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 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: July 22, 2013 APL-2013-00126 Table of Contents Page Table of Authorities ...................................................................................... ii Introduction ....................................................................................................1 Jurisdictional Statement................................................................................2 The Parties, the Relevant Facts, and the Prior Proceedings .....................3 I. THE “POLICY” OF “EQUAL PAY FOR EQUAL WORK” SET OUT IN CSL § 115 DOES NOT APPLY TO EMPLOYEES OF THE TRANSIT AUTHORITY ............................................................8 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 ............................................................................... 15 III. THERE IS NO VALID “EQUAL PROTECTION” CLAIM IN THIS CASE ............................. 22 Conclusion ................................................................................................... 29 ii Table of Authorities Page Page New York State Cases: Alesi v. Procaccino, 47 A.D.2d 887 (1st Dep't 1975) ..................................................................9 Beer v. Board of Education of City of N.Y., 83 N.Y.S.2d 485 (Sup. Ct. Kings County), aff'd without op., 274 A.D. 931 (2d Dep't 1948) ................................................................. 28 Benedetto, Matter of v. County of Suffolk, 35 A.D.2d 568 (2d Dep't 1970) ..................................................................9 Bertoldi v. State of New York, 275 A.D.2d 227 (1st Dep't 2000) ............................................................. 20 Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983)…………………………………………. ............. 21 City of Newburgh, Matter of v. Newman, 69 N.Y.2d 166 (1987) .............................................................................. 18 City of Watertown, Matter of v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73 (2000) ........................................................................ 21 Civil Service Employees. Association, Inc., Local 1000, Matter of v. State of N.Y. Unified Ct. Sys., 35 A.D.3d 1008 (3rd Dep't 2006)............ 15 Empire State Chapter of Associated Builders & Contractors, Inc. v. Smith, 98 A.D.3d 335 (4th Dep't 2012), modified on other grounds, --- N.Y.3d ---, --- N.Y.S.2d ---, 2013 N.Y. Slip. Op. 4038 (June 6, 2013) .......................................................................................... 11 Gladstone v. Board of Education, 49 Misc. 2d 344 (Sup. Ct. Kings County), aff’d, 26 A.D.2d 838 (2nd Dep't 1966), aff'd, 19 N.Y.2d 1004 (1967) ............................... 15, 20 Green v. Bala, 57 A.D.2d 1041 (4th Dep't 1977) ...............................................................9 iii Margolis v. New York City Transit Authority, 157 A.D.2d 238 (1st Dep't 1990) ............................................................. 28 Metz v. State of New York, 20 N.Y.3d 175 (2012)…………………………………………... ........... 19 Ryan v. Adler, 51 Misc. 2d 816 (Sup. Ct. Westchester County 1966), aff'd, 28 A.D.2d 920 (2nd Dep't 1967), aff'd, 21 N.Y.2d 815 (1968)........ 10, 11, 13 Scime, Matter of v. County Legislature of Erie County, 90 Misc. 2d 764 (Sup. Ct. Erie County 1977) ............................................9 Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629 (1989) .............................................................................. 19 Trerotola, Matter of v. New York City Off-Track Betting Corp., 86 A.D.2d 822 (1st Dep't 1982), aff'd for reasons stated in the memorandum of the Appellate Division, 58 N.Y.2d 856 (1983) ......... 9, 24 Federal Cases: Lukaszewski v. County of Ulster, No. 1:08-CV-483, 2009 U.S. Dist. LEXIS 52958 (N.D.N.Y. June 23, 2009) ........................................................................ 11 MTA Bus Non-Union Employees Rank & File Committee v. Metropolitan Transp. Auth., 899 F. Supp.2d 256 (S.D.N.Y. 2012) .................................................. 9, 15 Constitutional Provisions and Statutes: New York State Constitution, Art. 1, § 11 ............................................. 22, 23 United States Constitution, Amend. 14, § 1 ........................................... 22, 23 New York Civil Service Law § 5 ................................................................. 12 iv New York Civil Service Law § 61(2) ......................................................... 5, 6 New York Civil Service Law § 115 ...................................................... passim New York Civil Service Law § 117 ............................................................. 11 New York Civil Service Law § 118 ............................................................. 12 New York Civil Service Law § 200 ................................................. 19, 26, 28 New York Civil Service Law § 201(6)(a) .................................................... 13 New York Civil Service Law § 201(7)(a) .................................................... 13 New York Civil Service Law § 204 ............................................................. 14 New York Civil Service Law § 205 ............................................................ 17 New York Civil Service Law § 209 ....................................................... 18, 28 New York Civil Service Law § 209(5) (and subdivisions) ......................................................... 14, 17, 18, 19, 20, 24 New York Civil Service Law, Art. VIII (and Title A) ........................... 11, 13 New York Civil Service Law, Article 14 (§§ 200-214) ....... 12, 16, 20, 21, 23 New York Public Authorities Law, Title 9 (§§ 1200-1221) ...........................3 New York Public Authorities Law § 1201(1) .......................................... 3, 27 New York Public Authorities Law § 1202(2) .............................................. 14 New York Public Authorities Law § 1204 (and subsections) .................... 3, 8 New York Public Authorities Law § 1207-e ........................................ 3, 8, 14 New York Public Authorities Law § 1210(2) ........................................ 12, 13 McKinney’s Statutes § 123(b) ...................................................................... 11 1 Introduction . This appeal presents issues central to the future of the Legislature’s detailed mechanism for resolving wage disputes in the public sector and to the role of the judiciary to address and resolve the merits of such disputes. Those issues, of importance to hundreds of thousands of public sector employees in New York State, may be distilled to the question of whether, by relying on a statement of “policy of the state,” a policy “to provide equal pay for equal work,” set out in a section (§ 115 1 ) of the New York Civil Service Law (“CSL”), or by relying on the “Equal Protection” clause of the New York State or federal Constitution, a labor union dissatisfied with the wage rates it had actually agreed to for its members in collective bargaining with a public sector employer distinct from the State of New York may obtain further wage increases from a judge instead of through the detailed mechanisms for collective bargaining (including wage-setting) established 1 Section 115 of the Civil Service Law reads as follows, with the portion of it that the SSSA relies on in this proceeding italicized: In order to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government, it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service. 2 by the Legislature for the public sector, mechanisms in which judges play no role in the merits of wage disputes. 2 The answer to that question should be “no”; but the Appellate Division, First Department, affirming an order of the Supreme Court, New York County - where this proceeding was commenced by such a labor union, the petitioner-respondent Subway Surface Super- visors Association (“SSSA”), to obtain judicially such further wage increases from the respondent-appellant New York City Transit Authority (“Transit Authority” or “TA”) - said “yes.” This Court should answer that question “no” and reverse with instructions that the SSSA’s petition, and this proceeding, be dismissed. Jurisdictional Statement This Court has jurisdiction to entertain this appeal and to review the questions raised. This case is a proceeding under CPLR Art. 78 commenced in 2009 with the filing of a petition (R. 35-40) by the SSSA against the Transit Authority in the Supreme Court, New York County (Index No. 105285/09). The Supreme Court (Hon. Emily Jane Goodman. J.) denied the Transit Authority’s cross-motion to dismiss the petition (R. 13-21), but then granted permission to the Transit Authority to appeal to the Appellate 2 As noted in the Appellate Division’s decision, and as discussed in the following pages, the complaining labor union’s dissatisfaction stems from the fact that that public employer, the Transit Authority, had agreed to higher wage rates for other, similar employees (in negotiations with the different labor union that represents those other employees). See, e.g., R. 362; R. 234, ¶¶ 36-37. 3 Division, First Department (R. 23-29). The Appellate Division affirmed in a decision and order entered on January 22, 2013, with two justices dissenting (R. 361-376); that decision and order is now reported at 102 A.D.3d 532. Upon the Transit Authority’s subsequent motion, the Appellate Division granted the Transit Authority leave to appeal to this Court, with the question of law that ought to be reviewed by this Court stated to be “Was the order of the Supreme Court, as affirmed by [the Appellate Division], properly made?” (R. 377). The Parties, the Relevant Facts, and the Prior Proceedings The Transit Authority, established in 1953 in what is now Title 9 (§§ 1200-1221) of the New York Public Authorities Law (“PAL”), is a “public benefit corporation” controlled by a 17-member board (PAL § 1201(1)). The Transit Authority’s purposes include operating, “for the convenience and safety of the public,” the subway system in New York City formerly operated by the Board of Transportation of the City of New York (PAL § 1202(1)). The Transit Authority’s powers, starting with the power to sue and be sued in its own name (PAL § 1204(1)), are broad (see generally, e.g., PAL § 1204, and in particular PAL § 1204(17)), and neither the State of New York nor the City of New York is liable for the Transit Authority’s debts (see, e.g., PAL § 1207-e). 4 The SSSA is a labor union that, for more than 25 years, has represented, for purposes of collective bargaining with the Transit Authority, certain TA personnel called Station Supervisor [Level] I (“SS-I”). (R. 35, ¶ 5; R. 36, ¶ 9). That representation has resulted in a series of labor agreements - signed by the SSSA - setting, among many other things, the wage rates for the Transit Authority’s SS-Is. (R. 145, ¶ 3-R. 148, ¶ 9). There is no dispute that at all times relevant to this proceeding, such a Transit Authority-SSSA labor agreement setting wage rates for SS-Is was in effect. (R. 37, ¶ 19; R. 145-148). The Transit Authority has had, in addition to SS-Is, another group of employees called Station Supervisor [Level] II (“SS-II”). SS-IIs - whose duties and working conditions share similarities with those of the SS-Is, but have some differences (see, e.g., R. 49, ¶ 10) - have not been represented by the SSSA but have been represented since the mid-1990s by another labor union, the “TSO” (i.e., Transit Supervisors Organization). (R. 36, ¶ 9; R. 48, ¶¶ 6-7). There is no dispute that the wage rates for SS-IIs have, at all relevant times, been higher than those of SS-Is - both before the SS-IIs came to be represented by the TSO and then pursuant to collective bargaining agreements that the Transit Authority has entered into with the SSSA for SS-Is and with the TSO for SS-IIs (R. 37, ¶¶ 17-19; R. 133, ¶ 12-R. 138, ¶ 23; R. 145, ¶ 3-R. 150, ¶ 14) - and the SSSA at all 5 relevant times was aware of the (higher) wage rates for SS-IIs. (R. 136, ¶ 19). The SSSA began this Article 78 proceeding against the Transit Authority in the Supreme Court, New York County, in April 2009. The petition in the proceeding originally - and to date, as the petition has never actually been amended - raised a single claim, one under CSL § 61(2), to the effect that the Transit Authority had, for years, been unlawfully requiring SS-Is to perform the work properly belonging to SS-IIs. 3 (R. 37-38, ¶¶ 21- 25). The Transit Authority cross-moved to dismiss the petition on various grounds, and in opposition the SSSA, as the Supreme Court itself noted, “abandon[ed]” its CSL § 61(2) - out-of-title work - claim “entirely.” (R. 15). Instead, in its counsel’s opposition papers (but never by any amended petition 4 ) the SSSA raised new, substitute, theories of liability: that the Transit Authority’s paying SSSA-represented SS-Is the wage rates specified 3 CSL § 61(2) states: No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work. 4 Nothing in the record indicates that the SSSA moved for leave to amend its petition. 6 in the applicable Transit Authority-SSSA labor agreement violated CSL § 115 and/or the Equal Protection clause of the New York State or United States Constitution because those negotiated wage rates were lower than the wage rates paid by the Transit Authority to SS-IIs pursuant to labor agreements with the separate union that represents SS-IIs, the SSSA claiming that SS-IIs perform functions very similar to those of SS-Is. (R. 37, ¶¶ 15-20; R. 225, ¶ 4). The Supreme Court effectively denied the Transit Authority’s cross- motion, and although concluding that the SSSA’s sole original claim (i.e., the out-of-title work claim based on CSL § 61(2)) had been entirely abandoned (R. 15), did not dismiss the petition - the normally required result in such situations 5 - but entertained the SSSA’s new claims, sketched out by SSSA counsel only in the SSSA’s opposition papers, based on CSL § 115 and the Equal Protection clauses. The Supreme Court went on to conclude that CSL § 115 applied to the Transit Authority and its employees 5 See, e.g., Ostrov v. Rozbruch, 91 A.D.3d 147, 154 (1 st Dep’t 2012) (“‘A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint’”). The majority decision of the Appellate Division below seems to have accepted the Supreme Court’s departure from the normal procedure of dismissal because the Supreme Court had noted “that it had afforded the TA ample opportunity to respond to SSSA’s new arguments.” (R. 364). The dissent wrote that “the proper procedure under these circumstances would have been for the court to dismiss the petition once petitioner abandoned its claim based on [CSL] § 61(2) …. [instead of] implicitly deem[ing] the [SSSA’s] pleading amended ….” (R. 371). 7 and that “[u]nder CSL § 115, SS1 [i.e., SS-I] employees are entitled to the same pay as SS2 [i.e., SS-II] employees if they perform the same work.” (R. 20). The Supreme Court then directed that a hearing be held because there was “a factual dispute as to whether SS1 [SS-I] employees perform the same duties as SS2 [SS-II] employees ….” (R. 21). (Part of that factual dispute presumably involved the Transit Authority’s evidence of certain differences between the two levels, noted, for instance, at R. 49, ¶ 10.) The Supreme Court also wrote that, given the asserted applicability of CSL § 115, “there is no need to discuss petitioner’s [i.e., SSSA’s] equal protection arguments.” (R. 20). There was no direction as to the hearing’s including evidence about the historical background of, or reasons justifying, the differences in wages, or differences in working conditions, on-call obligations, promotional expectations, or fringe benefits, or overtime opportunities, or anything else other than “duties.” The Transit Authority then moved for renewal and reargument, or for leave to appeal to the Appellate Division, First Department. (R. 249 et seq.). Renewal and reargument were denied, but the Supreme Court granted the Transit Authority leave to appeal to the Appellate Division. (R. 23-29). The Appellate Division, two justices dissenting, in a decision and order entered January 22, 2013 (R. 361-376), affirmed the Supreme Court’s order denying 8 the Transit Authority’s cross-motion to dismiss, but subsequently (on May 23, 2013) granted the Transit Authority’s motion for leave to appeal to this Court with a certification that its decision and order had been “made as a matter of law and not in the exercise of discretion.” (R. 377). For the reasons outlined below, this Court should reverse, and direct that the petition, and this proceeding, be dismissed. Neither CSL § 115 nor Equal Protection is applicable to support liability against the Transit Authority and in favor of the 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 It is not disputed that the New York City Transit Authority is not the State of New York or a “division” or “subdivision” of the State but is, rather, a “public benefit corporation” (PAL § 1201(1)) that may sue and be sued in its own name (PAL § 1204(1)), “make rules and regulations for its organization and internal management” (PAL § 1204(4)), hire its own personnel (PAL § 1204(5), (6), (7)), and “do all things necessary or convenient to carry out its purposes and for the exercise of the powers granted” to it (PAL § 1204(17)); and its debts are not those of the State (e.g., PAL § 207-e). Indeed, the Supreme Court below observed, correctly, that the Transit Authority “undoubtedly ‘was not a division of the State’” (R. 9 20). It follows that employees of the Transit Authority are not employees of the State of New York. CSL § 115 has been held many times, including by panels of the First Department, not to apply to employees of entities other than the State; and it appears that this Court has concurred. See, e.g., Matter of Trerotola v. New York City Off-Track Betting Corp., 86 A.D.2d 822, 822-24 (1 st Dep’t 1982) (agreeing that CSL § 115 “is applicable only to State employees”), aff’d for reasons stated in the memorandum of the Appellate Division, 58 N.Y.2d 856, 858 (1983). See also Green v. Bala, 57 A.D.2d 1041 (4 th Dep’t 1977) (CSL § 115 “is applicable only to employees in the service of the State of New York”); Alesi v. Procaccino, 47 A.D.2d 887, 888 (1 st Dep’t 1975) (rejecting claim of certain City employees for pay equality under CSL § 115 as that “section deals with employees in the service of the State of New York”); Matter of Benedetto v. County of Suffolk, 35 A.D2d 568 (2d Dep’t 1970) (rejecting claim of District Court personnel seeking equality of pay under CSL § 115 6 with personnel of another court, concluding that “employees of the District Court are not State employees”), aff’d, 38 N.Y.2d 744 (1971); Matter of Scime v. County Legislature of Erie County, 90 Misc. 6 The fact that the claim in Benedetto was based on CSL § 115 is not specified in the Appellate Division’s order but in the headnotes for the affirmance by this Court (at 38 N.Y.2d 744). 10 2d 764, 768 (Sup. Ct. Erie County 1977) (“applicable law” is that CSL § 115’s coverage is “limited to State employees”); Ryan v. Adler, 51 Misc. 2d 816, 817 (Sup. Ct. Westchester County 1966) (agreeing that CSL § 115 applies only to State employees), aff’d, 28 A.D.2d 920 (2 nd Dep’t 1967), aff’d, 21 N.Y.2d 815 (1968). Most recently, see also MTA Bus Non-Union Employees Rank & File Comm. v. Metropolitan Transp. Auth., 899 F. Supp.2d 256, 267 (S.D.N.Y. 2012) (policy in CSL § 115 “applies only to employees who are in the civil service of the State of New York.”). The Transit Authority believes that these holdings, which reflect the majority view, should be confirmed (or re-confirmed) by this Court, in this case, for reasons even beyond those of ample precedent, that is, for reasons involving the text, and then the context, of CSL § 115. The text of CSL § 115 speaks to the government of the State, and to how that government should be staffed. That section begins with a clause that demonstrates that the section’s focus is the State government: “In order to attract unusual merit and ability to the service of the state of New York …” (emphasis added). The employees of the Transit Authority are not in the service of the State of New York (but of a public benefit corporation distinct from the State). The text continues by declaring that it is “the policy of the state” - not, for instance, of “public employers” or of some other term more 11 inclusive than “the state” - “to provide” (among other goals) “equal pay for equal work”; such “provid[ing],” we think apparent, refers to the state’s providing, not more generally to public employers’ providing. The context (or placement) of § 115 within the CSL reinforces this conclusion. The Legislature placed CSL § 115 in the CSL’s Article VIII, which is entitled “Classification and Compensation of State Employees,” a heading evidencing a focus solely on State employees. 7 See Ryan, 51 Misc. 2d at 817 (that heading of CSL “[A]rticle 8” [i.e. VIII] refers to “State Employees” supports the conclusion that CSL § 115 is not applicable to City of Yonkers employees); Lukaszewski v. County of Ulster, No. 1:08-CV-483, 2009 U.S. Dist. LEXIS 52958, at *9 (N.D.N.Y. June 23, 2009) (“provisions of Article VIII of the Civil Service Law do not embrace municipal employees”). And the Legislature also placed that § 115 (and the immediately following sections) in Article VIII’s Title A, a title addressing, as the Title’s heading says, “Classification and Allocation of Positions.” A review of the sections within Title A, sections including provisions establishing a “classification and compensation division” within the State’s 7 Headings are useful aids should the text of a statutory provision be seen as ambiguous. See, e.g., Empire State Chapter of Associated Builders & Contractors, Inc. v. Smith, 98 A.D.3d 335, 346 (4 th Dep’t 2012) (“the heading of [the section at issue] resolves the ambiguity created by the language [of the section’s text] … in favor the interpretation advocated by defendants”), modified on other grounds, --- N.Y.3d ---, --- N.Y.S.2d ---, 2013 N.Y. Slip. Op. 4038 (June 6, 2013). See also McKinney’s Statutes § 123(b). 12 department of civil service (CSL § 117) - a department defined earlier in the CSL (at § 5) as “be[ing] in the state government” - and describing the powers of the director of that division, which powers are related, repeatedly, to “the classified civil service of the state” (CSL § 118), also shows that Title A is intended to address concerns arising within, and the nitty-gritty of the mechanics of managing, the State’s civil service system (and not a public benefit corporation’s personnel). The arguments raised for applying the equal pay policy of CSL § 115 to the Transit Authority are principally two. One is that PAL § 1210(2), part of the statute creating the Transit Authority, says that the “appointment, promotion and continuance of employment of all employees of the [Transit] [A]uthority shall be governed by the provisions of the civil service law” (as well as the rules of the City of New York’s “civil service commission”). But reliance on PAL § 1210(2) leaves open the question of which CSL provisions would be applicable to the Transit Authority if it is not the State or even a civil division or subdivision of the State. Where the Legislature has wished to make clear that provisions of the CSL would cover the public benefit corporation that is the Transit Authority or some other non-State entity, the Legislature can say so, and has said so in the CSL itself. For instance, the Legislature, in the CSL’s Article 14 (i.e., §§ 200-214, often 13 referred to as the “Taylor Law” or “Taylor Act”), addresses collective bargaining rights and responsibilities for a “public employer” and its employees, and defines a covered “public employer” to include a “public benefit corporation” (CSL § 201(6)(a)), and defines a “public employee” to include “any person holding a position … in the service of a public employer ….” (CSL § 201(7)(a)). As Article 14 of the CSL, on its face, is generally applicable to the Transit Authority, and Article VIII of the CSL (containing CSL § 115) on its face is not, reference in PAL § 1210(2) to “the provisions of the civil service law” would not transform the Transit Authority into an entity subject to CSL § 115. To comparable effect, see, e.g., Ryan, 51 Misc. 2d at 818 (City charter provision stating that appointments of City personnel “shall be made in accordance with the provisions of the [CSL]” binds City to follow just “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 of CSL § 115, which “limits itself to State employees”). The second argument, pressed below by the SSSA, is that, while the Transit Authority is not formally an agency of the State and its employees are not actually employees of the State (or even of a political subdivision of the State), the Transit Authority’s “purposes” are “in all respects for the 14 benefit of the people of the state of New York” (and the Transit Authority, in carrying out its purposes, “shall be regarded as performing a governmental function”). PAL § 1202(2). The SSSA reasoned that the Transit Authority’s purpose of benefiting the public - “the people of the state of New York” - makes the Transit Authority into a good candidate for coverage of CSL § 115 apparently because the Transit Authority is intended, by the PAL, to do good deeds for the people of the State that the State government would otherwise do, or have to do, or want to do, or should want to do, itself. But a public benefit corporation’s providing a benefit to the “people of the state of New York” - consistent with the kind of corporation it is, i.e., a public benefit corporation - does not convert that corporation into the State, or a subdivision of the State, or an arm of the State, or the State’s alter ego, or some sort of shadow branch of state government; the Transit Authority remains legally (and financially) separate from the State (as PAL § 1207-e, for instance, makes clear). And the SSSA had presented no authority to the contrary. Section 115 of the CSL does not apply to the employees of the Transit Authority. The order of the Appellate Division reaching the contrary conclusion should accordingly be reversed. 15 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 Section 115 of the CSL - to the extent it spells out, as a “policy of the state,” “to provide” (among other goals) “equal pay for equal work” - is not judicially enforceable against the Transit Authority generally, and certainly by the SSSA here, even if that policy statement in the section were held to apply to the Transit Authority and its personnel. The majority view among the courts that have examined the question is that CSL § 115’s “policy” of providing “equal pay for equal work” is not judicially enforceable. See, e.g., Matter of Civil Serv. Empls. Ass’n, Inc., Local 1000 v. State of N.Y. Unified Ct. Sys., 35 A.D.3d 1008, 1010 (3rd Dep’t 2006) (“‘the courts have repeatedly held that [Civil Service Law § 115] merely enunciates a policy and confers no jurisdiction on a court to enforce such policy’”), quoting Gladstone v. Board of Educ., 49 Misc. 2d 344, 346 (Sup. Ct. Kings County), aff’d, 26 A.D.2d 838 (2nd Dep’t 1966), aff’d, 19 N.Y.2d 1004 (1967); and see also MTA Bus, 899 F. Supp.2d at 267. The conclusion of these decisions is sound. Where the Legislature wishes to provide what amounts to a private right of action to enforce the Legislature’s will, the relevant statute makes that wish apparent, expressly or by clear inference. Here, in contrast, the 16 Legislature chose to enunciate merely a “policy” but failed to include any words, or reference to any mechanism, giving a labor organization a basis to have a judge determine and then enforce wage equality, i.e., to have a court set a wage rate for a labor organization’s members equal to a wage rate paid to other employees. That absence of a mechanism by which a court may equalize wages between groups of union-represented employees, moreover, makes perfect sense because the Legislature, in Article 14 of the Civil Service Law (CSL §§ 200-214, the Taylor Law), created a detailed mechanism by which wage decisions for hundreds of thousands of public employees in New York may be reached, all without any judicial decision-making on the merits of wage issues. In the Taylor Law generally, the Legislature constructed a finely tuned set of procedures to assist public employers (defined, as noted above, to include public benefit corporations) and their represented employees in reaching agreements as to wages and many other “terms and conditions of employment” (CSL § 204). And some of those procedures refer to the Transit Authority, by name. CSL § 209(5). None of those procedures permits a judge to set or equalize wages or otherwise decide the merits of a dispute about wages. For instance, a dispute as to whether a public employer is not bargaining in good faith about wages 17 would be a dispute about an alleged “improper employer practice,” and the Taylor Law-created Public Employment Relations Board (“PERB”), an administrative agency, is established to resolve such disputes. CSL § 205 et seq. Moreover, nothing requires a labor organization to agree to terms (about wages or other items) that it considers distasteful. Indeed, under the Taylor Law a labor union (such as the SSSA) need not sign an agreement with the Transit Authority but will still have a chance to get higher wages for the public employees it represents. If negotiations with the Transit Authority (by name) about, for instance, wages have reached an impasse, the labor union may ask PERB to refer the dispute to a three-person “public arbitration panel” (CSL § 209(5)). That panel will make a “just and reasonable determination of matters in dispute” (CSL § 209(5)(d)) by taking into consideration, for instance, a comparison of wages, hours, fringe benefits, condi- tions and characteristics of employment of other employees performing similar work … [and] the overall compensation paid to the employees involved in the impasse proceeding, including direct wage compensation, overtime and premium pay, vacations, holidays and other excused time, insurance, pensions, medical and hospitalization benefits, food and apparel furnished, and all other benefits received. CSL 209(5)(d)(i), (ii). The award (or “determination”) of a majority of that 18 panel “shall be final and binding upon the parties ….” CSL § 209(5)(e). 8 In the present case, the SSSA chose to sign agreements containing wage rates for its SS-I members that it knew were lower than the rates negotiated by the Transit Authority with another union covering SS-II employees. The SSSA, of course, did not have to sign those agreements; the Legislature, in CSL § 209(5), gave the SSSA the opportunity to persuade a public arbitration panel to grant the SSSA-represented SS-Is higher wages, and even perhaps to set those wages at rates equal to (or, conceivably, higher than) those of SS-IIs. In any event, the existence of a very detailed non- judicial mechanism for the setting of wage rates for TA employees such as those represented by the SSSA - a task of great complexity as illustrated by 8 The public arbitration panel procedures of CSL § 209 have been noted by this Court. For instance, in Matter of City of Newburgh v. Newman, 69 N.Y.2d 166, 171-73 (1987), this Court observed: Notwithstanding that interest disputes are normally settled by negotiations between the parties, the Legislature has provided that if an impasse occurs in collective negotiations involving public employees, the remedies of [CSL] § 209, including compulsory arbitration … may be invoked. * * * * * The purpose of article 14 [§§ 200-214] of the Civil Service Law is to foster harmonious and cooperative labor relations in the public sector and to avoid strikes. Section 209 [of the CSL] establishes procedures for the resolution of employment disputes after the parties have reached an impasse in their attempt to resolve such disputes by negotiation. 19 the factors that the Legislature has specified that the public arbitration panel is to consider (see CSL § 209(5)(d)(i), (ii)) - militates strongly against this Court’s holding that CSL § 115 has created an enforceable judicial remedy for wage discrepancies, a remedy separate from or in addition to the detailed non-judicial remedies set out in the Taylor Law. See, e.g., Metz v. State of New York, 20 N.Y.3d 175, 180-81 (2012) (where a statute has no express provision for judicial enforcement via a private right of action, no private right of action may be implied where it “would be incompatible with the legislative design,” a design that has other approaches to the problem at issue). 9 9 Consideration of the other two factors, besides compatibility with the legislative design, needed to support an inference of a plaintiff/petitioner’s private right of action to enforce a statute such as CSL § 115, reinforces the conclusion that the SSSA would have no such right of action to enforce that provision here. (This Court has indicated that all three factors must favor an inference of a private right of action by the proponent for such a right to be found, although compatibility with the legislative design or “scheme” is the most important. See, e.g., Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 633- 35 (1989).) First, there is no evidence showing that the SSSA (having freely negotiated and signed a labor agreement with the Transit Authority containing wages lower than those in a TA agreement with another union covering similar employees) was a member “of the class for whose specific benefit the statute was enacted.” Id., 73 N.Y.2d at 633. And second, we do not see how giving the SSSA such a private right of action in a proceeding such as this one would “promote the legislative purpose,” since it would tend to eviscerate good faith collective bargaining, one of the Legislature’s stated purposes in enacting the Taylor Law (see, e.g., CSL § 200), and ignore the Taylor Law’s detailed mechanisms (all non-judicial) for resolving disputes over, e.g., wages, with the Transit Authority (e.g., CSL § 209(5)). 20 We are aware, as the Appellate Division’s majority noted, that judicial enforcement of CSL § 115 may be, according to some courts, at least conceivable - although the Appellate Division agreed that no reported case shows such enforcement to have ever occurred (R. 367) - because some decisions have suggested that the “policy” of “equal pay for equal work” in that section should be or may be applied by a court in some but not all cases. 10 That view, a minority view on this question, should not be followed here. A judge’s deciding, under CSL § 115’s “policy,” that a wage differential is, or is not, worthy of judicial correction both places burdens on the courts in an area in which they lack expertise and is contrary to the detailed non-judicial mechanisms for resolving wage disputes set out in the Taylor Law, CSL §§ 200-214, and, for the Transit Authority by name, in CSL § 209(5)). 11 As this Court agreed, in deciding that there was no private 10 The Appellate Division gave as an example its decision in Bertoldi v. State of New York, 275 A.D.2d 227, 228 (1 st Dep’t 2000), in which that Court wrote that “[t]he principle of equal pay for equal work need not be applied in all cases under any and all circumstances.” Puzzlingly, after making this statement, Bertoldi, which in fact did not enforce the policy of “equal pay for equal work,” quoted (id. at 228) with apparent approval the conclusion in Gladstone, 49 Misc. 2d at 346, that CSL § 115 “‘enunciates a policy and confers no jurisdiction on a court to enforce such policy.’” 11 As the dissent below noted (R. 373), giving a judge apparent discretion to choose to enforce, or not to enforce, CSL § 115’s “policy” of “equal pay for equal work” would presumably mean that a judge had similar discretion to choose to enforce, or not to enforce, the other “policy” in that section, “to provide … regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.” How a court would develop the expertise needed to 21 right of action to enforce certain provisions of the Taylor Law itself (provisions punishing public employees’ strikes), [a] private action … would inevitably upset the delicate balance established after 20 years of legislative pondering…. “[T]he schemes created by statute for collective bargaining and dispute resolution must be allowed to function as intended, without the added coercive power of the courts being thrown into the balance on one side or the other….” Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 330 (1983) (internal citations omitted). 12 The “equal pay for equal work” policy of CSL § 115 is not judicially enforceable (especially by the SSSA against the Transit Authority in this case). The Appellate Division, accordingly, erred. choose to enforce, or not enforce, such a policy of “regular increases in pay in proper proportion” to the factors specified is hard to fathom. 12 Indeed, this Court seems to have made it especially difficult to establish a statutory exemption from the dispute resolution mechanisms in the provisions of CSL §§ 200-214 (the Taylor Law), which is what, in essence, the SSSA seeks in this proceeding. The Taylor Law ([CSL] § 200 et seq.) requires public employers to bargain in good faith concerning all terms and conditions of employment…. As we have time and again underscored, the public policy of this State in favor of collective bargaining is “strong and sweeping”…. The presumption in favor of bargaining [in the Taylor Law] may be overcome only in “special circum- stances” where the legislative intent to remove the issue from mandatory bargaining is “plain” and “clear” … or where a specific statutory directive leaves “no room for negotiation….” Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 78-79 (2000) (internal citations omitted). There is nothing plain and clear and specific in CSL § 115 that would allow the SSSA to escape from the bargaining-related provisions, including impasse arbitration, of the Taylor Law, and to substitute judge- selected wage rates for those the SSSA had negotiated in collective bargaining. 22 III. THERE IS NO VALID “EQUAL PROTECTION” CLAIM IN THIS CASE The SSSA - in its opposition to the Transit Authority’s cross-motion to dismiss the petition -asserted an “Equal Protection” claim (without ever amending the petition to plead such a theory or basis of liability). That claim, apparently intended to be based on either the New York State Constitution (Art. 1, § 11) or the United States Constitution (Amend. 14, § 1) (or both), seemed intended to parallel the “policy” of providing “equal pay for equal work” expressed in CSL § 115 but without having to depend on that section, that is, without having to depend on that section’s being held to apply to employees of an entity other than the State and to be judicially enforceable against that entity in a proceeding brought in court by a labor organization in SSSA’s position. The Supreme Court below decided that, given its conclusion that an SSSA claim based on CSL § 115 could proceed to a hearing, “there is no need to discuss [the SSSA’s] equal protection arguments” (R. 20). The Appellate Division’s majority, however, concluded that the SSSA had sufficiently alleged a “viable equal protection claim” (R. 370), and the dissent disagreed (R. 373-376). The dissent’s view was correct. So far as we know, an Equal Protection argument - more fully, an argument of “equal protection of the laws” (to use the words actually found 23 in the Constitutions, the State’s Art. 1, § 11, and the federal Amend. 14, § 1 - raised by a labor union such as the SSSA in this litigation has never been sustained (at least before this case); in other words, there seems to be no authority for the proposition that the Equal-Protection-of-the-Laws rights of a labor union would be violated by a public sector employer in a situation in which the labor union negotiated and freely chose to sign a collective bargaining agreement with the public sector employer in which the wage rates agreed to are lower than the wage rates negotiated by another labor union with that employer for employees with similar duties. That lack of precedent is understandable, especially in a proceeding such as the one the SSSA is pursuing. Equal Protection (of the Laws) involves a party’s right to have laws and government rules apply without discriminatory disadvantage imposed by government. There is no such thing here. The CSL’s Article 14 (§§ 200- 214, the Taylor Law) gives the SSSA the right to bargain collectively with the Transit Authority about wages and many other topics; and there is no claim that that right has been violated. The Taylor Law gives the SSSA the right to sign (and enforce) binding labor agreements with the Transit Authority addressing wages of the employees it represents, and there is no claim that that right has been violated. And the Taylor Law gives the SSSA 24 the right not to sign a binding labor agreement with the Transit Authority (and in particular not to sign a binding labor agreement because of a dispute over wages) but rather to seek wage rates for its members higher than the rates the Transit Authority would voluntarily agree to by using the impasse/public arbitration panel mechanism established in the Taylor Law (CSL § 209(5)), a mechanism that provides a right to the SSSA that the SSSA does not claim that the Transit Authority violated (and could not so claim because the SSSA did not seek the appointment of a public arbitration panel). As then-Justice Abdus-Salaam observed in her dissenting memorandum below, the decision in Trerotola, 86 A.D.2d at 822 - whose reasoning this Court appears to have endorsed by affirming it “for reasons stated in the memorandum of the Appellate Division” (58 N.Y.2d at 858) - is worthy of mention in discussing the validity (or invalidity) of an Equal Protection argument in this proceeding. In Trerotola, [a]lthough the court did not expressly address the Equal Protection Clause, it found that where petitioner union claimed equal pay for equal work, and Civil Service Law § 115 was inapplicable, there was no basis for granting relief, because “[t]he quarrel [was] a naked endeavor to impose upon [the respondent], through the courts, a wage scale upon which there was no agreement during the collective bargaining process” (id. [86 A.D.2d] at 823). 25 (R. 374-375.) In Trerotola, there was no wage agreement reached. In contrast, in this case there was an agreement reached between the SSSA and the Transit Authority. So the notion that despite that agreement the SSSA was denied the “equal protection of the laws” by the Transit Authority seems to us grossly illogical. Then-Justice Abdus-Salaam’s observation in this (Equal Protection) area about the SSSA’s supposed inability to control the apparent pay disparity between the SS-I employees represented by the SSSA and the SS-II employees represented by another union at the Transit Authority was that that supposed inability, asserted by the majority of the Appellate Division panel, was “perplexing.” (R. 375). We agree; it is perplexing because there is no claim that the Transit Authority, because of some law or rule, would not be legally able to increase, through negotiations, the wages of SS-Is to equal the wages already negotiated (with another union) for SS-IIs (if the TA felt that would be appropriate); nor is there any claim that such pay equality could not be achieved through the impasse/public arbitration panel mechanism established in CSL § 209(5), a mechanism the SSSA did not use. There is, moreover, no support for the Appellate Division majority’s view below (R. 368-370) that a labor union such as the SSSA in this proceeding, having knowingly agreed over the years to contracts with a 26 public employer that maintained wage rates lower than those the public employer pays to employees represented by another union - even if the employees represented by the other union “perform the same work” (R. 20) - has alleged “‘arbitrary action’” by the public employer (R. 368) of a kind sufficient to state an Equal Protection claim against that public employer. To begin with, the “arbitrary action” that the case law may concern itself with for Equal Protection analysis almost always involves unilateral governmental action, a rule or law, typically. Here, of course, we have the opposite, agreements between a labor organization and a public sector employer that were entered into without any claimed duress or coercion or fraud. And those agreements are consistent with New York State policy - a policy (unlike the policy in CSL § 115) with express enforcement provisions - calling for public sector employers, including public benefit corporations, “to negotiate with, and enter into written agreements with employee organizations representing public employees” (CSL § 200). There is also no argument that honoring such agreements is somehow “arbitrary” where there is no claim that, say, the employees covered by such agreements are being discriminated against based on some suspect classification, such as race. There is similarly no support for the argument that, even if there were no dispute that every aspect of the jobs and 27 employment histories and relationships involving SS-Is (and their union representative) and SS-IIs (and their different union representative) were identical (the record evidence is to the contrary, as indicated by R. 49, ¶ 10), the fact of some differences of treatment agreed to by the different unions in question in written labor agreements would constitute an Equal- Protection- of-the-Laws violation that one of the agreeing unions could assert. After all, the employees in question effectively chose to be represented by different unions; those choices may have consequences, including different results in collective bargaining, but those differences are not constitutionally “arbitrary” (or “irrational,” to use a term found in some Equal Protection cases) in a way sufficient for one of those unions to sustain an Equal Protection claim against the public employer that has merely negotiated in good faith with those two unions for many years, and entered into agreements with them that have differences. And there is no dispute that the Transit Authority, as part of its legislatively determined purposes, is supposed to operate on a “self- sustaining” basis (PAL § 1202(1)), that is, save money. That goal, complemented by a legislative mandate in the Taylor Law to negotiate in good faith and honor labor agreements entered into, makes more than rational a bargaining position that, if accepted (as it has been by the SSSA), 28 results in lower costs by paying SS-Is at wage rates lower than the wages rates paid to SS-IIs as negotiated with another union. The goals of saving money - in addition to respecting the differing histories and duties and expectations involving SS-Is and SS-IIs (e.g., R. 49, ¶ 10), and respecting the Legislature’s obvious favoring of collective bargaining to establish wages in the public sector and of resolving disputes over wages through non-judicial mechanisms (see, e.g., CSL §§ 200, 209) - make the differing wage rates for SS-Is and SS-IIs neither legally “arbitrary” (“irrational”) nor a cognizable violation of Equal Protection that the SSSA, a willing and indeed a signatory participant in that collective bargaining, may assert. The citation to Beer v. Board of Educ. of City of N.Y., 83 N.Y.S.2d 485, 486-87 (Sup. Ct. Kings County), aff’d without op., 274 A.D. 931 (2d Dep’t 1948), by the majority below in this regard (R. 368), misses the mark; that decision did not mention any Equal Protection claim or argument, let alone deal with wage rates that differ because of different results from collective bargaining. And the majority’s citation (R. 370) to Margolis v. New York City Transit Auth., 157 A.D.2d 238, 241-42 (1 st Dep’t 1990), also misses the mark as that case involved a single employee (without union representation) seeking pay parity with very different managerial employees, 29 i.e., a challenge not to a wage rate freely agreed to by the petitioner himself in collective bargaining, which is, in contrast, what the SSSA did. 13 The Appellate Division erred in sustaining the validity of an Equal Protection claim in this proceeding. Conclusion The decision and order of the Appellate Division should be reversed, and the petition, and this proceeding, should be dismissed. Dated: July 22, 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 13 The Margolis court also noted that the Transit Authority’s supposed purpose in not giving the petitioner pay parity with certain other managers involved wishing to avoid the evils of “pay compression,” but there was apparently evidence that that purpose was a “sham.” Id., 157 A.D.2d at 242-43. There is no suggestion of any such “sham” here.