Under ALJ’s Finding Road Paved for Big Highway Staff Raise

Under ALJ's Finding

Road Paved for Big Highway Staff Raise

ARTHUR SCHWARTZ: 'Big win for small union.' The city may be required to hike salaries for Supervisor Highway Repairers by as much as $13 an hour based on a recommendation from the Office of Administrative Trials and Hearing that they should be paid the prevailing privatesector wage.

The ruling by Administrative Law Judge Kevin F. Casey could pave the way for as many as 3,000 other city workers in certain titles to make the same demand for wages commensurate with private-sector jobs.

Comptroller's Final Say

Annual salaries for the 150 Supervisor Highway Repairers represented by District Council 37's Local 1157 could jump from approximately $50,000 to somewhere between $70,000 and $75,000. The final wages will be set by City Comptroller William C. Thompson, but it is anticipated that they will be at near-parity with those earned by comparable titles in the private sector.

Arthur Schwartz, the lawyer who represented Local 1157 at the OATH hearing, said he expected the city to appeal the outcome because "although Local 1157 is a little union, this is a very big win."

MICKEY McFARLAND: Expects big pay jump. Office of Labor Relations Commissioner James F. Hanley said the Comptroller had not finalized a decision, so it would be premature to comment.

Once the final wage is set, Supervisor Highway Repairers will get differential back pay on all earnings from 2000, the year the last consent decree on prevailing wages between Local 1157 and the city expired. Mr. Schwartz estimated the workers had averaged as much as $10 an hour less than their non-city counterparts over the past five years.

A Big Ripple?

He said the cost to the city would be significant - into the millions - especially if other unions successfully built off this case to make their own prevailing wage settlements.

Mr. Schwartz has already begun proceedings to secure a similar pay jump for 1,500 laborers in the Highway Repairer title, represented by DC 37's Local 376, and met with the Comptroller's office this week to urge a speedy hearing.

Local 1157 President Mickey McFarland was the person who pushed to bring his members' claim to an OATH hearing, with assistance from DC 37 Assistant General Counsel Leonard Polletta.

Mr. McFarland said he learned about prevailing wage titles from former labor leader John Calandrillo, who was instrumental in the Kelly vs. Beame case that successfully linked privateand public-sector wages for laborers, workmen and mechanics in 1964.

There was little effort from DC 37 over the years to get higher hourly rates for prevailing wage titles, Mr. McFarland said, because the union didn't want to create dissatisfaction among its lower-paid titles.

Disparity Grew

Under the Giuliani administration wage gaps grew, with DC 37 averaging modest raises while private-sector workers got $3 or $4 more per hour with every contract renewal, he added.

Mr. McFarland decided to file a claim with the Comptroller's Office and initiated an OATH hearing on behalf of Supervisor Highway Repairers. He said their wages should be equal to those of foremen in the Highway, Road and Street Construction Laborers' Local Union 1010 and the Sheet Asphalt Workers' Local Union 1018, citing Section 220 of the city's Labor Law which says "laborers, workmen and mechanics" must earn wages and supplemental benefits equal to those in private construction work.

Got Comptroller's Nod

The Comptroller issued a preliminary determination Aug. 9, 2004 that the work of Supervisor Highway Repairers was the same as that performed by foremen in other unions. The Comptroller issued a Notice of Hearing and Petition May 25, 2005, asserting that the repairers were entitled to the same wages and benefits described in the collective-bargaining agreements of Locals 1010 and 1018.

The OLR contested the Comptroller's findings, and said that Supervising Highway Repairers "function almost exclusively in a supervisory capacity" and therefore should earn less than private-sector foremen, who, according to the OLR, do more manual labor.

The OLR also argued that the Comptroller's comparability survey between privateand public-sector highway repair sites had been flawed by "technical deficiencies," a claim the administrative judge dismissed.

The job description for Supervisor Highway Repairers obtained from the Department of Citywide Administrative Services supported the union's argument that its members often performed the same tasks as other repairers while also assuming managerial and supervisory duties.

Tasks Identical

Investigators from the Comptroller's Bureau of Labor Law visited five publicand six private-sector job sites. They testified that they observed Supervisor Highway Repairers for the city's Department of Transportation doing the same tasks as foremen for Local 1010 and 1018.

Bureau investigators also interviewed eight representatives from the public sector, including contractors, and found their methodology closely matched that used by the repairers when mixing and laying concrete or asphalt.

Administrative Law Judge Casey further noted that testimony from bureau experts was supported by the OLR's sole witness - Joseph Cannisi, Deputy Commissioner for Roadway Repair and Maintenance for DOT.

Mr. Cannisi told the judge that "in plain English," Supervisor Highway Repairers are foremen, and he acknowledged they faced the same risks from machinery and passing cars as highway repairers.

Private-Sector Rates

A spokesman for Local 1010 said foremen make $36.25 an hour, not including medical, pension, annuity and training benefits.

Local 1018 has a slightly higher hourly salary - $37.87.

In contrast, Highway Supervisor Repairers make $24.41, but Mr. McFarland said when he sits down with the Comptroller's representatives, he'll be seeking to get as close to the private-sector earnings as possible.

"We have to look at a few issues of vacation days and sick time - we might have a bit more than those workers do, and the city's not going to pay us their wage and give us more days off, but in the end we'll come out with much higher salaries," he said.

Powerful Precedent

Mr. Schwartz expressed confidence that he would secure a similar win for Highway Repairers. He noted that the recommendation from Administrative Law Judge Casey was strongly worded in the union's favor and that it was already established that city Highway Repairers did comparable work to the nonsupervisory members of Local 1010 and Local 1018.

Mark Rosenthal, president of Local 983 of DC 37, said he's doing a survey now of his members' earnings against those of comparable private titles. He was able to get a prevailing wage negotiation in 2002 for High Pressure Plant Tenders with the help of DC 37 Executive Director Lillian Roberts, but said generally "the union did nothing on this issue and Mickey McFarland was the one who took it a step further and pressured DC 37 and got it to OATH."

DC 37 Research and Negotiations Director Dennis Sullivan said the union was pleased with Local 1157's win, noting that his unit contributed much of the data used by the Comptroller in the case. "We have never not been aggressive or stifled in any way the rights of prevailing wage titles to survey members and go to the Comptroller," he said.