In the Matter of Subway Surface Supervisors Association, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.February 12, 2014New York County Clerk’s Index No. 105285/09 Court of Appeals STATE OF NEW YORK In the Matter of the Application of the SUBWAY SURFACE SUPERVISORS ASSOCIATION, Petitioner-Respondent, Pursuant to Article 78 of the Civil Practice Law and Rules against NEW YORK CITY TRANSIT AUTHORITY, Respondent-Appellant. >> >> To Be Argued By: Richard Schoolman Time Requested: 15 Minutes REPLY BRIEF FOR RESPONDENT-APPELLANT NEW YORK CITY TRANSIT AUTHORITY Richard Schoolman Office of the General Counsel NEW YORK CITY TRANSIT AUTHORITY Attorneys for Respondent-Appellant New York City Transit Authority 130 Livingston Street Brooklyn, New York 11201 718-694-4667 Date Completed: September 20, 2013 APL-2013-00126 i Table of Contents Page Table of Authorities ......................................................................................... ..ii Introduction ......................................................................................................... 1 I. THE “POLICY” OF “EQUAL PAY FOR EQUAL WORK” SET OUT IN CSL § 115 DOES NOT APPLY TO EMPLOYEES OF THE TRANSIT AUTHORITY ......................................................................................... 1 II. THE “POLICY” OF “EQUAL PAY FOR EQUAL WORK” IN CSL § 115 IS NOT JUDICIALLY ENFORCEABLE BY THE SSSA AGAINST THE TRANSIT AUTHORITY IN THIS CASE .......................................... 5 III. THERE IS NO VALID “EQUAL PROTECTION” CLAIM IN THIS CASE ....................................................................................... 8 Conclusion ........................................................................................................... 12 ii Table of Authorities New York State Cases: Page Page Burns v. Board of Education of City of N.Y., 301 N.Y. 584 (1950), aff’ing 276 A.D. 994 (1 st Dep’t 1950) ....................... 5, 6 Gladstone v. Board of Education, 49 Misc. 2d 344 (Sup. Ct. Kings County), aff'd, 26 A.D.2d 838 (2d Dep't 1966), aff'd, 19 N.Y.2d 1004 (1967) ....................................................... 6 Metz v. State of New York, 20 N.Y.3d 175 (2012) ....................................................................................... 8 Niagara County, Matter of v. Power Authority of State of N.Y., 82 A.D.3d 1597 (4 th Dep’t), lv. dismissed in part and denied in part, 17 N.Y.2d 838 (2011) .......................................................................... 7 Ryan v. Adler, 51 Misc. 2d 816 (Sup. Ct. Westchester County 1966), aff’d, 28 A.D.2d 920 (2d Dep't 1967), aff'd, 21 N.Y.2d 815 (1968) ...................... 3, 5 Trerotola, Matter of v. New York City Off-Track Betting Corp., 58 N.Y.2d 856 (1983), aff’ing for reasons stated in the memorandum of the Appellate Division, 86 A.D.2d 822 (1 st Dep’t 1982) ................................................................................................................. 2 Federal Cases: Farraj v. Metro. Transit Authority, No. 11-CV-0574, 2011 U.S. Dist. LEXIS 67451 (E.D.N.Y. June 24, 2011), aff'd, 501 Fed. Appx. 10 (2d Cir. 2012) ........................................ 11 Constitutional Provisions and Statutes: New York State Constitution, Art. 1, § 11 ......................................................... 10 New York Civil Service Law § 37 [repealed 1958] ............................................. 6 iii New York Civil Service Law § 61(2) ................................................................. 12 New York Civil Service Law § 115 ............................................................passim New York Civil Service Law § 130 ..................................................................... 4 New York Civil Service Law § 130(1)(a) ............................................................ 4 New York Civil Service Law § 131 ..................................................................... 4 New York Civil Service Law § 132 ..................................................................... 4 New York Civil Service Law §§ 200-214 ............................................................ 6 New York Civil Service Law § 209(4) ............................................................. 4, 7 New York Civil Service Law § 209(5) ........................................................... 7, 10 New York Civil Service Law § 209-a .................................................................. 8 New York Public Authorities Law § 1202(1) ...................................................... 3 New York Public Authorities Law § 1202(2) ...................................................... 3 New York Public Authorities Law § 1207-e ........................................................ 3 New York Public Authorities Law § 1210(2) ...................................................... 4 Miscellaneous Authorities: 2 Public Sector Labor and Employment Law § 14.5 [first paragraph] ................. 1 (Jerome Lefkowitz et al., eds., 3d ed. 2011) Gertrude Stein, Everybody's Autobiography 289 (1937).................................... 12 1 Introduction The respondent-appellant New York City Transit Authority (“Transit Authority” or “TA”) submits this reply brief in further support of its appeal from the decision and order of the Appellate Division, First Department, entered on January 23, 2013 (R. 361-376), reported at 102 A.D.3d 532. Neither section 115 of the Civil Service Law (“CSL”) nor the equal- protection-of-the-laws clause of the New York State (or federal) Constitution provides a basis for a viable claim for the petitioner-respondent Subway Surface Supervisors Association (“SSSA”) in this proceeding. I. THE “POLICY” OF “EQUAL PAY FOR EQUAL WORK” SET OUT IN CSL § 115 DOES NOT APPLY TO EMPLOYEES OF THE TRANSIT AUTHORITY Consistent with the decisions cited by the Transit Authority in its opening brief (at 9-11), the “policy of the state to provide equal pay for equal work” set out in CSL § 115 - a policy whose first listed purpose is “to attract unusual merit and ability to the service of the state of New York” - is a policy that the leading treatise on New York’s public sector labor law has concluded “applies only to state employees.” 2 Public Sector Labor and Employment Law § 14.5 [first paragraph] (Jerome Lefkowitz et al. eds., 3d ed. 2011) (emphasis added). As there is no claim that TA employees are “state” employees, that is, employees of the State of New York, it follows 2 that CSL § 115 does not apply to the Transit Authority’s employees. The SSSA’s responses to this argument should be rejected. To begin with, the SSSA ignores what this Court appears to have concluded as to the scope of coverage of CSL § 115. In Matter of Trerotola v. New York City Off-Track Betting Corp., 58 N.Y.2d 856, 858 (1983), this Court affirmed a decision of the Appellate Division, reported at 86 A.D.2d 822 (1 st Dep’t 1982), “for reasons stated in the memorandum of the Appellate Division.” In that memorandum, the Appellate Division had agreed that CSL § 115 “is applicable only to State employees” (86 A.D.2d at 822-24). The SSSA’s failure to note, anywhere in its opposition brief, that the Appellate Division’s decision in Trerotola was affirmed by this Court (let alone for “reasons stated in the memorandum of the Appellate Division”), does not make that affirmance, and its rationale, go away. And it remains true that Trerotola, as affirmed by this Court, is consistent with numerous prior decisions from the Appellate Divisions for the First, Second, and Fourth Departments, 1 and from lower courts throughout the State (and even from federal courts). Moreover, if there were any serious doubt about the intended coverage of CSL § 115, it is undisputed that § 115 is placed within the CSL’s Article VIII, which carries the heading “Classification and 1 It does not appear that the Third Department has opined on this particular question. 3 Compensation of State Employees” (emphasis added). 2 The fact that TA employees are not employees of the State of New York - “State Employees” - should end the inquiry: CSL § 115 does not apply to TA employees. The SSSA also contends that because the Transit Authority’s statutory purposes (to operate, as set out in Public Authorities Law (“PAL”) § 1202(1), the public bus and subway systems previously operated by the Board of Transportation of the City of New York) are “for the benefit of the people of the state of New York” (PAL § 1202(2)), that benefit to “the people of the state of New York” somehow transforms TA employees into employees of the State of New York. That transformation is alchemical, and without logical (or caselaw) support, and simply cannot be harmonized with the facts that the Transit Authority was established as a public benefit corporation separate and distinct from the State of New York, that is, as a non-State entity that can sue and be sued in its own name, and, indeed, can incur its own debts that the State (as well as the City of New York) will not be responsible for repaying. PAL § 1207-e. That an individual or entity does something that benefits the “people” of the State - which might well 2 Since nothing in the text of CSL § 115 is inconsistent with the limitation to “State Employees” expressed in the heading given (by the Legislature) to CSL Article VIII, that heading description is worthy of note, as illustrated by Ryan v. Adler, 51 Misc. 2d 816, 817 (Sup. Ct. Westchester County 1966) (fact that the title given to CSL Art. VIII refers to “State Employees” supports the conclusion that CSL § 115 is not applicable to City of Yonkers employees), aff’d, 28 A.D.2d 920 (2d Dep’t 1967), aff’d, 21 N.Y.2d 815 (1968). 4 include activities of immense variety, including an individual’s paying taxes to the State or volunteering as a mediator in a State court, or an entity’s donating land to the State’s parks or helping maintain a State road - does not make that individual or entity a State employee or part of the State. Finally, the SSSA focuses on the fact that the Legislature, at PAL 1210(2), says that “[e]mployees of the [Transit Authority] shall be subject to the provisions of the civil service law,” which means, according to the SSSA, that CSL § 115, even though that section on its face (and certainly as interpreted by this Court and many others) applies only to the State’s employees, has to apply to the Transit Authority. That argument is circular and should not be persuasive. Putting aside CSL § 115, many provisions of the CSL could not possibly apply to the Transit Authority or to its employees: for instance, CSL § 130(1)(a) sets out “salary grades for positions in the competitive, non-competitive and labor classes of the classified service of the state of New York”; CSL §§ 131 and 132 provide details for the administration of the salary grades for employees covered by CSL § 130; and CSL § 209(4)(i) refers only to impasse arbitration involving “Suffolk county park police officers.” So the question the Transit Authority raised in its opening brief (at 12-13) remains unanswered by the SSSA: which provisions of the CSL are applicable to the Transit Authority and its 5 employees? The Transit Authority’s answer for this case - that CSL § 115 is one of the provisions of the CSL that does not apply to the Transit Authority and its employees - is a logical answer, and it has analogous case law to support it. Ryan v. Adler, 51 Misc. 2d 816, 818 (Sup. Ct. Westchester County 1966), aff’d, 28 A.D.2d 920 (2d Dep’t 1967), aff’d, 21 N.Y.2d 815 (1968), a decision cited in the Transit Authority’s opening brief on this issue (at 13) but entirely ignored in the SSSA’s opposition brief, concluded that a City of Yonkers charter provision that personnel appointments “shall be made in accordance with the provisions of the [CSL]” binds the City to follow only “the provisions of the [CSL] which apply generally to local governmental employees throughout the State,” and thus not to the “equal pay for equal work” policy in CSL § 115, which “limits itself to State employees.” The Ryan analysis applies here as well. This Court should reverse on the grounds that CSL § 115 does not apply to the Transit Authority and its employees. II. THE “POLICY” OF “EQUAL PAY FOR EQUAL WORK” IN CSL § 115 IS NOT JUDICIALLY ENFORCEABLE BY THE SSSA AGAINST THE TRANSIT AUTHORITY IN THIS CASE The majority view is that, as discussed in the Transit Authority’s opening brief (at 15-21), the “policy” of “equal pay for equal work” set out in CSL § 115 is not judicially enforceable. To the same effect, see Burns v. 6 Bd. of Educ. of City of N.Y., 301 N.Y. 584 (1950), aff’ing 276 A.D. 994 (1 st Dep’t 1950), in which this Court either held “clear[ly]” - according to Gladstone v. Board of Education, 49 Misc. 2d 344, 346 (Sup. Ct. Kings County), aff’d, 26 A.D.2d 838 (2d Dep’t 1966), aff’d, 19 N.Y.2d 1004 (1967) - or agreed by implication that CSL § 115 “merely enunciates a policy and confers no jurisdiction on a court to enforce such policy” (Gladstone, 49 Misc. 2d at 346). 3 The SSSA fails to explain how judicial enforcement of CSL § 115 - a matter about which the CSL itself is entirely silent - squares with the specific provisions of the Taylor Law (CSL §§ 200-214) describing the collective bargaining procedures of that Law dealing with the setting of wages (and many other things), procedures including binding impasse arbitration for the Transit Authority and its union-represented employees. The SSSA’s view that CSL § 115 is judicially enforceable does not square with the detailed (non-judicial) mechanisms for resolving disputes over wages set out in the Taylor Law, and CSL § 115 should remain a precatory statement of policy that is not judicially enforceable for several reasons beyond the weight of decades of precedent. 3 Burns involved an argument based on what was then codified as CSL § 37, a provision that was repealed in 1958 by L. 1958, c. 790, and replaced by what is today’s CSL § 115. CSL § 37 (enacted by L. 1945, c. 302) was, in relevant respects, identical to the current § 115. 7 The Taylor Law is a much more recent, and much more specific, enactment 4 and thus should control (see, e.g., Matter of Niagara County v. Power Auth. of State of N.Y., 82 A.D.3d 1597, 1601 (4 th Dep’t) (“It is a … general rule of [statutory] construction that a prior general statute yields to a later specific or special statute”)), lv. dismissed in part and denied in part, 17 N.Y.3d 838 (2011). Moreover, CSL § 115 lacks any specified mechanism for enforcement or any details about how an appropriate rate of pay should be set, e.g., the factors to be considered, while the Taylor Law’s provisions have such detailed mechanisms for determining wages through collective bargaining or (for the Transit Authority, by name) impasse arbitration (all non-judicial) and a carefully crafted set of factors for the impasse arbitration panel to consider in determining an appropriate wage if the parties (such as the Transit Authority and a union of TA personnel) fail to agree (CSL § 209(5)(d)(i), (ii)). And, of course, the Taylor Law’s provisions - which, among other things, “require[] [public employers] to negotiate collectively with … certified or recognized employee organization[s] in the determination of … wages, hours, and other terms and conditions of employment” (CSL § 204(2)-(3)), a requirement made 4 The Taylor Law was enacted in 1967 (L. 1967, c. 392); CSL § 115 was enacted in 1958 (L. 1958, c. 790) and, in relevant respects, is a word-for-word recodification of the former CSL § 37, which had been enacted in 1945 (L. 1945, c. 302). . 8 specifically enforceable (initially through the Public Employment Relations Board, an agency with substantial expertise in public sector bargaining) (see, e.g., CSL § 209-a) - are the results of decades of legislative study and development. In other words, the Legislature’s design and intentions call for the Taylor Law’s approach to the setting of wages in the public sector in New York to control rather than the judge-deciding interpretation of CSL § 115. Because CSL § 115 has no express provision for judicial enforcement at all, let alone via a private right of action, none should be implied where, as here, such a right, as this Court observed in Metz v. State of New York, 20 N.Y.3d 175, 180-81 (2012), “would be incompatible with the legislative design.” Finally, the SSSA has no real response to the wholesale disruption that judicial enforcement of CSL § 115 would cause to the Legislature’s detailed policy (implemented and enforced without judicial intervention on the merits) to rely on collective bargaining (assisted if necessary, as with the Transit Authority in particular, by impasse arbitration) in the complex task of setting of wages for unionized public employees in New York. CSL § 115 may not be judicially enforced in this proceeding. III. THERE IS NO VALID “EQUAL PROTECTION” CLAIM IN THIS CASE The SSSA’s approach to the Transit Authority’s arguments about the invalidity of an Equal Protection claim for this proceeding - a claim that, at 9 least in its brief, the SSSA limits to a claim under the New York State Constitution, seemingly ignoring the United States Constitution - has a procedural aspect that should be addressed before the Transit Authority turns to its merits (or lack of merit). Procedurally, the SSSA seems to assert (especially in Point IV of its brief) that this Court should not address the viability of the SSSA’s Equal Protection claim in this proceeding because Justice Goodman in the Supreme Court chose not to decide whether the Equal Protection claim was viable in light of her conclusion that that the SSSA’s parallel claim under CSL § 115 was viable. The SSSA’s Equal Protection claim, however, was of sufficient importance for Justice Goodman to grant specific leave to the TA to appeal to the Appellate Division about the viability of the SSSA’s Equal Protection claim in this proceeding (as the SSSA spells out in its brief, at 5 (and see also R. 2)). Of course, the Appellate Division clearly did address the viability of the SSSA’s Equal Protection claim, the majority concluding that it was viable for this proceeding (R. 370) and the dissent disagreeing (R. 373-376). As each of the legal conclusions of the Appellate Division is before this Court (see R. 377), this Court may and should decide the viability of the SSSA’s Equal Protection claim (as now apparently limited by the SSSA’s brief to 10 such a claim under the New York State Constitution, presumably Art. 1, § 11, although the SSSA’s brief does not so specify). 5 The SSSA’s Equal Protection (of the Laws) claim is not viable in this proceeding because, in effect, it is based on the notion that the SSSA may sue itself. It is the SSSA - without a hint of a whisper of a suggestion that it was ever coerced, drugged, fooled, lied to, or corrupted - that chose, repeatedly, to negotiate with the Transit Authority about wages (and benefits) for the Transit Authority’s SS-I employees, and to sign, freely, agreements setting those wages, knowing that the Transit Authority’s SS-II employees were paid more money than the SS-Is. And the SSSA did not have to sign such agreements if it had been in the slightest dissatisfied with the negotiations because, through CSL § 209(5), the SSSA could have gone to impasse arbitration where a panel of arbitrators would have set the wages for SS-Is; but of course the SSSA did sign, and never sought impasse arbitration. Thus, the resulting wage rates for SS-Is are the product of an agreement - indeed, a series of agreements - between the Transit Authority and the SSSA (clearly not a governmental entity), and is obviously not the product of unilateral governmental action of the kind needed to make out an 5 The SSSA’s brief, in the heading to its Point IV (at 33), and in its table of contents (at ii), refers to the question of “[w]hether the Transit Authority stated a cause of action for an Equal Protection claim …” (emphasis added). We assume that these references to the “Transit Authority” are a repeated editorial error, and that the SSSA’s counsel meant to write “[w]hether the SSSA stated …” such a claim. 11 Equal Protection (of the Laws) claim. 6 And despite the Transit Authority’s invitation, the SSSA has failed to find a single prior case in which a labor union in a position comparable to the SSSA’s here had stated a judicially cognizable Equal Protection claim. Not a single one of the Equal Protection- related decisions cited by the SSSA in its brief involves such a claim by a labor union petitioner challenging its own labor agreement with a public sector employer on Equal Protection grounds. And for good reason; such a claim is inconsistent with the fundamental understanding of an Equal- Protection-of-the-Laws claim, which is one addressing unilateral governmental action, not a fairly negotiated collective bargaining agreement that the claimant freely chose to sign. To try to bolster its position that it has a viable Equal Protection claim, the SSSA attempts to explain away the Appellate Division’s majority assertion that the SSSA could not have obtained for its SS-I members wage equality with the SS-IIs represented by another union, an assertion that then- Justice Abdus-Salaam found “perplexing.” The SSSA, however, does not show any basis to believe that it could not have achieved wage equality through collective bargaining and/or impasse arbitration under the Taylor 6 See, e.g., Farraj v. Metro. Transit Auth., No. 11-CV-0574, 2011 U.S. Dist. LEXIS 67451, at *6 (E.D.N.Y. June 24, 2011) (rejecting “equal protection” claim arising from Transit Authority’s dismissal of the plaintiff, and non-dismissal of a co-employee, where the challenged TA personnel action “was not the result of a unilateral municipal policy requiring” that action), aff’d, 501 Fed. Appx. 10 (2d Cir. 2012). 12 Law. Instead, the SSSA asserts that the Transit Authority might take SS-II work and assign it improperly (i.e., “out of title”) to SS-Is, and the SSSA could not prevent such a maneuver. What that notion now has to do with this proceeding is not clear, but there would be an available remedy to the SSSA: a claim under CSL § 61(2), which prohibits “out-of-title” work. The SSSA in fact had originally asserted such a claim in this case (see, e.g., R. 37-38 at ¶¶ 21-27) but the SSSA then abandoned it (R. 15, 364). As to a claim by the SSSA of violation of Equal Protection (of the Laws), the Transit Authority thinks that, to borrow a phrase, “there is no there there.” 7 Conclusion For the reasons outlined in the Transit Authority’s opening brief, and above, the decision and order of the Appellate Division should be reversed, and the petition, and this proceeding, should be dismissed. Dated: September 20, 2013 Respectfully submitted, Richard Schoolman Office of the General Counsel New York City Transit Authority 130 Livingston Street Brooklyn, NY 11201 Tel. (718) 694-4667 Richard.schoolman@nyct.com Attorneys for Respondent-Appellant New York City Transit Authority 1480010 7 Gertrude Stein, Everybody’s Autobiography 289 (1937).