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

Brief

N.Y.Sep 11, 2014

To be Argued by: STEVEN E. SYKES (Time Requested: 30 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 Confirming an Arbitration Award Under Article 75 of the Civil Practice Law and Rules and for a Judgment 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 and EDNA WELLS HANDY, as Commissioner of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents-Appellants. BRIEF FOR PETITIONERS-RESPONDENTS LILLIAN ROBERTS, et al. ROBIN I. ROACH GENERAL COUNSEL DISTRICT COUNCIL 37, AFSCME, AFL-CIO Attorneys for Petitioners-Respondents Lillian Roberts, et al. 125 Barclay Street, Suite 510 New York, New York 10007 Tel.: (212) 815-1450 Fax: (212) 815-1440 Date Completed: January 8, 2014 ST A TE OF NEW YORK COURT OF APPEALS In the Matter of the Application of GREGORY FLOYD, as President and On behalf of Local Union NO. 237, LB.T., et al., Petitioners-Respondents, F or a Judgment Confirming an Arbitration Award Under Article 75 of the Civil Practice Law and Rules and for a Judgment 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 and EDNA WELLS HANDY, as Commissioner of the NEW YORK CITY DEP ARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents-Appellants. CORPORATE DISCLOSlJRE STATEMENT New York Co. Index No. 102601/12 District Council 37 is a subordinate body of the American Federation of State County and Municipal Employees 9AFSCME, AFL-CIO) and is an amalgam of 53 affiliated Locals. Dated: January 8, 2014 New York, NY i TABLE OF CONTENTS TABLE OF AUTHORITIES……..….……………………………….…...iii PRELIMINARY STATEMENT……...……………………………………..1 COUNTER-STATEMENT OF QUESTIONS PRESENTED………………5 RELEVANT STATUTES…………………………………..…………….…6 STATEMENT OF FACTS……………………………………………….….7 ARGUMENT………………………………………………………………26 I THE APPELLATE DIVISION DECISION SHOULD BE AFFIRMED BECAUSE APPELLANTS’ MODIFICATION OF NEW YORK CITY PERSONNEL RULES AND RECLASSIFICATION OF ROBERTS PETITIONERS’ REPRESENTED TITLES WITHOUT PRIOR NOTICE, A PUBLIC HEARING AND REVIEW BY THE NEW YORK STATE CIVIL SERVICE COMMISSION WAS IN VIOLATION OF CIVIL SERVICE LAW § 20………………..….........26 II ASSUMING, ARGUENDO, MAYOR’S PERSONNEL ORDERS No. 2012/1 AND 2012/2 COMPLIED WITH CIVIL SERVICE LAW, THE ORDERS ARE NEVERTHELESS INVALID BECAUSE ROBERTS PETITIONERS ARE COVERED BY LABOR LAW 220(8-d) AS A MATTER OF LAW………………….35 III EVEN ASSUMING, ARGUENDO, APPELLANTS’ ISSUANCE OF THE PERSONNEL ORDERS DOES NOT VIOLATE CIVIL SERVICE LAW §20 OR LABOR LAW §220, APPELLANTS’ REPUDIATION OF THE CONSENT DETERMINATIONS WAS ARBITRARY AND CAPRICIOUS……..…………..43 ii Consent Determinations are Collective Bargaining Agreements…………………………………………………44 Collective Bargaining Agreements Continue Post Expiration as a Matter of Law………………………….46 CONCLUSION…………………………………………………………..56 iii TABLE OF AUTHORITIES Cases Page Corrigan v. Joseph, 304 N.Y. 172 (1952)…………………………………....30,41 City of Watertown v. PERB, 95 N.Y.2d 73(2000)…………………………..39 CSEA v. PERB, 248 A.D.2d 882 (3rd Dept. 1998)………………………….51 Evans v. Newman, 100 Misc.2d 207 (N.Y. Sup. Ct., Albany County 1979) aff’d 71 A.D.2d 240 (3rd Dept. 1979)……………………………………50,51 In the Matter of Professional Staff Congress v. PERB, 7 N.Y. 3d 458 (2006)…………………………………………………………………….…..46 In the Matter of Town of Southhampton v. PERB, 2 N.Y.3d 513 (2004)………………………………………………………………………..46 Joyce v. Ortiz, 108 A.D.2d 158 (1st Dept. 1985)…………...……………27,30 Matter of Board of Educ. v. PERB,75 NY2d 660, 667 (1990)………….…...38 Matter of Broidrick v. Lindsay, 39 N.Y.2d 641………………………...38,42 Matter of Citizens for Orderly Energy Policy v. Cuomo, 78 NY2d 398, (1991) …….………………………………………………………………………...37 McFarland et al., v. City of New York, 889 N.Y.S.2d 506 (Sup. Ct., N.Y. Cty,2009)…..………………………………………………………………...47 National Treasury Employees Union et al. v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006)……………………..……………………………………………...53 Rapp v. Carey, 44 NY2d 157 (1978)………………………………... 36,41, 42 Roberts v. New York City Office of Collective Bargaining, 2010 NY Slip Op. 32953U (Sup. Ct., N.Y. Cty. 2010)……………………………………….…47 iv Under 21 v. City of New York, 65 NY2d 344 (1985) ……………….………………………………………..……………….……37 Statutes Civil Service Law §20………………………....14,26,27,29,31,32,33,34,35,43 Civil Service Law §209-a(1)(e)…………….………………………....….43,44 New York State Labor Law §220……..………….2,5,32,35,36,40,41,42,43,44 MISCELLANEOUS Governor’s Memorandum, Governor’s Bill Jacket for L. 1976, Ch. 933……………………………………………………………………31,32,41 The New York State Constitution, Article V, Section 6...…….…………....32 1 PRELIMINARY STATEMENT Petitioners-Respondents Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, the local presidents of affiliated locals of District Council 37, and Anthony Carter and Cornell Heyward, individually and on behalf of those similarly situated (hereinafter collectively “Roberts Petitioners” or “the Union”)1 submit this brief in opposition to an appeal brought by Respondents- Appellants 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 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 “Respondents-Appellants”) of a decision and order of the Appellate Division, First Department, entered on May 28, 2013. In its order, the First Department affirmed eleven orders of the Supreme Court, New York County which annulled Mayor’s Personnel Order No. 2012/1, 2012/2 and a resolution of the New York City Department of Citywide Administrative Services (“DCAS”), 1 This brief is submitted on behalf of the Petitioners-Respondents in Roberts et al. v. City, et al., Index No. 102601/12. This appeal is consolidated with 10 other appeals, with index numbers 102447/12, 102602/12, 102603/12, 102604/12. 102605/12, 102606/12, 102607/12, 102608/12, 102673/12, and 102636/12. We respectfully refer the Court to the briefs submitted by the Petitioners-Respondents in those appeals for a complete discussion of the facts and proceedings pertaining to those appeals. 2 acting in its capacity as the municipal civil service commission for the City, which amended its rules to reclassify all of the City’s approximately 10,000 “prevailing rate” employees, including over 2,000 employees represented by Roberts Petitioners as “non-prevailing rate” employees. For over a century employees in skilled trades titles, including those represented by Roberts Petitioners have had their wages and benefits set in accordance with prevailing rates, as determined by the New York City Comptroller, in accordance with New York State Labor Law §220 (“L.L. §220”). The Personnel Rule amendments, Mayor’s Personnel Orders and DCAS resolution, taken collectively, fundamentally and dramatically change how affected employees’ compensation and benefits are determined, in addition to effectuating wholesale changes in these employees’ actual compensation. Specifically, these changes delete titles represented by Petitioners from the Civil Service Competitive Class heading SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassify these titles under different pay plans. In addition, the changes would subject new hires to unilaterally imposed pay grades at rates which will not be paid in accordance with the collectively bargained Consent Determinations and instead will be unilaterally subjected to the Mayor’s graded range of salaries. Furthermore, new hires will be granted leave pursuant to 3 the leave regulations for the newly created Maintenance and Operations Services Employees instead of in accordance with Comptroller’s Consent Determinations. Finally, the changes, if implemented, would alter the wages afforded incumbent employees employed in Roberts Petitioners’ represented titles. These employees will no longer have wages set by the New York City Comptroller if the parties fail to reach a collectively bargained agreement after good faith negotiations. In a Decision and Order dated May 28, 2013, the Appellate Division unanimously affirmed that the lower court properly annulled Appellants’ reclassification plan. The Appellate Division’s decision should be affirmed because the plan (a) amended and/or modified the DCAS Rules without providing notice, conducting a public hearing, or obtaining the New York State Civil Service Commission’s approval, as required by N.Y. Civil Service Law (CSL) §20(2); (b) repudiates collective bargaining agreements; and (c) lacked a rational basis and was arbitrary and capricious. The Appellate Division properly affirmed the lower court’s determination which annulled the reclassification plan as violative of CSL §20. Pursuant to Civil Service Law § 20, civil service personnel rules, including the Personnel Rules and Regulations of the City of New York at issue herein “and any modifications thereof, shall be adopted only after a public hearing, notice of which has been 4 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.” CSL §20(1). Once the public hearing is completed, “any modifications” of the rules must be approved by the New York State Civil Service Commission. Id. Therefore, the City can only reclassify City employees from a prevailing rate to a career and salary plan classification after notice of the proposed change is issued and a public hearing held. In addition, any such change requires the approval of the New York State Civil Service Commission (“State Civil Service Commission”) before the change can become effective. Second, the rule modifications and Personnel Orders contravene New York State Labor Law § 220(8-d) which provides, in relevant part, as follows: [I]n 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… Roberts Petitioners’ members are laborers, workmen or mechanics employed by 5 Respondent City. Therefore, Appellants may not deny them rights pursuant to Labor Law §220(8-d). Third, the reclassification plan abrogates the collective bargaining agreements entered into pursuant to L.L. §220 and is therefore arbitrary and capricious. For all the reasons set forth herein, the Appellate Division’s decision should be affirmed in its entirety. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the Appellate Division properly hold that Appellants’ modification and amendment of DCAS Rules without notice, a public hearing, and New York State Civil Service Commission approval violated N.Y. Civil Service Law §20? 2. Did the Lower Court properly hold that Appellants’ DCAS Rule modifications and accompanying Personnel Orders abrogated binding collective bargaining agreements, and was therefore arbitrary and capricious? 3. Did the Lower Court properly annul Appellants’ reclassification plan as arbitrary and capricious, when Respondents failed to provide a rational basis for the plan? 6 RELEVANT STATUTES Civil Service Law §20 states, in relevant part, as follows: (1)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 and for appointments, promotions, transfers, resignations and reinstatements therein, all in accordance with the provisions of this chapter. (2)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; Labor Law § 220(8-d) states as follows: 7 [I]n 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. Such employee organization shall be the sole and exclusive representative of such laborers, workmen or mechanics at any hearing pursuant to subdivision eight herein, and shall be the sole complainant in the proceeding for all purposes therein, including review pursuant to article seventy-eight of the civil practice law and rules… 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.(Emphasis added). STATEMENT OF FACTS Petitioners Petitioner-Respondent Lillian Roberts is the Executive Director of District Council 37, AFSCME, AFL-CIO, (“DC37”), an amalgam of 53 local unions representing approximately 120,000 public employees in various agencies, authorities, boards, and corporations throughout the City of New York. 8 James Tucciarelli is the President of Local 1320, an affiliated local of DC37 and represents employees at the Department of Environmental Protection (hereinafter “DEP”) in the civil service titles of Sewage Treatment Worker (“STW”) and Senior Sewage Treatment Worker (“SSTW”). Mr. Tucciarelli is employed by DEP as a SSTW. Local 1320 is the duly certified collective bargaining representative of STWs and SSTWs at DEP. Kyle Simmons is the President of Local 924, an affiliated local of DC37 and represents employees at various mayoral agencies in the titles of Laborer and City Laborer. Mr. Simmons is employed by DEP as a City Laborer. Joseph Puleo2 is the President of Local 983, an affiliated local of DC37 and represents employees in the title of High Pressure Plant Tender at various mayoral agencies. Manuel Roman is the President of Local 1087, an affiliated local of DC37 and represents employees in the titles of Compositor, Furniture Maintainer, Locksmith, Supervisor Locksmith, Printing Press Operator, and Radio Repair Mechanic at various mayoral agencies. Mr. Roman is employed by the Fire Department of the City of New York as a Radio Repair Mechanic. Michael Coppola is the President of Local 1157, an affiliated local of DC37 and represents employees in title of Supervisor Highway Repairer at the New York City Department of Transportation (“DOT”). Jon Bailey is the President of Local 2 Petitioner Mark Rosenthal is the former president of Local 983. 9 2906, an affiliated local of DC37 and represents employees in the titles of Captain, Chief Marine Engineer, Mate, First Assistant Marine Engineer, Third Assistant Marine Engineer, Mariner, and Marine Oiler at DEP. Mr. Bailey is employed by DEP as a Mate. DC37 is the certified bargaining representative for the aforementioned local unions and its members (hereinafter “Prevailing Rate Titles”). Anthony Carter is an employee of the New York City Department of Transportation in the title Assistant City Highway Repairer. He has been employed by DOT as an Assistant City Highway Repairer for the past seven years and performs arterial and street maintenance work, including paving, grading, milling and pothole repairs. After eight years of service as an Assistant City Highway Repairer he automatically bumps up to the position of Highway Repairer. He works alongside and assists Highway Repairers. In sum and substance the Assistant City Highway Repairer position is an eight year apprenticeship. Notwithstanding the issuance of the Mayor’s personnel orders at issue herein, Highway Repairer is a prevailing wage title. Assistant City Highway Repairer is not. Mr. Carter has worked for the past seven at the suppressed rate of pay for an Assistant Highway Repairer because he knew that as soon as he completed eight years of service he would automatically become a Highway Repairer and would 10 receive a substantial increase in pay. Indeed, he has long been aware and has diligently followed the rates of pay of Highway Repairers, knowing that so long as he successfully completed eight years of service, he would be entitled to that pay rate. He recently learned that the City has attempted to change the rates of pay for prevailing wage rate titles including the title Highway Repairer. He has further been informed that when he completes his eight years of service he may not be entitled to the pay rates that current Highway Repairers earn. The existing pay rate for a Highway Repairer is something that he has long depended on receiving. Indeed, he has made career and personal decisions based on the assurance that he would be entitled to the existing Highway Repairer pay rate. Cornell Heyward is employed by DEP in the title of STW and is a member of Local 1320. As an STW he operates, maintains and repairs machinery, equipment and structures at New York City’s wastewater treatment plants. The direct line of promotion for a STW is Senior Sewage Treatment Worker. Mr. Heyward recently took, passed and was certified for the list of eligible Senior Sewage Treatment Worker and anticipates in the near future, being called off the Senior Sewage Treatment Worker list and being offered a promotion into that title. In the wake of the Mayor’s Personnel Orders and reclassification of the Sewage Treatment and Senior Sewage Treatment Worker titles at issue herein, neither Mr. Heyward nor 11 other Petitioners know what his rate of pay will be if and when he is promoted. Indeed, Mr. Heyward called Local 1320 to inquire regarding this issue and the local was unable to tell him what his rate of pay and supplemental benefits will be should he accept a promotion. The Union further informed him that they are uncertain that he will receive any increase in wages if he promoted into the Senior Sewage Treatment Worker title. The rate of pay for Senior Sewage Treatment Worker is one that he has long monitored, with the hope he would eventually secure a promotion into that title. Indeed, he has made career and personal decisions based on the assumption that he would be entitled to the existing Senior Sewage Treatment rate of pay when he is promoted into the position. Respondents Respondent City of New York (“City”) is a municipal corporation. Respondent Michael R. Bloomberg is the Mayor of the City of New York (hereinafter “Respondent Bloomberg” or “Respondent Mayor”). Respondent Office of Labor Relations (Respondent OLR) is a mayoral agency, and serves as the bargaining representative for the City. Respondent James F. Hanley is the Commissioner of OLR (hereinafter Respondent Hanley). Respondent the City Department of Citywide Administrative Services (“DCAS”) is a municipal civil service commission responsible for among other things recruiting personnel, 12 conducting examination for positions in the civil service, certifying payrolls, and the like (see generally New York City Charter § 814). Respondent Edna Wells Handy (“Handy” or “Commissioner”) is the Commissioner of DCAS. Respondent James Hein is the Deputy Commissioner of the Division of Citywide Personnel, a division of DCAS (“hereinafter collectively “Respondents”). Reclassification For over a century, public employees in the skilled trades titles employed by the City of New York have had their wages and supplemental benefits determined pursuant to New York State Labor Law §220 et seq.(hereinafter “the Prevailing Rate Law”). The Prevailing Rate Law was established to provide laborers and workmen on public works projects with a right to receive at least the rate set by the fiscal officer of the state or municipality when engaged in public work. Prior to the enactment of the Prevailing Rate Law §220(8-d), a public sector laborer or workman that was part of an employee organization could file an individual labor law complaint alleging that the City failed to pay the prevailing rate and supplements. As a result of this right, prevailing rate unions could negotiate with the City over wages and supplements and at the same time a bargaining unit member could seek redress pursuant to the Prevailing Rate Law. The dual track created inefficiency and divested the employee organization of a fundamental 13 right; the right to negotiate fair and equitable wages and benefits for its members. Prevailing rate unions, including Petitioners, in conjunction with the then Mayor of the City of New York, lobbied the legislature to give employee organizations the exclusive right to file a labor law complaint on behalf of its members. As a result of this lobbying, the Prevailing Rate Law was amended to include § 220(8-d). This Section allows for unions and employers to negotiate in good faith and enter into consent determinations with respect to wages and supplements. If the parties cannot reach an agreement on their own, only the union may file a complaint on behalf of all their members. Labor Law §220(8-d). Indeed, the City of New York urged the legislature to adopt Section 220(8-d) of the Labor Law. The City, in a letter dated July 5, 1984, stated that the amendment would provide a consistent procedure which is less costly and burdensome to the participants and which rightfully recognizes the certified or recognized labor organization as the “exclusive” representative of its prevailing rate employees. (R. 698). The City also expressed concern that the former approach of allowing individual employees to file complaints creates an issue “of employees in the same bargaining unit receiving different wages and/or supplements”, the precise result which would occur if the Mayor’s Orders are permitted to stand. (R. 526-533). 14 On April 11, 2012, Respondent Mayor unilaterally implemented a plan purporting to reclassify these employees outside of the scope of the Prevailing Rate Law and unilaterally impose drastically reduced wages, completely eliminating certain benefits, and reducing long-standing terms and conditions of employment for covered employees. Respondent Mayor amended Rule X of the Personnel Rules and Regulations of the City of New York, by deleting the “Skilled Craftsman and Operating Service;” by reclassifying the titles formerly under the Skilled Craftsman and Operating Service into 14 new occupational services, and by making these 14 new occupational services subject to 14 new pay plans. The amendments are detailed in the Determinations of Personnel Commissioner’s Calendar for the week ending April 11, 2012. (R. 526-533). These reclassifications were implemented without any public notice or State Civil Service Commission approval. The DCAS Commissioner’s Rules, also referred to as the Personnel Rules and Regulations of the City of New York, are codified at Title 55, Appendix A, of the Rules and Regulations of the City of New York. The rules “are adopted pursuant to the procedures specified in the Civil Service Law, §20, subdivision 2.” 55 RCNY App. A, n.1. Rule X is entitled, “Classification of Positions Not Included in the Career and Salary Plan or in the New York City Housing Authority 15 Classification Plan.” This is the rule Appellants now purport to modify. The two mayoral orders attempt to “amend” Rule X, described as the “classification of the Classified Service of the City of New York,” by “deleting” one classification and “reclassifying the titles thereunder as indicated herein” into 14 new classifications. (R. 535-541, 543-551). Appellant Mayor acknowledged the City’s obligations regarding civil service rule changes and collective bargaining agreements as recently as January 2011 in Respondents’ “NYC Workforce Reform Task Force” report and recommendation. (R. 553-586). The “NYC Workforce Reform Task Force” introduction states, in relevant part, as follows: The most significant source of legal requirements is the New York State Civil Service Law, which was first enacted over 120 years ago, in the late 1800s. The civil service “merit and fitness” system prescribes in great detail how the City must recruit, promote, discipline and retain employees. The complexity of the State Civil Service Law also compels the City to promulgate extensive procedures for administering the civil service system. Another significant source of restrictions is the City’s collective bargaining agreements with municipal unions, which over time have instituted a plethora of provisions on pay, job duties, dismissals and seniority. (R. 558). 16 Appellant Mayor’s first recommendation was “[a]mend State law to eliminate the State Civil Service Commission’s oversight authority over the City.” (R. 561). No such amendment has been issued to date and thus the State Civil Service Commission still has oversight over the City’s civil service, including reclassification of titles. Appellants did not seek nor receive State Civil Service Commission approval for the reclassification at issue herein. In addition to reclassifying the Prevailing Rate Titles, Appellants issued Personnel Orders unilaterally imposing new salary rates and supplemental benefit rates that are inconsistent with applicable collectively bargained Consent Determinations. In pertinent part the amendment provides “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…” (R. 527). The amendment also provides: This reclassification shall be effective on April 11, 2012. Incumbents as of this date shall continue to receive pay and benefits under current provisions until collective bargaining for these positions is completed. New hires into these positions shall be paid in accordance with the applicable pay plan set forth in the resolution and Mayor’s Personnel Order and shall receive leave pursuant to the leave regulations for Maintenance and Operations Services employees established by Mayor’s Personnel Order. 17 (R. 535-541). Pursuant to these Personnel Orders, employees hired or promoted into covered titles will immediately receive reduced wages and benefits. The Personnel Orders purport to “grandfather” incumbent employees by allowing them to initially receive the terms and conditions in the existing collective bargaining agreements. However, the Personnel Orders state that Appellant City will bargain with certified bargaining representatives for the affected titles based on the unilaterally imposed salary ranges and greatly diminished leave regulations. (R. 535-541, 543-551). The amendment reclassified all Petitioners’ prevailing rate titles and further greatly diminished both the salary and benefits for new hires without notice, opportunity to be heard and/or bargaining. The City’s unilateral changes are broad and sweeping and drastically impair the Union’s ability to represent its current members and new hires with respect to terms and conditions of employment. Current Consent Determinations Roberts Petitioners’ affected titles are all covered by collectively bargained Consent Determinations that have expired but continue as a matter of law. Sewage Treatment Workers and Senior Sewage Treatment Workers are covered by a Consent Determination (hereinafter “STW Consent Determination”) executed in April, 2010 setting wage rates and supplemental benefits for the period from July 18 1, 2002 through June 28, 2008. (R. 588-598). The clear language of the Consent Determination demonstrates that its terms continue until a successor agreement is reached or a successor prevailing rate determination is imposed. Its terms and conditions also continue as a matter of law. The STW Consent Determination was executed and ratified almost two years after the expiration date of the agreement. Nevertheless, the mutually agreed upon annual leave, sick leave and “other authorized absences with pay” reductions went into effect “as soon as possible upon ratification…” (R. 590-592.) The STW Consent Determination states in relevant part, as follows: Effective, as soon as practicable upon ratification of the Memorandum of Understanding between the parties dated March 15, 2010, the annual leave allowance for all Employees covered by this Determination shall be [reduced] as follows:…Effective, as soon as practicable upon ratification of the Memorandum of Understanding between parties dated March 15, 2010, the annual sick leave accrual allowance for all Employees covered by this Determination shall be 6 days per annum…Effective, as soon as practicable upon ratification of the Memorandum of Understanding between parties dated March 15, 2010, for employees in the titles covered by this Consent Determination, the paid benefits set forth in Article III, Section (1)(a)-(f) of Appendix A shall not apply. (R. 590, 592.) It is undisputed that public employers cannot make retroactive adjustments to supplemental benefits if they over paid the benefits during the pendency of the 19 prevailing rate process. Therefore, the clear language and intent of the parties was to have the leave reductions apply only prospectively starting almost two years after the agreement expired. Finally, Appellants concede that the terms of the Consent Determinations continues by the fact that Appellants continue to provide all current bargaining unit members with the wages and supplemental benefits set forth in the Consent Determination and the Personnel Order explicitly provides that “grandfathered” employees will continue to receive the benefits detailed in the expired agreements. Laborers and City Laborers are covered by a Consent Determination setting wage rates and supplemental benefits for the period from April 1, 2000 through June 30, 2002. (R. 600-611.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law.3 High Pressure Plant Tenders are covered by a Consent Determination executed in May 2009 setting wage rates and supplemental benefits for the period from July 1, 2008 through June 30, 2010. (R. 613-620.) The High Pressure Plant Tender Consent Determination includes a mutually agreed upon elimination of the paid leave days in Article III Section(1)(a) through (f). The parties continue to be bound by the 3 The Appellate Division, First Department recently upheld the Comptroller’s Final Determination for Laborers and City Laborers covering the period from July 1, 2002 through June 30, 2010. In re the City of New York et al., v. Liu et al., OATH Index No. 464/2010 (1 Dept. 2012). 20 Consent Determination both as a factual matter and as a matter of law. Compositors are covered by a Consent Determination executed in April 2009 setting wage rates and supplemental benefits for the period from June 3, 2008 through June 2, 2010. (R. 622-629.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law. Furniture Maintainers are covered by a Consent Determination executed in April 2009 setting wage rates and supplemental benefits for the period from June 3, 2008 through June 2, 2010. (R. 631-638.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law. Locksmiths and Supervisor Locksmiths are covered by a Consent Determination executed in April 2011 setting wage rates and supplemental benefits for the period from July 1, 2002 through December 31, 2007. (R. 640-647.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law. Printing Press Operators are covered by a Consent Determination executed in April 2009 setting wage rates and supplemental benefits for the period from June 3, 2008 through June 2, 2010. (R. 649-656.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law. Radio Repair Mechanics are covered by a Consent Determination executed in August 2010 setting wage rates and supplemental benefits for the period from July 21 1, 2002 through June 30, 2008 (hereinafter “RRM Consent Determination”). (R. 658-667.) The parties continue to be bound by the Consent Determination both as a factual matter and as a matter of law. As set forth above, the RRM Consent Determination was executed and ratified over two years after the expiration date of the agreement. Nevertheless, the mutually agreed upon annual leave, sick leave and “other authorized absences with pay” reductions went into effect “as soon as possible upon ratification…” (R. 659-660). The RRM Consent Determination states in relevant part, as follows: Effective, as soon as practicable upon execution of this Consent Determination, the annual leave allowance for all Employees covered by this Determination shall be [reduced] as follows:…Effective, as soon as practicable upon the execution of this Consent Determination, the annual sick leave accrual allowance for all Employees covered by this Determination shall be 6 days per annum…Effective, as soon as practicable upon the execution of this Consent Determination, the paid benefits set forth in Article III, Section (1)(a)-(f) of Appendix A shall not apply. (R. 660.) Supervisor Highway Repairers are covered by a Consent Determination executed in November 2011 setting wage rates and supplemental benefits for the period from April 1, 2000 through December 31, 2007 (hereinafter SHR Consent Determination). (R. 669-685.) The parties continue to be bound by the Consent 22 Determination both as a factual matter and as a matter of law. The SHR Consent Determination includes mutually agreed upon leave reductions that remain in full force and effect. (R. 671-672.) As set forth above, at least three of the Consent Determinations were executed after their purported expiration dates. Therefore, if the terms of the agreement did not continue post-expiration, the provisions regarding prospective leave adjustments would be a nullity; an absurd result neither party could have intended. The Instant Controversy The pay plan in MPO 2012/1 does not conform to rates established by the applicable Consent Determinations. (R. 535-541). The below chart demonstrates the difference between the current negotiated hourly rates (annualized) and the unilaterally imposed rates: Title Current Rate Proposed Min Rate Proposed Max Rate Laborers/City Laborer $68,048 $43,000 $59,000 High Pressure Plant Tender $65,459 $65,000 $86,000 Compositor $100,892 $73,000 $101,000 Furniture Maintainer $56,689 $48,000 $67,000 Locksmith $51,762 $48,000 $67,000 Supervisor Locksmith $56,731 $54,000 $70,000 Printing Press Operator $73,498 $73,000 $101,000 Radio Repair Mechanic $85,608 $80,000 $94,000 Supervisor Highway Repairer $81,307 $77,000 $100,000 23 Sewage Treatment Worker $73,017 $70,000 $94,000 Sr. Sewage Treatment Worker $80,730 $78,000 $100,000 Marine Titles - Captain $79,124 $66,000 $82,500 - Chief Marine Engineer $73,843 $66,000 $82,500 - Mate* $63,391 to $69,9714 $59,400 $71,500 - First Asst. Marine Engineer $69,971 $59,400 $71,500 - Third Asst. Marine Engineer $65,258 $56,100 $66,000 - Mariner $58,005 $56,100 $66,000 - Marine Oiler $58,005 $56,100 $66,000 The Consent Determinations covering the affected titles specifically address new hires and state “any new Employee who may be hired by the City of New York, et al., during the term of this settlement shall be required to comply with all of the terms and conditions herein upon the payment of the rates and supplemental benefits herein.” (R. 596, 608, 618, 625-626, 634-635, 644, 652, 662, 675). Further the Consent Determination provides in pertinent part “[t]he foregoing basic rates of wages and supplemental benefits are due and payable to each and every Employee of the City of New York, et al., serving in the above-referenced titles beginning as of the effective date of the complaint filed herein, and shall be 4The Mate title is a multiple level title consisting of Mate Level I, Mate Level II and Mate Level III. 24 applicable to all employees of the City of New York, et al., serving in the above- referenced titles who are represented by the Complainant.” (Emphasis added) (R. 596, 608, 618, 626, 635, 645, 653, 663, 676). The plain language in the Consent Determinations is in direct contravention of Appellants’ modifications to Rule X. Leave Regulations On or about April 11, 2012, the Mayor issued Mayor’s Personnel Order No. 2012/2 (“MPO 2012/2”) for the establishment of leave regulations for employees under the Maintenance and Operation Services. (R. 543-551). In pertinent part MPO 2012/2 provided that the leave regulations “shall apply to employees in positions subject to one of the pay plans established for the following occupational services.” (R. 543). Further, MPO 2012/2 notes that “the subject regulations do not apply to grandfathered incumbents.” (R. 543). Mayor’s Personnel Order No. 2012/2 alters the terms of the applicable Consent Determinations including provisions for annual leave allowance, sick leave allowance, pay for leave upon separation from City service, other authorized absences with pay, leaves of absence without pay, miscellaneous provisions, absence due to injury incurred in the performance of official duties, interpretations, and holidays with pay. Appendix A to the Consent Determinations sets forth the mutually agreed 25 upon leave benefits. (R. 687-695.) In the most recent Consent Determinations, some unions agreed to modify the terms of Appendix A.5 Nevertheless, the unilaterally imposed Leave Regulations are not consistent with the negotiated terms of applicable Consent Determinations. For example, the Mayor’s Personnel Order unilaterally eliminated Lincoln’s Birthday as a paid holiday and made Election Day a paid holiday only during a Presidential Election year. Pursuant to Appendix A, bargaining unit members receive 15 annual leave days during their first four years of service. (R. 687). Pursuant to the Mayor’s Personnel Order new hires receive only 10 annual leave days during their first four years of service. Respondents unilaterally eliminated a week of vacation. (R. 544.) Pursuant to Appendix A, bargaining unit members receive 20 annual leave days from years 4 through 8, 25 annual leave days after 8 years, and 27 annual leave days after 15 years of service. Pursuant to the Mayor’s Personnel Order, new hires receive only 15 annual leave days after 4 years of service, and 20 annual leave days after 11 years of service. (R. 544, 687.) Appendix A to the Consent Determinations provides 12 sick days per year to all bargaining unit members. Pursuant to the Mayor’s Personnel Order new hires 5 The Consent Determinations for (1) Sewage Treatment Workers and Senior Sewage Treatment Workers (R. 588-598), (2) Radio Repair Mechanics (R. 658-667), Supervisor Highway Repairers (R. 669-685), and High Pressure Plant Tenders (R. 613-620) contain mutually agreed upon modifications to Appendix A. 26 receive only 6 sick days per year, a unilateral elimination of half the accrued sick leave. (R. 690, 545). The plain language of the Consent Determinations, the practice of the parties and applicable law prohibit the action taken by the City because it reduces the supplemental benefits due to new hires. ARGUMENT POINT I THE APPELLATE DIVISION DECISION SHOULD BE AFFIRMED BECAUSE APPELLANTS’ MODIFICATION OF NEW YORK CITY PERSONNEL RULES AND RECLASSIFICATION OF ROBERTS PETITIONERS’ REPRESENTED TITLES WITHOUT PRIOR NOTICE, A PUBLIC HEARING AND REVIEW BY THE NEW YORK STATE CIVIL SERVICE COMMISSION WAS IN VIOLATION OF CIVIL SERVICE LAW § 20 Both the Supreme Court and Appellate Division properly held that Appellants’ modification of New York City Personnel Rules and Reclassification of Roberts Petitioners-represented titles without prior notice, a public hearing and review by the State Civil Service Commission was in violation of CSL §20. While Appellants focus their argument on their attempt to grade the titles at issue, Appellants fail to address the critical fact that the Personnel Orders at issue seek to amend New York City Personnel Rule X. CSL §20 is clear and unequivocal: 27 “Such rules, and any modification thereof…” only take effect after these specific procedural requirements are met. CSL §20.6 Since Appellants failed to provide notice, failed to hold a public hearing, and failed to seek New York State Civil Service Commission approval, the Appellate Division’s decision must be affirmed in its entirety. All local personnel rule modifications, including but not limited to reclassification can only be accomplished in the manner set forth in Civil Service Law §20, which requires prior notice, a hearing and review by the State Civil Service Commission. N.Y. Civ. S. §20; Joyce v. Ortiz 108 A.P.2d 158,164 (1st Dep’t 1983). The New York Civil Service Law (“CSL”) contains the procedures for local administration of the CSL. In New York City, DCAS administers the CSL, pursuant to Chapter 35 of the New York City Charter. Under CSL § 20, DCAS must promulgate rules establishing, among other things, classifications of civil service titles. It 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 6 Indeed, Appellant’s in their brief concede that “[c]ivil Service Law § 20 requires State Civil Service Commission approval for matters specified in the rules of each municipal civil service commission.” (Appellant’s brief at 16). 28 offices and employments, for examinations therefor and for appointments, promotions, transfers, resignations and reinstatements therein, all in accordance with the provisions of this chapter. CSL § 20 (1). CSL § 20 (2) contains a specific procedure for adopting or changing 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 [emphasis added]; CSL § 20 (2). As such, a local civil service commission or personnel director cannot adopt or modify local Civil Service rules without first holding 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 therefore.” Id. In addition, any changes to the Civil 29 Service rules or plan “shall be valid and take effect only upon approval of the . . . state civil service commission” and filing of the approved changes with the Secretary of State. Id. In the case at bar, Appellants seek to amend the New York City Personnel Rules and reclassify the titles at issue. The DCAS Commissioner stated as follows: 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, as follows: I. By deleting from the Competitive Class, under Rule X, the heading the SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassifying the titles thereunder as indicated herein. [emphasis added]. (R. 527-528) This amending, deleting and reclassifying is a modification of Rule X. Therefore, the strictures of CSL §20 are applicable. Appellants claim that CSL §20 is inapplicable must fail. First, the language of the statute is clear. CSL §20 applies to all rule modifications, including but not limited to changes in jurisdictional classification. Second, the 1960 amendment to CSL §20 does not exempt the actions at issue herein from the procedural strictures of the civil service law. 30 The requirements of CSL § 20(2) were cogently summarized in a Formal Opinion of the New York State Attorney General. 1998 N.Y. Op. Atty. Gen. 8, 1998 WL 111492, Formal Opinion No. 98-F3 (March 12, 1998). In this Formal Opinion, the Attorney General rejected DCAS’s argument that it can establish new titles or reclassify existing titles without holding a public hearing and without obtaining the approval of the State Civil Service Commission. After reviewing and summarizing the relevant case law, statutory provisions and legislative history, the Attorney General concluded that a DCAS resolution purporting to modify the City Personnel Director’s Rules governing the classification of positions in the City’s classified civil service is void unless the notice, hearing, and State Civil Service Commission approval requirements, set forth in CSL § 20(2) have been complied with, noting that “courts have required strict compliance” with these procedural mandates. 1998 WL 111492 at * 2; Corrigan v. Joseph, 304 N.Y. 172, 185 (1952) (nullifying resolutions establishing grades for certain positions because approval of the State Civil Service Commission had not been obtained); Joyce v. Ortiz, 108 A.D.2d at 164 (1st Dept. 1985) (reversing the Supreme Court, granting the Article 78 petition, and nullifying resolutions reclassifying City titles/employees because the City failed to follow the procedures set forth in CSL § 20(2) regarding notice, a public hearing and State Civil Service Commission approval). 31 In search of a post-hoc justification for its non-compliance, the City relies upon the 1960 amendment to the Civil Service Law prompted by the Court of Appeals’ holding in Corrigan. 304 N.Y. at 185. The amendment released the City from its obligation to send updated grading determinations – i.e., the designated wage scales for each grade in a title – for titles that were already graded - to the State. See CSL § 20(1) (“Nothing in this chapter or any other law shall be construed to require that…the salary grade to which a position in any jurisdictional class is allocated be specified in such rules.”). This provision applies to routine changes in grades of employees already so classified, i.e., non-prevailing rate employees. The Explanatory Memorandum, cited by Respondents, provides, “[t]hese changes in competitive class job titles and salary grades come to the State Civil Service Commission at the rate, on average, of about six per month.” 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 relieve municipal civil service commissions from obtaining State Civil Service Commission approval for routine, non-controversial changes to job titles and salary grades, which were being submitted for approval at a rate of six per month. 32 Governor’s Bill Jacket for L. 1960, Ch. 73, Explanatory Memorandum Accompanying Civil Department Bill No. 9. The memorandum explained 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. The provisions in CSL § 20(2) give effect to Article V, Section 6 of the New York State Constitution, commonly referred to as the Merit and Fitness provisions. Id., at 2-3. This interpretation, according to the Attorney General, promotes uniform state-wide adherence to this constitutional mandate. Id., at 3. Accordingly, the Attorney General concludes that the City may not unilaterally establish new titles or reclassify existing titles without compliance with Civil Service Law § 20(2). Here, the City has effectuated a tectonic shift in the manner in which some 10,000 employees determine their most fundamental terms of employment – wages and supplements. Indeed, Appellants’ reliance on the 1960 amendment is particularly unavailing when considering their argument that the grading of employees, as provided in the Mayor’s Orders, has removed Petitioners’ titles from the strictures of Labor Law §220 (Appellant’s Brief at 2). Certainly, the removal of 10,000 employees from the statutory procedures and protections of Labor Law §220, the reclassification of prevailing wage employees to non-prevailing wage 33 employees, is akin to legislation and thus requires compliance with CSL §20(2). In addition, Appellants’ reliance on legislative history confirms that while “there is no purpose in having the State review and approve salary grades or changes to…titles,” Appellant’s Brief at 23, there is a clear purpose in allowing affected parties to be heard when, as is the case here, there are significant changes to the rules themselves. The City, in further support of its position, cites cases regarding a municipalities’ right to grade titles. Appellant’s Brief at 18; Buffalo Bldg. Trades Council, 36 N.Y.2d 782 (1975); Acunci v. Ross, 73 A.D.2d 643 (2d Dept. 1975). These cases are easily distinguishable from the case at bar. Neither case involved, as is the case here, a municipal civil service commission rule change. There is no evidence, and no holding, in either case, that a local civil service commission can modify its rules without adhering to the procedures set forth in Civ. S. Law §20. Finally, the City erroneously relies on the veto of an amendment to the Prevailing Rate Law to support is untenable position. In 2001, the Assembly and Senate passed a bill which stated as follows: No municipality shall administratively reclassify by local law or rule, regulation or otherwise any persons who have been deemed subject to the prevailing rate and supplements defined in Article 8 of the Labor Law without providing proper notice to the impacted parties herein, and without amending the rules of the 34 municipality in the manner set forth in section 20 of the civil service law. S4011/A6689 (2001). The main intent of this legislation, which was vetoed by then Governor Pataki, was to require “consent from the collective bargaining unit representing the affected workers.” In fact, a legislative memorandum from the State Civil Service Department, states, in relevant part, as follows: In the event an amendment to the rules becomes necessary to effect a reclassification, [Civil Service Law] section 20 provides that the rule shall be adopted only after a public hearing, notice of which has been published for not less than three days… Since the current notice requirements appear adequate, we feel the additional notification requirements will unreasonably delay the reclassification process. [ Memorandum from James M. McGuire, at 9.] The Governor’s veto message lends further support that the bill addressed notice and approval by the certified bargaining representative. The Veto Message states, in relevant part, as follows: “[The Legislation] seeks to prevent such reclassification from occurring wehen the employer gives little or no notice to the public employees.” App. Br. At 21. The veto message does not address public notice and the procedural requirements of Civ. S. Law §20. In conclusion, it cannot be disputed that there was no public notice, public hearing nor State Civil Service Commission approval of the rule modifications at 35 issue. The resolution adopted by DCAS on April 11, 2012, purporting to reclassify the City’s prevailing rate employees as Career and Salary Plan employees is null and void because the procedural requirements of CSL § 20(2) were ignored. The City did not issue the required notice. The City did not hold the required hearing and the State Civil Service Commission has not approved the changes. Therefore, the Appellate Division’s decision should be affirmed. The Personnel Rules and DCAS resolution should be annulled because Appellants failed for follow the strictures of CSL §20. POINT II ASSUMING, ARGUENDO, MAYOR’S PERSONNEL ORDERS No. 2012/1 AND 2012/2 COMPLIED WITH CIVIL SERVICE LAW, THE ORDERS ARE NEVERTHELESS INVALID BECAUSE ROBERTS PETITIONERS ARE COVERED BY LABOR LAW 220(8-d) AS A MATTER OF LAW Roberts Petitioners are entitled to the prevailing rate of wages pursuant to L.L. §220(8-d) irrespective of whether their titles are graded. L.L. §220 et seq.(hereinafter “the Prevailing Rate Law”), was established to provide laborers and workmen on public works projects with a right to receive at least the rate set by the fiscal officer of the state or municipality when engaged in public work. For decades Roberts Petitioners’ members have been treated as prevailing wage employees entitled to the protections afforded in Labor Law § 220. Labor 36 Law § 220 provides: [I]n 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… L.L. §220(8-d). Pursuant to this statutory treatment of Roberts Petitioners’ represented titles, the City has negotiated with the Union and its affiliated locals, and the parties have reached mutually agreed upon Consent Determinations. (R. 587-685) Appellants, up until now, recognized and honored their obligations under the law and have negotiated Consent Determinations. The parties have continued the terms thereof beyond the expiration of the applicable terms pursuant to CSL 209-a(1)(e). The Mayoral Orders at issue here stand in stark contrast to the explicit provisions of New York Labor Law §220 et seq. Indeed, if permitted to stand, the Mayor’s Orders would divest Roberts Petitioners of their statutory rights, a power the Mayor does not possess. Rapp v. Carey, 44 NY2d 157 (1978)(executive acts 37 which go beyond and are not embraced by the stated legislative policy are invalid). The principle of separation of powers requires that no one branch of government be allowed to arrogate unto itself powers residing entirely in another branch. Under 21 v. City of New York, 65 NY2d 344, 356 (1985). In determining whether executive action crosses the line and constitutes an improper assumption of legislative power, the court looks to whether the executive action creates a different policy, not embraced in the legislation or whether the executive action is in fact inconsistent with existing state law. Id. at 646-648; see also, Matter of Citizens for Orderly Energy Policy v. Cuomo, 78 NY2d 398, 410 (1991)(executive acts inconsistent with or arrogative of the Legislature’s prerogatives violate the separation of powers doctrine). In Rapp v. Carey, 44 NY2d 157 (1978), the Court addressed whether under the State Constitution the Governor may, by executive order, without benefit of authorizing legislation, mandate State employees, many not subject to removal by the Governor, to file financial disclosure statements, and to abstain from activities not prohibited by statute. Id. at 160. The Court held the executive order invalid and determined that [n]either in the Constitution nor in the statutes is there express or implied authority for the Governor to exact of State employees compliance with Executive Order No. 10.1. Nor does the Governor’s order merely implement 38 existing legislation relating to conflicts of interest. The order reaches beyond that, and assumes the power of the Legislature to set State policy… Id. In Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, the deputy mayor of New York issued rules and regulations requiring building trades’ unions or organizations to accept new minority apprentices at a specified percentage. The trades’ unions objected and filed an Article 78 Petition. The City argued that the actions taken were a valid exercise of authority. The court determined that the deputy mayor’s action went far beyond merely implementing existing state and local law to effectuate equal employment opportunity and in effect mandated percentage employment. The regulations exceeded the limits of state or local legislation, went beyond permissible executive power, and were thus invalid. Critically, the Court held, “…the mayoral regulations are invalid for lack of legislative authorization…” and “inconsistency with applicable State statutes.” Id. at 649. The enactment of Labor Law § 220(8-d) reinforces New York State’s “strong and sweeping policy” in favor of collective bargaining. Matter of Board of Educ. v. PERB, 75 NY2d 660, 667 (1990). “The presumption in favor of bargaining may be overcome only in ‘special circumstances’ where the legislative 39 intent to remove the issue from mandatory bargaining is ‘plain’ and ‘clear’ [citation omitted], or where a specific statutory directive leaves ‘no room for negotiation.’” City of Watertown v. PERB, 95 N.Y.2d 73, 78-79 (2000). In pertinent part L.L.§ 220(8-d) includes language that the parties “shall in good faith negotiate…” wages and supplements. Prior to the enactment of § 220(8-d) of the Prevailing Rate Law, a public sector laborer or workman that was part of an employee organization could file an individual labor law complaint alleging that the City failed to pay the prevailing rate and supplements. As a result of this right, prevailing rate unions could negotiate with the City over wages and supplements and at the same time a bargaining unit member could seek redress pursuant to the Prevailing Rate Law. The dual track created inefficiency and divested the employee organization of a fundamental right; the right to negotiate fair and equitable wages and benefits for its members. Prevailing rate unions, including Roberts Petitioners, in conjunction with the then Mayor of the City of New York, lobbied the legislature to give employee organizations the exclusive right to file a labor law complaint on behalf of its members. As a result of this lobbying, the Prevailing Rate Law was amended to include § 220(8-d). This Section allows for unions and employers to negotiate in good faith and enter into consent determinations with respect to wages and 40 supplements. If the parties cannot reach an agreement on their own, only the union may file a complaint on behalf of all their members. Indeed, the City of New York urged the legislature to adopt Section 220(8-d) of the Labor Law. The City, in a letter dated July 5, 1984, stated that the amendment would Provide a consistent procedure which is less costly and burdensome to the participants and which rightfully recognizes the certified or recognized labor organization as the “exclusive” representative of its prevailing rate employees. (R. 696-698). The City also expressed concern that the former approach of allowing individual employees to file complaints creates an issue “of employees in the same bargaining unit receiving different wages and/or supplements”, the precise result which would occur if the Mayor’s Orders are permitted to stand. Id. Appellants cite Corrigan, in an attempt to justify their actions. (Appellants’ Brief at 13-14). In Corrigan, the Court of Appeals held that employees in graded titles could not seek payment of prevailing rates pursuant to L.L. §220 because payment at such rates would be inconsistent with the goal of appointment and promoting civil service employees based on their merit and fitness. Corrigan, 304 N.Y. at 182. The Court did not hold, as Appellants contend, that a public employer has the unfettered right to unilaterally remove employees in ungraded titles from 41 the coverage of L.L. §220. In the instant case, the affected employees are in ungraded titles subject to L.L.§220(8-d). The decision in Corrigan was issued before the legislature amended L.L. §220 to include subsection 8-d. L.L. §220(8- d) must be construed to make Corrigan inapplicable to the employees at issue herein. As Appellants acknowledge, in 1971 the New York State 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 bill was reintroduced in a subsequent legislative session, was passed, and signed into law by then-Governor Hugh Carey. In his statement approving the bill Governor 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 the 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. Therefore, neither the legislature nor Governor Carey, stated that Corrigan was still good law in New York City after this amendment. On the contrary, since the 42 titles at issue were already ungraded, the amendment would have no immediate affect on their coverage under L.L. §220 because these titles were already covered by L.L. §220. However, if the titles in New York City were ever graded, they would still be covered by L.L. §220 because (8-d) overruled Corrigan. Simply put, L.L. §220(8-d) creates an obligation to negotiate regarding wages and supplements and entitles these titles to the prevailing rate of wages irrespective of whether the title are graded. Here, the Mayor’s Orders purport to explicitly override the provisions of New York Labor Law § 220 et seq. Absent any legislative authority whatsoever, the Mayoral Orders at issue would strip Petitioners of their right to prevailing wages. In addition, Petitioners would no longer have the right, as provided in §220(8-d), to present a single complaint to the New York City Comptroller for final determination of a titles’ wages and supplemental benefits. The Mayoral Orders at issue here would render provisions of Labor Law §220 a nullity, a power the Mayor does not possess. Matter of Broidrick v. Lindsay, 39 NY2d 641; Rapp v. Carey, 44 NY2d 157. As such, Petitioners are covered by L.L. §220 as a matter of law, even if their titles are graded. 43 POINT III EVEN ASSUMING, ARGUENDO, APPELLANTS’ ISSUANCE OF THE PERSONNEL ORDERS DOES NOT VIOLATE CIVIL SERVICE LAW §20 OR LABOR LAW §220, APPELLANTS’ REPUDIATION OF THE CONSENT DETERMINATIONS WAS ARBITRARY AND CAPRICIOUS The Lower Court correctly 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. Even assuming, arguendo, the issuance of the Personnel Orders do not violated CSL §20 or L.L. §220(8-d), the Orders repudiate valid collective bargaining agreements and impose new salary rates and supplemental benefits, including a significant reduction in paid leave days, on new hires. Appellants’ assertion that these unilateral changes to salaries and supplemental benefits are grading and non- mandatory subjects must fail. It is well-established that salaries and supplemental benefits are mandatory subjects of bargaining. CSL §209-a; N.Y.C. Admin. Code §12-306(a)(4). Therefore, Appellants cannot unilaterally impose new wage rates and paid leave accrual rates on new hires. 44 Consent Determinations are Collective Bargaining Agreements As discussed, supra, the Consent Determinations are collective bargaining agreements whose terms and conditions continue after the agreements’ expiration dates pursuant to common law and statute. CSL §209-a(1)(e). The Prevailing Rate Law was established to provide laborers and workmen on public works projects with a right to receive at least the prevailing rate of wages for comparable work set by the fiscal officer of the state or municipality when engaged in public work. The Prevailing Rate Law was amended to include §220(8-d). §220(8-d) required unions and public employers to negotiate in good faith and enter into consent determinations with respect to wages and supplements. If the parties cannot reach an agreement on their own, only the union may file a complaint on behalf of all their members. The collectively bargained Consent Determinations at issue herein are results of good faith negotiations, pursuant to L. L. §220(8-d), between labor organizations, the certified bargaining representatives of the employees, and the Respondent City’s representative, Respondent OLR. Therefore, it is clear that these Consent Determinations are collective bargaining agreements. Here, Respondents seek to put aside legally and legitimately negotiated terms and conditions of employment for Roberts Petitioners- represented members. 45 The Consent Determinations detail wages, hours and other terms and conditions of employment. Critically, each Consent Determination provides: [t]he foregoing basic rates of wages and supplemental benefits are due and payable to each and every Employee of the City of New York, et al., serving in the above referenced titles beginning as of the effective date of the complaint filed herein, and shall be applicable to all employees of the City of New York, et al., serving on the above- referenced titles [emphasis added]. (R. 587-685) The Mayor’s Personnel Orders at issue here expressly vitiate this provision of the parties’ agreement. Furthermore, each of the Consent Determinations contains the following language: “this Consent Determination having been agreed to between the Mayor's Office of Labor Relations ("OLR") on behalf of the City of New York, et al., and the Complainant, compromising and settling certain disputes of basic rates of wages, supplemental benefits and jurisdiction on all issues of law and fact as to the titles set forth in the caption…” Each of the Consent Determinations are signed on behalf of OLR and the City by Respondent Hanley. (R. 587-685). The wages and supplemental benefits of Prevailing Rate titles were negotiated, not imposed, and the City actively and fairly participated in the negotiations on these mandatory subjects of bargaining. 46 Collective Bargaining Agreements Continue Post Expiration as a Matter of Law The terms of collective bargaining agreements between public employee unions and public employers continue after the expiration until the parties negotiate successor agreements as a matter of law. In New York State, public sector employees are prohibited from striking. CSL §200. The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between the government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. These policies are best effectuated by…(e) continuing the prohibition against strikes by public employees and providing remedies for violations of such prohibitions. CSL §200. Both the Taylor Law and public policy require public employers to reciprocate this strike prohibition with continuation of the terms of expired collective bargaining agreements. This principle, referred to as the “Triborough doctrine,” follows from the proposition that the statutory prohibition against an employee organization resorting to self help by striking imposes a correlative duty upon a public employer to refrain from altering terms and conditions of employment unilaterally during the course of negotiations. In the Matter of Town of Southhampton v. PERB, 2 N.Y.3d 513 (2004). In the Matter of Professional Staff Congress v. PERB, 7 N.Y. 3d 458 (2006), the Court of 47 Appeals articulated the rationale for continuing the terms of expired collective bargaining agreements in the public sector. Because some contract provisions place obligations on employees or restrict union rights, the practical effect of continuing all the terms of the CBA during the status quo period is that mutual obligations are imposed on both employers and employees - a result consistent with the statute and PERB’s long-standing application of the Triborough doctrine. Id. at 468. Since public employees cannot strike, public employers are obligated to honor the terms of collective bargaining agreements after their expiration, until the parties negotiate a successor agreement. While New York State Courts have questioned whether the New York City Board of Collective Bargaining has jurisdiction regarding prevailing rate employees (McFarland et al., v. City of New York, 889 N.Y.S.2d 506 (Sup. Ct., N.Y. Cty., 2009); Roberts v. New York City Office of Collective Bargaining, 2010 NY Slip Op. 32953U (Sup. Ct., N.Y. Cty. 2010)), it is undisputed that the Taylor Law’s strike prohibition applies to Prevailing Rate employees. Therefore, the obligation to continue the terms of expired collective bargaining agreements must also apply. This well-established precedent of continuing the terms of the expired Consent Determinations is further supported by the clear language of the Consent Determinations and the practice of the parties over many decades. Several of the 48 Consent Determinations at issue herein were executed a few years after the agreed upon duration of the Consent Determination. These Determinations contain wage rates and supplemental benefit accrual rates that both parties have continued to honor until the parties reach a successor agreement or the Comptroller’s Final Determination is upheld through an appeals process. In fact, the leave accrual rates only have prospective application. For example, Sewage Treatment Workers and Senior Sewage Treatment Workers are covered by a Consent Determination executed in April 2010 setting wage rates and supplemental benefits for the period from July 1, 2002 through June 28, 2008. (R. 587-598). There was no retroactive adjustment of the leave rate accrual when the parties executed this agreement. Therefore, if the STW Consent Determination did not continue past its expiration date, the leave adjustments would have had no effect; an absurdity neither party could have intended.7 Mayoral Order 2012/1 and 2012/2 fundamentally changed the status quo, stripping new hires of negotiated wages and benefits. Appellants’ defense to this clear repudiation is based on the misconception that the unilateral changes at issue in the personal orders are merely grading of the titles, which Appellants claim is a non-mandatory subject of bargaining. 7 Other Consent Determinations at issue herein have similar prospective leave reductions. (See Exhibits E through M attached to the Verified Petition). 49 Appellants claim “The City had no obligation to bargain with petitioners over the Personnel Orders because the decision to allocate positions to grades does not relate to a ‘term or condition’ of employment.” (Appellants’ Brief at 36) Whether or not grading is a mandatory subject of bargaining is irrelevant to Roberts Petitioners’ repudiation claims. As set forth above, the unilateral changes at issue do not merely involving grading of the titles. Appellants, pursuant to these orders, attempt to unilaterally impose new salaries and supplemental benefits, on new hires. It is well established that wages and other supplemental benefits are mandatory subjects of bargaining. For example, in a 2008 decision, the Board of Collective Bargaining addressed whether the City could unilateral change pay rates for new hires. SSEU, Local 371, 1 OCB2d 20 (BCB 2008). While the Board denied the improper practice charge and deferred the matter to arbitration, the Board reaffirmed the well-established principle that wages are mandatory subjects of bargaining. It is axiomatic that wages constitute perhaps the quintessential mandatory subject of bargaining. UFOA, 1 OCB2d 17, at 9-10 (citing cases); Bellmore Union Free Sch. Dist., 34 PERB 3009 at 3017 (2001); see also, Lefkowitz, ed., Public Sector Law Law, 3d Ed. (2008) at 612 (“At this stage of Taylor Law development, no citation is required to support the statement that salary levels…are a mandatory subject of bargaining.”) 50 Id. at 10. This clear precedent is particularly relevant in light of Appellants’ recognition that if these employees are no longer covered by the Prevailing Rate Law, “negotiations would then take place in the framework of the Taylor Law and the New York City Collective Bargaining Law…” (Appellants’ Brief at 38.) Appellants do not acknowledge nor address any of this well-established precedent. Instead, Appellants attempt to couch a unilateral change in wages and benefits as merely grading. As such, Appellants’ reliance on cases regarding grading is misplaced. The cases Appellants cite regarding grading are easily distinguishable. Appellants’ reliance on Evans v. Newman, 100 Misc.2d 207 (N.Y. Sup. Ct., Albany County 1979) aff’d 71 A.D.2d 240 (3rd Dept. 1979) is misplaced. In Evans, the courts addressed the state-wide unification of the court system pursuant to specific legislation. Subdivision 8 of section 39 of the Judiciary Law provides in pertinent part that: "The administrative board in accordance with section two hundred nineteen of this article shall determine * * * the salary grade of each employee who becomes an employee of the state of New York pursuant to this section; provided, however, nothing herein contained shall be deemed to diminish: (i) the right of any employee organization to negotiate wages or salaries pursuant to article fourteen of the civil service law" (emphasis added). PERB and respondents place their principal reliance on 51 the italicized phrase commencing with "provided, however". It is suggested that petitioner's unilateral allocation diminishes the employee's rights under the Taylor Law. However, that interpretation fails to give due regard to, in fact it ignores, the legislative mandate requiring the Administrative Board to determine the salary grade of each employee….There is no mention of this allocation being subject to the process of collective negotiation. Such a process would tend to undermine the goals sought to be attained by unification. Rather than being determined by "the diverse competing needs of local governments" (L 1976, ch 966, § 1), salaries of employees of the unified court system would be determined by the strength of their respective bargaining unit. Such a result is clearly not compatible with a unified court system and the legislative purposes quoted supra. Evans, 100 Misc.2d at 210. In the case at bar, there was no legislative action and there is no attempt to unify any operations that were previously decentralized. On the contrary, the matter at issue herein deals with unilateral action by the executive of a single municipality without either legislative authority or any operational justification. Appellants also cite CSEA v. PERB, 248 A.D.2d 882 (3rd Dept. 1998) in an attempt to support their unilateral reduction in salary and supplemental benefits. CSEA is easily distinguishable. First, like in Evans, the grading in CSEA was preceded by specific legislative action. The County legislature approved a request to upgrade titles of physical and occupational therapists employed by the County “resulting in 12 or 24 therapists being placed in pay groups that were outside the 52 bargaining unit…” 248 A.D.2d at 883. Second, the change in grade allocation resulted in an increase in wages for the affected employees and their removal from the bargaining unit. Therefore, CSEA in no way gives precedential support for the unilateral reduction in salary and benefits by an executive without legislative approval. Finally, without citing or addressing the clear and unequivocal language of the Consent Determinations, Appellants claim that because incumbents are grandfathered in to the prevailing rate there is no change to their wages and supplements. However, the consent determinations do not just apply to current employees. The Consent Determinations covering the affected titles specifically address new hires and state “any new Employee who may be hired by the City of New York, et al., during the term of this settlement shall be required to comply with all of the terms and conditions herein upon the payment of the rates and supplemental benefits herein.” (R.587-695). Further the Consent Determination provides in pertinent part “[t]he foregoing basic rates of wages and supplemental benefits are due and payable to each and every Employee of the City of New York, et al., serving in the above-referenced titles beginning as of the effective date of the complaint filed herein, and shall be applicable to all employees of the City of New York, et al., serving in the above-referenced titles who are represented by the 53 Complainant.” (Emphasis added) (Id.). If public employers could unilaterally impose wage reductions on union members covered by a collective bargaining agreement, this State’s “strong and sweeping policy” in favor of collective bargaining would become a farce. In National Treasury Employees Union et al. v. Chertoff, Federal labor organizations challenged a Department of Homeland Security Final Rule which granted the Department the right to unilaterally abrogate negotiated contracts. “A contract that is not mutually binding is not a contract. Negotiations that lead to a contract that is not mutually binding are not true negotiations. A system of ‘collective bargaining’ that permits the unilateral repudiation of agreements by one party is not collective bargaining at all.” 452 F.3d 839 (D.C. Cir. 2006)(citing Chertoff I, 385 F. Supp. 2d 1, 28 (D.D.C. 2005). The Final Rule by itself, without specific acts of abrogation, created an actionable injury to the Union. The District Court correctly explained that the Unions’ claim does not depend on any particular act of abrogation. Rather, their bargaining position in all negotiations is fundamentally diminished, because they will be unable to ever reach a mutually binding contract…Obviously, the regulations will greatly diminish the role of the Unions in collective negotiations, for they have very little about which to bargain. And the Final Rule limits the possible fruits of bargaining for the employees who are represented by the Unions. These harms are far from conjectural and they will be remedied if the Unions prevail on their claims here. The Unions 54 also convincingly explain the “immediate practical impact” of the Final Rule on this organizations and their members: “The Unions cannot effectively formulate strategies or evaluate trade-offs to secure concessions from DHS because DHS (and even individual managers and supervisors) could later neutralize any concessions DHS had made at the table. As the district court understood, it does not matter whether DHS actually declares a contract clause unenforceable next month or three years from now. It is the change wrought on the bargaining process itself by the presence of these powers that causes immediate injury to the Unions.” 452 F.3d at 853-854. The Court further noted that None of the major statutory frameworks for collective bargaining allows a party to unilaterally abrogate a lawfully executed agreement. See, e.g., 5 U.S.C. §§7102(2), 7103(a)(12)(2000)(federal sector bargaining); 29 U.S.C. §158(a)(5), (b)(3) & (d) (2000) (private sector bargaining); 39 U.S.C. §1206 (2000)(U.S. Postal Service); 45 U.S.C. §152 (Fourth)(2000)(common carriers). Indeed, no statutorily mandated collective bargaining system that we are aware of dispenses with the premise that negotiated agreements bind both parties—no matter what the scope of bargaining was ex ante… The right to negotiate collective bargaining agreements that are equally binding on both parties is of little moment if the parties have virtually nothing to negotiate over. 452 F.3d at 860. In the case at bar, Mayoral Orders 2012/1 and 2012/2 unilaterally imposed wages and supplemental benefits on new hires that are different from the wages 55 and supplemental benefits in the Consent Determinations. These terms are inconsistent with the on-going terms of applicable collectively bargained Consent Determinations. While the Mayoral Order acknowledges Appellants’ obligation to negotiate in good faith pursuant to the Taylor Law and the New York City Collective Bargaining Law, the failure to maintain the status quo until such negotiations are completed abrogated the fundamental terms of the Consent Determinations. There the Lower Court’s determination that Appellants’ repudiation of the collective bargaining agreements was arbitrary and capricious should be affirmed. CONCLUSION F or the foregoing reasons, the order appealed from should be affirmed in its entirety. Dated: New York, New York January 8, 2014 Respectfully submitted, Robin Roach General Counsel DISTRICT COUNCIL 37 AFSCME, AFL-CIO 125 Barclay Street New York, NY 10007 By: Steven Sykes Senior Assistant General Counsel Assistant General Counsel 56