-------------------------------------x I n t h e M a t t e r o f t h e A r b i t r a t i o n X b e t w e e n X C I T Y O F N E W Y O R K I m p a s s e P a n e l : X A d m i n i s t r a t i v e " C i t y " M a n a g e r s ( " A M " ) X M i n i m u m a n d M a x i m u m a n d X C O M M U N I C A T I O N S W O R K E R S O F A M E R I C A L O C A L 1 1 8 0 X " U n i o n " X -------------------------------------x A P P E ARAN C E S F o r t h e C i t y O F F I C E O F L A B O R R E L A T I O N S R o b e r t W . L i n n , C o m m i s s i o n e r R e n e e C a m p i o n , F i r s t D e p u t y C o m m i s s i o n e r D a n i e l P o l l a k , A s s i s t a n t C o mm i s s i o n e r V i c t o r L e v y , D e p u t y G e n e r a l C o u n s e l C h e r y l D . G r i f f i n , A s s i s t a n t G e n e r a l C o u n s e l F o r t h e U n i o n L A W O F F I C E S M I R K I N & G O R D O N , P . C . J o e l S p i v a k , E s q . A r t h u r C h e l i o t e s , P r e s i d e n t B e f o r e : M a r t i n F . S c h e i n m a n , E s q . , A r b i t r a t o r
BACKGROUND The Office of Collective Bargaining to represent Administrative Managers approximately one thousand (1000)), York and the New York City Housing Authority on engaging in collective negotiations, regard to one (1) issue, the appropriate title. Pursuant to Section 12 of Bargaining Law and the Rules of the OCB, Panel to render a written report with findings of facts and conclusions for terms of settlement. A hearing was held on April 13, York City Office of Labor Relations at 40 York. At that time, the parties were introduce evidence and argument in positions. They did so. Following requested, submitted additional documentary of same, I declared the record closed. DISCUSSION AND The Issues: The incumbent minimum and maximum salary rates light of the fact that the minimum and maximum mutually agreed to by the parties in the bargaining process their initial inclusion in this Agreement. 2 ("OCB") certified the Union ( "AMs") (now numbering employed by the City of the New April 8, 2009. After the parties were at impasse with minimum and maximum for the the New York City Collective I was appointed as the Impasse 2016, at the Offices of the New Rector Street, New York, New afforded full opportunity to support of their respective this proceeding, the parties, as evidence. Upon my receipt FINDINGS for the AM title in salary rates were not for The new hire rate for
this title shall also be determined using the same formula 1 the parties have used in the past as has been the parties' Agreement (Exhibit A, March 30, 2015 letter from the OCB). Statutory Criteria An impasse panel ... shall consider wherever relevant the following standards in making its recommendations for terms of settlement: (i) Comparison of wages, hours, fringe benefits, conditions and characteristics of employment of the public employees involved in the impasse proceeding with the wages, hours, fringe benefits, conditions and characteristics of employment of other employees performing similar work and other employees generally in public or private employment in New York City or comparable communities. (ii) The overall compensation paid to the employees involved in the impasse proceeding, including direct wage compensation, overtime and premium pay, vacations, holidays and other excused time, insurance, pensions, medical and hospitalization benefits, food and apparel furnished and all other benefits received; (iii) Changes in the average consumer prices for goods and services, commonly known as cost of living; (iv) The interest and welfare of the public (v) Such other factors as are normally and customarily considered in the determination of wages hours, fringe benefits, and other working conditions in collective bargaining or in impasse proceedings. New York City Collective Bargaining Law Section 12-311 (c) (3) (b). 1 The parties have agreed that whatever the minimum salary I recommend the new hire rate for employees not previously employed by the City shall be fifteen (15%) percent lower than such salary. 3
Positions of the Parties The Union argues application of a minimum salary for AM-1 of eighty five ($85,024.00) and AM-2 of eighty nine thousand seven hundred ninety one dollars ($89,791.00) effective April collectively bargained increases would one thousand one hundred thirty seven six thousand two hundred forty respectively, by April 6, 2016. The support of its position. It asserts the long suppressed minimum imposed delays on representation justify the proceeding. OCB certified the Union to represent AMs, following a decades' long fight for equal pay and to the Union. Prior to 1954, the AM Grade 5 title, the highest title in asserts the title was used to fill agency positions as well as other high level Commissioner, Director of Procurement In 1954, the City divided the Clerk promotional titles with AMs at the top. Administrative Assistant, Administrative Administrative Manager. The Union insists after collective bargaining 4 the statutory criteria requires thousand twenty four dollars 8, 2009. Including the bring these amounts to ninety dollars ($91,137.00) and ninety seven dollars ($96,247.00), Union raises several arguments in of this title and the City result it seeks in this on April 8, 2009, treatment, according duties were performed by a Clerk the Clerical Group. The Union and division Chief Clerk positions such as Assistant and Director of Personnel. Grade 5 title into several The new titles below AM were Associate and Senior
was established in New York City in 1965, as representatives of all these titles, into the Managerial Pay Plan. Although AMs to representation in the 1970s, OCB managerial and determined they were according to the Union. ( Union Exhibit The Union stresses in addition titles were also treated unfairly by permanent employees. When eventually claims the City merely reclassified continue to hire employees on a provisional Union, in 1986 a New York State Court practice and conduct AM examinations, from lists and terminate provisional practice of recycling provisional appointments. The Union notes during this time, minimum salary for AMs. Thus, the collective bargaining increases, other cost of living. This resulted in promotional titles to the AM position, Administrative Associates ("PAA"), Levels AM position they were being promoted 5 the City recognized the Union except AMs. AMs were placed continued to seek the right classified these positions as not eligible for representation, D) . to lack of representation, these the City when it refused to hire ordered to do so, the Union the position to allow it to basis. According to the ordered the City to end this appoint qualified candidates appointments, ending the City's (Union Exhibit F). the City "suppressed" the salary did not keep pace with managerial increases or the a situation where some of the (now referred to as Principal I-III), made more than the to, asserts the Union.
By the time the City implemented the 1986 Court decision requiring it to hire permanent employees in the title was thirty thousand three hundred twenty one whereas the AM-1 minimum was twenty seven thousand seven hundred thirty four dollars ($27,734.00), two thousand ($2,500.00) less, claims the Union. result, applicants would only receive ($1,000.00) promotional minimum required asserts this was unjust. However, making matter worse, this suppressed minimum affected an unprecedented number minority candidates who qualified for appointment. the application process following the City to hire permanent employees resulted women and minorities in the City's history to qualify for a position. Yet, they were woefully underpaid because of the minimum. In 1994, the Union filed a petition asserts OCB held thirty eight (38) days hundred (300) City employees testified. and delays caused by the City, OCB represent the AMs until April 8, 2009. unprecedented number of women and minorities were compared to their Caucasian, male counterparts, 6 AM titles, the minimum PAA III dollars $30,321.00) five hundred dollars (Union Exhibits C, M). As a the one thousand dollar by the Agreement. The Union the Union urges, of women and The Union maintains Court decision requiring the in the largest number of management suppressed to represent the AMs. It of hearings where over three Due to scheduling back logs did not certify the Union to Notwithstanding the fact an grossly underpaid as the City continued to
delay bargaining, insists the Union. Practice Petition finding the City had breached its duty to bargain in good faith, while dismissing the City's against the Union. (Union Exhibits H, Between November 27, 2013, and were unsuccessful in negotiating the Therefore, the Union filed a Request resulting in OCB declaring Impasse requiring (Union Exhibit A). In the meantime, the Union claims, minimum and the changing demographics Employment Opportunity Commission ("EEOC") finding probable cause the City did discriminate with respect to gender and race and proposed an AM minimum of ninety two seventeen dollars ($92,117.00). (Union refused the EEOC' s offer of conciliation pending. The Union argues the race and gender discrimination and salary recommendation of the EEOC further supports The Union asserts each of the demand adoption of its proposed minimum twenty four dollars ($85,024.00) (as collectively bargained increases which ninety one thousand one hundred thirty seven 7 OCB granted the Union's Improper Improper Practice charge I). December 30, 2014, the parties AM minimum/maximum dispute. for Appointment of Impasse Panel, the present proceeding. as a result of the suppressed of the AM title, the Equal issued a Determination thousand one hundred Exhibits K, R). The City and the matters are still its position. statutory criteria cited above salary of eighty five thousand of April 8, 2009) in addition to would bring this amount to dollars ($91,137.00) by
April 6, 2016. The Union points to the overall compensation AMs as well as comparisons to other the public and private sector. The what the AM minimum would be if the collective bargaining increases the The Union further asserts its proposal than what the salary would be if the maximum. This would have increased eight thousand nine hundred fifty eight dollars The Union insists an examination adoption of its proposal. The salary of the title of Senior Administrative Assistant thousand six hundred thirty five comparable title, Administrative Services in the private sector in New York City, five hundred seventy three ($85,573.00). The Union further asserts the supports its position under the statutory association advocating for AMs pre-union challenging the inequality faced by During this time, other titles, including the PAA into AM, have received collective bargaining assignment and experience differentials. 8 levels of similarly situated employees in Union's minimums track precisely title had received the same PAA title received since 197 8. is reasonable as it is far less minimum had kept pace with the the 2009 minimum to one hundred ($108,958.00). of comparable jobs also compels comparable New York State Grade 23 is eighty five dollars ($85,635.00). Another Manager, which is utilized earns eighty five thousand (Union Exhibit P). history of this struggle itself criteria. The Union and certification have been AMs for over thirty (30) years. titles that promote increases as well as The Union argues
notwithstanding the tremendous hurdles broad scope of judgement and independent them, AMs still face the suppressed minimum. this is not in the public interest negative public opinion. The Union also points to the cost of area as further support of its position, the Massachusetts Institute of Technology City the bare minimum living wage for one ( 1) child is fifty seven ($57,083.00), almost four thousand dollars AM starting salary of fifty three thousand three hundred dollars ($53,373.00) (Union Exhibit S). Finally, the Union contends the proposal. It points to the New York City Independent support of this view which reported revenue forecast our re-estimate of preliminary budget and financial plan, looks reasonably strong". (Union Exhibit T). analysis conducted by Policy Research budget surplus for FY 2015 of $1. 6 reserves. In addition, it asserts the plan projected a deficit lower than 9 these AMs have to face and the decision-making required of According to the Union, as it promotes poor morale and living in the New York City here. According to the Union, reports that in New York a family of one (1) adult and thousand eighty three dollars ($4,000.00) higher than the seventy three City has the ability to pay its Budget Office in "Based on IBOs economic and tax spending under the Mayor's 2017 New York City's fiscal outlook The Union also cites the Group that finds the City had a billion and over $2 billion in Mayor's preliminary financial in twenty (20) years with $1
billion more than predicted revenue service savings of $329 million in FY (Union Exhibit U). In all, the Union argues the statutory criteria compel of its proposed minimum. The City, on the other hand, insists appropriate salary for AM titles and urges above the previously agreed collective certainly not the sixty (60%) percent seeks. In particular, the City stresses the to an unwarranted across-the-board increase negotiated without regard to the substantial differences in duties and responsibilities of incumbent AMs. The City asserts there are several flaws As of January 31, 2015, there were incumbents in the AM represented titles. seventy (870) were hired after Union City insists, these eight hundred seventy complain about mistreatment under the managerial pay plan because they never worked under it. These employees with the title they were joining and from the job they exited, insists the 10 in FY 2015; and expense and debt 2015 and $143 million in FY 2016. adoption it is already paying the I award no further increases bargaining increases increase it asserts the Union Union's position amounts above those collectively in the Union's position. over nine hundred sixty (960) Of these, eight hundred certification. As a result, the (870) AMs cannot possibly understood the pay situation received significant increases City.
The City further argues of the hired AMs, approximately forty (40%) dollars ($60,000.00) and, thus, would the Union's proposed minimum. However, perform supervisory or managerial duties, particularly unwarranted. In fact, percent of the eight hundred seventy supervisory duties at all. As for the ninety (90) employees City asserts all received raises when they make significantly above the minimum, average salary of these ninety ( 90) hundred thirty one dollars ($80,831.00), City asserts there is not a scintilla hundred sixty (960) AMs are underpaid. The City also insists there is no While it is true the PAA level III minimum, in reality the PAAs who became raises. Eighty (80%) percent of the employees came from PAA 1. On average, these employees percent raise from their PAA I salary when (8%) percent higher on average than the AM PAA III' s promoted to AM received 11 eight hundred sixty (870) newly percent earn under sixty thousand receive the largest raises under the City urges they do not making such a large increase the City notes, over fifty (50%) ( 8 70) new employees have no hired before certification, the becoming AMs. For the most part, according to the City. The AMs is eighty thousand eight well above the minimum. The of evidence any of the nine compression issue in reality. minimum is higher than the AM AMs received significant earning the AM minimum received a twelve (12%) promoted, which was eight minimum. Even PAA II's and an average raise of seven (7%)
percent. The City points to several the Union's position. For example, an Executive Assistant who a sixteen (16%) percent raise when promoted would receive an additional sixty five Union's proposal is adopted, notes the the AMs were promoted from non-PAA titles and on average three ( 3) years. These twenty three (23%) percent more than years ago. The City argues the nine hundred range of duties making an across-the-board increase AMs perform duties with little or no others have major supervisory and management titles cover timekeepers, contract reviewers well as DEP Director of Workforce Training Regional Managers and Budget Director. positions because their duties vary widely, addition, most of them are relatively both of these factors underscore the massive increases. While the City urges there is insists the Union's proposal would inequities among titles. The City asserts 12 individual examples to challenge received to AM on March 7, 2011, ( 65% I percent raise if the City. Thirty (30%) percent of have been in the title employees are currently making they were earning just three (3) sixty (960) AMs perform a wide-unjustified. Some supervisory responsibilities, duties. For example, the and budget analyst, as and Planning, HRA Deputy Compensation varies among these according to the City. In new employees. The City urges inappropriateness of awarding no real compression issue, it create one as well as other numerous situations where
supervisors would make the same as their proposal was adopted. The City also argues the Union's additional repercussions throughout result in many non-supervisory employees, administrative assistants with only high than a fourth year police Sergeant or Degree; or a receptionist and payroll director at OATH salary. The Union's proposal would increases from these other titles and who are already well paid, according The City insists applying the only, as it urges, is the only way compensation based on the wide range It argues the Union's proposed minimum ninety (90%) percent of the employees tens of thousands of dollars in increases or responsibilities, according to the The City also claims no delay attributable to or is relevant to this proceeding. According did not seek bargaining for three (3) the parties did bargain, the Union insisted on a hundred eight thousand nine hundred fifty eight dollars 13 subordinates if the Union's proposal would also have the City. The increases would such as time keepers or school diplomas, making more a Staff Nurse with a Masters' making the same create demands for additional provide a windfall to employees to the City. collective bargaining increases to maintain the balance in of duties and years of service. would disrupt it. It would give raises with a majority receiving regardless of their duties City. it has been proven to the City, the Union years after certification. When minimum salary of one ($108,958.00),
a one hundred four (104%) percent increase. it would use all impasse tools at its interest arbitration, to achieve its objective. asserts it cannot be held to blame for the length of time to reach this proceeding. Likewise, the City argues the gender and race discrimination case before the EEOC is not relevant to this proceeding. finding of probable cause was based upon as a result of the City declining to continue to provide the EEOC's information requests. determination on the merits, notes the Second, the City asserts the EEOC differences with the AM title, because analysis that groups all the employees above, the City asserts there is responsibilities including a mix of front and managers. The EEOC's finding of flawed. Third, the City asserts the EEOC proceeding. The Union has chosen to Court, urges the City. Moreover, the City stresses the wage increases pre-unionization is irrelevant unless 14 The Union asserted that disposal, mediation and then As a result, the City it has taken First, the EEOC an adverse inference it made responses to It was not, therefore, a City. completely ignored the relevant it is using a statistical together. However, as indicated wide variation in duties and line employees, supervisors probable cause is thus fatally matter is irrelevant to this pursue those claims in Federal fact the titles received lower the duties of the
position changed, which they have not cites several other former managerial titles that received no upon union certification, which it asserts additional raises are justified, here. These titles, the City insists, pattern when certified are: ( 1) Administrative Specialist, (2) Coordinating Manager (HHC); (4) Creative Arts Therapist, (5) Deputy Chief/EMS Division Commander, Levels II and III (DSNY); (8) NYCAPS Management Consultant, (10) Senior Planning Supervising Superintendent of Maintenance, Analyst, (13) Systems Project Leader. exception, the Administrative Job received an increase post-certification, case. The City insists there a majority other employees whereas in this case, there is no historical precedent for On the contrary, the City argues violates precedent and could establish City asserts the raises demanded by million dollars or an average of thirty thirty seven dollars ($36,737.00) per AM, 15 according to the City. The City increases supports its argument no received no increases beyond the Test and Measurement (DOHMH), (3) Coordinating Manager Deputy Warden Level 2, (6) EMS (7) General Superintendent, Process Analyst, (9) Senior Scheduling Analyst, (11) (12) Supervising Systems The City asserts one (1) Opportunity Specialist which is inapposite to the present of the employees supervised a majority do not. It contends the relief sought by the Union. it is the Union's proposal that a future poor precedent. The the Union would cost over $30 six thousand seven hundred an unreasonable sum. It urges
this would disrupt other collective causing other previously managerial would also increase the expectations receiving union certification. This City, because the Union's argument rests on Pay Plan itself, thereby having wide The City further alleges arbitration proposition changes in the pattern, ripple effects with financial impact. held there is no guarantee a newly recognized unit is entitled to above pattern wage increases. Here, according factors justifying further wage increase are As a result, the City urges that minimum and maximum. Findings and Conclusions The issue presented is whether the minimum the AM title should be adjusted collectively bargained increases. My is derived from Section 12-311 of Bargaining Law (quoted above), which apply in rendering a just and reasonable and based solely upon these criteria, 16 bargaining relationships by titles to demand increases. It of future managerial titles is particularly true, notes the an attack on the Managerial implications. precedent for the for even small units, can have The City argues OCB has routinely to the City, the primary absent. no adjustment be made to the and maximum salary for in addition to receiving the authority to answer this question the New York City Collective sets forth the criteria I must determination. Accordingly, as well as the entire record
evidence and argument in this matter, and conclusions. I am persuaded by the Union some is warranted. The minimum for the AM certification, April 8, 2009, was fifty three seventy-three dollars ($53,373.00). bargaining increases, the minimum increases nine hundred twenty nine dollars ($58,929.00), the date of the last increase previously collectively bargained by City and the Union. I am persuaded by the Union there is inequity as low minimum salary. The Union presented a creates a compression problem. In some than the maximum of the title that promotes persuaded by the Union a comparison of the private and public sector (e.g., demonstrate AMs make significantly demonstrated the cost-of-living statutory adjustment of the salary, as this salary has cost-of-living. These are all strong adjustment of the minimum. While the statutory criteria require minimum, it does not justify the magnitude 17 I make the following findings upward adjustment in the minimum title as of the date of Union thousand three hundred As a result of collective to fifty eight thousand as of April 6, 2017, the a result of this compelling case this salary cases, the AM minimum is less into it. In addition, I am this minimum to other wages in Administrative Services Manager) less. The Union has also criterion requires some not kept pace with area factors favoring upward some adjustment to the of increase urged by the
Union. I agree with the City the compression majority of the AMs, who did receive substantial raises when I also agree with the City the size would create an unjust windfall for compensated. It would also result in make as much as their supervisors, or more in the City, triggering additional these are arguments to minimize the increase, an increase is unwarranted. 2 A reasonable the minimum for those at or close to windfall to those who received substantial raises when I find based on the statutory criteria, the minimum AM salary should be increased ($5,000.00). This brings the salary of thousand nine hundred twenty nine dollars 2017 (following application of the increase). I find this amount addresses problems raised by the Union without identifies. Moreover, the amount selected only affects the whose salary is at the bottom end of need for competitive salaries with 2 I also agree with the City the Union's discrimination matter is not before me. reached without addressing those issues 18 issue does not affect a promoted. of the Union's demanded increase many employees already fairly situations where some AMs would than other managerial titles requests for adjustments. While they do not persuade me adjustment would increase the minimum without creating a promoted. and the record evidence, by five thousand dollars the AM minimum to sixty three ($63,929.00), on April 6, last collectively bargained the inequity and compression triggering the new ones the City employees the range. This addresses the comparable positions without race and gender Therefore, my Opinion is in any way.
providing a windfall to employees who above the minimum when hired. The next question is the effective Union urges that any increase be entirely retroactive to April 8, the date the Union was certified. prospective, so as not to provide retroactive raises inconsistent with the City-wide pattern. I find based case the adjustment should be prospective date for the adjustment is April 6, 2017, final collectively bargained wage increase. Notwithstanding the prospective based upon the statutory criteria that although rate would be inequitable so, too, would payment. Therefore, I also determine one million dollars ($1,000,000.00) divided amongst their years of service at or below the minimum the prospective nature of the recommended the potential current or former AMs are pool of eligible employees, I will set ($50,000.00) from the one million Employees who do not receive but believe they are the retroactive payment awarded herein months from the date of this ruling to make 19 received substantial increases date of this increase. The 2009, The City urges the remedy be upon the record evidence in this in nature. The appropriate following application of the nature of this remedy, I find full retroactivity in eliminating any retroactive the City pay a total amount of the AMs based upon to compensate them for remedy. In order to address inadvertently left out of the aside fifty thousand dollars dollar ($1,000,000.00) pool. entitled to share in will have a period of six (6) a claim. In the event the
full fifty thousand dollars ($50,000.00) how the remaining amount shall be disbursed The parties made various arguments to receive the retroactive payment. respective positions and they were critical to find only employees currently in the from City service from this title should be amount. Former AMs who are in other titles in the City as of this ruling are not eligible. This provides more to be divided by those who are currently takes precedence over those who have different pay plans. In addition, I find those that have entitled to share in a larger portion employees. Therefore, the nine hundred ($950,000.00) amount awarded shall be first pool shall consist of three hundred hundred dollars ($332,500.00) and shall be below the minimum. The second pool seventeen thousand and five hundred dollars divided amongst only those AMs who earned at or below the minimum. As stated above, be apportioned based upon the employees' 20 is not spent, I will determine in a future ruling. about who should be eligible I have fully evaluated their my determination. I AM title, or who have retired entitled to share in this of the date of the total amount in the title, which I find moved into different titles with been permanently assigned are of the amount than provisional and fifty thousand dollar divided into two (2) pools. The thirty-two thousand five divided among all AMs at or shall consist of six hundred ($617,500.00) and shall be were permanent at the time they these amounts shall years of service at or below
the minimum and only employees currently retired from City service, shall be eligible to participate in either pool. Application of these criteria results eligible AM set forth in Attachment A, I now turn to the issue of the AM The record evidence does not support a is unjustified. As a result, I recommend made to the AM maximum other than the collectively bargained increases. Likewise, the record evidence does currently. As a result, I make no determination 2s. Finally, I recommend the parties establishing a career ladder for AMs. salary will be sixty three thousand ($63,929.00) and the maximum one hundred seventy one dollars ($150,371.00). The determine the starting salary within be maintained while at the same time employees to advance in their careers. attempt to create such a system, forthwith. 21 in the AM title, or who in the payments for each attached, hereto. maximum salary and the AM-2s. conclusion the AM maximum salary no additional adjustment be not indicate AM-2s are in use with regard to AM-meet and confer to discuss As of April 6, 2017, the minimum nine hundred twenty nine dollars fifty thousand three hundred City retains wide discretion to this range. This discretion can providing a predictable path for I recommend the parties meet to
CONCLUSIONS 1. The AM-1 minimum salary shall be increased by five thousand dollars ($5,000.00) as of April 6, 2017, following application of the collectively bargained increase. 2. The total AM-1 Minimum Salary following the adjustment recommended in Paragraph 1, above, and the collectively bargained increases shall be sixty three thousand nine hundred twenty nine dollars ($63,929.00). 3. The City shall pay the additional amounts to each employee as set forth on Attachment A. July 1!, 2016. Martin F. Scheinman, Esq. Arbitrato STATE OF NEW YORK ss.: COUNTY OF NASSAU I, MARTIN F. SCHEINMAN, ESQ., do hereby affirm upon my oath as Arbitrator that I am the individual described herein and who executed this instrument, which is my Repo Recommendation. My It, 2016. Martin F. cheinman, Esq. Arbitrato NYC, CWA. 1180. IM~ASSE .AWD. FINAL 22
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