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July 27, 1978

John A. BLACK, Arnold Cherry, Allen Crawford, Walter Humphrey, Victor Laucello, Henry A. Lewis, Jr., Peter R. Lliso, Kathaleen E. McCabe, George L. McDonald, Alonzo Mitchell, Ronald T. Morabito, Roger K. Nichols, Edmund Pinto, Jr., Joseph Ponterella, Jr., Rupert C. Richards, Charles Robbins, Felix G. Robinson, David Rubinstein, Michael Warren, Matthew R. Young, Coalition of Concerned Transit Workers, Committee of Concerned Transit Workers, Revenue Collectors Benevolent Association, Two Hundred Seventh Transit Workers Coalition, Plaintiffs,
TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Matthew Guinan, President, Transport Workers Union of Greater New York Local 100, AFL-CIO, John E. Lawe, President, New York City Transit Authority, Harold L. Fisher, Chairman of the Board of Directors and Chief Executive Officer, Defendants

The opinion of the court was delivered by: GAGLIARDI


 This is an action to restrain the implementation of a collective bargaining agreement covering employees of the defendant New York City Transit Authority ("NYCTA"). The plaintiffs include both individual employees of NYCTA who are members in good standing of defendant Transport Workers Union of Greater New York, Local 100 ("Local 100" or "Local"), and several employee groups opposed to the ratification of the agreement. *fn1" Local 100's parent body, Transit Workers Union of America, AFL-CIO ("TWU"), its president Matthew Guinan, Local 100's president John E. Lawe, and NYCTA's chief executive officer Harold L. Fisher are also named as defendants.

 Plaintiffs allege that in a referendum tabulated on July 6, 1978, NYCTA employees rejected a proposed contract between Local 100 and the NYCTA by the vote of 8,506 for to 10,825 against. In tabulating the results, however, the union defendants aggregated the votes of NYCTA employees with the votes of those employed by the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"), NYCTA's subsidiary. Because MABSTOA employees approved their proposed contract by a vote of 3,214 to 577, the union defendants stated that both contracts, as a package, had passed. Plaintiffs contest the union defendants' determination that the contract between Local 100 and NYCTA for the period April 1, 1978 through March 31, 1980 has been lawfully ratified. Specifically, plaintiffs object to the practice of "package ratification" -- the aggregation of the votes of NYCTA employees with the votes of other Local 100 members employed by MABSTOA. The complaint sets forth four causes of action. Defendants' commingling of ballots has allegedly: 1) denied plaintiffs their "equal right to vote" in the contract referendum in violation of § 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 411(a)(1); 2) violated the terms of Local 100's bylaws; and 3) violated TWU's constitution. The last claim, which is addressed to the union defendants only, charges them with failing and refusing to bargain in good faith for a better agreement in violation of their duty of fair representation under New York State's Public Employees Fair Employment Act, Civil Service Law §§ 200 et seq. Jurisdiction is premised upon § 102 of LMRDA, 29 U.S.C. § 412, and principles of pendent jurisdiction. Plaintiffs seek a declaratory judgment to the effect that the proposed contract between Local 100 and NYCTA has been rejected by those eligible to vote and an injunction restraining the defendants from implementing it, as well as damages, both compensatory and punitive.

 On July 10, 1978, this court denied plaintiffs' request for a temporary restraining order, *fn2" but set the matter down for a July 13th hearing on their motion for a preliminary injunction. When the parties returned on the 13th, it was determined that there was no material issue of fact and that a stipulation of facts would be submitted. At counsel's request, the court ordered the trial of the action on the merits to be advanced and consolidated with the determination on the preliminary injunction pursuant to Rule 65(a)(2), Fed. R. Civ. P. The court's review of the stipulation of facts filed on July 19, 1978, however, revealed that material facts concerning past ratification procedures were potentially in dispute, and a further hearing was scheduled for July 24. The record now being complete, the court holds that plaintiffs have failed to state a claim and their complaint is dismissed.

 Statement of Facts

 Defendant Local 100, an unincorporated association affiliated with defendant TWU, serves as the collective bargaining representative for among others, the employees of seven employers, both public and private, in the transportation industry in New York City (Stipulation of Facts, p. 3). NYCTA and MABSTOA are public benefit corporations created pursuant to Title 9 of the New York Public Authorities Law (McKinney 1970 & Cum. Supp. 1977-78). Steinway Transit Corporation, Queens Transit Corporation, Triboro Coach Corporation, Jamaica Buses, Inc. and the Avenue B and East Broadway Transit Company are privately owned transportation companies. Local 100 represents approximately 26,755 persons employed by NYCTA, 4,830 employed by MABSTOA, and a total of 1,130 employed by the five private companies (Id., pp. 3-4). NYCTA employees are engaged in both bus and subway operation and maintenance and comprise 37 distinct job classifications. (Union defendants' Exhibit 18). MABSTOA employees, assigned to buses only, fall into 13 separate maintenance and operation classifications. (Union defendants' Exhibit 17). The difference in the number of classifications is almost entirely a function of NYCTA's distinctive train operations. Thus, only NYCTA has employees classified as "conductor," "towerman," "trackman. " But both NYCTA and MABSTOA have employees classified as "bus operator," "helper" and "maintainer." Although the job titles differ, many NYCTA employee job classifications are identical to MABSTOA job classifications in general duties and wage rates. (Compare Union defendants' Exhibits 17 and 18). The employees of the private companies are also limited to surface transit functions.

 Article XXV, Section 2 of the TWU's Constitution, entitled "Collective Bargaining and Contracts," provides: "Any proposed agreement shall be subject to ratification by the members covered by such proposed agreement." (Defendants' Exhibit 2). Similarly, Article XXVII of Local 100's by-laws provides that:

No proposed contract shall be valid or binding unless first approved by the Local Executive Board and then ratified by the majority of the members voting in the Branch affected: and any contract so approved and ratified, and in conformity with Article XXV of the International Constitution, shall be binding upon the Union, and its members. (Defendants' Exhibit 3).

 The by-laws, which were adopted in 1959 and have not undergone any general revision since, *fn3" designate five branches of the Local. Article XXIV, § 1 provides:

1. Members employed by the New York City Transit Authority shall constitute the Transit Authority Branch:
members employed by Surface Transit, Inc. and its subsidiary Westchester Street Transportation Co., Inc., shall constitute the Surface Branch;
members employed by the Fifth Avenue Coach Lines, Inc., excluding those employed in its former New York City Omnibus operations, shall constitute the Fifth Avenue Branch;
members employed in the former New York City Omnibus operations of the Fifth Avenue Coach Lines, Inc., shall constitute the Omnibus Branch;
members employed by transit companies other than those listed above shall collectively constitute a Branch.

 In 1962, however, Surface Transit, Inc., Fifth Avenue Coach Lines, Inc. and New York City Omnibus ceased to operate and the City of New York acquired their properties pursuant to § 20-d of the New York General City Law (Affidavit of John O'Donnell, Co-counsel for union defendants, dated July 12, 1978). That same year the New York State Legislature created MABSTOA as a public benefit corporation empowered to lease and operate the bus lines which the city had condemned. 1962 N.Y. Laws, c. 163, (codified, as amended, at N.Y. Public Authorities Law § 1203-a (McKinney 1970 & Cum. Supp. 1977-78)). MABSTOA was created as a subsidiary of NYCTA, which itself had been created by the Legislature in 1953 to acquire and operate transit facilities previously operated by New York City's Board of Transportation. 1953 N.Y. Laws, c. 200 (codified, as amended, at N.Y. Public Authorities Law § 1202 (McKinney 1970 & Cum. Supp. 1977-78)). The nine members of the NYCTA board were designated by the Legislature to serve as MABSTOA's directors. MABSTOA was empowered to "appoint officers and employees; assign powers and duties to them and fix their compensation," but the Legislature expressly provided that MABSTOA officers and employees, unlike NYCTA employees, could not acquire "civil service" status. *fn4" Public Authorities Law § 1203-a(3)(b).

 Since 1966, Local 100's Executive Board, with the approval of TWU and all branches of the Local, has conducted joint negotiations with NYCTA and MABSTOA with a single negotiating team. (O'Donnell affidavit, pp. 6-7). Under the Local 100 by-laws, the NYCTA branch is subdivided into seven "divisions" (Defendant's Exhibit 3, Article XXV); the remaining branches are divided into less formally organized "sections" (Id., art. XXVI). Local 100's proposals for contract changes originate in separate division and section meetings. The by-laws provide that these proposals are to be considered by the "Contract Policy Committee for each branch" and that each such committee is "to draw up an integrated and attainable Contract Program for the Branch." (Id., art. XXVII). Since 1966, however, there has been only one "Contract Policy Committee" acting for both NYCTA and MABSTOA employees combined (O'Donnell affidavit, p. 13). Local 100 has thus treated all of its public employees as a single collective bargaining branch. The Contract Policy Committee submits its proposed program for all public employees to the Local Executive Board, which, under the by-laws determines the "final form and content of the Contract Program to be submitted to the Employer." (Defendant's Exhibit 3, art. XXVII).

 The Local's manner of presenting contract demands has remained unchanged since 1966. A single union negotiating committee submits one set of demands covering both NYCTA and MABSTOA employees to a single management negotiating team which presents its proposals on behalf of both employers. (O'Donnell affidavit, p. 7). The Local's demands have generally consisted of two parts: general demands applicable across the board to all NYCTA and MABSTOA employees (e.g., wages, pension terms, vacations and holidays, sick leave and general working conditions) and demands for changes in the working conditions in separate departments (divisions and sections) of NYCTA and MABSTOA (Defendants' Exhibits 4A-4F). These demands are presented to the management's representatives at a meeting attended by TWU's and Local 100's officers and by the Chairman of the NYCTA, at which time the management puts forth its counterproposals. The traditional emphasis of the negotiations is upon the system-wide demand for either wage increases or cost-of-living allowances, or both, because these general demands, made on behalf of NYCTA and MABSTOA employees combined, are easily the most costly from management's perspective (Supplemental Affidavit of John O'Donnell, Co-counsel for defendant unions, dated July 18, 1978, pp. 2-3 and Defendants' Exhibits 14-16). These system-wide demands for wage increases and cost-of-living protection are also perceived by the Local to be of the greatest concern to its members, NYCTA, MABSTOA, and private ...

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