The opinion of the court was delivered by: MINER
MINER, District Judge: --
Plaintiffs, all employees of the New York State Department of Correctional Services and members of the New York State National Guard or other reserve units of the United States Armed Forces, have brought this action on behalf of themselves and all others similarly situated, claiming that their rights under 38 U.S.C. §§ 2021(b)(3) and 2024(d) have been violated by a policy of defendants. Specifically, plaintiffs claim that Departmental Directive 2212, which requires that "when practicable and consistent with the [Department of Correctional Services] personnel requirements, regular days off and shift assignments may be revised to avoid military drills during scheduled working hours," is unlawful. Plaintiffs also claim that this policy violates their rights under § 242 of the New York State Military Law and to equal protection under the fourteenth amendment of the United States Constitution. Jurisdiction is predicated upon 42 U.S.C. § 1983, 28 U.S.C. § 1343, 38 U.S.C. § 2022 and the doctrine of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 61 LRRM 2561, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
By Order dated October 12, 1982, plaintiffs' motions for preliminary injunction and class certification were denied. However, the action was certified as a class action based on stipulations, signed by the parties on February 10, 1983 and February 25, 1983 and approved by the Court of Order dated February 28, 1983. Before this Court presently are plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment. Fed. R. Civ. P. 56.
Plaintiffs are approximately 520 correction officers, sergeants and lieutenants employed by the New York Department of Correctional Services who are also members of reserve components of the armed forces. The exclusive bargaining representative for plaintiffs is the New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO. Council 82 and the State have negotiated collective bargaining agreement which set forth the terms and conditions of plaintiffs' employment with the Department of Correctional Services (hereinafter "Department"). (Affidavit of John W. Burke, sworn to September 15, 1982, PP5 and 6, Exs. A and B; hereinafter "Burke Affidavit").
Pursuant to those collective bargaining agreements, plaintiffs have enjoyed certain rights, benefits, privileges and incidents of their employment including those granted by reason of plaintiffs' seniority. Specifically, section 24.2 of collective bargaining agreement dating back to April 1, 1970 have provided that "[s]eniority shall be the basis by which employees shall select pass days." (Burke Affidavit, P7; Affidavit of Hollis V. Chase, sworn to March 15, 1983; hereinafter "Chase Affidavit").
Plaintiffs maintain that prior to certification and recognition of Council 82 as the collective bargaining representative for the plaintiffs, and hence before the first collective bargaining agreement between Council 82 and the State, the terms, conditions and incidents of employment were dictated by the employer. (Chase Affidavit, P4). Thus, the jobs, shifts and days worked were assigned by the employer, and the employer dictated exactly what jobs, shifts and pass days an employee obtained. (Chase Affidavit, P5). Therefore, plaintiffs further maintain, a primary objective of collective bargaining on behalf of the employees was to implement a system whereby the choice of jobs, shifts and days off would be with the employees in a manner equitable to all employees. (Chase Affidavit, P8). The system negotiated and agreed to, through which pass days have been chosen, was a seniority system. (Collective Bargaining Agreement, § 24.2; Chase Affidavit, P10).
Employees select pass days and job shifts, plaintiffs contend, in one package based on seniority. Each employee has the right to select Saturday or Sunday pass days, or any other one of several other pass day schedules available to the employee, when he bids on a particular job and shift assignment. Under this system, a pass day schedule bid through a job is firm as long as that employee elects to retain the job bid. An employee, for example, contemplating whether or not to bid a particular job and shift, can ascertain in advance exactly what his pass day schedule will be. (Chase Affidavit, P9). Thus, it appears that particular pass day schedules are chosen on the basis of seniority when particular job shifts are bid for.
Defendants, on the other hand, contend that, despite language in the Collective Bargaining Agreement to the contrary, only job and shift assignments are awarded on the basis of seniority. (Affidavit of Sal Lafata, sworn to September 28, 1982). Each job shift assignment carries with it, or has assigned to it, a rotating schedule of days off. Therefore, defendants maintain, there does not exist a separate bidding for days off. The employee simply takes the days off that come with the bidded job.
On March 30, 1982 defendants put into effect Directive #2212. Pursuant to section III B.3 of the Directive:
The Department Lieutenant/Attendance Control Office will review the quarterly training schedules and extra ordered military duty so that, when practicable and consistent with the Department's personnel requirements, regular days off and shift assignments may be revised to avoid military drills during scheduled working hours.
Thus, under Directive #2212, § III B.3, when there is a conflict between an employee's work schedule and scheduled military drills, supervisors, where possible, may revise the employee's regular days-off schedule so that his or her military leave falls on the regular days off.
Plaintiffs allege that the Directive "singles them out" because of their military obligation. Correction officers, sergeants and lieutenants who apply for leave, other than military leave, such as vacation, personal leave, personal illness leave and jury duty are claimed not to be required to shift or change their pass days to days when such leave is requested. Plaintiffs thus contend that the Directive is discriminatory and violates 38 U.S.C. ...