
    In the Matter of Buffalo Building Trades Council of the Buffalo Board of Education Employees, by Donald Blair, its President, et al., Appellants, v Board of Education of the City of Buffalo, Respondent.
    Argued February 20, 1975;
    decided April 1, 1975
    
      
      Richard Lipsitz, Lawrence A. Schulz and Thomas P. McMahon for appellants.
    
      Anthony Manguso, Corporation Counsel (James J. McLoughlin of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, without costs.

The submissions on this appeal have not been helpful in resolving in which public body, if any, resided the power to classify positions and allocate positions to grades among permanent laborers, workmen, and mechanics in the employ of the Buffalo Board of Education. If a public body or bodies authorized to classify positions and allocate them to grades had effectively done so, section 220 of the Labor Law would not be applicable (Matter of Corrigan v Joseph, 304 NY 172, 182-183; Matter of Casey v Catherwood, 34 AD2d 806, affd 28 NY2d 702).

Examination of the Rules of the Buffalo Municipal Service Commission reveals that this commission has the power to grade positions in the competitive class "according to the compensation plan adopted by the body having authoritative jurisdiction over the salaries of said positions” (Rules for the Classified Civil Service, City of Buffalo [July, 1969], rule 21, subd 10, p 47).

Under the Education Law, the Buffalo Board of Education was once explicitly vested with the power to fix salaries, but the section was repealed without any substitute which research could reveal (Education Law, § 3102, subd 2; repealed L 1971, ch 123, § 1). Notably, however, there remain in the Education Law various provisions from which it might be inferred that the Board of Education retained its salary-fixing power (see, e.g., Education Law, § 2554, subd 2; § 2573, subd 12; § 2576, subd 1, par [a]).

The City Charter of Buffalo, on the other hand, purports to vest the power to fix salaries of municipal employees exclusively in the City Common Council (Buffalo City Charter, § 453; Local Laws, 1927, No. 4, as amd by Local Laws, 1959, No. 9). The charter specifies, however, that no salary shall be fixed except upon written recommendation of the head of the appropriate department, and evidently as a practical matter, the Buffalo Board of Education has been delegated the power to fix the salaries of its own employees. In fact, the Board of Education has both fixed salaries and allocated grades, and the City Common Council, by the appropriation of funds, has presumably approved this practice.

The Board of Education would appear therefore to be "the body having authoritative jurisdiction over * * * salaries”, to whose compensation plan the Municipal Civil Service Commission would defer for purposes of grading, if in fact it graded the positions. But instead the Board of Education directly did the grading. In the absence of any law barring either the Board of Education or the Common Council exercising these powers, and no provisions in the Rules of the Municipal Civil Service Commission giving that agency exclusive power to allocate positions to grades except where the authorized body has adopted a compensation plan, it is difficult to conclude from the present record or the submissions that the instant grading was ineffective. If effective, the grading, of course, precludes application of section 220 of the Labor Law. Consequently, there being no demonstration that the "grading” was ineffective or that the power resided in some other public body than the Board of Education, the order should be affirmed.

Cooke, J. (dissenting).

I dissent and vote to reverse.

The majority has stated that "it is difficult to conclude from the present record or the submissions that the instant grading was ineffective.” To the contrary, I respectfully submit that said grading was ineffective.

In light of the repeal of subdivision 2 of section 3102 of the Education Law, which had vested power to fix salaries in the Board of Education, and, in the absence of a showing of any substitute legislation, I find no authority for the proposition that the Board of Education continued to maintain such power. I cannot draw the inference, as does the Board of Education, that the salary-fixing power still exists but now stems from other, previously existing, provisions of the Education Law. Subdivision 2 of section 2554 of the Education Law, for example, gives the board the power to create, abolish, maintain and consolidate such positions as in its judgment may be necessary for the proper and efficient administration of its work. This cannot be read to include the power to fix salaries or, more importantly, create civil service grades. "A court cannot by implication supply in a statute a provision which is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended.” (McKinney’s Cons. Laws of NY, Book 1, Statutes, § 74.)

On the other hand, subdivision 2 of section 17 of the Civil Service Law states that "[ejxcept as otherwise provided by special law enacted by the legislature, the civil service commission or personnel officer of a city * * * shall administer the provisions of this chapter with respect to the offices and employments in the classified service of such * * * city, including the city school districts of such city.” Subdivision 1 of rule 7 of the Rules of the Buffalo Municipal Civil Service Commission defines "Class” to mean "one or more positions sufficiently similar with respect to duties and responsibilities to be designated by a single descriptive title and treated as a unit for the purpose of recruiting, establishing salary ranges and administering other personnel functions.” Subdivision 2 of rule 7 states that "[t]he Civil Service Commission shall prepare and maintain a list of class titles and class specifications for all positions in the classified service of the city, and shall assign all such positions to an appropriate class.” Further, subdivision 4 of rule 7, captioned "Classification of New Positions”, in pertinent part provides that "[a]fter an analysis of the position description, the Commission shall allocate the position to an appropriate class, or if no class exists, shall create a new class”.

Here the classification, grading and setting of salary was accomplished by a resolution of the Board of Education. As it appears that the power to take such action rests in the Civil Service Commission and not in the board, the order should be reversed.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs.

Order affirmed.  