. Joseph, 304 N.Y. 172, 185, 106 N.E.2d 593 (1952)(requiring State Civil Service Commission approval of resolutions establishing grades for certain positions within the competitive class). C. The 1960 Amendment to N.Y. Civ. Serv. Law §20 Does Not Excuse the City’s Failure to Comply with the Statute’s Procedural Requirements. In an effort to excuse its failure to comply with the notice, hearing and approval requirements of N.Y. Civ. Serv. Law § 20, the City presents an argument that blends a misapplication of the law with a revisionist view of what the Personnel Orders actually attempted to do. The City’s own documents establish that this was not simply the ministerial listing of titles and salaries in the rule. The City repeatedly refers to its actions as more than that and, in fact, establishes the fact that the City engaged in a comprehensive modification of Rule X through the reclassification of positions. 21 The misapplication of the law stems from the City’s reliance on language added to N.Y. Civ. Serv. Law § 20 in 1960. This language, added to N.Y. Civ. Serv. Law § 20(1) 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.” See N.Y. Civ. Serv. Law § 20. The City proceeds to argue that this 1960 amendment modified the law to no longer require state approval of “position classifications.” See Appellants’ Brief at pp. 13- 19. However, the City’s argument is not supported by the legislative history, or the express language of the statute, which still references modifications to the rules for “position classification” as one area that requires state approval even after the 1960 amendments. The legislative history cited by the City reveals that the language of the 1960 amendment was intended to address the administrative or ministerial acts associated with listing titles or updated salary grades in the rules, not the wholesale restructuring of an entire rule. See Appellants’ Brief at pp. 16- 17. The Memorandum from the State Department of Civil Service, John J. Mooney, counsel, dated September 14, 1959, in the section entitled “Arguments in Support of Bill” states the following after describing the requirements of N.Y. Civ. Serv. Law § 20(1): 22 Obviously the rules were intended to cover matters which are truly legislative in character rather than pronouncements or determinations of a routine administrative nature. See Governor’s Bill Jacket to 1960 N.Y Laws 73. The amendment was intended to allow the City to update changed salary grades due to negotiated increases without going through the lengthy process of notice, a hearing and state approval. It was intended to ease the City’s administrative burden when adjusting the minimum and maximum salaries of a grade as a result of negotiations. The Amendment was not intended to provide the City with the legislative authority to autonomously remove all employees from the Skilled Craftsmen and Operating Services covered by Labor Law §220 and reclassify them into newly created operative services. The combined effect of characterizing the Personnel Orders as “grading” with the misapplication of the 1960 amendment understates the overall impact and drastic changes implemented by the Personnel Orders. Clearly such wholesale changes impacting the terms and conditions of employment for 10,000 employees, nullifying the protection of N.Y. Lab. Law § 220(8-d) in the process, is in excess of the Mayor’s authority, and is exactly the type of legislative activity intended to be covered by the procedural safeguards of N.Y. Civ. Serv. Law § 20. 23 II. THE PERSONNEL ORDERS ARE ARBITRARY AND CAPRICIOUS BECAUSE THEY ARE EXECUTIVE ACTS THAT ARE AN IMPROPER ASSUMPTION OF POWER AND CONFLICT WITH LABOR LAW §220 (8-d) A. Labor Law §220(8-d). The City’s unilateral implementation of the Personnel Orders should be found arbitrary and capricious. The employees represented by the Petitioners- Respondents are entitled to the prevailing wage protections afforded by N.Y.S Labor Law §220. See N.Y. Lab. Law § 220(8-d). The City’s unilateral conduct denies them that protection and is wholly inconsistent with state law. The New York State prevailing wage law, §220(8-d) states: . . .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 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. . . Id. The purpose and effect of the Personnel Orders was to remove 10,000 current City employees as well as all future City employees from the purview of N.Y.S. Labor Law §220(8-d), essentially nullifying the statute, as well as the strong public policy of the State of New York to pay laborers, workmen and 24 mechanics employed on public works the prevailing rate of wages. See (R. at 2781-2782); N.Y.S. Labor Law §220. The City’s claim that the current collective bargaining process for these positions under N.Y.S. Labor Law § 220 is an “historical anomaly” that it is free to eliminate, without so much as compliance with the procedural safeguards provided N.Y. Civ. Serv. Law § 20, is an assumption of authority the City’s executive branch does not have. It also ignores the public policy basis for N.Y.S. Labor Law §220, which is to “hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen, and mechanics.” See Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 402, 676 N.E.2d 854 (1996); Bucci v. Vill. of Port Chester, 22 N.Y.2d 195, 201, 239 N.E.2d 335, 338 (1968); Austin v. City of New York, 258 N.Y. 113, 117, 179 N.E. 313 (1932). Section 220 of the Labor Law was enacted in 1894 and has been upheld as applicable to public employees since 1918. Gaston v. Taylor, 274 N.Y. 359, 9 N.E.2d 9 (1937); Wright v. State, 223 N.Y. 44, 47, 119 N.E. 83 (1918). The wages, benefits and working conditions for employees in the Skilled Craftsman and Operative Service, covered by N.Y.S. Labor Law §220, have their wages set either in a consent determination agreed to by the City and the unions; or by the Comptroller after a hearing if the parties are unable to reach agreement, and in reference to the wage rates set for the same trades in private sector collective 25 bargaining agreements. (R. at 2781). In the case of the Murphy Petitioners- Respondents, the prevailing rate for city employees is based upon the rate negotiated by the Murphy Petitioners-Respondents (Plumbers Local 1, Steamfitters Local 638, and Ironworkers Local 40) with private sector employers that employ members performing the same type work as the City employees represented by the Murphy Petitioners-Respondents perform. The comparison to the private sector wage rate has been deemed appropriate by legislative enactment of N.Y.S. Labor Law §220(8-d). Utilizing the prevailing rate as a guide, the Murphy Petitioners-Respondents negotiate terms and conditions of employment, including wages and benefits, in good faith directly with the City leading to an agreement known as Consent Determinations. These Consent Determinations are executed by both the City and the respective labor organization and are collectively bargained agreements. This process, established by statute, would be eliminated by mayoral fiat should the Personnel Orders be implemented. As such the City’s issuance of the Personnel Orders is arbitrary, capricious, and a violation of law as the Mayor is essentially enacting policy that conflicts with state law. See, e.g., Rapp v. Carey, 44 N.Y.2d 157, 375 N.E.2d 745 (1978)(stating that executive acts which are not embraced by the stated legislative policy are invalid); Under 21 v. City of New York, 65 N.Y.2d 344, 356, 482 N.E.2d 1 (1985)(explaining the principles behind separation of 26 powers); Broidrick v. Lindsay, 39 N.Y.2d 641, 646-648, 350 N.E.2d 595 (1976)(determining whether executive action is an improper assumption of legislative power); see also Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 410, 582 N.E.2d 568 (1991). The Mayor cannot unilaterally implement Personnel Orders that adopt a public policy that is in direct conflict with the public policy of the state favoring collective bargaining holds municipalities to a standard of social justice in their dealings with laborers, workmen, and mechanics through payment of a prevailing wage. The City’s argument that the prevailing wage law must yield to the Civil Service Law when ungraded titles are graded, (Appellant’s Brief, at 26), is based on the City’s mistaken impression that it has the unfettered right to reclassify and grade titles in the competitive class without compliance with the due process elements of the civil service law and/or the labor law, which for all the reasons stated herein is not supported by the relevant statutes or case law. Since it is only the City’s unilateral action outside the procedures of N.Y. Civ. Serv. Law § 20 that are challenged and enjoined, the prevailing wage law does not have to yield to such unlawful conduct. B. Corrigan Despite its position that the 1960 amendment to the Civil Service Law superseded one part of the Corrigan decision, the City argues that part of the Corrigan decision remains good law and governs this dispute. Appellant’s Brief, 27 pp. 25-31. The City argues that pursuant to Corrigan, Labor Law §220 does not apply to public employees in graded titles, including those formerly in ungraded titles. See Appellants’ Brief, pp. 26-27 (citing Corrigan, 304 N.Y., 180). While, it is questionable whether Corrigan has survived judicial and legislative developments at all (See Demartino Petitioners-Respondents Brief, at 14-16; Roberts Petitioners-Respondents Brief, at 39-40), it is submitted that even if it has, it does not necessarily govern this matter as there are different questions of law presented here than in Corrigan. The question presented to the Court of Appeals in Corrigan was “whether municipal employees in graded positions in the competitive class of civil service may obtain fixation of their wages by invoking the prevailing rate of wages formula and incidental remedial procedure prescribed by Section 220 of the Labor Law.” Corrigan, 304 N.Y. at 178. The matter was placed before the Court by city workers employed in graded titles seeking to have their wage rates set under the procedures of N.Y.S. Labor Law §220. Id. Corrigan held that N.Y.S. Labor Law §220 procedures for determining wage rates do not apply to civil service employees already in graded titles. The process and manner by which employees covered by N.Y.S. Labor Law §220 can be removed from the purview of the statute was not the issue and was not decided by that case. 28 At the time, the Corrigan Court was concerned that applying N.Y.S. Labor Law §220 procedures for determining wage increases to employees in graded titles would lead to such employees receiving wages in excess of their grade resulting in automatic promotions endangering the state constitutional guides of merit and fitness. See Id. at 182-183 Id. at 182-183. The Court noted that if the grading system was to be uprooted in such a manner, by applying N.Y.S. Labor Law § 220 to graded titles, then such a change should be made by the legislature, not the Court. Id. at 183. However, the concerns raised by the Court in Corrigan are not present here. The merit and fitness requirements of the state constitution and Civil Service Law are adequately protected by New York City Personnel Rules preventing an increase in salary beyond the limit fixed for the grade of that position from resulting in an automatic promotion. 55 RCNY §A, at Rule 5.3.2. The Personnel Orders in this case do not attempt to address any concern that employees in the Skilled Craftsman and Operative Service of Part 38 of Rule X were somehow bypassing or undermining the merit and fitness requirements of the State Civil Service System, or that these employees were receiving “automatic promotions” by virtue of working in ungraded services. Rather the City’s only stated purpose for implementing the Personnel Orders was to remove 10,000 employees from coverage of N.Y.S Labor Law §220. (R. at 2780-2784). The City’s actions essentially replace the public policy of the state, as codified by 29 N.Y.S. Labor Law §220, to pay laborers, workmen and mechanics employed on public works the prevailing rate of wages, with the City’s own policy. To allow the City to autonomously and unilaterally end prevailing wage protections for its own laborers, workmen and mechanics would be inconsistent with the beneficent purposes of the statute and crush the standard of social justice intended for them. See Austin, 258 N.Y. 113, 117 (1932). Since the threat of automatic promotion is removed, the City fails to support its claim that the current system disrupts the merit and fitness requirement. Instead, the City, ignoring 100 years of experience, as well as the public policy behind the prevailing wage, claims that the application of the prevailing wage to these employees is a “historical anomaly” that the Personnel Orders will correct. The City’s disagreement with this policy does not provide it with authority or a rational basis to effectively scratch the law from the books. Finally, in the event this Court finds that Corrigan is valid and does govern the issues presented in this case, Corrigan itself should settle the matter since in Corrigan, the City engaged in position reclassification of a Part 39 title of the competitive class, which was not deemed effective until State Civil Service Commission approval, some five years after the City’s first attempt to reclassify an ungraded position to a graded one. Corrigan, 304 N.Y. 172, 184-186. 30 III. THE PERSONNEL ORDERS VIOLATE THE CITY’S COLLECTIVE BARGAINING OBLIGATIONS TO PETITIONER-RESPONDENT’S UNDER NEW YORK STATE LAW AND THE APPLICABLE CONSENT DETERMINATIONS. The City’s obligation to bargain with the Murphy Petitioners-Respondents over wages, benefits and other terms and conditions of employment is codified in both N.Y. Lab. Law § 220(8-d) and N.Y. Civ. Serv. Law §209 (also known as the “Taylor Law”). “The obligation to bargain under the Taylor Law as to all terms and conditions of employment is a ‘strong and sweeping policy of the State” and cannot lightly be overridden. Bd. of Educ. of City Sch. Dist. of City of New York v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660, 667, 554 N.E.2d 1247 (1990), quoting Cohoes City Sch. Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 778, 358 N.E.2d 878 (1976); see also, Levitt v. Bd. of Collective Bargaining of City of New York, Office of Collective Bargaining, 79 N.Y.2d 120, 589 N.E.2d 1 (1992). New York State Prevailing Wage Law §220 also requires collective bargaining between municipal employee unions and the City of New York regarding the application of prevailing wages to covered employees. N.Y. Lab. Law § 220(7),(8-d). As such, the collective bargaining laws of this state govern the labor relations of these civil service workers and impose an obligation on the City to negotiate in good faith over wages, benefits and other terms and conditions of employment. Notably, wages are the most important element of a 31 labor contract and constitute a mandatory subject of bargaining. Buffalo Teachers Fed'n v. Tobe, 464 F.3d 362, 368 (2d Cir. 2006). The wages and other terms and conditions of employment for these titles have been established pursuant to the procedures provided for in N.Y.S. Labor Law §220(8-d) and set forth in a series of Consent Determinations that are negotiated and entered into as a result of collective bargaining with the City. The Consent Determinations have since expired, but continue to govern based upon their own terms as well as the Triborough doctrine and/or statute, which is policy that has been developed to balance the obligations of public sector unions not to strike and a correlative duty of the employer not to unilaterally alter the terms and conditions of employment after expiration of the agreement and pending negotiations for a successor agreement. N.Y. Civ. Serv. Law § 209(a)(1)(e); see, Town of Southampton v. New York State Pub. Employment Relations Bd., 2 N.Y.3d 513, 813 N.E.2d 602 (2004). These prevailing wage employees are public sector employees prohibited from striking. Therefore, the City has a correlative duty not to unilaterally alter the terms and conditions of employment pending negotiations. These mutual obligations are a vital element of public sector labor relations in our state and city. In fact, these obligations have been codified in our state and city labor laws. See Taylor Law at N.Y. Civ. Serv. Law § 209(a)(1)(e)(McKinney); New York City Collective Bargaining Law 32 (“NYCCBL”) at §12-306(5). Despite some case law that has determined that the NYCCBL does not apply to prevailing wage employees, or that the Office of Collective Bargaining (“OCB”) does not have jurisdiction over these mutual obligations for prevailing wage employees4, it is clear that the correlative duties not to strike and to continue the terms of conditions of employment of the expired Consent Determinations applies to the relationship between the Murphy Petitioners-Respondents and the City, if not by the NYCCBL, then by the Taylor Law, and /or prevailing wage law, N.Y.S Labor Law §220(8-d), and/or as a matter of public policy. Of course, it is also notable that both parties have abided by the Consent Determinations until the Mayor’s unilateral action in April of 2012, undoubtedly in recognition of these mutual obligations. The impact of the Mayor’s Personnel Orders on the Petitioner-Respondent labor organizations must not be underestimated. Members chose to elect labor organizations to represent them in their dealings with employers’, a right guaranteed them under state and city law. The most important function of a labor organization is to negotiate agreements setting forth the wages and benefits for the employees it represents. The Mayor’s act of unilaterally imposing new wage rates 4 See McFarland v. City of New York, 23 Misc. 3d 1127(A), 889 N.Y.S.2d 506 (Sup. Ct. 2009)(OCB has no jurisdiction to hear improper practice charges filed on behalf of employees covered by Labor Law §220(8-d) as the issues raised within the improper practice charge were governed by the provisions of Labor Law §220(8-d). 33 has severely undermined the ability of Petitioners-Respondents to do that. Not only does the Mayor unilaterally impose the most essential part of the labor agreement on employees, but with the stroke of the pen he has drastically reduced mutually agreed upon wage rates. In fact, the City’s conduct eviscerates the agreements previously negotiated by these labor organizations. This act undermines and diminishes the Union’s bargaining strength as the Mayor has ignored the requirements of N.Y.S. Labor Law §220 and set forth an arbitrary position from which the parties must negotiate in the future. See New York State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Carey, 99 Misc. 2d 565, 416 N.Y.S.2d 697 (Sup. Ct. 1979)(granting an injunction preventing the State from imposing or implementing the terms of an “alleged contract” where no agreement was reached). The right to collectively bargain and the right of certain employees, including members of Petitioner-Respondents, to receive the prevailing wage are constitutionally protected rights. Article I, Section 17 of the New York State Constitution. The City’s actions have summarily and unilaterally stripped the Petitioner-Respondent members of their rights under the state constitution and the prevailing wage law. The City has no authority to do so. The Mayor’s recitation of his authority under the City Charter is without merit. There is nothing in the Charter, the Administrative Code or any City law that authorizes the Mayor or 34 DCAS to unilaterally and summarily alter the prevailing wage law and set unilateral terms and conditions of employment that violate the bargaining obligations set forth in N.Y.S Labor Law §220(8-d). The Mayor stripped existing positions of their collectively bargained terms and conditions of employment. This action violates the strong public policy in our state in favor of collective bargaining and prevailing wages on public works. The City argues that it had no obligation to bargain with the Petitioners- Respondents under any law before it reclassified these positions and changed their salaries. The City’s efforts to avoid collective bargaining over the changes effectuated by the Personnel Orders contradict the City’s current claim to be implementing the Personnel Orders to promote collective bargaining under the NYCCBL. Essentially, the City argues that the City can relieve itself of its own collective bargaining obligations through its civil service functions. This absurd argument is contrary to the strong public policy and law in this state and this nation in favor of collective bargaining. Taken to its logical conclusion, the City would forever be able to avoid its bargaining obligations by simply renaming and regrading positions. Such a result would place graded civil servants in a “never never land” with no collective bargaining rights despite the law, their existing Consent Determinations, and decades old collective bargaining history. The City may not use the civil service function to avoid its obligation under New York State or other legislative enactments. CONCLUSION For all the foregoing reasons, Petitioners-Respondents seek an Order from this Court upholding the May 28, 2013 decision of the Appellate Division-First Department upholding the Supreme Court order, annulling Personnel Orders 201211 and 201212 finding that the Personnel Orders violated the procedural requirements of N.Y. Civ. Servo Law § 20 and are arbitrary and capricious as well as such other and further relief as this Court deems just and proper. Dated: January 8, 2014 TO: Zachary Carter Corporation Counsel of the City of New York, Attorney for the Appellants 100 Church Street New York, New York 10007 (212) 788-1031 or 1072 mpastor@law.nyc.gov Respectfully submity~d, By:-+-~~~.,..:.... CAROL O'RO Murphy Petitioners (1026361 ) Colleran, O'Hara & Mills L.L.P. 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 516-248-5757 516-742-1765 cop@cohmJaw.com 35 for