Corrigan v. Joseph

Lewis, J. The petitioners-appellants are employed by the Board of Transportation of the City of New York in various capacities having to do with the maintenance and repair of facilities of the municipally owned subway, surface and elevated railway lines. The character of their work is manual and mechanical including carpentry, masonry, plumbing, welding, metal working and other skilled trades. Prior to July 1, 1938, the positions held by the petitioners were in ungraded services of the competitive class of civil service. In May, 1938, a resolution by the Municipal Civil Service Commission of the City of New York reclassified the petitioners’ positions into a new “ Part ” in the graded service of the competitive class — “ Part 39, The Rapid Transit Railroad Service ’ ’ — and authorized the fixation of the maximum and minimum compensation of the grades of those positions at levels to be established by the — 178 — Board of Transportation and approved by the Municipal Civil Service Commission. Between 1936 and 1946 each of the petitioners had filed with the Comptroller of the City of New York a verified complaint demanding that an investigation pursuant to section 220 of the Labor Law be conducted and that the comptroller thereupon determine the prevailing rate of wages appropriate to positions held by the complainants. Thereafter, upon the petitioners’ complaints, the comptroller conducted hearings as a result of which he found and determined that, since July 1,1938, the petitioners had been classified as graded employees in the competitive class of civil service of the City of New York; that as such graded employees they could not successfully invoke the prevailing-rate-of-wages formula and incidental procedure prescribed by section 220 of the Labor Law and that in those circumstances the comptroller was without power to act in the proceedings. Thereupon the proceedings instituted by the complainants before the comptroller were dismissed by him. Upon the present appeal, in five consolidated proceedings instituted by the petitioners under article 78 of the Civil Practice Act, we review an order of the Appellate Division — two Justices dissenting — by which the determinations of the comptroller dismissing verified complaints filed with him by the petitioners in proceedings pursuant to section 220 of the Labor Law were confirmed, and the present proceeding was dismissed. The dissent by two Justices of the Appellate Division was upon a phase of the case presently to be considered. The question for decision is whether municipal employees in graded positions in the competitive class of civil service may obtain fixation of their wages by invoking the prevailing-rate-of-wages formula and incidental remedial procedure prescribed by section 220 of the Labor Law. In considering the problem thus presented, our guide in the first instance must be the State Constitution. (Hale v. Worstell, 185 N. Y. 247, 253.) In section 17 of article I of that Constitution are to be found the following provisions: “ * * * No laborer, workman or mechanic, in the employ of a contractor or subcontractor engaged in the performance of any public work, shall — 179 — be permitted to work more than eight hours in any day or more than five days in any week, except in eases of extraordinary emergency; nor shall he be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used. * * * ” (Emphasis supplied.) Although the appellants admit that they are not in the employ of a “ contractor or subcontractor engaged in the performance of any public work ”, it is their position that, being engaged in public work, they are entitled, under the constitutional provision (supra) to a wage not less than the rate of wages prevailing in the same trade or occupation in the locality where their services are performed. We think the italicized portions of the constitutional provision as quoted above plainly limit the intended scope of that provision to employees of “ a contractor or subcontractor engaged in the performance of any public work ”. That the intended scope of the provision was thus definitely limited is clearly indicated by the following statement made on the floor of the Constitutional Convention of 1938 by a delegate who spoke for the Committee on Industrial Relations and Workmen’s Compensation which had reported out the amendment then under consideration: “ This amendment reads as follows, and I am reading on page 1, line 5, ‘ No laborer, workman or mechanic in the employ of a contractor or subcontractor ’. Now, those words are vital. Unless the laborer, workman or mechanic is in the employ of a contractor or subcontractor, it does not apply.”* Concluding, as we do, that the limiting words employed by the framers of the constitutional amendment may not be disregarded, we pass to the appellants’ further claim that, although they are incumbents of graded positions in the competitive class of civil service and accordingly are entitled to benefits attaching thereto, they are in addition entitled to the statutory benefits afforded by section 220 of the Labor Law. That statute, in subdivision 3 thereof, provides: “ The wages to be paid for a legal day’s work, as hereinbefore defined, to — 180 — laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined.” The appellants contend that section 17 of article I of the Constitution (quoted supra) and other constitutional and statutory provisions governing civil service should be administered by the application of civil service rules to examinations and appointments in the employment of civil servants but that their compensation should be fixed in accord with the prevailing-rate-of-wages formula set forth in section 220 of the Labor Law. Such a practice, we think, would nullify and destroy the civil service grading system which has prevailed as an essential factor in the administration of the merit system in this State since the enactment of the first civil service law in 1883. (L. 1883, ch. 354; and see Chittenden v. Wurster, 152 N. Y. 345, 350.) The basis for the grading system is the requirement of section 6 of article V (formerly art. V, § 9) of the Constitution which provides in part: 1 ‘ Appointments and promotions in the civil service of the state, and of all civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive * * *. Laws shall be made to provide for the enforcement of this section. ’ ’ Among the statutes by which the Legislature has implemented the constitutional provision last quoted above is subdivision 1 of section 16 of the Civil Service Law which prescribes the following procedure for filling vacancies by promotion: “ Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists.” The same section, by subdivision 7 thereof, also declares: ‘ ‘ For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion.” This court has repeatedly had occasion to consider the system by which positions in the civil service are graded. In Matter of Sanger v. Greene (269 N. Y. 33, 41) Judge Hubbs, writing — 181 — for the court, stated: ‘ ‘ The duty of arrangement of offices in classes is delegated by the Legislature to the Commission [Civil Service Commission]. The classification as made by the Commission divides positions into grades according to salary range and specifies different positions with different titles within certain of the grades. The positions in a grade are placed by the Commission in different classes with duties varying in importance.” Again, in Slavin v. McGuire (205 N. Y. 84, 90), it was said: “ In performing this work of classification, the commissioners sought to carry into effect the provisions of the Constitution and of the Civil Service Law; which had in view the making of ‘ appointments and promotions in the civil service of the State and of all the civil divisions thereof * * * according to merit and fitness,’ etc. They were called upon to classify in grades and to consider, under section 16 of the Civil Service Law, (Cons. Laws, chap. 7), that an 1 increase in the salary or other compensation of any person holding an office or position * * * beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion. ’ * * * According to the constitutional and statutory provisions, and in accord with reason, the commissioners seem to have properly exercised the discretion with which they were invested, when they recognized that positions were to be graded, not only, by the character of the employment, but, as well, by the amount of compensation attaching thereto.” By section 16 of the Civil Service Law the Legislature has made clear its plan, in furtherance of the merit system, that an employee in the competitive class of civil service may not gain an increase in the rate of pay in excess of the range of compensation fixed for his grade, without passing a competitive examination and thereby gaining a promotion. Such was the rule of Matter of Ryan v. Kaplan (213 App. Div. 131), which was affirmed by this court “ on opinion of McAvoy, J., below.” (240 N. Y. 690, 691.) (See, also, Slavin v. McGuire, supra, pp. 89-91; People ex rel. Perrine v. Connolly, 217 N. Y. 570, 574-576; Matter of Williams v. Morton, 297 N. Y. 328, 333-334; People ex rel. Stokes v. Tully, 108 App. Div. 345, 350; O’Malley v. Board of Educ. of City of N. Y., 160 App. Div. 261, 267-268.) — 182 — Thus, by action of the Legislature, designed to carry out the civil service section of the Constitution (art. V, § 6), it has come about — as this court has noted — that ‘1 Grading of positions previously ungraded confers upon the incumbents some advantages not previously enjoyed and subjects the incumbents to some new disadvantages. An incumbent may not thereafter be demoted to a lower salary grade at the will of the department head; nor may he be promoted to a higher salary grade or assigned to duties not appropriate to the title of the graded position without talcing appropriate examination for promotion. The Civil Service Law (Cons. Laws, ch. 7) determines the effect of the grading.” (Matter of Beggs v. Kern, 284 N. Y. 504, 509.) Although the appellants are still incumbents of graded positions in the competitive class of civil service, they invoke in these consolidated proceedings the benefits and procedure accorded to those entitled thereto by section 220 of the Labor Law (quoted supra). In doing so they assert that a raise in pay — which, for them as graded employees, is the statutory indicia of a promotion — would occur whenever the prevailing rate of wages in the locality where their work is performed is in excess of the compensation they are currently receiving. If, as appellants contend, the rate of pay to which they are entitled should not depend upon the grades of their positions — which are based upon merit and fitness, and take into consideration experience, skill and type of work — but should be fixed at the level of the prevailing rate of wages in the locality where their work is performed, it would follow that all employees whose work fell within a given prevailing wage rate would receive the same compensation regardless of grade, achievement or experience; their rate of pay would rise and fall with such prevailing rate, and corresponding automatic promotions or demotions would occur without regard for the employee’s experience, or the type and quality of work performed by him. A result so attained would set at naught the constitutional guides — “ merit and fitness ” — for the appointment and promotion of civil servants in the competitive class. Such disregard for grading, as a controlling factor in the fixing of compensation for incumbents of positions in the graded services — 183 — of the competitive class, would discard procedure which, for more than sixty years, has contributed largely to the successful administration of the merit system in this State. To borrow from language of Chief Judge Crane writing for this court in Wood v. City of New York (274 N. Y. 155, 159-160): ‘ ‘ There is force in the argument that section 220 of the Labor Law was not intended to apply to competitive positions. If the appellant’s theory were correct the State and City Civil Service Commissions would be unable to classify any positions coming under a generic name like electricians, carpenters, iron workers, engineers, and the like. The fact that the competitive class of the civil service has been graded according to the particular work required, and the salary paid, maximum and minimum, without challenge ever since the Civil Service Law was enacted indicates that the prevailing rate law was never thought to be an invasion, a disruption of all civil service regulations. No classification could be made or executed which varied each year and with each locality. ’ ’ If grading, in the pattern of civil service administration, is to be uprooted — imbedded, as it is, so deeply in the public policy of this State — the change is one to be made by legislative action, not by the judicial process. We thus reach the question which prompted the dissent by two Justices of the Appellate Division, viz., the date upon which the Municipal Civil Service Commission, by resolution, effectively graded appellants’ positions. Subdivision 2 of section 11 of the Civil Service Law provides that the Municipal Civil Service Commission rules and regulations, and modifications thereof, require approval by the Mayor and the State Civil Service Commission as a prerequisite to their validity. As we have seen, in May, 1938, the Municipal Civil Service Commission adopted a resolution which reclassified the appellants into new “ Part 39, The Rapid Transit Railroad Service ”. The resolution provided that “ The maximum and minimum compensation of the grades of positions in this group is fixed at the maximum and minimum in the case of each position of the several scheduled rates of wages adopted by the Board of Transportation and as approved by the Municipal Civil Service Commission from time to time.” Approval of the resolution — 184 — by the Mayor was obtained on June 2, 1938, and that of the State Civil Service Commission on July 1st of that year. However, it does not appear that a schedule fixing rates of pay ‘for persons in the new classification was annexed to the resolution at the time of such approvel by the Mayor and State Commission. In fact, no such wage schedule was adopted by the Board of Transportation until July 6, 1938. On September 28, 1938, that wage scale schedule was approved by the Municipal Civil Service Commission. Respondents contend that the approval by the Mayor and State Commission of the provision in the resolution of May, 1938, which authorized the Board of Transportation — with the approval of the Municipal Civil Service Commission — to adopt wage scales, served to validate such schedules, when adopted, without the further approval of the Mayor and State Commission. On three occasions between September, 1941, and July, 1943, new wage schedules were adopted by the Board of Transportation and were approved by the Municipal Civil Service Commission but not by the Mayor or State Commission. However, on December 29, 1942, the Municipal Civil Service Commission passed a resolution codifying Part 39, The Rapid Transit Railroad Service. That resolution was approved by both the Mayor and State Commission in February, 1943, and provided, as did the original 1938 resolution, that wage scales were to be established by the Board of Transportation and approved by the Municipal Civil Service Commission. Again, no wage scale was annexed to the resolution, but in February, 1943 — as distinguished from 1938 — there was a wage scale, adopted by the Board of Transportation and which was approved by the Municipal Civil Service Commission, actually published and in effect. It is apparent from the Appellate Division decision that a majority of that court believed that the approval in advance by the Mayor and State Commission of such wage scales as the Board of Transportation may adopt — when approved by the Municipal Civil Service Commission — was sufficient compliance with subdivision 2 of section 11 of the Civil Service Law. The dissenting Justices were of the view that the approval of the first (1938) resolution by the Mayor and State Commission was ineffective, because there was at that — 185 — time no wage scale actually published and in effect which could have been approved thereby. However, when the second resolution was approved by the Mayor and State Commission in 1943, wage rates had by that time been established by the Board of Transportation and approved by the Municipal Civil Service Commission. Accordingly, the dissenting Justices believed that when the Mayor and State Commission approved the second resolution, the wage schedules which were then published and in operation were also thereby approved. It was their view that appellants had been effectively graded only since 1943, and they therefore voted to remit the matter to the comptroller for determination of the “ prevailing rate of wages ” for the period between 1938 and 1943 when — as they believed — appellants had not been in the graded service. In our opinion, the mandate contained in subdivision 2 of section 11 of the Civil Service Law — that Municipal Civil Service Commission rules and regulations, and modifications thereof, “ shall be valid and take effect only * * * upon the approval of the mayor * * * and of the state civil service commission ” (emphasis supplied) —makes invalid the grades sought to be established by the Municipal Civil Service Commission in 1938, because the salaries for such grades had not then been established, much less approved, by the Mayor and State Commission. We have seen that salary is the essence of a “ grade ”, and hence no valid grade may be established until the salary therefor has been fixed. As the statute requires approval by the Mayor and State Civil Service Commission of rules and regulations of the Municipal Civil Service Commission as essential to their effectiveness, we do not believe that such approval may be given by those oficiáis in advance of the actual establishment by the Municipal Civil Service Commission of such rules and regulations. In other words, the approval in 1938 by the Mayor and State Commission of such salaries as may be established “ from time to time ” by the Board of Transportation and the Municipal Commission was ineffective. (See Matter of Burri v. City of New York, 291 N. Y. 776.) However, when the Mayor and State Commission approved the second resolution in February, 1943, wage scales — although not annexed to the resolution — were in existence and in actual operation. We conclude — 186 — that the approval of the resolution in 1943 carried with it approval of the wage scales then in effect.* The order of the Appellate Division should be modified by-remitting the proceeding to the comptroller with directions that he determine the “ prevailing rate of wages ” for appellants who may be entitled thereto for the period between July, 1938, and February 25, 1943, and, as so modified, the order should be affirmed, without costs. Footnotes [*] 3 New York State Constitutional Convention of 1938, Revised Record, p. 2228. [*] Appellants’ arguments directed to the asserted arbitrariness of the Civil Service Commission’s gradings are not properly before us in this proceeding — to which the commission is not a party. An attack upon administrative rules and regulations may be made in a proceeding against the commission, and may not be made collaterally in a proceeding to which the rule-making body is not joined as a party. (See Matter of Sullivan v. Williams, 303 N. Y. 871; Matter of Beckmann v. Talbot, 278 N. Y. 146, 149-150.)