District Council 37 v. City of New York, 6393.

• Decision Date: 11 October 2005
• Docket Number: 6393.
• Citation: 2005 NY Slip Op 07460,804 N.Y.S.2d 10,22 A.D.3d 279
• Parties: DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 279

804 N.Y.S.2d 10

2005 NY Slip Op 07460

DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

6393.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 11, 2005.

Judgment, Supreme Court, New York County (Marcy Friedman, J.), entered April 1, 2004, which denied petitioner public employee organization's application to annul the determination of respondent Board of Collective Bargaining of the City of New York, inter alia, denying petitioner's request to compel respondent City of New York to implement a merit pay program for certain employees in the City's Human Resources Administration, unanimously affirmed, without costs.

In fall 2000, the City of New York (City) announced a proposal to change the name of its income support offices to job centers, creating a new title series, including job opportunity specialist (JOS) and associate job opportunity specialist (AJOS). By spring 2001, the New York City Human Resources Administration (HRA) began to fill the JOS titles by staffing from current employees already working in the following positions: eligibility specialist (ES), supervisor (SUP), caseworker, and principal administrative associate (PAA). Those current employees were represented either by District Council 37 (DC 37) or the Communications Workers of America (CWA). However, before implementing the JOS titles, the City held meetings with DC 37 Locals 371 and 1549 and CWA Local 1180. The parties agreed that during the pendency of the representation proceeding, current employees moving into the JOS titles would continue to receive all the benefits of their respective collective bargaining agreements and union representation.

In fall 2001, 200 new outside-hires were employed to fill the JOS positions. The new hires did not have union representation. The employees who transferred from SUP, ES, caseworker and PAA positions, meanwhile, were covered by union agreements which provided that each union will acknowledge the employer's right to pay additional compensation for outstanding performance, and that the employer will notify the union of its intent to grant merit increases.

In February and March 2001, DC 37 and CWA filed petitions pursuant to New York City Collective Bargaining Law ([NYCCBL] Administrative Code of City of NY) § 12-309 (b), seeking to accrete the JOS and AJOS titles into one of their existing bargaining units. These representation cases were consolidated (collectively referred to as the Representation Proceeding).

A few months later, the City advised the locals that it intended to implement a merit pay plan for the JOS titles only. According to the plan, JOS and AJOS employees would receive up to 20% of their base salary in each calendar year, as merit pay.

On October 25, 2001, DC 37, on behalf of its locals, filed a petition for injunctive relief and an improper practice petition, alleging that the City violated the NYCCBL when it unilaterally granted merit wage increases to employees in the JOS titles without proper collective bargaining.

In its petition, DC 37 alleged that the City had broken its promise to maintain the salary and benefits of current employees transferring to the JOS titles, and also breached its duty to bargain by unilaterally conferring the economic benefit of the merit pay plan for those employees without bargaining under NYCCBL § 12-306 (a) (4). DC 37 also alleged that the City interfered with employees' union rights in violation of NYCCBL § 12-306 (a) (1) by unilaterally implementing merit increases during the Representation Proceeding and that the City attempted to dominate and interfere with DC 37's administration in violation of NYCCBL § 12-306 (a) (2). Finally, DC 37 claimed that the City discriminated against it to discourage participation in DC 37's activities as a bargaining representative in violation of NYCCBL § 12-306 (a) (3).

The Board of Collective Bargaining (Board) decided that HRA's unilateral implementation of the merit pay plan violated NYCCBL § 12-306 (a) (1) because merit increases created a change in the status quo for JOS title employees during the pendency of the Representation Proceeding. The Board also found that the City's implementation of the Plan was unilateral and in violation of the existing collective bargaining agreement pursuant to NYCCBL § 12-306 (a) (1) and (4), which prohibit employer interference. The Board ordered HRA to cease and desist from granting any further merit pay until a wage and benefit package was determined by collective negotiation with a certified bargaining agent.

However, the Board found that the granting of merit increases was not discriminatory pursuant to section 12-306 (a) (1) and (3) because the recipients were not predominantly confined to one job title or union affiliation. It also determined that the granting of merit pay did not interfere with or dominate DC 37 in violation of section 12-306 (a) (1) and (2) because DC 37 did not produce sufficient evidence to show how the merit pay caused domination of and interference with the administration of the union.

On November 29, 2001, the CWA filed a similar improper practice petition against the City. Like DC 37, the CWA sought to maintain the status quo with respect to wages and benefits during the Representation Proceeding. The Board similarly upheld CWA's claim on the basis that the merit pay plan was not properly implemented because it was commenced during the pendency of the Representation Proceeding. As in its determination of DC 37's claims, the Board found that the granting of merit pay did not discriminate against the union nor did it interfere with employee protected rights.

On March 8, 2002, DC 37 filed another improper practice petition claiming that granting merit pay to employees in JOS titles penalized the DC 37 affiliated employees working in SUP, ES, and caseworker positions, since they did not receive merit pay. DC 37 claimed this interfered with its ability to represent its members, violating NYCCBL § 12-306 (a) (1). DC 37 also claimed that granting merit pay solely to JOS title employees and not SUP, ES, and caseworker employees was discriminatory under section 12-306 (a) (3), and that HRA favored members of one union over another.

Lastly, DC 37 claimed that the granting of merit pay to JOS title employees and not SUP, ES, and caseworker employees was an attempt to dominate and interfere with DC 37's administration in violation of section 12-306 (a) (2). DC 37 sought an injunction ordering the City to designate funds to award additional compensation to employees in positions other than JOS and AJOS.

Inasmuch as the Board determined that DC 37 had not presented any new arguments to justify a departure from the earlier finding, it made no further decision, and dismissed the petition.

Petitioners brought a CPLR article 78 proceeding seeking to annul the latter decision claiming that the Board simply reiterated its holding and rationale from its earlier decision. The Board responded by pointing out that an order directing the City to grant merit pay to non-JOS title employees would be wholly inconsistent...