The opinion of the court was delivered by: BRIEANT
Defendants in this action have moved, pursuant to Rule 12(b), F.R.Civ.P., to dismiss the complaint for, among other things, failure to state a claim upon which relief can be granted. At issue is whether plaintiffs have standing to raise the issues mentioned below. I conclude they do not.
Plaintiffs are the School Crossing Guards Association of the City of New York, Inc. (hereinafter the "Association"), and the Association's President. Members of the Association are former school crossing guards hired by the City of New York (hereinafter the "City") to provide traffic protection to school children at various intersections throughout the five boroughs of New York City. Under the comprehensive statutory scheme imposed by state and local laws, the Association is and has been the certified exclusive collective bargaining agent for all school crossing guards employed by the City, and may be regarded as a labor union.
Defendants are the City; its Mayor, Abraham D. Beame; its Police Commissioner, Michael J. Codd (hereinafter sometimes referred to collectively as the "municipal defendants"); as well as Ray Marshall, Secretary, United States Department of Labor (hereinafter "Labor").
The position of School Crossing Guard was created by the City in 1954 under § 434a-16.1 of the New York City Administrative Code, 2A N.Y.C. Charter and Code, § 434a-16.1.
The program was administered by the Police Commissioner, who was granted authority to promulgate rules and regulations governing the employment of such Crossing Guards. The Guards were not, however, members of the police force, nor were they entitled to police force benefits, privileges or pensions.
By letter of June 19, 1975, the Police Commissioner notified the Association's members that their services were being terminated, effective June 30, 1975, due to the City's "fiscal crisis," but that they would be considered for rehiring "when fiscal conditions permit." No School Crossing Guards have been employed by the City during the period between June, 1975 and the filing of this action on August 8, 1977.
The present controversy centers around the application of federal funds, with which the City proposes to finance a "School Intersection Safety Project ("Safety Project"), available to the City under Title VI of the Comprehensive Employment and Training Act of 1973, 29 U.S.C. § 801, et seq., as amended by the Emergency Jobs Programs Extension Act of 1976, 29 U.S.C. § 962, et seq. (Supp. 1977) (hereinafter "CETA").
CETA is a federally funded statutory program to provide job training and employment opportunities to disadvantaged and unemployed persons. 29 U.S.C. § 801. There are two employment programs under CETA: Title II, 29 U.S.C. §§ 841-51, as amended by the Emergency Jobs Programs Extension Act of 1976, Pub. L. 94-444, and Title VI, 29 U.S.C. §§ 961-66, as amended by the Emergency Jobs Programs Extension Act of 1976, Pub. L. 94-444.
Local and state governmental units are "prime sponsors" which prepare and submit proposals for public employment programs for the approval of the Secretary of Labor through regional offices of Labor's Employment and Training Administration (hereinafter the "ETA"). The Secretary of Labor, not the courts, is charged with assuring that CETA's requirements are fulfilled and that the national purpose, expressed in 29 U.S.C. § 801 is served by the proposed program. To be eligible for employment on a Title VI funded job, an individual must reside within the prime sponsor's jurisdiction and must have been unemployed for at least 15 days prior to hiring. 29 U.S.C. §§ 845(c)(3), 962(c) and 964(b)(2). When CETA was amended in 1976, an additional requirement was imposed: the applicant for a CETA Title VI job in effect must now show that he or she is among the long-term unemployed, or an Aid to Dependent Children recipient, and that his or her family income is $7,580.00 or less.
There is no similar income restriction applicable to participants in Title II funded job programs.
In February, 1977, the ETA for the region including New York City approved an application by the City for training and employment funds under Titles II and VI of CETA. This proposal did not include the aforementioned Safety Project.
In May, 1977, the ETA advised the City (and other recipients of CETA funds) to modify their proposals because additional CETA funds had been allocated. On August 16, 1977 the City submitted its Safety Project proposal to the ETA in which it requested "in excess of $3,000,000 to hire 1004 individuals to fill the position of School Intersection Safety Associate ("Safety Associate"), whose duties would be to direct pedestrian and vehicular traffic at selected school crossing intersections throughout New York City . . . from September, 1977 to June 1978." (Labor's Notice of Motion and Affidavit, Affidavit of Fitzroy I. Herbert, para. 3) (underlining added by the Court). It must be obvious to all that a "School Intersection Safety Associate" is, and is understood by all to be, the same as a "School Crossing Guard." While plaintiffs suggest an ulterior purpose, the Court regards use of this new high-flown title as nothing more than the same kind of currently prevalent euphemistic bureaucrat jargon which has renamed prisons as correctional centers, prison keepers or guards as correctional officers, garbagemen as sanitation engineers and labor unions as collective bargaining agents.
Before the Safety Project proposal was actually submitted to Labor, the Association, by an order to show cause submitted August 9, 1977, sought a preliminary injunction in this action to restrain the defendants from using federal funds to hire non-union Crossing Guards.
The Association's application for preliminary injunctive relief was heard on August 30, 1977 before Judge Vincent L. Broderick of this Court, then assigned to Part I. At the same time, oral argument was heard also on defendants' motions to dismiss the complaint. Judge Broderick filed a ...