Trerotola v. New York City Off-Track Betting Corp.

Judgment of the Supreme Court, New York County (Freedman, J.) entered January 21, 1981, granting petitioners’ application to the extent of enjoining respondents from continuing the two separate pay categories for Branch Managers I and II and the two separate pay categories for Shift Managers I and II and directing the establishment of a single pay scale for the respective categories reversed, on the law and the facts, without costs, and the petition dismissed. Petitioners are the union representing the professional, clerical and wagering employees of the Off-Track Betting Corporation (OTB), the respondent, and individual employees of OTB who are members of the union. OTB was created in 1970 as a public corporation (L 1970, ch 144, § 1, as amd). Its purpose was to establish, operate and conduct a system of off-track pari-mutuel betting on horse races. Subdivision 1 of section 76 of the New York City Off-Track Betting Corporation Law (L 1970, ch 144, § 1) requires that OTB “shall administer its personnel pursuant to the civil service law * * * class specifications and personnel orders of the New York city department of personnel and civil service commission”. At that time, the regulations governing civil service - employees of the city were embodied in the alternative career and salary plan. This plan has been supplemented by the collective bargaining agreements negotiated between unions representing city employees and the city. Neither the plan, nor the collective bargaining agreements require equal pay for equal work. Since, as our brother Lupiano makes clear, section 115 of the Civil 823 Service Law is inapplicable, there is no basis for granting petitioners the relief sought by them. When the operation of OTB first commenced, each job classification had ascribed to it the specific duties to be performed by the holders of the job titles. Largely through the process of collective bargaining these specific duties were eliminated and job classifications were consolidated. Because of this job consolidation and elimination of specific duties, wage disparities came into being among employees purportedly performing many of the same job tasks. It is the contention of the union that the duties now performed by Branch Manager I and Branch Manager II are largely the same, and hence, the holders of these job titles are entitled to equal pay. Similarly, it contends that there is no distinction of substance between the duties of those holding the titles of Shift Manager I and Shift Manager II. Hence, asserts the union, they too are entitled to equal pay. Having effected the consolidation of job titles and eliminated the duties attached to job titles, largely through the process of collective bargaining, the union now seeks to use the court to effect an equalization of wage scales. The effect will be to accord to those in the lower wage brackets a windfall which either was not bargained for or could not be achieved at the bargaining table; or to reduce the wages of those in the higher wage brackets to parity with those in the lower wage bracket, or to effect some compromise between the two. That wage scale is the sole issue in controversy between the parties is evident not only from the briefs of the parties but from the notices of appeal filed by each of them. Petitioners expressly limit their appeal to so much of Special Term’s order as omits to establish a single wage scale for Branch Managers I and II and Shift Managers I and II and to fix that wage at “the highest wage paid by respondents [OTB] to shift managers and branch managers respectively” and for back pay. While OTB appeals from the entire judgment it specifically noted that it “adjudged that the respondents are enjoined from continuing the two separate pay categories for branch managers in the title Branch Office Manager, and the two separate pay categories for shift managers in the title Branch Office Manager, and are directed to establish one pay category for branch managers and one pay category for shift managers”. Thus, contrary to the assertion of our dissenting brother, there is here involved no issue of administration. The quarrel is a naked endeavor to impose upon OTB, through the courts, a wage scale upon which there was no agreement during the collective bargaining process. Prudence and wisdom suggest that in order to counter the possibility of employee disaffection and for other reasons, a method be devised through collective bargaining to either abolish the job classifications objected to by creating a single classification of branch manager and a single classification of shift manager, or, in the alternative, clearly to differentiate between the duties to be performed by Branch Manager I and Branch Manager II and between Shift Manager I and Shift Manager II. However, we think it inappropriate for the court to interject itself at this time into what is, in reality, an ongoing collective bargaining process and to accord to one side or the other a benefit which either it did not seek or could not obtain in the bargaining process. Concur — Kupferman, J. P., Markewich and Bloom, JJ.