In the Matter of Subway Surface Supervisors Association, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.February 12, 2014 To be argued by: Gail M. Blasie 15 Minutes COURT OF APPEALS State of New York ____________________ In the Matter of the Application of the SUBWAY SURFACE SUPERVISORS ASSOCIATION, APL-2013-00126 Petitioner-Respondent, New York County Index No. 105285/09 Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK CITY TRANSIT AUTHORITY, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT SUBWAY SURFACE SUPERVISORS ASSOCIATION LAW OFFICE OF STUART SALLES Attorneys for Petitioner-Respondent Subway Surface Supervisors Association 225 Broadway, Suite 1900 New York, New York 10007 (212) 267-9090 GAIL M. BLASIE, ESQ. On the Brief i TABLE OF CONTENTS Table of Authorities ........................................................................................................................ ii PRELIMINARY STATEMENT .................................................................................................... 1 THE LOWER COURTS’ DECISIONS AND QUESTIONS PRESENTED ON APPEAL .......... 2 STATEMENT OF FACTS ............................................................................................................. 7 ARGUMENT .................................................................................................................................. 9 POINT I THE PETITION PROPERLY GAVE NOTICE TO THE TRANSIT AUTHORITY OF THE FACTS UPON WHICH THE SSSA BASES ITS CAUSES OF ACTION ............................................................................................................... 9 POINTII CIVIL SERVICE LAW § 115 APPLIES TO TRANSIT AUTHORITY WORKERS ............ 11 A. The Enabling Legislation For The Transit Authority Specifically States That Its Workers Are Governed By The Civil Service Law ........................................................... 13 B. The Purpose of the Transit Authority Is To Serve The People of The State of New York, And The Purpose of CSL § 115 Is To Attract Employees With Unusual Merit and Ability To The Service Of The State Of New York. .......................................................... 14 C. The Cases Cited By The Transit Authority Are Distinguishable ........................................ 15 D. Rules of Statutory Construction Support Application of CSL § 115 to the Transit Authority Workers. ............................................................................................................. 17 E. The Transit Authority Is Not Exempt From The State Policy Requiring That Civil Servants Be Paid Equal Pay For Equal Work .................................................................... 19 POINT II ....................................................................................................................................... 20 THE COURT'S DUTY IS TO ENFORCE THE IMPORTANT PUBLIC POLICY OF EQUAL PAY FOR EQUAL WORK A. A Review Of The Case Law Shows That The Court Has Jurisdiction To Enforce The Important Public Policy of Equal Pay For Equal work……………………………………20 B. The Supreme Court Has Jurisdiction Over This Matter As A Court of Equity. ................. 25 ii POINT III PETITIONER LABOR UNION HAS THE RIGHT TO BRING A CSL § 115 AND EQUAL PROTECTION CHALLENGES IN SPITE OF HAVING ENTERED INTO COLLECTIVE BARGAINING AGREEMENTS ...................................... 27 POINT IV WHETHER THE TRANSIT AUTHORITY STATED A CAUSE OF ACTION FOR AN EQUAL PROTECTION CLAIM WAS NOT AN ISSUE THAT THE SUPREME COURT AND THE FIRST DEPARTMENT GRANTED LEAVE TO APPEAL, AND WAS NOT ADDRESSED IN THE BRIEFS TO THE FIRST DEPARTMENT ............................... 33 CONCLUSION ............................................................................................................................. 39 iii TABLE OF AUTHORITIES Cases Abrams v. Bronstein, 33 N.Y.2d 488, 354 N.Y.S.2d 926 (1974) ................................................. 37 Albright v. Metz, 88 N.Y.2d 656, 649 N.Y.S.2d 359 (1996) ........................................................ 18 Alesi v. Procaccino, 47 A.D.2d 887, 367 N.Y.S.2d 24 (1 st Dept. 1975) ................................ 15, 16 Anderson v. County of Suffolk, 97 A.D.2d 448, 467 N.Y.S.2d 659 (2d Dept. 1983) ................... 36 Bertoldi v. State of New York, 275 A.D.2d 227 (1 st Dept. 2000), lv. denied 96 N.Y.2d 706 (2001) .............................................................................................. 23 Bd. Of Educ. of Yonkers City School District v. Yonkers Federation of Teachers, 40 N.Y.2d 268, 386 N.Y.S.2d 657 (1999) ................................................................................ 27 Collins v. Manhattan & Bronx Surface Transit Operating Auth (“MBSTOA”), 62 N.Y.2d 361, 477 N.Y.S.2d 91 (1984) .................................................................................. 17 Condon v. Associated Hospital Service of New York, 287 N.Y. 411 (1942) ................................ 10 Dickerson v. Dickerson, 88 A.D.3d 121, 928 N.Y.S.2d 97 (3d Dept. 2011) ................................ 26 Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298 (3d Dept. 2010) ............................... 26 F. A. Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564 (1930) .................... 25 Falotico v. Clauson, 81 N.Y.S.2d 788 (Kings Co. Sup. 1948) ..................................................... 21 Foley v. D’Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121 (1 st Dept. 1964) .................................... 10 Gladstone v. Bd. Of Education, 49 Misc.2d 344, 267 N.Y.S.2d 444 (Sup.Ct. Kings 1966), affd 26 A.D.2d 838 (1966), affd 19 N.Y.2d 1004 (1967) cert denied 389 U.S. 976 (1967) ......................................................................................... 17, 22 Green v. Bala, 57 A.D.2d 1041, 395 N.Y.S.2d 808 (4 th Dept. 1977) ........................................... 16 Gruen v. County of Suffolk, 187 A.D.2d 560, 590 N.Y.S.2d 217 (2d Dept. 1992)....................... 36 Kraus v. Beame, 36 A.D.2d 989, 320 N.Y.S.2d 991 (1971) ................................................... 21, 22 Leitner v. Conway, 195 Misc. 621, 90 N.Y.S.2d 441 ................................................................... 22 iv Margolis v. New York City Transit, 157 A.D.2d 238, 555 N.Y.S.2d 711 (1 st Dept. 1990). ................................................................................................. 12, 34, 35, 36, 37 Matter of Beer v. Board of Educ. of City of N.Y., 93 N.Y.S.2d 485 (Sup. Ct. Kings Co. 1948), affd 274 A.D. 931 (1948), appeal dismissed 299 N.Y. 565 (1949) .............................. 23, 24, 25 Matter of Benedetto v. County of Suffolk, 35 A.D.2d 568, 313 N.Y.S.2d 887 (2d Dept. 1970) ... 16 Matter of Civil Serv. Employees Assn., Inc. Local 1000 v. State of N.Y. Unified Ct. Syst., 35 A.D.3d 1008, 825 N.Y.S.2d 822 (3d Dept. 2006) ................................................................ 22 Matter of Goldberg v. Beame, 22 A.D.2d 520, 256 N.Y.S.2d 894 (1 st Dept. 1965) ............... 20, 23 Matter of Pittsford Gravel Corp. v. Zoning Board, 43 A.D.2d 811, 350 N.Y.S.2d 480 (4 th Dept. 1973), lv. denied 34 N.Y.2d 618, 355 N.Y.S.2d 365 ................................................ 10 Matter of Scime v. County Legislature of Erie County, 90 Misc.2d 764, 395 N.Y.S.2d 952 (N.Y. Sup. 1977) ....................................................................................................................... 36 Matter of Zuckerman v. Board of Educ. of City School District of City of N.Y., 44 N.Y.2d 336, 405 N.Y.S.2d 652 (1978) ......................................................................... 30, 34 McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 199 N.Y.S.2d 483 (1960) ............ 28 MTA Bus Non-Union Employees Rank & File Comm. v. Metropolitan Transp. Auth., 899 F.Supp.2d 256 (S.D.N.Y. 2012) (Rakoff, J.)...................................................................... 17 Nassau Chapter, Civil Service Employees Assn, Inc. v. County of Nassau, 88 Misc.2d 289, 387 N.Y.S.2d 772 (N.Y. Sup. 1976) ......................................................................................... 36 New York State Correctional Officers and Police Benev. Ass'n, Inc. v. State, 94 N.Y.2d 321, 704 N.Y.S.2d 910 (1999) .......................................................................................................... 28 Niagra Wheatfield Admrs. Assn. v. Niagara Wheatfield Cent. School District, 44 N.Y.2d 68, 404 N.Y.S.2d 82 (1978) ............................................................................................................ 30 Ostrov v. Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31 (1 st Dept. 2012) ..................................... 11 Petrocchi v. Ronan, 81 Misc.2d 741, 367 N.Y.S.2d 178 (NYC Civ. Ct. 1975) ........................... 21 Schneider v. Ambach, 135 A.D.2d 284, 526 N.Y.S.2d 857 (3d Dept. 1988) ............................... 36 South & Central American Commercial Co., Inc., v. Panama Railroad Co., 237 N. Y. 287, 142 N. E. 666 (1928) ................................................................................................................. 25 v Squadrito v. Griebsch, 1 N.Y.2d 471, 154 N.Y.S.2d 37 (N.Y. 1956) .......................................... 19 Sternaman v. Metropolitan Life Ins. Co., 170 N.Y. 13, 62 N.E. 763, rearg. denied 170 N.Y. 616 (1902) ........................................................................................... 28 Stich v. Wagner, 36 Misc.2d 51, 231 N.Y.S.2d 966 (N.Y.Sup.1962) .......................................... 21 Szerdahelyi v. Harris, 67 N.Y.2d 42, 499 N.Y.S.2d 650 (1986) ................................................. 28 Trerotola v. New York City Off-Track Betting Corp., 86 A.D.2d 822, 447 N.Y.S.2d 368 (1 st Dept. 1982) .......................................................................... 15, 31, 33, 34 Union Free School District v. New York State Division of Human Rights, 43 A.D.2d 31, 349 N.Y.S.2d 757 (2d Dept. 1973) app. dism., 33 N.Y.2d 975, 353 N.Y.S.2d 739 (1974) 28, 34 Union Free School District v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139 (1974) .................................................................................................... 28, 34 Weissman v. Bellacosa, 129 A.D.2d 189, 517 N.Y.S.2d 734 (1987) ........................................... 36 Weissman v. Evans, 56 N.Y.2d 458, 452 N.Y.S.2d 864 (1982) ............................................. 36, 38 Statutes Civil Service Law (Sections 200 – 214), ................................................................................ 14, 31 Civil Service Law § 115 ........................................................................................................ passim Civil Service Law § 37 ........................................................................................................... 21, 23 CPLR § 2001................................................................................................................................. 11 CPLR § 3013................................................................................................................................. 10 CSL § 61(2)................................................................................................................................. 3, 9 N.Y. Const. Art. VI, § 7 ................................................................................................................ 25 Pub. Auth. Law § 1202(2)...................................................................................................... passim Pub. Auth. Law § 1210(2)...................................................................................................... passim Statutes § 73 ................................................................................................................................. 26 Statutes § 130 ................................................................................................................................ 19 Statutes §126 ................................................................................................................................. 19 1 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of the New York County Index No. 105285/2009 SUBWAY SURFACE SUPERVISORS ASSOCIATION, Petitioner-Respondent, APL-2013-00126 Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK CITY TRANSIT AUTHORITY, Respondent-Appellant. RESPONDENT’S BRIEF PRELIMINARY STATEMENT This appeal concerns the important State public policy of equal pay for equal work. In short, the questions before this Court are (a) whether Petitioner- Respondent civil service Transit Authority workers are protected by the Civil Service Law § 115 (“CSL § 115”), requiring equal pay for equal work; and (b) whether the Petitioner-Respondent Subway Surface Supervisor Association (“SSSA”) union is estopped from making a claim, or waived any right to make a claim for equal pay for equal work because it previously entered into collective 2 bargaining agreements with the Respondent-Appellant New York City Transit Authority (“Transit Authority” or “TA”). The First Department affirmed the decision of the Hon. Jane Goodman, which found that the SSSA, a union, can bring an Article 78 Petition against the Transit Authority demanding equal pay for equal work under Civil Service Law § 115. The SSSA represents the Level I station supervisors (“SS-Is”), who are employed by the Transit Authority. The Transit Authority also employs Level II station supervisors (“SS-IIs”), who perform the same work as the SS-Is, but receive more pay and belong to a different union. Pursuant to Pub. Auth. Law 1210(2), Transit Authority employees are entitled to the protections of the Civil Service Law. This disparate treatment violates the Equal Protection Clause of the State Constitution and Civil Service Law § 115, which requires equal pay for equal work. The Transit Authority cannot avoid its statutory and constitutional obligations to pay equal pay for equal work through collective bargaining. THE LOWER COURTS’ DECISIONS AND QUESTIONS PRESENTED ON APPEAL The procedural history of this case is largely undisputed. The SSSA brought the underlying petition on April 16, 2009, complaining that the SS-Is are required to perform the same work as the SS-IIs, but receive $14,000 less a year in salary. 3 (R. 33-40.) Initially, SSSA based its claims on CSL § 61(2) and the Constitution. However inartfully the Petition might have been worded, the Petition requested that the SS-Is be compensated equally with the SS-IIs. (R. 33 – 39.) The Transit Authority moved to dismiss the petition (R. 42-114). The Transit Authority admitted that “there is no clear demarcation between the work that Station Supervisors Levels I and II perform and most, if not all, of the work in both titles overlap.” (R. 48.) The Transit Authority admitted that it has not “stepped anyone up to the SS Level II position since 1997,” and that “[a]s a result of attrition and the absence of step-ups to SS Level II or direct hires into that position, a greater portion of the overlapping work is assigned to SS Level Is.” (R. 50.) The SSSA opposed the Transit Authority’s motion, and submitted the Affirmation of Stuart Salles, which clearly argued that the SS-Is were entitled to receive equal pay for equal work, and the accompanying memorandum of law specifically referenced that pursuant to Civil Service Law § 115, the SS-Is are entitled to be paid the same as the SS-IIs, since they perform the same work. (R. 121.) The SSSA also argued that under the State Equal Protection Clause, the SS- Is were entitled to equal pay for equal work. In its reply, the Transit Authority raised new legal arguments, claiming that (a) CSL § 115 could not be applied to Transit Authority employees; (b) that the 4 SSSA was estopped from or had waived standing to challenge the lower salaries of the SS-Is because the SSSA had negotiated for the salaries of the SS-Is; and (c) that such a claim falls within the exclusive jurisdiction of PERB. (R. 127 – 144.) The court below granted the SSSA permission to file an additional affirmation to address these new issues. (R. 225 – 239.) And the Transit Authority submitted a supplemental reply. (R. 240 – 248.) The Hon. Emily Jane Goodman (N.Y. Co. Supreme Court) found that while the Transit Authority was not a division of the State, Pub. Auth. Law § 1210(2) states that Transit Authority workers are governed by the Civil Service Law, and therefore CSL § 115 applied to the Transit Authority workers. (R. 20.) SS-I employees are entitled to the same pay as SS-II employees if they perform the same work. (R. 20 – 21.) However, the Court found that “there is a factual dispute as to whether SS1 employees perform the same duties as SS2 employees,” and referred the issue as to whether SS-Is perform the same work as SS-IIs to a Special Referee, and held in abeyance a decision on the petition pending the receipt of the Referee’s report. (R. 6-21.) The Supreme Court found that since the SSSA could rely upon CSL § 115, “there was no need to discuss petitioner’s equal protection arguments.” (R. 20.) Thereafter, the Transit Authority made a motion to renew/reargue/ and/or for leave to appeal. The Hon. Emily Jane Goodman denied the Transit Authority’s 5 motion to renew/reargue, but granted the Transit Authority leave to appeal to the First Department Appellate Division the four discrete questions outlined below (R. 29): 1. Whether the Transit Authority employees are governed by the Civil Service Law § 115 . . . where the Transit Authority, a public authority, is not the State or a civil division of the State and appointment to the Title of Station Supervisor is made pursuant to the rules of the municipal service commission of the City of New York. 2. Whether Petitioner, a labor organization, can bring a Civil Service Law § 115 or an Equal Protection claim to challenge the level of salaries that it negotiated and agreed to on behalf of its members, in collective bargaining. 3. Whether a court. . . has jurisdiction to hear a claim by a labor organization. . . involving a challenge to terms and conditions of employment that such labor organization voluntarily negotiated and agreed to during the collective bargaining agreement. 4. Whether Petitioner is estopped from bringing, or has waived or lost whatever standing Petitioner may have had to bring this proceeding when Petitioner has been the sole labor organization representing employees in the bargaining unit since it attained that status negotiated and voluntarily agreed, in successive collective bargaining agreements, to the salary structures. . . that Petitioner now challenges. After the Transit Authority perfected its appeal to the First Department, the First Department granted the SSSA’s motion to strike all new evidence included in the Transit Authority’s Motion to Renew and/or Reargue (inter alia), at Pages 249- 338 of the Record on Appeal, which are not included in this Record on Appeal. (R. 360.) 6 The First Department affirmed Justice Goodman’s decision, and found: Civil Service Law § 115 codifies a critical public policy, which is that, “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,” there should be “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.” (R. 365.) The First Department found that there is no jurisdictional prohibition against judicial enforcement of this important public policy. (R. 365 - 366.) As succinctly stated by the First Department, “[c]ontrary to the [Transit Authority’s] position, the issue here is not whether the union negotiated an unfavorable deal but whether the [Transit Authority] has violated public policy” and “[s]uch disputes are amenable to review by the courts.” (R. 368.) “To characterize this dispute as one solely concerning terms that can be bargained for is to view it too narrowly.” (R. 368.) Two judges of the Appellate Division dissented. On May 23, 2013, the First Department Appellate Division granted the Transit Authority 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.) 7 For the additional reasons stated below, this Court should affirm the First Department’s decision which affirmed Justice Goodman’s decision, and let the matter proceed to a referee for a determination on the factual issue of whether the SS-Is perform the same work as the SS-IIs but receive less pay. STATEMENT OF FACTS Petitioner union SSSA represents SS-Is in matters of collective bargaining. Employees of a second title, SS-IIs, are currently represented by a different union, the Transit Supervisors Organization (“TSO”). (R. 13.) When the two titles were created, the functions and duties of the two titles differed. The SS-II received $14,000.00 more in annual salary than the SS-Is and were not part of a collective bargaining unit. (R. 36, 63.) In 1994, the SS-IIs won the right to be represented by a union. (R. 65.) Since 1994, the TSO has represented the SS-IIs. In or around 2001, the Transit Authority began assigning some of the work of SS-IIs to SS-Is. The TSO, on behalf of the SS-IIs, filed an improper practice charge. PERB and the Third Department found that the three tasks that had been assigned to the SS-Is were not in the exclusive domain of the SS-IIs, and denied the improper practice charge. (R. 77 – 102.) The Transit Authority caused the SS-IIs work to be transferred to the SS-Is, and it was not as the result of any agreed-to collective bargaining. 8 Thereafter, rules established in 2003 show no distinction between the two titles (R. 37, 40.) Since then, more and more of the SS-II’s work has been shifted to the SS-Is, and now the two titles have essentially been merged. The representative from the Transit Authority admitted in his Affidavit that “there is no clear demarcation between the work that [SS-Is and SS-IIs] perform, and most, if not all, of the work in both titles overlap.” (R. 48.) The Transit Authority has been phasing out the higher paid SS-IIs, and transferring their work to the lower paid SS-Is. As admitted by the Transit Authority representative, “[a]s a result of attrition and the absence of step-ups to SS Level II or direct hires into that position, a greater portion of the overlapping work is assigned to SS Level Is.” (R. 50.) Therefore, we are left with a situation wherein SS-Is and SS-IIs work side by side, performing the same duties, but the SS-Is receive approximately $14,000.00 per year less in salary than the SS-IIs. And since the SS-Is and SS-IIs are represented by two different unions, there is no ability for the SSSA to have any control or input over the salary of the SS-IIs. Transit Authority workers are civil service employees pursuant to Pub. Auth. § 1210(2). As such, pursuant to CSL § 115, the Transit Authority is obligated to pay the SS-Is equal pay for equal work. At the very least, the Transit Authority is violating the SS-Is’ constitutional right to equal protection under the State Constitution. 9 ARGUMENT POINT I THE PETITION PROPERLY GAVE NOTICE TO THE TRANSIT AUTHORITY OF THE FACTS UPON WHICH THE SSSA BASES ITS CAUSES OF ACTION The Transit Authority argues in a footnote that the Petition should have been dismissed because the Petition allegedly only made a claim based on CSL § 61(2) (out-of-title work claim), and Petitioner did not seek leave to amend the Petition to add claims under CSL § 115 and the Equal Protection Clause of the Constitution. Justice Goodman did not grant leave to appeal this issue to the First Department, and this issue was not addressed in the majority decision, and should not be part of this appeal to the Court of Appeals. Further, the Petition as pled is sufficient to state a cause of action for violations of Civil Service Law § 115 and the State Constitution's Equal Protection Clause. The primary function of a pleading is to apprise an adverse party of the pleader’s claim and to prevent surprise, and define the issues to be tried and determined, whether such issues are of law or of fact, to notify the adverse party adequately of the pleader’s claim or defense to as to facilitate a proper decision on the merits, and to limit the proofs at trial. Matter of Pittsford Gravel Corp. v. Zoning Board, 43 A.D.2d 811, 812, 350 N.Y.S.2d 480, 481 (4 th Dept. 1973), lv. 10 denied 34 N.Y.2d 618, 355 N.Y.S.2d 365; Foley v. D’Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121, 126 (1 st Dept. 1964). The question for the Court is whether the requisite allegations of any valid cause of action cognizable by the state courts “can be fairly gathered from all the averments.” Condon v. Associated Hospital Service of New York, 287 N.Y. 411, 414 (1942). As long as the pleading may be said to give “notice” to the other side of the “transactions” or “occurrences” as seen by the pleader, in whatever terminology it chooses, this aspect of the requirement is satisfied. CPLR § 3013. The Court’s inquiry is to ask whether the total verbiage of the pleading may be said to give “notice” to the other side of what the pleader’s grievance is. If it is sufficient to put the adversary on “notice,” it satisfies this first mandate. Practice Commentary [C30123:2] following CPLR § 3013. The SSSA’s Petition clearly set forth facts, which if true, states causes of action for violations of Civil Service Law § 115 and the State Equal Protection Clause. Subsequent affidavits and affirmations, to which the Transit Authority had an opportunity respond, clearly set forth additional facts, which if true, stated causes of action for violations of Civil Service Law § 115 and the State Constitution. The Transit Authority was not surprised by the SSSA’s assertions, and in fact argued against the validity of such causes of action in its Reply and 11 Supplemental Reply papers. As noted by Justice Goodman in her decision, the Transit Authority had ample opportunity to address the legal merits of the SSSA’s Civil Service Law § 115 and Equal Protection claims. (R. 7 – 9, 16.) The Court was free to disregard irregularities under CPLR § 2001, as no substantial right of a party was prejudiced. Therefore, there is no merit to the Transit Authority’s argument that the Court should not have considered the SSSA’s Civil Service Law § 115 and Equal Protection Clause claims. The Transit Authority’s reference to Ostrov v. Rozbruch, 91 A.D.3d 147, 154, 936 N.Y.S.2d 31 (1 st Dept. 2012) is misplaced as Ostrov concerned a motion for summary judgment, brought after all discovery had been completed. The case at bar concerns a pre-answer motion to dismiss. Applying the Court’s review of the pleading to determine whether the requisite allegations of any valid cause of action cognizable by the state courts can be fairly gathered from all the averments, the Petition clearly sets forth facts stating that the Petitioner asserts that its members are being paid unequal pay for equal work. POINT II CIVIL SERVICE LAW § 115 APPLIES TO TRANSIT AUTHORITY WORKERS Pursuant to CSL § 115, it is the “[p]olicy of the state” to pay equal pay for equal work in order to attract “unusual merit and ability to the service of the state of New York.” 12 In the case at bar, both the majority and dissent of the First Department panel agreed that “CSL § 115 applies to TA workers, notwithstanding that they are, strictly speaking, employees of a public authority.” (R. 366.) See also Margolis v. New York City Transit, 157 A.D.2d 238, 241-242, 555 N.Y.S.2d 711, 713 (1 st Dept. 1990). CSL § 115 applies to Transit Authority workers for two reasons. First, the enabling legislation of the Transit Authority specifically states that the Transit Authority workers “shall be subject to the provisions of the civil service law”, of which CSL § 115 is a part. Pub. Auth. Law §1210(2). This is a mandate, without any limitations. Secondly, the very purpose of the Transit Authority is to benefit the people of the State of New York. Pub. Auth. Law § 1202(2) specifically states: It is hereby found and declared that such purposes [of the Transit Authority] are in all respects for the benefit of the people of the state of New York and the authority shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising [its] powers. The purpose of CSL §115 is to attract the best employees who serve the citizens of the State of New York by paying them equal pay for equal work. Since the Transit Authority was specifically created to serve the people of the State of New York (and is considered a governmental entity in the performance of its duties), then it stands to reason that the State policy of paying equal pay for equal 13 work in order to attract unusual merit applies to the Transit Authority so that the people of the State of New York can be best served. And the Equal Protection Clause of the Constitution applies to the Transit Authority, as Pub. Auth. Law § 1202(2) specifically states that the Transit Authority “shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising [its] [] powers”. A. The Enabling Legislation For The Transit Authority Specifically States That Its Workers Are Governed By The Civil Service Law Pub. Auth. Law §1210(2) states that Transit Authority employees are governed by the Civil Service Law, which includes Civil Service Law § 115. In order to get around this clear legislative mandate, the Transit Authority argues that Pub. Auth. Law§ 1210(2) “leaves open the question of which Civil Service Law provisions would be applicable to the Transit Authority”. (See Appellant’s Brief, P. 12.) The Transit Authority attempts to pose a question where there is none. Pub. Auth. Law § 1210(2) is very clear. It states that Transit Authority employees “shall” be governed by the Civil Service Law. The Legislature did not restrict which provisions of Civil Service Law would apply to the Transit Authority workers. Therefore, the Transit Authority workers are protected by all of the provisions of the Civil Service Law, including Civil Service Law § 115. 14 The Transit Authority then points to the Taylor Law, Article 14 of the Civil Service Law (Sections 200 – 214), in support of its argument that if the Legislature wanted CSL § 115 to apply to Transit Authority workers, that it would specifically have said so. First, the Legislature did specifically state in Pub. Auth. Law § 1210(2) that the Civil Service Law shall be applied to all Transit Authority workers. Secondly, that part of the Civil Service Law that comprises the Taylor Law applies to all public employers and employees. It is not necessary for any enabling legislation to state that a public employer is governed by the Taylor Law, because it is automatic. The very fact that Pub. Auth. Law § 1210(2) states that that all Transit Authority employees shall be governed by the Civil Service Law supports the SSSA’s assertion that its members are governed by more than that part of the Civil Service Law that comprises the Taylor Law. The application of the Taylor Law to Transit Authority workers goes without saying, whereas the application of the remainder of the Civil Service Law must be done by statute, which is exactly what Pub. Auth. Law 1210(2) did. B. The Purpose of the Transit Authority Is To Serve The People of The State of New York, And The Purpose of CSL § 115 Is To Attract Employees With Unusual Merit and Ability To The Service Of The State Of New York. CSL § 115 and Pub. Auth. Law §§ 1202(2) and 1210(2) must be read together. The purpose of the Transit Authority is to serve the people of the State of New York, and the people of the State of New York are best served if those who 15 serve them are paid equal pay for equal work. The application of CSL § 115 to the Transit Authority employees is consistent with the spirit and purpose of CSL § 115, Pub. Auth. Law §§ 1202(2) and 1210(2). C. The Cases Cited By The Transit Authority Are Distinguishable The Transit Authority cited various First Department cases wherein the application of CSL § 115 was denied to municipal employees. Since the Transit Authority civil servants are not municipal employees, these cases are not applicable. In Trerotola v. New York City Off-Track Betting Corp., 86 A.D.2d 822, 447 N.Y.S.2d 268 (1 st Dept. 1982), the employees were municipal employees, not employees of a public authority that serves the state and whose enabling legislation specifically states that its employees will be governed by the Civil Service Law. In Alesi v. Procaccino, 47 A.D.2d 887, 888, 367 N.Y.S.2d 24, 26 (1 st Dept. 1975), the civil servants were “employees of the City of New York,” not a public benefit company in the service of the State whose employees are governed by the Civil Service Law. And contrary to the Transit Authority’s statement in its brief, the Court in Alesi did not state that CSL §115 only applies to employees of the State of New York. In fact, what the Alesi Court stated was that: In our view, Section 115 of the Civil Service Law, is not here applicable. [CSL § 115 ] deals with employees in the service of the State of New York, and declares a policy of this State in order to attract merit and ability to the 16 state. These plaintiffs [civil court attendants] at all times were employees of the City of New York. Therefore, under Alesi, the SS-Is, whose purpose as Transit Authority employees is to serve and benefit the people of the State of New York, are entitled to the benefit of CSL § 115 . And again in Green v. Bala, 57 A.D.2d 1041, 395 N.Y.S.2d 808 (4 th Dept. 1977), cited by the Transit Authority, the civil servant at issue was a janitor foreman employed by the City of Lackawanna, and not a civil servant of a public authority whose purpose is to serve the people of the State of New York and whose employees are statutorily given the protections of the Civil Service Law. And again, the Green court did not find that the CSL § 115 only applied to employees of the State of New York. It found that CSL § 115 applied “only to employees in the service of the State of New York.” Therefore, under Green, since by statute the purpose of the Transit Authority, and hence its employees, is to serve the people of the State of New York, they are entitled to the benefits of CSL § 115 . And in Matter of Benedetto v. County of Suffolk, 35 A.D.2d 568, 313 N.Y.S.2d 887 (2d Dept. 1970), the District Court employees were not employees of an entity specifically formed to serve the people of the State of New York, as are the Transit Authority workers. 17 And MTA Bus Non-Union Employees Rank & File Comm. v. Metropolitan Transp. Auth., 899 F.Supp.2d 256, 267 (S.D.N.Y. 2012) (Rakoff, J.) concerned MTA Bus employees, not Transit Authority workers whom the State Legislature has specifically stated are covered by the Civil Service Law, of which CSL § 115 is a part. There is no similar statutory language for the MTA employees. Further, Judge Rakoff based his decision on Collins v. Manhattan & Bronx Surface Transit Operating Auth (“MBSTOA”), 62 N.Y.2d 361, 477 N.Y.S.2d 91 (1984) for the proposition that the MTA Bus workers were not entitled to the protection of CSL § 115. However, the enabling legislation for the MBSTOA specifically states that its employees will not be covered by the Civil Service Law, unlike the enabling legislation for the Transit Authority which mandates that its workers be governed by the Civil Service Law. And Judge Rakoff also relied upon Gladstone v. Bd. Of Education, 49 Misc.2d 344, 267 N.Y.S.2d 444 (Sup.Ct. Kings 1966), affd 26 A.D.2d 838 (1966), affd 19 N.Y.2d 1004 (1967) cert denied 389 U.S. 976 (1967), which as discussed below in Point II (A), overstates the holdings of the cases it cites. D. Rules of Statutory Construction Support Application of CSL § 115 to the Transit Authority Workers. The Transit Authority argues that the “text” and “context” of CSL § 115 preclude the application of CSL § 115 to Transit Authority workers. The Transit Authority argues that the text of CSL § 115 applies only to the government of the 18 State and how that government should be staffed, and therefore does not apply to the Transit Authority. (Appellant’s Brief, P. 11.) Accepting the Transit Authority’s interpretation that the Civil Service Law only applies to government entities that serve the State, then CSL § 115 should be applied to the Transit Authority, which by statute is to be treated as a governmental entity and serves the people of the State of New York. When interpreting statutory language, “the spirit and purpose of the act and the objects to be accomplished must be considered.” Albright v. Metz, 88 N.Y.2d 656, 664, 649 N.Y.S.2d 359, 363 (1996). When Pub. Auth. Law §§ 1202 and 1210(2) and CSL § 115 are read together, it is clear that the Legislature meant that employees governed by the Civil Service Law who serve the people of the State of New York, and are employed by a public benefit corporation that is regarded as performing a governmental function, are entitled to receive equal pay for equal work pursuant to CSL § 115 . The Transit Authority argues that since CSL § 115 falls under the heading of “Classification and Compensation to State Employees” that it only applies to those civil servants who are paid by the State. However, the title of a statute is not part of the act, and a title is not necessary to the validity of a statute. “Generally, it is immaterial in the construction of a statute that it is divided into sections, 19 chapters, or titles, and all sections of a law must be read together to determine its fair meaning.” Statutes § 130. The text of the statute takes precedence over its title, and the character of the statute is determined by its provisions rather than its title. There can be no doubt that the text of the statute must take precedence over its title. Squadrito v. Griebsch, 1 N.Y.2d 471, 475, 154 N.Y.S.2d 37, 40 (1956). Statutes §126 tells us that the “public policy of the State is evidenced by the will of the Legislature contained in statutory enactments and such policy is material in the exposition of legislative intent in other statutes in case of ambiguity.” The policy directive of CSL § 115 is very clear and direct and is part of the statute. It does not simply promote or encourage a certain act; it mandates that in order to best serve the people of the State of New York, those who serve the people of the State of New York must be paid equal pay for equal work, and this policy must be enforced by the judiciary. E. The Transit Authority Is Not Exempt From The State Policy Requiring That Civil Servants Be Paid Equal Pay For Equal Work The enabling legislation for the Transit Authority specifically states that the Transit Authority “shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising [its] [] powers.” See Pub. Auth. Law § 1202 (2). Therefore, the Transit Authority is subject to the rules and regulations that all state governmental agencies are subjected to, which includes 20 the requirement that the government pay equal pay for equal work pursuant to the Equal Protection Clause of the State Constitution. POINT II THE COURT’S DUTY IS TO ENFORCE THE IMPORTANT PUBLIC POLICY OF EQUAL PAY FOR EQUAL WORK A. A Review Of The Case Law Shows That The Court Has Jurisdiction To Enforce The Important Public Policy of Equal Pay For Equal Work. The majority and the dissent do not deny that CSL § 115 applies to the Transit Authority workers. (R. 366.) However, the dissent and the Transit Authority argue that CSL § 115 “‘merely enunciates a policy and confers no jurisdiction on a court to enforce such policy’ (quoting Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME , AFL-CIO v. State of N.Y. Unified Ct. Sys.).” (Emphasis in original.) (R. 366.) However, if the Transit Authority’s and the “dissent’s mistaken interpretation of the case law were applied, [CSL §115] would become a hollow promise that afforded no remedy for those it was designed to protect, such as the Petitioners here.” (R. 365.) As pointed out by the majority, “[a] closer review of the cases reveals that no such ‘jurisdictional’ prohibition exists” (R. 366) and ignores the many cases in which the Courts have provided justice to employees pursuant to Civil Service Law § 115. 21 For instance, in Petrocchi v. Ronan, 81 Misc.2d 741, 367 N.Y.S.2d 178 (NYC Civ. Ct. 1975), the Court found that the Triborough Bridge and Tunnel Authority, whose purpose is in all respects for the benefit of the People of the State of New York pursuant to Pub. Auth. Law § 566, was estopped from denying equal pay for equal work pursuant to CSL §115. The Court stated: To now deny [Petitioner]would be to say that a worker who performed similar work cannot receive equal pay in accordance with the ‘equal pay statute’ (Sec. 115 of the Civil Service Law). It would be discrimination . . . [and] against public policy and a departure from past treatment of similar complaints. Defendant is therefore estopped from denying him equal pay for equal performance. (See Kraus v. Beame, 36 A.D.2d 989, 320 N.Y.S.2d 991 (1971). And in Falotico v. Clauson, 81 N.Y.S.2d 788 (Kings Co. Sup. 1948), in a case strikingly similar to this case, the Court held that the commission could not establish two grades of the same title of engineer, with the same qualifications for both but with differing salaries, in violation of former CSL § 37, now CSL § 115. The Court stated: It is not within the power of the Municipal Civil Service Commission to establish two grades of the same title of Engineer with the same qualifications for both but differing salary ranges. N.Y. State Constitution, Art. V, sec. 6; Civil Service Law § 37. And as the Court in Stich v. Wagner, 36 Misc.2d 51, 54, 231 N.Y.S.2d 966, 968 - 969 (N.Y.Sup.1962) stated on Page 54: [S]ection 115 of the Civil Service Law, the “equal pay statute”, [] mandates a policy which may not be ignored “without comprehensible reason” 22 (Leitner v. Conway, 195 Misc. 621, 90 N.Y.S.2d 441). And the respondent[] [has] failed to disclose facts showing that the violation of this legislative command was either needful or has any comprehensible basis. Therefore, no triable issue is presented with respect to the claim for equal pay. A denial of the relief requested would lead to that palpable discrimination which justifies judicial intervention in order to prevent the unlawful flouting of obvious legislative intent. And a close reading of Kraus v. Beame, 36 A.D.2d at 990, 320 N.Y.S.2d at 993, cited by the Transit Authority to the First Department, shows that the Third Department referred to the Special Term’s statement that Civil Service Law § 115 was merely a statement of policy and did not mandate the additional remuneration sought by petitioners, but based its holding on the fact that “there is also nothing in section 115 which requires the salaries of employees of the Supreme Court to be equal in all counties of the State. Geographic distinction is permissible providing all employees performing the same work within the same county receive equal pay.” Kraus left open the possibility that Civil Service Law § 115 could require equal pay for equal work. The Transit Authority’s and the dissent’s reliance on Matter of Civil Serv. Employees Assn., Inc. Local 1000 v. State of N.Y. Unified Ct. Syst., 35 A.D.3d 1008, 1010, 825 N.Y.S.2d 822, 824 (3d Dept. 2006) is questionable. Gladstone v. Board of Ed. Of City of N.Y., 49 Misc.2d 344, on which Matter of Civil Serv. Employees Assn. relies, overstates the holdings of the cases it (Gladstone) cited. For example, in one of those cases, Matter of Goldberg v. 23 Beame, 22 A.D.2d 520, 256 N.Y.S.2d 894 (1 st Dept. 1965), rev’d on other grounds, 18 N.Y.2d 513 (1966), the First Department, in construing Civil Service Law § 37, the forerunner to Civil Service Law § 115, observed that the statute “is a mere statement of general policy applicable to all Civil Service employees. It does not contain, however, a mandatory direction that such principle must be applied in all cases under any and all conditions.” Goldberg, 22 A.D.2d at 522, 256 N.Y.S.2d at 896, quoting Matter of Beer v. Board of Educ. of City of N.Y., 93 N.Y.S.2d 485, 486 – 487 (Sup. Ct. Kings Co. 1948), affd 274 A.D. 931 (1948), appeal dismissed 299 N.Y. 565 (1949). This leaves open the door that of course there are many cases – but not all – wherein CSL § 115 can be enforced by the Court. As pointed out by the First Department in the case at bar, “[i]n its last pronouncement on the subject in 2000, this Court stated that ‘[t]he principle of equal pay for equal work need not be applied in all cases under any and all circumstances.’ (Bertoldi v. State of New York, 275 A.D.2d 227 (1 st Dept. 2000), lv. denied 96 N.Y.2d 706 (2001).” (R. 367.) The clear implication of this statement is that there are circumstances in which the principle of equal pay for equal work must be applied and that this Court has the power to apply it. The dissent and the Transit Authority fail “to reconcile the case law acknowledging that there may be circumstances in which the policy of equal pay 24 for equal work must be applied, with its conclusion that no court has jurisdiction to apply it. The case law establishes that a court need not presume that a disparity in pay is violative of section 115, but that, nevertheless, it may correct the disparity where ‘there is palpable discrimination or arbitrary action detrimental to the individual or class’ (Beer, 83 N.Y.S.2d at 487).” (R. 367 - 368.) While courts have held that equal pay for equal work need not be applied in every circumstance, there must be a reasonable explanation why it should not apply. In this case, there can be no reasonable explanation for the Transit Authority's practice of paying the SS-Is and SS-IIs unequal pay for equal work, especially since it was the Transit Authority that combined the two positions, without bargaining, and created the situation of unequal pay for equal work. The Transit Authority and the dissent argue that giving a judge 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 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,” which the dissent states was “clearly [] not intended by the Legislature in enunciating this policy.” (R. 13.) First, this is not an action for failure to receive regular pay increases. Secondly, it is Respondent's position that such a cause of action would lie under CSL § 115, if 25 “there is palpable discrimination or arbitrary action detrimental to the individual or class.” Beer, 83 N.Y.S,.2d at 487. There would be no difficulty for the Court to “develop expertise needed to enforce . . . such a policy of ‘regular increases in pay in proper proportion’” as it would be the petitioner’s obligation to present evidence of the increase of ability, output, and equality of work and lack of compensation. The public policy of New York is fixed by the Legislature in the statutes and the Court has an obligation to enforce such a policy specifically dictated by the Legislature. The Legislature has expressed its will that those covered under the Civil Service Law shall be paid equal pay for equal work. When the Legislature has expressed its will and established a policy, courts are required to give effect to such policy. F. A. Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 413-414, 173 N.E. 564, 567 (1930), referring to South & Central American Commercial Co., Inc., v. Panama Railroad Co., 237 N. Y. 287, 291, 142 N. E. 666 (1928). Otherwise, the public policy, set forth in a statute, is meaningless. B. The Supreme Court Has Jurisdiction Over This Matter As A Court of Equity. The New York Constitution confers upon the Supreme Court “general original jurisdiction in law and equity.” N.Y. Const. art. VI, § 7. “As a court of ‘original, unlimited and unqualified jurisdiction[, it] is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed.” (Citations omitted.) Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298 (3d Dept. 26 2010) (Dickerson I). And the power of equity is as broad as equity and justice require. Dickerson v. Dickerson, 88 A.D.3d 121, 928 N.Y.S.2d 97 (3d Dept. 2011) (Dickerson II.) Even in the absence of any direct grant of legislative power, the Supreme Court has the inherent authority to fashion whatever remedies are required for the resolution of justiciable disputes and the protection of the rights of citizens. Id. at 123, 928 N.Y.S.2d at 99. The SS-Is are in need of a judicial remedy to require the Transit Authority to pay them equal pay for equal work performed by the SS-IIs. Absent the Court’s invocation of its equitable power to enforce a legislative state policy, the SS-Is are without a remedy. While the SS-Is are represented by a union, it is not the same union that represents the SS-IIs. Therefore, the SS-Is have no control over the salaries paid to the SS-IIs. The SS-Is must rely upon the Court to declare the Transit Authority in violation of the state policy requiring civil servants in service of the people of the State of New York to be paid equal pay for equal work, and fashion whatever remedy the Court deems fit to ameliorate this condition. If the Court has no jurisdiction to enforce a state policy proscribed by the Legislature, then such statutes would have no meaning. If the Supreme Court, a court of equity, withholds its remedies, the result would be unjust. The Court’s failure to enforce this important policy proscribed in a statute would be tantamount to a veto of legislation by judicial fiat, contrary to Statutes § 73. 27 POINT III PETITIONER LABOR UNION HAS THE RIGHT TO BRING CSL § 115 AND EQUAL PROTECTION CHALLENGES IN SPITE OF HAVING ENTERED INTO COLLECTIVE BARGAINING AGREEMENTS The Transit Authority attempts to cast this litigation to be solely an endeavor by the SSSA to use the court to effect an equalization of wage scales, and that such endeavor must be relegated to the collective bargaining process. In so doing, the Transit Authority misconstrues the SSSA’s case. The issue is not whether the union negotiated an unfavorable deal, but whether the Transit Authority has violated public policy by arbitrarily and without a rational basis, refused to pay its civil service workers equal pay for equal work, in contravention to the public policy of this State under of Civil Service Law § 115, and the Equal Protection Clause of the New York State Constitution. Such disputes are amenable to review by the courts. (R. 368.) A public employer is free to negotiate any matter in controversy, whether or not it involves a term or condition of employment subject to mandatory bargaining, as long as there is no “plain and clear” prohibition in statute or controlling decision law or restrictive public policy to the contrary. Bd. Of Educ. of Yonkers City School District v. Yonkers Federation of Teachers, 40 N.Y.2d 268, 273, 386 N.Y.S.2d 657, 659 (1999). And if a contract, such as a collective bargaining agreement, violates public policy, the Court should not enforce said contract. New York State 28 Correctional Officers and Police Benev. Ass'n, Inc. v. State, 94 N.Y.2d 321, 327, 704 N.Y.S.2d 910, 914 (1999) referring to Szerdahelyi v. Harris, 67 N.Y.2d 42, 48, 499 N.Y.S.2d 650 (1986); McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 469, 199 N.Y.S.2d 483(1960); Sternaman v. Metropolitan Life Ins. Co., 170 N.Y. 13, 19, 62 N.E. 763, rearg. denied 170 N.Y. 616 (1902). In the case at bar, there is a clear statutory public policy requiring equal pay for equal work for those covered by the Civil Service Law, as well as Constitutional provisions for Equal Protection, and the Transit Authority is not free to act in derogation of these laws, whether or not the action is provided for in a collective bargaining agreement. In essence, the Transit Authority argues that the SSSA members have waived their right to equal pay for equal work by entering into a collective bargaining agreement. However, when the waiver in the collective bargaining agreement violates public policy, then the waiver of constitutional and statutory rights will not be upheld. On point is Union Free School District v. New York State Division of Human Rights, 43 A.D.2d 31, 34, 349 N.Y.S.2d 757, 761 (2d Dept. 1973) app. dism., 33 N.Y.2d 975, 353 N.Y.S.2d 739 (1974); Union Free School District v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 378, 362 N.Y.S.2d 139, 143 (1974) which held that a collective bargaining agreement countenancing sex 29 discrimination did not waive the employee’s right to sue under N.Y. Executive Law 298. The maternity leave policy of the school district was no less illegal under the Human Rights Law because the policy was the product of negotiations conducted under the Taylor Law. Similarly, the Transit Authority’s refusal to pay equal pay for equal work is no less illegal under Civil Service Law § 115 or the State Constitution simply because the SSSA agreed to the unequal pay in a collective bargaining agreement. The Transit Authority argues that to require the Transit Authority to pay equal work for equal wages would undermine the Taylor Law. However, asking the Transit Authority to “fix” the discriminatory disparity in salaries between SS-Is and SS-IIs does not violate the Taylor Law, but rather brings the Transit Authority in compliance with the Constitution as well as State public policy that states that it is in the best interest of the people of the State of New York to have employees who serve the State receive equal pay for equal work. And doing so will further the purpose of the Transit Authority, whose purpose is to act for the benefit of the people of the State of New York. The Transit Authority’s position that the SSSA should have pursued public arbitration with PERB under Article 14, Section 209 of the Civil Service Law is not supported in law. “[N]owhere in the Taylor law, nor in its underlying policies, is PERB vested with the general power to prohibit governmental officials from 30 violating express statutory provisions.” See Matter of Zuckerman v. Board of Educ. of City School District of City of N.Y., 44 N.Y.2d 336, 405 N.Y.S.2d 652 (1978). The freedom of a public employer to contract with an employee organization, although broad, is not wholly unrestrained. Any provision of a collective bargaining agreement which contravenes public policy, statute or decisional law may not stand. Niagra Wheatfield Admrs. Assn. v. Niagara Wheatfield Cent. School District, 44 N.Y.2d 68, 72-73, 404 N.Y.S.2d 82, 84 (1978). In Zuckerman, a case strikingly similar to this one, plaintiffs alleged that the New York City Board of Education (“the Board”) was in violation of statutory and constitutional directives regarding personnel. The Board argued that these were matters that should be decided by PERB pursuant to the Taylor Law, and not by the Court. The Zuckerman court reviewed the jurisdiction of PERB and noted that “PERB's jurisdiction encompasses only those matters specifically covered by the Taylor Law,” and found that whether the Board’s employment policies were illegal was something for the Court to decide. “It has never been the law in this State that the clear and unambiguous wording of a statute or constitutional provision may be overlooked entirely when it is seemingly inconsistent with the 31 practice and usage of those charged with implementing the laws.” Id. at 342-343, 405 N.Y.S.2d at 655. The Transit Authority also relies upon Trerotola v. New York City Off-Track Betting Corp., 86 A.D.2d 822, 447 N.Y.S.2d 268, in support of its proposition that because the union entered into collective bargaining agreements, it cannot challenge the Transit Authority’s payment of unequal pay for equal work. It is noteworthy that Trerotola has never been cited in another decision in the ensuing twenty-eight years. In Trerotola, the employees were city workers, and not employees of the Transit Authority covered by the Civil Service Law. Therefore, CSL § 115 might not apply to the OTB workers in Trerotola, but does apply to the Transit Authority workers, and the Transit Authority must pay its employees equal pay for equal work. More importantly, in Trerotola, the union members receiving disparate pay for equal work were members of the same union and the “consolidation of job titles and eliminated [] duties attached to job titles [were effected] largely through the process of collective bargaining.” Id. at 832, 447 N.Y.S.2d at 269. The Court held that the very changes that led to the disparity, such as consolidation of job titles and elimination of duties attached to job titles, were part of the collective bargaining process. 32 In the case at bar, the Transit Authority has “continuously determined and has combined the duties and responsibilities of both titles” on its own accord and over the SSSA’s objections. (R. 65 – 112.) The consolidation of the duties of the SS-Is and SS-IIs, without the consolidation of the titles, is not the result of collective bargaining, but the result of the Transit Authority’s unilateral mandate. (R. 36, 38.) As stated by the majority, “[t]his case is not merely about the collective bargaining agreement that SSSA negotiated, because SSSA has no ability to control pay disparity through collective bargaining. No matter what salary terms SSSA strikes with the TA through collective bargaining, it is powerless to prevent the TA from shifting work away from SS-IIs, who are represented by a separate union, and onto SS-Is,” as the Transit Authority has repeatedly done over the SSSA’s objections. (R. 368 – 369, 65 - 112.) Therefore, the fact that the SS-Is bargained for their salary has no bearing on whether they have a viable equal protection claim or a viable Civil Service Law § 115 claim. Because of the SSSA’s inability to control SS-II’s pay levels, only a judicial declaration that the Transit Authority has illegally differentiated between the two classes of workers could prevent a salary disparity from re-emerging. 33 POINT IV WHETHER THE TRANSIT AUTHORITY STATED A CAUSE OF ACTION FOR AN EQUAL PROTECTION CLAIM WAS NOT AN ISSUE THAT THE SUPREME COURT AND THE FIRST DEPARTMENT GRANTED LEAVE TO APPEAL, AND WAS NOT ADDRESSED IN THE BRIEFS TO THE FIRST DEPARTMENT Justice Goodman found that since the SSSA could rely on the statutory promise of equal pay for equal work under CSL § 115, she specifically did not make any determination as to whether the SSSA could bring an Equal Protection cause of action. (R. 20.) Justice Goodman did not grant the Transit Authority leave to appeal to the First Department the question of whether the SSSA had stated a viable cause of action for a violation of the Equal Protection Clause of the State Constitution. The only question to be appealed was whether the SSSA could bring an Equal Protection Clause action if it had bargained for the discriminatory wages. Like Justice Goodman, the First Department did not address whether the SSSA stated a claim for a violation of the Equal Protection Clause of the Constitution. The dissent stated that “[a]lthough the [Trerotola] court did not expressly address the Equal Protection Clause, [the Trerotola Court] 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.” 1 (R. 374.) 1 The Transit Authority’s citation on Page 24 of its brief seems to indicate that the quotation is from Trerotola, when in fact it is from the Honorable Abdus-Salaam. (R. 374.) Trerotola made 34 In turn, the majority stated: For this reason, and contrary to the dissent’s position, the fact that SS-Is bargained for their salary has no bearing on whether they have a viable equal protection claim, and we find that the petition sufficiently alleges the claim (see Margolis v. New York City Tr. Auth., 157 A.D.2d 238, 241-242 [1 st Dept. 1990]). (R. 369 – 370.) For the same reasons outlined above with regard to CSL § 115, the SSSA is not precluded from bringing an Equal Protection claim for disparate wages even if the discriminatory wages were collectively bargained for. See Union Free School District v. New York State Division of Human Rights, 43 A.D.2d 31, 349 N.Y.S.2d 757; Union Free School District v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139 (a union member could sue for sex discrimination even though the collective bargaining agreement set forth the discriminatory maternity leave policy); Zuckerman v. Board of Educ. of City School District of City of N.Y., 44 N.Y.2d 336, 405 N.Y.S.2d 652 (any provision of a collective bargaining agreement which contravenes public policy, statute, the constitution or decisional law may not stand.) The SSSA’s remedy is not just with PERB or the Taylor Law. The Transit Authority then goes beyond what the First Department granted leave to appeal, and argues that the Transit Authority’s actions were not arbitrary, no such statement. There is no indication that the Trerotola petitioners made any claim of an equal protection violation. 35 and that the Transit Authority had a rational basis for the disparate pay, and therefore the SSSA’s Equal Protection claim does not lie. (See Appellant’s Brief Pages 27 – 28.) The SSSA asserts that this Court should not entertain these arguments and not consider whether the Transit Authority had a rational basis for paying unequal wages for equal work. However, in an abundance of caution, the SSSA will respond to the issues raised by the Transit Authority. The Transit Authority asserts that its payment of unequal wages cannot be “arbitrary action” which is necessary for an Equal Protection violation, because usually “arbitrary action” is typically a “unilateral governmental action.” The Transit Authority claims that because the SS-Is’ salary was agreed upon in a collective bargaining agreement, that the unequal pay cannot be considered “unilateral” or “arbitrary.” (See Appellant’s Brief, Pages 25 – 27.) What the Transit Authority ignores is that the Transit Authority unilaterally and arbitrarily transferred the duties of the SS-IIs to the SS-Is, over the SS-Is’ objections, and did not increase the SS-Is’ pay. This was unilateral and arbitrary action by the Transit Authority that the Equal Protection Clause cannot countenance. An impressive line of cases has held that “arbitrary salary differentials for government servants cannot be maintained in the face of the equal protection clause.” Margolis v. New York City Transit Auth., 157 A.D.2d 238, 555 N.Y.S.2d 36 711 (trainmaster stated a claim for a violation of the State Equal Protection Clause stemming from the Transit Authority’s grant of salary increase to similarly situated persons, but refusal to pay a wage increase to plaintiff); Weissman v. Evans, 56 N.Y.2d 458, 452 N.Y.S.2d 864 (1982) (salary disparities between district court judges of adjoining counties); Weissman v. Bellacosa, 129 A.D.2d 189, 517 N.Y.S.2d 734 (1987) (salary disparity between county judges in adjoining counties); Anderson v. County of Suffolk, 97 A.D.2d 448, 467 N.Y.S.2d 659 (2d Dept. 1983) (illogical linkage of higher step in salary grade based on date of promotion); Schneider v. Ambach, 135 A.D.2d 284, 526 N.Y.S.2d 857 (3d Dept. 1988) (discrimination between non-full time classroom teachers who were represented by unions from those not members of collective bargaining units); Nassau Chapter, Civil Service Employees Assn, Inc. v. County of Nassau, 88 Misc.2d 289, 387 N.Y.S.2d 772 (N.Y. Sup. 1976) (step increases in salary improperly denied to employees earning $25,000 a year affecting a total of 45 out of 14,000 employees); Matter of Scime v. County Legislature of Erie County, 90 Misc.2d 764, 395 N.Y.S.2d 952 (N.Y. Sup. 1977) (discriminatory to pay similarly situated employees different salaries based upon union status); Gruen v. County of Suffolk, 187 A.D.2d 560, 590 N.Y.S.2d 217 (2d Dept. 1992) (complaint adequately alleged an equal protection violation where County arbitrarily selected similarly situated employees for a reduction in benefits). 37 Margolis, 157 A,D.2d 238, 555 N.Y.S.2d 711, is of particular interest. Because the petitioner in Margolis did not assert that his duties as a train master were the same as the other employees who had been granted the general wage increase, the Court did not base its holding on Civil Service Section 115, but rather upon the Equal Protection Clause of the New York State Constitution. The Court stated that “there is a point beyond which the State (referring to the Transit Authority) cannot go without violating the Equal Protection Clause. The State (referring to the Transit Authority) must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary.” The Court reversed the lower court’s dismissal of the petition and remanded the petition for discovery and a hearing. The question mandated by the Constitution is: When granting salary benefits to civil servants who perform the same exact work, in order to limit expenditures -- which is the only possible rationale -- is it legal to continue to classify and pay station supervisors according to outdated and obsolete titles without any basis in job performance? The answer clearly is no. See Abrams v. Bronstein, 33 N.Y.2d 488, 494, 354 N.Y.S.2d 926, 931 (1974) (unconstitutional to classify and pay police lieutenants -- presumably union members and subject to a collective bargaining agreement -- based upon whether they participated in 38 stipulation incidental to a legal proceeding, solely for the purpose of fiscal economy.) It is the SSSA’s position that not only is the Transit Authority’s purpose illegal and not supported by a rational basis, the discriminatory policy does not result in fiscal economy. The original reason for paying SS-IIs more money was because they were required to be on call 24 hours a day. However, that practice has been changed, and neither SS-Is or SS-IIs are on 24-hour call, and both receive overtime compensation for additional work. Since SS-IIs now receive overtime pay, as well as a higher salary, there is no cost savings and no rational basis whatsoever for the disparity in pay. (R. 232-233.) The Transit Authority has not made any attempt to create an orderly transition of the two titles into one with one pay scale, but, rather, continues the historical disparity. See Weissman v. Evans, 56 N.Y.2d at 464, 452 N.Y.S.2d at 866 (counties failure to deal with the wage disparity between judges in different counties violated the Equal Protection Clause.) At the very least, it is premature to find that the Transit Authority had a rational basis for the discriminatory pay schedule without allowing the SSSA to conduct discovery on the issue and present evidence showing that there is no rational basis for paying the SS-Is less money for the same work as the SS-IIs. 39 CONCLUSION SS-Is are entitled to the same pay as the SS-IIs, with whom they work side by side and perform the same work. CSL § 115 and the Constitution require no less. For all of the aforesaid reasons, this venerable Court should uphold the Supreme Court and the First Department Appellate Division decisions denying Transit Authority’s motion to dismiss. Dated: New York, New York LAW OFFICE OF STUART SALLES September 4, 2013 ________________________________ By: STUART SALLES Attorney for Petitioner-Respondent Gail M. Blasie, Of Counsel To Stuart Salles 225 Broadway, Suite 1900 New York, New York 10007 (212) 267-9090