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Temco Service Industries, Inc. v. Liu

Supreme Court of New York, New York County

June 14, 2013

In the Matter of the Application of TEMCO SERVICE INDUSTRIES, INC., Petitioner, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules,
v.
John C. LIU, as Comptroller of the City of New York, Respondent. No. 104133/2012.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Genova, Burns, Biantomasi & Webster, Newark, NJ, Trinity Centre, New York, Attorneys for Petitioner.

Gibson, Dunn & Crutcher, LLP, Office of General Counsel, New York, Attorneys for Respondent.

MANUEL J. MENDEZ, J.

Upon a reading of the foregoing cited papers, it is ordered and adjudged that this Article 78 petition, is denied. The motion filed under Motion Seq. No. 003, by Sevice Employees International Union, Local 32BJ (herein after referred to as " Local 32BJ" ), to intervene, is denied.

RELEVANT FACTS

The New York City Department of Education (hereinafter referred to as " DOE" ) generally uses the " indirect system" of custodial care utilizing civil service employees as Custodians, which are represented by the International Union of Operating Engineers, AFL-CIO (hereinafter referred to as " Local 891" ). Local 891, on behalf of the Custodians, negotiates collective bargaining agreements with Local 32BJ, for the hiring of cleaners. Pursuant to Labor Law ยง 230, the Custodians, as civil service employees, are not considered contractors. Cleaners hired by Custodians are not entitled to either a living wage or the prevailing wage rate.

DOE, for a limited number of schools, retains the services of private companies to manage custodial care. Private companies are selected by DOE, based on a competitive bid process. Since June of 2007, petitioner has been the only private company retained by DOE to manage public school custodial care. Cleaners hired by the Petitioner, as private contractor, are required to be paid either a living wage or at the prevailing rate, whichever is higher. Petitioner services approximately 10% of the New York City public schools. The cleaners are represented by a union, Local 32BJ, which also enters into collective bargaining agreements on behalf of cleaners with other entities, including the Realty Advisory Board for Labor Relations, Inc. (hereinafter referred to as " RAB" ). Petitioner has entered into collective bargaining agreements directly with Local 32BJ. Wage rates have previously been accepted by the Petitioner as determined by collective bargaining agreements entered into between Local 891 and Local 32BJ.

In June of 2012, Respondent requested public comment pertaining to the preparation of the 2012-2013 preliminary prevailing wage schedule. On or about June 15, 2012, Petitioner submitted a memorandum of law, titled, " Comment on Preliminary Schedule of Prevailing Wage and Supplement Rates for the Period July 1, 2012 through June 30, 2013 Pursuant to New York State Labor Law Section 234," (herein after referred to as " the Comment" )(Pet.Exh.F). The Comment requested that Respondent create a separate classification in the prevailing wage for petitioner's public school cleaners, even though there is not a separate classification in the living wage. The Comment alleges that the job duties for commercial are not comparable. (Pet.Exh.F).

By letter dated June 22, 2012, addressed to the Respondent, Local 32BJ, responded to the Comment submitted by the Petitioner (hereinafter referred to as " the Letter" ) (Ans.Exh.2). In the Letter, Local 32BJ states that there is no real distinction between the work performed by commercial cleaners and public school cleaners. Local 32BJ referred the Respondent to Petitioner's website where the job descriptions posted were virtually identical for Commercial Cleaner and School Cleaner. Local 32BJ also claimed in the Letter that the overwhelming majority of cleaners are covered by Local 32BJ collective bargaining agreements with RAB (Ans.Exh.2).

On July 1, 2012, Respondent published the 2012-2013 prevailing wage schedule, which did not include a separate classification for public school cleaners. Respondent generated a prevailing wage for three classes of " Building Cleaner and Maintainer (Office)." " Office Building Class " A" Cleaner/Porter, Elevator Operator, Exterminator, Fire Safety Director (Over 280,000 square feet gross area)," was assigned a lowest prevailing wage rate of $22.65 per hour; " Office Building Class " B" Cleaner/Porter Elevator Operator, Exterminator, Fire Safety Director (Between 120,000 and 280,000 square feet gross area)," was assigned a lowest prevailing wage rate of $22.62 per hour; and Office Building Class " C" Cleaner/Porter Elevator Operator, Exterminator, Fire Safety Director (Less than 120,000 square feet gross area)," was assigned a lowest prevailing wage rate of $22.57 (Pet.Exh.W). The determination of which class an office cleaner belongs to is determined by square feet and gross area cleaned, not actual duties.

MOTION TO INTERVENE

Pursuant to a motion filed under Motion Sequence No.003, Local 32BJ seeks to intervene in this proceeding claiming that it is an interested party on behalf of their members that will be directly affected by prevailing wage determinations in this proceeding. Local 32BJ contends that it is not seeking a competitive advantage. Intervention is only being sought to ensure the workers it represents are not paid depressed wage and benefit rates. Local 32BJ claims that in seeking to obtain a separate classification for public school cleaners, Petitioner is attempting to: (1) freeze salaries, (2) depress the public school cleaners minimum wages and (3) avoid liability by preventing the Respondent's investigation into pending public school cleaner prevailing wage complaints. Local 32BJ provides affidavits from individual members to establish its interest in the outcome of this proceeding and a memorandum of law in opposition to the petition.

Petitioner opposes the motion to intervene contending that Local 32BJ lacks any substantial or direct interest in the outcome of this proceeding. Petitioner claims that a new prevailing wage schedule is only effective prospectively and has no retroactive effect on the collective bargaining agreements Local 32BJ enters into on behalf of its members. Petitioner also contends that: (1) Local 32BJ's membership is adequately represented by the Comptroller, (2) Local 32BJ is only seeking to maintain its competitive advantage based on Building Cleaner and Maintainer (Office) prevailing wage ...


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