Office of the Comptroller, ex rel. Local 1087 v. Office of Labor Relations

OATH Index No. 2451/08 (Apr. 6, 2009)

Comptroller’s initial determination that radio repair mechanics should be paid commensurate with wages and supplemental benefits of maintenance engineers working for ABC should be upheld. _____________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of COMPTROLLER, EX REL. LOCAL 1087,

DISTRICT COUNCIL 37, AFSCME, AFL-CIO Petitioner -against-

OFFICE OF LABOR RELATIONS Respondent

_____________________________________________________

REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge

Petitioner, the Comptroller, brought this proceeding pursuant to section 220(8-d) of the

Labor Law, for a determination of the prevailing wages and supplemental benefits to be paid to

radio repair mechanics (“RRMs”) employed by the City of New York from July 1, 2002, through

March 31, 2005. RRMs repair, maintain, and install electronic communications equipment and

infrastructure. The proceeding was brought on the complaint of Local 1087, an affiliate of

District Council 37, AFSCME, AFL-CIO (“the Union”). The Comptroller urges this tribunal to

uphold its preliminary determination finding that RRMs should be paid commensurate with the

wages and supplements set forth in the collective bargaining agreements of NABET-CWA Local

16 for maintenance engineers in Group 7 for the period July 1, 2002, to June 30, 2008 (“the

preliminary determination”).

Following a nine-day hearing, with each party producing multiple witnesses and

documentary evidence, the record closed on January 13, 2009, with the submission of post-trial

briefs. For the reasons stated below, I find that the Comptroller’s preliminary determination

should be upheld. However, that determination was incomplete with regard to the hourly costs

of certain supplemental benefits (i.e., savings and investment plan, tuition reimbursement) set

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forth in the NABET-CWA contracts. The parties disagree about the cost of these supplements.

Thus, if this report and recommendation is adopted but agreement is not reached on supplements,

the Comptroller may wish to petition OATH for further fact finding.

ANALYSIS

Statutory Background and Procedural History

Section 220 of the Labor Law requires the City of New York (“the City”) to pay

“laborers, workmen, or mechanics” in its employ the prevailing rate of wages and supplemental

benefits. This is defined as the rate paid in the private sector “for a day’s work in the same trade

or occupation in the locality” where the work is performed. Labor Law § 220(3) (Lexis 2009).

The statute requires that collectively bargained rates paid in the private sector be deemed

prevailing, providing that the collective bargaining agreements cover at least thirty percent of the

“workers, laborers or mechanics in the same trade or occupation in the locality.” Labor Law §

220(5-a). Only when there are less than thirty percent of private sector unionized employees

within the same trade or occupation is the prevailing wage determined by reference to non-

unionized workers. In that case, “the average wage” paid to non-unionized workers within the

same trade or occupation is found to be prevailing. Labor Law § 220(5-a).

Moreover, although the statute refers to the rates paid in the “same” trade or occupation,

courts have recognized that a comparison may be made to similarly employed workers. See

Smith v. Joseph, 275 A.D. 201 (1st Dep’t 1949), aff’d, 300 N.Y. 516 (1949) (fixing prevailing

wages of persons in “comparable” positions); Flannery v. Joseph, 300 N.Y. 149, 152

(Comptroller was obligated to determine the prevailing rate of wages paid to those workers

whose trade or occupation was “comparable” to city-employed maintenance workers).

Unions and public employers are required to negotiate in “good faith” and enter into a

written agreement as to the rate of wages and supplemental benefits to be paid prevailing wage

employees. If negotiations break down, the union is authorized to file a complaint on behalf of

these employees with the Comptroller. The Comptroller is then mandated to conduct an

investigation to determine the prevailing rate of wages and supplemental benefits due the

workers, and to hold a hearing in the matter after conducting its investigation, but prior to

making any order or determination. Labor Law §§ 220(8-d); 220(8).

Here, the Union filed a complaint with the Comptroller on May 30, 2002, seeking an

investigation and determination of the prevailing rate for RRMs from 2002 through 2005 (Pet.

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Ex. 1). A consent decree had established the prevailing rates from April 1, 2000, through June

30, 2002. According to the parties, negotiations continued over the years. On February 18,

2005, the union asked the Comptroller to conduct a survey to find a private sector employee

group that was comparable to the RRMs so that their wages and supplemental benefits would

determine the prevailing rate (Pet. Ex. 3). On August 17, 2007, the Comptroller issued its

preliminary determination. 1 On October 25, 2007, the Comptroller issued a letter to “clarify” its

preliminary determination, to elaborate on “some (but not all)” of the prevailing supplemental

benefits. The letter closed by saying, “It should also be noted that, at this time, we are unable to

definitively set forth the costs of all of the benefits with the information provided to us by the

company and the union” (Pet. Ex. 5).

Although the parties continued to negotiate to reach agreement on a collectively

bargained rate, by letter dated March 17, 2008 the Union asked the Comptroller to file a petition

for a hearing to determine the prevailing rate of wages and supplements (Pet. Ex. 6). Prevailing

wage hearings are held at this tribunal pursuant to the Comptroller’s rules.

Prior to trial, the Office of Labor Relations (“OLR”) moved for dismissal of the petition,

alleging that the Comptroller failed to meet its statutory duty by not fully stating the cost of

supplements in its preliminary determination and petition. The Comptroller opposed the motion.

By e-mail dated September 19, 2008, I denied OLR’s motion, holding that the Comptroller’s

failure to fully determine the cost of supplements was not a jurisdictional bar to a hearing to

determine the appropriate private sector “match” for RRMs. I indicated that any dispute as to the

cost of supplements could be reached at a subsequent hearing, if necessary (ALJ Ex. 3). This

decision was consistent with the practice followed in prior OATH cases. See BA-CEE Division

of Local Union No. 3, IBEW v. Office of Labor Relations, OATH Index No. 230/92 (Apr. 15,

1992), aff’d in relevant part, Comptroller’s Decision (June 17, 1992); Comptroller v. Office of

Labor Relations (Elevator Mechanics), OATH Index No. 616/98 (May 18, 1998), aff’d,

Comptroller’s Decision (Aug. 10, 1998), aff’d sub nom. Local 237 v. Comptroller of the City of

New York, 259 A.D.2d 314 (1st Dep’t 1999).

Thus, the matter proceeded to trial.

1 The preliminary determination actually found that RRMs should be paid commensurate with the rates in the NABET-CWA contracts for “broadcast engineers,” group 7. However, the contracts refer to group 7 employees as “Group 7-Radio and Television.” There is no such general category as “Group 7-Broadcast Engineers.” Listed under group 7 are a variety of titles, including, for the years 1997-2003, “maintenance engineer,” and for the years 2003-2007, “maintenance.” From the beginning of these proceedings, the Comptroller confirmed that it was focusing on the maintenance engineers title within Group 7 (Pet. Exs. 14, 15).

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The Positions of the Parties

The parties have put forth different private sector groups as similarly employed or

comparable to the RRMs.

The Comptroller contends that the maintenance engineers who work for ABC television

network are comparable to the RRMs, and make up 30 percent or more of the private sector

collectively bargained workers in the same trade or locality. Accordingly, the Comptroller

asserts that the RRMs should be paid wages and supplemental benefits commensurate with those

set forth in the NABET-CWA collective bargaining agreements for Group 7 maintenance

engineers from 2002 through 2008.

The Union agrees with the Comptroller regarding the maintenance engineers.

OLR asserts that the maintenance engineers are not comparable. Thus, regardless of how

many maintenance engineers are employed by ABC, OLR contends that their rate of wages and

supplemental benefits cannot be considered prevailing. OLR instead contends that the non-

unionized employees of Motorola and five of their subcontractors (Electronic Service Solutions

(“ESS”), LRS Communications, All-Tech Electronics, Metrocom Incorporated, and Pragmatech

Sound) are the most appropriate match for the RRMs. Because these employees are non-

unionized, OLR asserts that the Comptroller should determine their average rate of wages and

supplemental benefits and set that as the prevailing rate.

A discussion of the jobs of the RRMs and the various private sector groups follows.

The radio repair mechanics

There are approximately 120 RRMs employed by New York City. Of these,

approximately 75 are employed by the Police Department (Tr. 573) and approximately 25 work

for the Fire Department (Tr. 166, 353). Between 12 and 14 RRMs are employed by the

Department of Education (Tr. 222, 443). Additionally, a smaller number of RRMs work for

four other agencies: three for the Department of Correction, three for the Department of

Transportation, one for the Department of Sanitation, and five for the Health and Hospitals

Corporation (Tr. 410, 420, 451, 474).

There is a single job specification for the title of radio repair mechanic. It provides the

following:

General Statement of Duties and Responsibilities

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Under supervision, installs, repairs, aligns or tunes the following: radio, radar, microwave, multiplex, television and electronic apparatus and appurtenances of the City’s communication systems; land, mobile and marine radio receivers and transmitters, including UHF and VHF equipment; radio power systems; radio antenna systems; miniature radio receivers and transmitters; audio amplifiers and public address systems; television cameras, receivers and antennas; radar systems; electronic test equipment; multiplex equipment; magnetic tape recorders and various other electronic devices; performs related work.

As examples of “typical tasks,” the job specification lists:

Locates and isolates defects in electronic equipment. Repairs or replaces defective parts. Adjusts, aligns or tunes electronic equipment, installs electronic units and associated electrical elements, including the mounting of radios in automobiles. Keeps records and makes reports.

(Pet. Ex. 8). Qualification requirements for the job include five years of full-time experience as

a radio repair mechanic or “electronic technician repairing electronic equipment,” or three years

of such experience plus training in an approved trade or vocational high school. Employees are

also required to have a valid New York State driver’s license. Additionally, “for appointment to

certain positions,” a Federal Communications Commission (FCC) General Radiotelephone

Operator’s License, with a radar endorsement, is required (Pet. Ex. 8). The notice of

examination of the position tracks the language of the job specification (Pet. Ex. 7).

Questionnaires filled out by various RRMs indicated that they performed most of the tasks listed

on the job specification (Pet. Ex. 9). Thus, as Wasyl Kinach, the Director of Classifications for

the Bureau of Labor Law in the Comptroller’s Office, who directed the investigation to find a

private sector match for the RRMs, testified, “[t]he radio repair mechanics title is . . . a little bit

misleading, because they do a lot more than just repair radios” (Tr. 35).

Although the evidence demonstrated that the vast majority of RRMs install, maintain, and

repair electronic communications equipment, and make repairs to the component or board level,

their tasks varied somewhat across agencies. The work of the RRMs assigned to the Police

Department was particularly varied and complex, according to Sergeant Robert Massucci, the

supervisor of the electronics section, and Michael Montone, an RRM assigned to the Police

Department. Most of these RRMs are assigned to the central repair shop in Queens, although

many are frequently dispatched to the field. Their work includes the following: They maintain,

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install, and repair mobile laptops and mobile radios in departmental vehicles, including vans and

field command posts. They also repair and reprogram the portable radios and make minor

repairs on chargers. Repairs are made both on site and at workbenches in the repair shop. The

RRMs maintain “a radio system,” consisting of approximately 320 receiver sites, 168 transmitter

sites, and 34 data transmitter sites (Tr. 243, 576). They do on-site repairs, upgrading, and testing

as needed at remote locations, including antennas, transmitters, receivers, and wiring. They also

install the radio consolettes at precincts citywide. They install cameras at approximately 120 to

125 facilities, including about 75 precincts, for a closed circuit television feed. Their work on

the closed circuit television systems includes setting up monitors as needed and making repairs

on cameras, digital video recorders, video tape players, video cassette recorders, and various

types of audio and paging equipment. The recording equipment is in the process of being

switched to digital, so there is more and more computer-based work involved. The RRMs also

maintain the cameras in the security unit at Police Headquarters, and the related equipment,

including video digital switching and multiplexing equipment and video servers. They install

and maintain alarm systems and public address systems within precincts, and maintain and repair

microwave and satellite communications equipment. They work on radar and radio equipment

for the marine and aviation units.

Additionally, these RRMs install equipment in special vehicles, including 12 to 15 field

command posts (mobile offices with laptops, cell phones, and mobile radios), as well as a special

confidential vehicle and an emergency portable command center. The field command posts are

equipped with satellite dishes for Direct TV. The field command posts can also downlink video

images transmitted by the Police Department’s aviation unit, which has a helicopter with a

camera mounted underneath. The emergency portable command center was developed about

two years ago, and while it has never been used in a real emergency, it is used frequently in

drills. It is equipped with a great deal of communications equipment and has antennas for

satellite on the roof. Further, the Police Department RRMs work with vendors, including

Motorola, to make sure that installations are done correctly, and are involved in research and

development. Among the tools used by the RRMs, usually in bench work to test and repair

equipment, are oscilloscopes, power supplies, soldering irons, computers, voltage meters,

amperage meters, frequency counters, and hand tools (Tr. 239-66, 278-81, 321, 573-98; Pet. Exs.

11f-m).

Supervisor Mascusi testified that the RRMs he supervises, although grouped in particular

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sections and thus more familiar with some tasks than others, would be able to perform any of the

duties required in another section, although “it might take them a little time . . . to get used to

doing it” (Tr. 598).

The Fire Department’s RRMs perform duties which also vary in scope and complexity.

Their duties were established by the credible testimony of Christopher Ambrose, director of

radio repair operations at the Woodside radio shop, and Manuel Roman, president of Local 1087

and an RRM working out of the MetroTech command center, which is the dispatch

communications center for ambulances. These RRMs repair, program, tune, and align mobile

and portable radios, and install mobile radio equipment and telemetric communications

equipment into ambulances (telemetric communications equipment sends data such as a patient’s

heart rate over the air to the dispatch center). They also install, maintain, and repair about forty

base stations, which transmit voice and data signals to all the field units. This infrastructure

work includes hooking up cable, mounting antennas, repairing antennas and transmitters, testing

equipment with a service monitor and various types of meters, and installing, maintaining, and

repairing consoles, comparator systems, transmitters, multiplexers, receivers, and repeaters.

They also work on routers, microphones, and satellite and microwave communications

equipment, and maintain all the two-way radio equipment installed in the mobile command

centers for dispatching in the event of a major incident. At the Woodside central radio shop, the

work includes component level bench repairs to various pieces of electrical equipment, tuning,

testing, and programming of equipment, and vehicle installations and repairs (Tr. 179-86, 193-

97, 210-14, 352-54; Resp. Ex. H). The tools used for bench-level repairs are the same as those

used by the Police Department RRMs. Work at MetroTech, where Mr. Roman is assigned,

includes maintenance of the data systems for the computer-aided dispatch and the voice quality

systems for the dispatchers (Tr. 168). Additionally, the RRMs work on development projects

(for example, fine-tuning the software for the mobile data terminals in the fire trucks and

terminals) and make field site visits with vendors such as Verizon or Motorola (Tr. 357-58;

Resp. Ex. H). Mr. Ambrose described the Fire Department’s communications system as

“extremely large” and “unique to the general industry” because of its size and its various

locations (Tr. 357). As was the case in the Police Department, the Fire Department RRMs are

“dynamically regroupable,” meaning they can work on “all different aspects” of the equipment,

regardless of the type of equipment (Tr. 210).

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The approximately 12 to 14 RRMs assigned to the Department of Education do not work

on radios. According to Volkert Braren, a senior manager in the Division of School Facilities,

they instead install, repair and maintain public address systems and their components, including

speakers, amplifiers, and audio mixers, and clock or bell timer systems. The public address

systems operate on wireless frequencies but receive radio frequencies through an antenna (Tr.

440). RRMs do not work on digital video surveillance systems, other than sometimes securing

hard drives on digital video recorders (Tr. 432-39, 444). They perform component level repairs,

using hand tools such as screwdrivers and pliers, and test items such as oscilloscopes and voltage

testers (Tr. 441). Some public address repair and maintenance is done by an outside contractor,

namely Pragmatech.

According to Officer Yablonsky, who oversees the radio and communications unit within

the Department of Correction, the three RRMs assigned to the unit install base radios, usually in

the control room of the correctional facilities, and also install mobile radios in vehicles. The

Department has as many as 500 vehicles, including buses, vans, and sedans. The RRMs repair

and maintain the security cameras and related closed circuit television equipment within the

correctional institutions. Further, they maintain stand-alone repeaters, in conjunction with ESS,

their outside contractor (Tr. 419-31, 500). The RRMs make “minor repairs” to two-way radios,

using “regular mechanic” tools on workbenches. However, they do not perform repairs to the

component level, because they have only “minimum staff.” ESS makes the more major repairs

(Tr. 422, 424). The RRMs similarly make minor repairs to various pieces of recording

equipment, as well as the personal body alarm systems used in the institutions (Tr. 423).

The three RRMs assigned to the Department of Transportation maintain and repair the

radio system for the Department, including the mobile units, portable radios, and transmitters,

according to Nelson Castillo, an assistant commissioner who oversees the radio repair and

maintenance division. The network has about 500 mobile and 600 portable radios, mostly

Motorola, two transmitters, and about 18 to 20 satellite receivers. The RRMs install the mobile

radios in Departmental vehicles, maintain the infrastructure equipment, such as the transmitters,

and also maintain the central electronics board located at the Department’s communications

center. If a radio needs repair, the RRMs will try to make the repair themselves; if they cannot,

they will call the vendor, Motorola (Tr. 484). While the Department maintains a mobile

command center with a camera, the RRMs do not work on the camera, nor the satellite receiving

system and antenna installed on the mobile command center. The computer system, satellite

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system, and camera system are outsourced to contractors, which do not include Motorola (Tr.

473-86).

As noted above, there is only one RRM employed by the Department of Sanitation. As

testified to by Charles Herbst, Assistant Chief of Operations and Snow, this individual keeps

track of all the equipment, including about 1500 Motorola portable radios and 1200 mobile units

installed in vehicles. The mechanic will fix a handheld device if he can; otherwise, “more often

than not,” the radio will be sent to LRS, the outside contractor, for repair (Tr. 411). Mobile

radios are sent directly to LRS (Tr. 413). The mechanic does not have a bench, but instead a

desk with small hand tools (Tr. 414). The Department has repeaters and transmitters at several

sites around the city; the RRM checks via computer to make sure that the repeater sites are

operational; if they are not, he will contact LRS for repair (Tr. 417).

Finally, the five RRMs employed by the Health and Hospitals Corporation are all

assigned to Lincoln Hospital. According to Arnold Pack, the Senior Director of Operations for

the Corporation, the RRMs work on installing the public address systems within the hospitals,

including the nurse and physician paging systems. They repair antennas and check the

functioning of hospital police radios, closed circuit television cameras, digital video recorders,

and HHC repeaters. They also set up cell phone systems within the hospital, programming the

phones with computers and networking equipment. However, they do not repair the cell phones.

The RRMs do a lot of computer work and also some setup of closed circuit television systems

(Tr. 454, 457). Most of their work is at Lincoln, although they sometimes visit other facilities to

repair or inspect a public address system. Their actual repair work seems limited. They may do

minor work on the closed circuit television systems, such as fixing a cable, but could also call in

an outside contractor for something more difficult. Similarly, they might fix a wire or cable on a

digital video recorder, but they do not make component level repairs on the equipment. That

work will usually be done by an outside contractor. They will fix handheld radios if the required

repairs are minor (such as an off/on switch, battery change, or antenna); otherwise they send out

the radios to an outside vendor, usually ESS, for repairs (Tr. 450-67).

In sum, of the approximately 125 RRMs employed by the city, all but the ten assigned to

the Department of Education work in some fashion on portable and mobile radios. The vast

majority of RRMs perform component-level repairs. The agencies in which the RRMs repair

work is more limited include the Department of Correction, which employs only three RRMs,

the Department of Sanitation, which employs only one RRM, and the Health and Hospitals

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Corporation, which employs five RRMs. The RRMs employed by the Fire Department and the

Police Department, who together comprise approximately 80 percent of the RRMs employed by

the City, perform a diverse array of different work on electronics communications equipment.

This is not limited to radio repair and installation, but involves equipment such as antennas,

transmitters, receivers, routers, microphones, satellite and microwave communications

equipment, telemetric communications equipment, and computer networking equipment. The

work of Police Department RRMs, additionally, includes work on closed circuit television

systems, involving cameras, digital video recorders, and video tape players and recorders. The

communications networks of the Police and Fire Departments are particularly complex. Indeed,

Keith Brooks, the owner of All Tech, one of the outside companies advanced by OLR as

comparable, described the Police Department’s communications system as “very elaborate” and

“very sophisticated” (Tr. 723). Indeed, in commenting upon a photograph of “some type of

receivers” in a Police Department facility, Mr. Brooks indicated, “Nobody in the commercial

world would have something like this, it’s very sophisticated” (Tr. 723). Sergeant Masucci,

similarly, characterized the Police Department’s communications system as “a very good

infrastructure” (Tr. 586). Mr. Ambrose testified that because of the complexity and size of the

Fire Department’s communication system, sometimes “unique” development work is required

(Tr. 357).

While the Department of Education RRMs do not work on radios, they, like the

mechanics assigned to the Health and Hospitals Corporation, work on public address systems

and their components, including speakers, amplifiers, and audio mixers. The five RRMs

employed by the Health and Hospitals Corporation, like the Police and Fire Department RRMs,

do a substantial amount of computer-related work as well as work with closed circuit television

cameras and digital video recorders.

I now turn to a discussion of the work of the groups put forward as comparable by the

parties.

The ABC mechanical engineers

The Comptroller selected ABC as the comparable private sector group after making a

field visit to an ABC television facility. Mr. Kinach testified that he was given a tour of the

ABC facility by one of the maintenance engineers, talked with him about what his duties were,

and distributed questionnaires that were completed by three maintenance engineers. The

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questionnaires listed “typical tasks, duties, and responsibilities” that Mr. Kinach testified

reflected the tasks listed in the job specification for RRMs (Tr. 51, 133-36; Pet. Exs. 10, 12).

The ABC engineers who completed the questionnaires indicated that they installed, repaired,

aligned, and tuned radios, microwave, multiplex, television, “electronic apparatus in

communication systems,” radar systems, land and mobile radio receivers and transmitters, UHF

and VHF equipment, radio power or antenna systems, public address systems, television

cameras, receivers and antennas, and miniature radio receivers and transmitters. Two of the

engineers also indicated that they worked on radar systems, while the third indicated that he did

not. One engineer indicated that he worked on program timers and clock subsystems while two

indicated that they did not (Pet. Ex. 10).

According to the Comptroller’s report of their visit to ABC studios:

Engineers at this facility repair and maintain hand held radios and other electronic Communication equipment including video camera, video tape machines, satellite, microwave, etc. The site is also used to install audio and video equipment into vans and trucks. Equipment stored and maintained at this site is shipped worldwide on a moments notice in order to provide logistical electronic support for major events and news. We observed that the electronic equipment and tools worked on at this site was the same as equipment and tools utilized by RRMs.

(Pet. Ex. 13, at 6). The Comptroller made many of the same observations with regard to

engineers at NBC Studios, but concluded that ABC was the best match because they employed

more engineers than NBC and the work involved less travel (Pet. Ex. 13, at 7).

Two job postings for maintenance engineers at ABC were placed into evidence, one for

the period 2006 through the present and a prior posting, in use from 1997 until 2006. These

postings were characterized in a letter by Kenneth McGuire, the manager of administration for

broadcast operations and engineering for the ABC television network, as the “job specification”

for the Group 7 NABET-represented technical maintenance and maintenance engineer positions

(Resp. Ex. E). The most current posting states the following, under “job responsibilities”:

The ideal applicant must have a strong technical background in HD and SD digital video and audio, with a minimum of 5 years technical maintenance experience within a television or cable facility. Applicant must be skilled in the maintenance of a wide variety of digital and analog broadcast equipment including on-air Nexio and Grass Valley video servers, HD switchers (including Snell and the Sony 8000), SD switchers, cameras (both HD and SD), digital routing switchers, graphic systems, and analog and digital tape formats. The candidate should have experience in the maintenance of a satellite uplink and downlink facility and should be familiar with the maintenance of high power

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microwave transmitters, antenna systems, and combiners. Candidate must be a self starter. He or she must also exhibit an ability to work with engineering, entertainment and news personnel in a demanding environment. Applicant must be comfortable working in an IT intensive environment. Strong PC and networking skills are a plus. The position will require shift work. Job hours may involve days, nights, weekends or holidays and overtime. We are seeking qualified individuals who are energetic, willing to work in a team environment.

Under “required qualifications,” the posting listed the following: “minimum 5 years experience

in the broadcast field,” “excellent troubleshooting skills,” “experience with digital audio and

video standards and equipment,” “familiarity with computer and networking technologies and

how they interface in the broadcast environment.” Required “non-technical skills” included

“strong verbal and communication skills,” as well as the “ability to be part of [a] team

environment.” Under “desired qualifications,” the following were listed: a technical school or

associate’s degree in electronics technology, or a bachelors of science in engineering or

electronics technology, as well as an SBE (Society of Broadcast Engineers) certification.” The

older job listing simply said, under “posting,” “two to five years electronic and mechanical

construction and maintenance experience on all types of studio equipment including cameras,

monitors, and test equipment. Prefer knowledge of digital electronics” (Resp. Ex. E).

Richard Gelber, a technical director at ABC, the secretary/treasurer of Local 16, NABET,

and formerly an ABC maintenance engineer, testified that ABC employs approximately 101

maintenance engineers represented by NABET (Tr. 603).2 He described the duties of

maintenance engineers in this fashion: “they remove and install electronic equipment of all kinds

used in television broadcast, and diagnose and repair problems with such equipment” (Tr. 604).

The equipment includes cameras, audio consoles, routing switchers, audio and video amplifiers,

television cameras, frame synchronizers, distribution amplifiers, satellite uplink and downlink

transmitters, and radios. Repairs are made to the component level as necessary, which could

involve re-wiring or soldering, or removing and replacing components on a circuit board.

Equipment used by maintenance engineers in their work includes hand tools such as wire

clippers, strippers, and crimpers, screwdrivers, wrenches, pliers, and soldering equipment, as

well as various meters and oscilloscopes used for testing and diagnosis, and spectrum analyzers

used for radio frequency equipment (Tr. 605-16; Pet. Ex. 11a).

2 OLR suggested on cross-examination that there were only 51 maintenance engineers, but did not introduce any testimony to that effect (Tr. 646).

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According to Mr. Gelber, maintenance engineers work on radio frequency equipment

including wireless microphones with internal radio receivers which transmit to the on-air talent.

He described this as “a two-way radio used on one-way mode” (Tr. 607). Maintenance

engineers also are responsible for maintenance of all technical equipment used in “electronic

news gathering” vehicles, such as microwave transmission equipment and microwave antennas

(Tr. 606). Mr. Gelber testified that maintenance engineers perform all the work listed on the

RRM job specification, and are qualified to do so, with the exception of radar systems and work

on mobile data terminals, such as those installed in Fire Department ambulances (Tr. 618-19).

Mr. Gelber described the ABC job posting (Resp. Ex. E) as being “accurate,” but opined

that he doubted that ABC would be able to find someone familiar with all the equipment listed

on it. He also said that anyone hired by ABC would also be expected to work “on all matter of

equipment” not specifically listed in the posting – such as audio and video signal or power

amplifiers, or other types of high definition switchers, frame synchronizers, video editing

equipment, or audio and video cable repair (Tr. 626-27). ABC maintains approximately 200 to

300 different types of equipment (Tr. 642).

Motorola

Motorola is a major supplier of portable and mobile radios and related equipment for

New York City. According to Robby Dale Phillips, Motorola Assistant Manager for New York

City since 2005, Motorola maintains radio equipment for DOITT, and also has maintenance

contracts with a number of New York City agencies, including the Fire and Police Departments,

and the New York City Transit Authority. Motorola has five technicians assigned to New York

City. However, these technicians do not generally repair portable hand-held units, mobile units,

or infrastructure such as antenna and network power systems. Their usual procedure is to replace

defective equipment with functional equipment and send the defective equipment to a Motorola

depot to be repaired. The depots are located in Illinois, Florida, and Mexico. Motorola closed

all of its service shops some years back (Tr. 371, 500, 505, 511, 660-61). Motorola employees

are required to be certified by the Electronics Technicians Association (“ETA”), which is a

certification primarily focused on radio. Mr. Phillips characterized it as taking the place of “the

old FCC license” (Tr. 513).

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Motorola also has sales agents, or Motorola representatives (“MRs”), which sell and

maintain Motorola systems. The work of these agents, which OLR asserts is comparable to that

of the RRMs, is discussed below.

Electronic Service Solutions (“ESS”)

ESS is a Motorola MR which sells, installs, programs, maintains, and repairs radio

equipment for various New York City agencies, according to its President, William Clark. The

equipment includes mobile and portable radios, and related infrastructure equipment, including

repeaters, base stations, comparators, transmitters, and receivers: “the things that make up two-

way radio systems” (Tr. 534). ESS has worked with the Department of Correction, the New

York City Housing Authority, and the Health and Hospitals Corporation. From 2002 to 2006 or

2007, ESS installed radio equipment in new ambulances for the Fire Department (Tr. 530, 541;

Pet. Exs. 11n, 11o). ESS has also installed antennas and routers in Police Department vehicles

(as part of a contract with Hewlett-Packard), and in 2002 installed mobile data terminals in

voluntary ambulances (Tr. 366, 552). ESS has four locations, only one of which is in New York

City. Of its approximately 60 employees, “probably . . . around” four are full-time technicians

working in New York City (Tr. 545). The technicians assigned to New York City projects are

experienced, and are required to read schematics and make component level repairs. Currently,

two of the four technicians assigned to New York City are bench technicians, meaning they

report daily to the Queens facility (Tr. 534, 545, 546; Resp. Ex. K). The two remaining

technicians are field technicians, who are dispatched to various locations from their vehicles.

Typically, a field technician “swaps” components or boards to get a base station operational and

returns the malfunctioning equipment to the service center to repair if possible (Tr. 534). In

addition to these technicians, ESS employs 18 to 20 installers who install equipment in city

vehicles (Tr. 555).

In New York City, ESS also works on radio equipment for Consolidated Edison, the

Drug Enforcement Agency, the Internal Revenue Service, the United States Postal Service, and

the United States Marshall’s Office (Tr. 535, 539). The bench technicians spend 30 to 40

percent of their time working on portable radios for New York City agencies, as opposed to work

for Con Edison or other customers (Tr. 547). However, if there is Motorola equipment in need

of costly repair, ESS would probably send the equipment to the Motorola depot because that is

cheaper (Tr. 547). ESS has worked on security cameras for private customers in New York City

- 15 -

(for example, Columbia University and Presbyterian Hospital). ESS has also worked on

intercom systems for hospitals within New York City (Tr. 555).

Photographs of ESS’s Queens facility show benches with equipment such as solder

stations, frequency counters, service monitors, and power supplies, radios awaiting repair,

transmitters to be installed, and ambulances awaiting equipment installation (Tr. 536-38; Resp.

Exs. L1-L12). Mr. Clark confirmed that ESS does not work on uplinks or downlinks from

satellites, nor perform high-frequency microwave work. ESS does, however, work on lower-

frequency microwave equipment for clients including New York Presbyterian Hospital (Tr. 539,

549). Historically, ESS has wanted its technicians to hold an FCC license. However, ESS is

currently encouraging its workers to obtain a CET certification (Certified Electronics

Technician), which is granted by the ETA (Tr. 550-51). Their workers are not required to have

an SBE broadcast certification (Tr. 541).

LRS Communications

LRS Communications sells, services and installs two-way radios, according to its Vice

President of Technologies, Jose Burgos. Virtually all of its radios are made by Motorola. LRS

will either repair a radio itself or send it to the Motorola depot for repairs, and it installs radios

into vehicles. LRS is a Motorola manufacturer’s representative, but its participation in the MR

program does not involve any type of repair or installation work, purely sales (Tr. 681).

However, from about October 2005 to 2007, LRS had a contract directly with the Department of

Sanitation to service and install all of their radios. During this period, LRS had about eight

service employees. Of these, about three to five worked on installation, while the others were

shop and field technicians. LRS picked up an average of 12 portable radios once a week from

the Sanitation Department. At the beginning of its contract, LRS used to repair most of these

radios itself, but by 2007, it was sending about 50 percent of the radios to the out-of-state

Motorola depot. When LRS did make these repairs, it would repair to the component level if

necessary. If there was a problem with a mobile radio, LRS would “swap out” the radio with a

replacement radio that it would reprogram to conform to the vehicle’s identification. The broken

mobile radio would either be brought to the bench for repair, or sent to the Motorola depot. As

the contract progressed, LRS fixed fewer of the mobile radios itself. LRS once worked on a base

station for the Department of Sanitation. Mr. Burgos could not recall, if prior to 2005, LRS

performed any other work for the City of New York (Tr. 674, 680-88).

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When shown the RRM job specification, Mr. Burgos testified that his employees

performed many of the same duties as the RRMs – including installing equipment, repairing “a

line,” tuning a radio, working on land mobile radio receivers and transmitters, including UHF

equipment, radio power systems, radio antenna systems, miniature radio receivers and

transmitters, electronic test equipment, multiplex equipment, and sometimes troubleshooting

telephone lines (Tr. 675). LRS employees do not work on radar or microwave systems, marine

radio receivers and transmitters, television cameras, magnetic tape recorders, or satellite uplinks

and downlinks. They do not repair electronic test equipment. They do not install multiplex

devices, but they do troubleshoot multiplex devices involving T1 circuits (Tr. 685-88). Mr.

Burgos testified that he is ETA certified and also has an FCC “general license,” which used to be

known as a first-class radio/telephone FCC license (Tr. 676).

All-Tech Electronics

All-Tech Electronics is a Brooklyn-based company which services and repairs two-way

radios and is a manufacturer’s representative for Motorola and a full line Motorola dealer.

According to its owner, Keith Brooks, All-Tech became an MR in 2005. Over the years, Brooks

has employed approximately 10 to 13 installers and mechanics, split almost evenly between the

two types of workers. The installers were able to do some but not all of the required technical

work. All-Tech has also done some work directly for the City. This has included installing radio

equipment at City Hall and installing mobile radios, lighting and audio equipment in vehicles for

the Office of Emergency Management. Additionally, between 2004 and 2005 to the present, All-

Tech has installed radio communications equipment in at least 200 or 300 voluntary ambulances

(Tr. 718). All-Tech installed this equipment according to Fire Department specifications, and

delivered the ambulances to the Fire Department’s radio technicians, to be programmed to

operate on their system. All Tech also serviced this equipment, although on a daily basis it

dispatched two or three vehicles to the Fire Department to check for software or firmware

problems, which the Fire Department would fix (Tr. 713-18, 727, 729).

Additionally, after 9-11, when a captain in the Fire Department developed a prototype

command radio for use in high rise buildings, All-Tech built the device, donated approximately

15 radios to the Fire Department, and sold approximately 70 more devices to the Department (Tr.

717).

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Most recently, over the last two years, All-Tech has installed radio communications

equipment in the Mayor’s hybrid vehicles, including lights, sirens, and mobile radios (Tr. 714,

728). All-Tech is currently installing radio equipment and computer equipment for the automatic

vehicle dispatch and computer aided dispatch systems (Tr. 715-16). Also, starting about a year

ago, All-Tech began installing communications equipment in trucks being built by commercial

manufacturers for the Fire Department. However, once the trucks are delivered to the Fire

Department, the Fire Department makes any repairs that are needed (Tr. 729, 734).

Mr. Brooks confirmed that his employees performed some but not all of the tasks listed

on the RRM job specification. More specifically, they install, repair, align, and tune radios, and

work on land mobile marine radio receivers and transmitters, including UHF and VHF, radio

power systems, radio antenna systems, miniature radio receivers and transmitters, audio

amplifiers, and public address systems. They also repair radios in voluntary ambulances and

other vehicles, pursuant to private contracts. They do “some” but “not a lot of” work involving

microwave multiplex. They do “very little” work on television cameras, because repair work on

cameras is not cost-effective. They also do “very little” work on radar systems. They have

“very little,” if any, magnetic tape recorders, and “very little” multiplex equipment (Tr. 719).

All-Tech does not require its employees to be FCC licensed, although some of its

employees are FCC licensed, which indicates that they have radar experience (Tr. 719-20).

Metrocom Incorporated

Robert Colten, the operations manager for Metrocom, Inc., testified that the company is

involved in the sale, repair, and installation of two-way radios. Metrocom sells radios for

Motorola, and handles sales and services for Kenwood Communications, another manufacturer.

The company also repairs portable and mobile radios. Metrocom has 11 employees working out

of its New York City office, five of whom are technical employees. Of these five, two employees

are full-time bench technicians, who make repairs on radios to the component level and also do

some desktop repeater work. Three employees are field technicians, whose jobs include making

installations at base stations, including antenna work, and working on mobile radios (Tr. 690-91,

697).

As a Motorola MR, Metrocom installed three or four control stations and two consolettes

for the Department of Transportation in April 2007. Metrocom does not repair any of this

equipment (Tr. 690-91, 695-97).

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When shown the RRM job specification, Mr. Colten testified that his technicians repair

land mobile equipment, including UHF and VHF equipment, install and maintain radio antenna

systems, use electronic test equipment, repair radio and desktop repeaters, adjust, align, and tune

electronic equipment, and install electronic equipment, including radios, into vehicles (Tr. 692-

93, 697).

In its work with the Department of Transportation, Metrocom employees do not work on

vehicle installations, radio equipment, microwave equipment, multiplex equipment, television

equipment, audio amplifiers, or public address systems. However, Metrocom installs mobile

radios for Con Edison (Tr. 692).

Pragmatech Sound

As described by its President and owner, James Salta, Pragmatech Sound is a Bronx-

based company in the business of “audio contracting” (Tr. 699). Between 2002 and 2008,

Pragmatech had three to five employees. Mr. Salta described himself as a “hands-on” supervisor

(Tr. 699). Starting in about 2002, continuing to the present, Pragmatech has had a contract with

the Department of Education to install public address systems, replace system clocks, and work

on system clocks and timers. Mr. Salta custom designs each system. Pragmatech can also repair

public address systems, although generally does not because the old systems are “junk” (Tr.

703). Pragmatech employees do not perform any of the other tasks listed on the job specification

for radio repair mechanics. For example, they do not work on radar and microwave systems,

multiplex systems, or satellite uplinks (Tr. 699-703, 704). All of Mr. Salta’s employees have

gone to high school, and some have gone to audio school to learn “basic sound” (Tr. 704).

Comparability

Of the various private sector groups put forth by the parties as comparable, only one --

the ABC maintenance engineers -- is unionized. The Union asserts that if the maintenance

engineers are comparable to the radio repair mechanics, then, as a matter of law, their wages and

supplemental benefits must be found prevailing, regardless of the comparability of any of the

non-unionized groups advanced by OLR.

As a matter of law, the Union is correct. As set forth above, the statute establishes the

collectively bargained private sector rate as the prevailing rate of wages and supplements for the

particular “trade or occupation,” so long as the collective bargaining agreements cover thirty

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percent or more of the workers in that trade or occupation. Thus, if there is a private sector

employee group which is unionized and which covers at least thirty percent of the comparable

workers, their wages and supplemental benefits must prevail. The inquiry ends there. It matters

not if there is another comparable non-unionized group, no matter how comparable, or how

large.

Here, the evidence established that ABC employs approximately 101 maintenance

engineers. The Comptroller’s conclusion that these 101 maintenance engineers comprise 30

percent or more of workers in the “same trade or occupation” was unrebutted. OLR failed to

advance any other collectively bargained group as comparable. Even assuming, arguendo, that

the non-unionized employee groups (Motorola and its subcontractors) which OLR advanced

were comparable, the ABC maintenance engineers would by far meet the thirty percent

threshold. Thus, as a matter of law, if the ABC maintenance engineers are comparable, they

must be the prevailing group for purposes of wage-setting. See Joint Industry Board v. Schaffer,

205 A.D.2d 310 (1st Dep’t 1994) (burden of proof is on employer who challenges a prevailing

wage rate to establish that it does not represent wages paid to thirty percent of comparable

workers in the locality); Liquid Asphalt Distributors Ass’n v. Roberts, 116 A.D.2d 295 (3d Dep’t

1986) (same). Were it otherwise, the remedial purpose of the statute would be frustrated. See

Austin v. City of New York, 258 N.Y. 113, 117 (1932); Bucci v. Village of Port Chester, 22

N.Y.2d 195, 201 (1968); Kelly v. Beame, 15 N.Y.2d 103, 110 (1969) (noting the statute's "basic

underlying policy" that "persons employed on public works should receive the prevailing rate of

wage that those doing the same work on nonpublic works receive").

The question then is, are the maintenance engineers comparable to the RRMs? OLR

contends that they are not, because maintenance engineers, unlike RRMs, work in the broadcast

field or industry. In support, OLR points to occupational groupings made by the Bureau of

Labor Statistics, United States Department of Labor, for purposes of its “occupational

employment and wage statistics.” The Bureau established separate occupational groupings for

audio and video equipment technicians, broadcast technicians, telecommunications equipment

installers, and repairers (except line installers), and radio mechanics (Resp. Exs. C1, C2, C3,

D2). OLR also highlighted a 1978 Comptroller’s decision that found that RRMs were not

comparable with employees of various radio stations and television networks, but instead

comparable with telephone company employees (Resp. Ex. A).

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As a factual matter, there is some support for OLR’s assertion that maintenance engineers

work in a different occupational field. Mr. Gelber testified that the maintenance engineers

install, repair, and maintain electronic equipment used in the television broadcast industry. He

defined the “broadcast industry” as “concerned with transmission of radio and television

programs over the public airways to the public” (Tr. 631). The work of RRMs does not involve

transmitting television or radio programs over the air to the public. Additionally, the job listing

for maintenance engineers states that the “ideal candidate” will have five years experience

“within a television or cable facility,” as well as experience with specialized video equipment

(Resp. Ex. E). Plainly, the RRMs do not work on equipment that transmits radio and television

programs over the public airways to the public, nor do they work within a television or cable

facility.

As a legal matter, however, the controlling issue is the “actual work” performed by the

two groups of workers being compared. See Flannery, 300 N.Y. at 152, 154 (the “critical”

factor, in determining whether private employees are in the same trade or occupation as publicly

employed workers, is whether “their work differs substantially”); Kelly, 15 N.Y.2d at 110

(prevailing wages must be fixed “based on the work actually performed”). Thus, workers who

are in two distinct fields but who perform “similar” work may still be in the same “trade or

occupation” for purposes of the prevailing wage law. Watson v. McGoldrick, 286 N.Y. 47, 53

(1941) (persons engaged in different “fields” but performing “similar” work could still be in the

“same trade or occupation”; differences in the nature of their activities could differentiate the

“trade” in which the employees worked, but only if the differentiation is “based upon a

substantial ground”). See also Comptroller’s Office, ex. rel. Local 621 v. Office of Labor

Relations, OATH Index No. 1398/97 at 19 (Nov. 5, 1997), adopted in full, Comptroller’s Order

and Determination (Apr. 1, 1998), Commissioner’s Supplemental Order and Determination (Apr.

29, 1998), aff’d, 253 A.D.2d 596 (1st Dep’t 1998) (master mechanics responsible for keeping

construction machinery operational and supervising workers in a variety of trades found

comparable for purposes of prevailing wage law to city workers who supervise the repair and

maintenance of different types of equipment, including sewage treatment equipment, even

though “[b]uilding construction and sewage treatment are certainly different fields”).

Thus, any comparability analysis must focus upon the actual work performed by the

RRMs and their purported private sector counterparts, during the years 2002 to 2008. The

Comptroller’s 1978 decision that city-employed RRMs were not comparable with employees of

- 21 -

various radio stations and television networks is not probative, because it involves a wholly

different time period and there have been significant advances in the electronics communications

field since that time.3

Although the work of RRMs varies across agencies, virtually all the RRMs repair,

maintain, or install electronic communications equipment used to transmit information wirelessly

or through wired means. In this way their work is similar to that of the maintenance engineers.

Indeed, Mr. Gelber testified without rebuttal that the maintenance engineers perform every task

and standard listed in the RRM job specification, with the exception of working on radar systems

and a particular type of mobile data terminal. When asked if he thought the RRM job

specification described a “trade” that was “similar” or the “same” as that of a maintenance

engineer, he said, “It’s very similar to the extent that it overlaps to a high degree the group seven

maintenance functions at ABC” (Tr. 628).

Like the vast majority of the city-employed RRMs, the maintenance engineers at ABC

repair to the component level, rather than just replacing malfunctioning equipment with working

equipment. Mr. Roman, Mr. Montone, and Sergeant Massucci, moreover, all testified that the

repair tools and testing equipment shown on a photograph of an ABC workbench were very

similar to that used by RRMs (Tr. 178, 248, 592; Pet. Ex. 12c). Mr. Montone and Sergeant

Massucci also drew parallels between the communications equipment and functions of the ABC

electronic news gathering vehicles and the Police Department’s portable command centers (Tr.

255, 302, 303, 591, 592, 597; Pet. Exs. 12h, 12j, 12k).

There were some differences between the work of RRMs and maintenance engineers,

going to the range of equipment worked on by the maintenance engineers. The ABC

maintenance engineers work on a much wider range of equipment than the RRMs, much of it

video equipment that is used only in the television context, such as large audio mixers, frame

synchronizers, large video and audio routing switchers, certain types of oscilloscopes, high-

definition switchers, and the particular video servers listed in the ABC job specification (Tr. 305,

315, 321, 635, 643, 650). ABC has dozens of frame synchronizers, if not hundreds, and they are

used daily (Tr. 634). ABC also has several very large video and audio routing switchers that

Mr. Gelber did not see in the photographs of the RRMs’ worksites (Tr. 650). Moreover, Mr.

Gelber testified that only a small number of his engineers repair portable or mobile radios used in 3 Additionally, the Comptroller’s 1978 decision was premised in part on a lack of evidence about the work performed by employees of radio networks (See Resp. Ex. A, at 4). By contrast, here the parties presented abundant evidence about the work performed by employees of the various private sector groups advanced by the parties.

- 22 -

traditional functions; more repairs are done when the radios are used in non-traditional functions,

such as in certain transmitters or receivers. Similarly, only a small number of maintenance

engineers install mobile radios in vehicles (Tr. 644, 645, 653).

However, there was credible evidence that there were similarities between the video and

audio equipment at the component level, and therefore similarities in the skill sets needed to

maintain and repair the equipment. Mr. Montone was asked to describe the similarities or

differences between the component level work to be done on a radio, a biometric system, and a

video system. He answered that he had experience in all three types of equipment and all three

required “electronic expertise” in how to read a “schematic diagram of a certain electronic

apparatus . . . Then you can repair, or replace the defective item” (Tr. 283). When asked what

differences there are, he testified, “Electronics is electronics . . . It doesn’t matter if it’s a high

definition television signal, or a radio signal, or a facsimile, it’s still a transmission and

reception” (Tr. 284).

Mr. Gelber, similarly, testified, “Electronic equipment is electronic equipment . . . I mean

everything uses resistors, capacitors, transistors, conductors, integrated circuits. The types are

different. The purposes are different, but you know the basic skill set of electronic circuit theory

is pretty much the same” (Tr. 609). Asked to compare television transmitters and receivers with

radio transmitters and receivers, he testified the television equipment is physically larger and

contains higher-powered circuitry, but that “some of the techniques and construction are the

same,” and that on the component level, “they’re not significantly different” (Tr. 616-17). Mr.

Gelber testified that there are some maintenance engineers at ABC who do component level

repair on radios who “may or may not be qualified,” depending on their background, to make

component level repairs on television cameras. However, “if they aren’t, they either figure it

out from general knowledge, or they receive specific training [from the manufacturer] on a type

of camera” (Tr. 610).

Similarly, Mr. Kinach, of the Comptroller’s Office, testified that he thought the

maintenance engineers were comparable because “a lot of this equipment is the same. The work

is the same . . . The equipment, it might be used for different purposes, but a lot of the equipment

is the same underneath” (Tr. 93-94).

OLR sought to differentiate the maintenance engineer job from the RRM job by focusing

upon the 2006 job posting for a maintenance engineer. This posting includes within “desired

qualifications” a SBE (Society of Broadcast Engineers) certification, and within the

- 23 -

qualifications for an “ideal candidate,” five years experience “within a television or cable

facility,” and experience with specialized video equipment (Resp. Ex. E). Most RRMs would

not meet these qualifications.

OLR did not establish, however, that a RRM would not be hired as a maintenance

engineer. The SBE license is a desired, but not required, qualification for the job. Cf. BA-CEE

Division of Local Union No. 3, IBEW, AFL-CIO, Comptroller’s Order and Determination at 1-2

(reversing a finding that watch engineers employed at a housing facility were comparable to

stationary engineers electric employed by the City because the private sector watch engineers

were required as a condition of employment to have a particular license not required of the City

employees). The “required qualifications” in the 2006 job posting are more ambiguous. These

qualifications, for example, include a minimum of five years experience in the “broadcast field.”

There was testimony at trial that the work of the RRMs fell within the broadcast “field,” if not

the broadcast industry, because RRMs work on equipment that broadcasts -- i.e., that transmits

electronic signals, audio, video, digital, and/or telemetric, wirelessly or through wired equipment

(Tr. 217, 283, 297). Mr. Gelber, indeed, defined a television broadcast as “a type of radio

transmission,” with the addition of video, although with different frequencies and bandwidth (Tr.

635). The 2002 maintenance engineer posting, moreover, was not nearly as detailed as the 2006

posting with regard to what was required or desired, although it did specify that experience with

cameras, monitors, and test equipment was sought, and knowledge of digital electronics was

preferred (Resp. Ex. E).

Fundamentally, the similarities in the type of work performed by the maintenance

engineers and the RRMs, and the skill sets needed to repair, maintain, and install the various

electronics communications equipment are sufficient to support a finding that the two jobs are

comparable. This case is akin to Comptroller’s Office, ex. rel. Local 621, OATH 1398/97. In

that matter, Judge Christen found privately employed master mechanics comparable to city-

employed supervisors of mechanics, mechanical engineers (“SMMEs”), where both sets of

workers supervised the repair and maintenance of heavy, complex mechanical equipment -- even

though the mechanical equipment that was repaired and maintained by the two groups were “not

in all cases identical.” Id. at 19. Here, much of the equipment upon which the RRMs and the

maintenance engineers work is the same, or similar. The skill sets needed to repair the

equipment at the component level are comparable. The communications networks of the Police

and Fire Department, which together employ 80 percent of the RRMs, are particularly

- 24 -

sophisticated and require expertise. Thus, just as the differences in the type of equipment in the

Local 621 case were not “so substantial as to render the SMMEs in a different trade or

occupation from the Master Mechanics,” OATH 1398/97 at 20, any differences in the type of

equipment maintained and repaired by the RRMs and the maintenance engineers are “not so

substantial as to render” them into different trades or occupations.

My finding that the two jobs are comparable extends to all the RRMs employed by New

York City, even though there are some differences between the complexity and scope of the

work across agencies. The fact remains that all the RRMs work to some degree on the

maintenance of electronic communications equipment. This includes the Department of

Education, where the assigned RRMs, like most other city-employed mechanics, make

component-level repairs on electrical sound equipment, in particular speakers, amplifiers, and

audio mixers. See Comptroller’s Office, ex. rel. Local 621, OATH 1398/97 at 9 (“The testimony

and exhibits make clear that SMMEs, whatever their particular assignment, work in agencies

where they are responsible for the maintenance and repair of large and complex machinery,

whether motorized vehicles or stationary equipment”.); cf. Elevator Mechanics, OATH 616/98

(recommending two different rates within one title, where the evidence established that there

were essentially two types of elevator mechanics, maintenance and repair, which reflected the

two different titles set forth in the comparable private sector collective bargaining agreement);

see generally Kelly, 15 N.Y.2d 103 (upholding a Comptroller’s determination fixing five

different rates of prevailing wages within the same job classification, based upon differences in

the work performed within the title).

As stated above, based upon my finding that the maintenance engineers are comparable,

the wages and supplemental benefits set forth in the applicable NABET-CWA contract for

maintenance engineers are prevailing.

However, in the interest of a complete record, I make the following factual findings with

regard to the various private sector groups.

The Motorola employees are not comparable to the RRMs, because, unlike the bulk of

the RRMs, they do not do component level repair, but instead replace defective parts and send

them out of state to be repaired.

The Metrocom employees are not comparable to the RRMs, because the scope of their

work is much narrower than that which the RRMs might be called upon to do. For example,

- 25 -

while they install mobile radios and base stations, and install and maintain radio antenna

systems, their repair work is limited to repairs on radios and desktop repeaters.

The Pragmatech employees do work that is quite similar to that of the RRMs working

with the Department of Education. However, they do not do any of the other tasks performed by

RRMs in other agencies. Thus, they are not a comparable group.

With regard to ESS, LRS Communications, and All-Tech Electronics, while the scope of

the work required of their technicians is not as broad as that required of the RRMs, it is still

extensive. ESS mechanics, for example, have repaired and maintained mobile and portable

radios, and related infrastructure equipment for various New York City agencies, installed radio

equipment, antenna and routers in city vehicles, and worked on security cameras and intercom

systems, including lower-frequency microwave equipment, for private customers. They

encourage their technicians to have either a FCC license or a certified electronics technician

license. LRS Communications sells, services, installs, and repairs mobile and portable radios,

and their employees have worked on land mobile radio receivers and transmitters, including

UHF, radio antenna systems, miniature radio receivers and transmitters, and multiplex

equipment. All-Tech Electronics installed radio communications equipment in at least 200

voluntary ambulances and has also installed radio and computer equipment in other city vehicles

and at City Hall. All-Tech employees have also worked on land, mobile, and marine radio

receivers and transmitters.

Thus, considering the range of their work and their skill level, the employees of ESS,

LRS, and All-Tech are comparable to city-employed RRMs. However, because the maintenance

engineers comprise thirty percent or more of comparable workers in the locality, the wages and

supplemental benefits set forth in the NABET-CWA contracts are prevailing. As there is a

collectively bargained group that covers thirty percent of the comparable workers, the wages and

supplements paid to the employees of ESS, LRS, and All-Tech cannot, as a matter of law,

constitute the prevailing rate.

Additional arguments of OLR

The additional arguments made by OLR in its post-trial briefs are that the Comptroller

was biased in its investigation toward the Union and that it did not fulfill its statutory duty to

undertake a complete survey. OLR contends that the Comptroller only obtained completed job

questionnaires from ten RRMs, and visited the worksites of only three agencies, Police, Fire, and

- 26 -

Education. OLR also alleges that the Comptroller only obtained three surveys from ABC

employees and that it ignored the private sector radio repair industry (OLR’s brief, at 13-18).

The Comptroller’s investigation could have been more thorough. It could, for example,

have obtained more than three surveys from ABC maintenance engineers, it could have visited

additional agency worksites, and it could have interviewed management representatives as well

as union representatives. However, it is uncontested that the Comptroller visited and inspected

the ABC worksite. OLR contends that the Comptroller focused 80 percent of their site visits on

the Fire and Police Departments. It would not be irrational to do so, because these two agencies

employ 80 percent of the RRMs in question. While the Comptroller could have interviewed

management representatives at the city agencies, it is not clear that this would have altered its

fact-finding, because the management employees who testified at trial (for example, Sergeant

Massucci and Mr. Ambrose) essentially corroborated the RRMs who testified (Mr. Montone and

Mr. Roman).

More fundamentally, the parties presented an impressive amount of evidence at trial

concerning the job duties and responsibilities of the RRMs and of the various private sector

employees put forth as prevailing, all of which was considered herein.

Conclusion

For the reasons stated herein, the preliminary determination of the Comptroller that city-

employed radio repair mechanics should be paid commensurate with the wages and supplements

set forth in the collective bargaining agreements of NABET-CWA Local 16 for maintenance

engineers in Group 7 for the period July 1, 2002 to June 20, 2008, should be upheld.

Faye Lewis

Administrative Law Judge

April 6, 2009

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SUBMITTED TO: WILLIAM C. THOMPSON, JR. Comptroller APPEARANCES: ROBERT PALMER, ESQ. OFFICE OF THE COMPTROLLER Attorney for Petitioner MARY J. O’CONNELL, ESQ. STEVEN E. SYKES, ESQ. Attorneys for Complainant, District Council 37 SCHWARTZ, LICHTEN & BRIGHT, P.C. Attorneys for Complainant, Local 1087 By: DANIEL R. BRIGHT, ESQ. MAYRA E. BELL, ESQ. ELIZABETH N. CROWE, ESQ. OFFICE OF LABOR RELATIONS Attorneys for Respondent