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December 3, 1984

ROBERT McCOY, WILFREDO RIOS, ANTHONY ANZOLA, JOHN OLIVA, ALVIN SOLOMON, HARVEY MARSHALL, RUDOLPH MARANO, DONALD R. STANTON, MANNY SAVIDIS, RICHARD INGRALDI, EDWARD H. KNIPPENBERG, PAUL ROSENSTEIN, ROBIN SALVATORE, JOHN F. SAND, ARNOLD SCHOENBRUN, JOHN YOUNG, WALLACE WIGGINS, WILLIAM WHIPPET, and ROBERT O'BRIEN, Plaintiffs, against HARRISON J. GOLDIN, individually and as Comptroller of the City of New York, ROBERT LINN, individually and as past General Counsel for the Office of Labor of the City of New York, and as present Director of Labor Relations of the City of New York, and the CITY OF NEW YORK, Defendants.

The opinion of the court was delivered by: EDELSTEIN


EDELSTEIN, District Judge:


 This civil rights suit was originally commenced by twenty-one radio repair mechanics against their employer, New York City ("City"); *fn2" its Comptroller, Harrison J. Goldin; its Director of Labor Relations, Bruce McIver; their union, District Council 37, American Federation of State and City Municipal Employees ("the Union"), and its President, Joseph Zurlo. The municipal defendants counterclaimed to recover amounts allegedly overpaid to plaintiffs. Defendants moved to dismiss the complaint for failure to state a claim. Their motion was denied in a Report and Recommendation dated October 7, 1983 which was adopted by this Court. Stevens v. Goldin, No. 82 Civ. 3376 (S.D.N.Y. Jan. 20, 1984). Pursuant to leave granted in that decision, plaintiffs took limited discovery. The parties then stipulated to discontinue the action with respect to defendants Joseph Zurlo and the Union.

 On July 13, 1984, defendants moved for summary judgment on the ground that as a matter of law, plaintiffs have failed to show that defendants are liable under 42 U.S.C. § 1983. Plaintiffs have cross-moved for partial summary judgment on the issue of liability. The parties agreed by stipulation entered into on July 27, 1984, to discontinue the separate action they had commenced against Robert Linn and the City of New York, Stevens v. Linn, No. 84 Civ. 3079 (LBS), and to amend the complaint in the instant action to add Robert Linn as a defendant. As part of the stipulation, defendant Bruce McIver was dropped as a defendant. On October 26, 1984, Magistrate Naomi Reice Buchwald issued a Report and Recommendation on the motions for summary judgment. The municipal defendants filed objections to the magistrate's report. Plaintiffs filed a memorandum in opposition to the defendants' objections.


 This litigation arises out of a seven year wage dispute between the City and its radio repair mechanics. The parties' Rule 3(g) statements and motion papers agree on the following relevant and material facts. There being no genuine disputed issue of fact, the liability issue in this case may be resolved on a motion for summary judgment.

 Statutory Background

 Plaintiffs are radio repair mechanics who have been employed by various agencies of the City. They belong to a group of municipal workers known as "Section 220" employees, who have the option of having their wages and benefits established pursuant to New York State Labor Law § 220, rather than through individual wage agreements or collective bargaining. Plaintiffs are represented by District Council 37, A.F.S.C.M.E., AFL-CIO, the Union.

 Labor Law § 220 provides that covered employees' wages shall be not less than the prevailing rate of wages" and their benefits "shall be in accordance with prevailing practices" in the same trade in the same locality. New York Labor Law § 220(3) (McKinney Supp. 1982). An employee or his union disagreeing with the City's judgment as to whether his wages and benefits conform to the mandate of Section 220 may file an administrative complaint with the City Comptroller requesting the Comptroller to determine whether he is being paid according to the prevailing rate and practice. Id. § 220(5)(e), (7).

 After a Section 220 complaint is filed, the City and Section 220 employees, throught their union, may negotiate wages and benefits and enter into a formal consent agreement known as a "compromise determination," which embodies the terms of a wage settlement. The compromise determination is then ratified by the Comptroller and has binding force and effect under the Labor Law. Individual employees, however, are traditionally granted the right to reject the terms of a compromise determination by filing a notice with the Comptroller within thirty days of issuance.

 Employees or their union who reject a proposed compromise determination may pursue the procedures set forth in Labor Law § 220. Pursuant to these procedures, the Comptroller conducts an investigation and hearing to determine the prevailing wage rate and practice. New York Labor Law § 220(5)(e), (7), (8). The Comptroller's determination is then subject to judicial review in an Article 78 proceeding. Id. § 220(8).

 The Instant Controversy

 The genesis of this action is a dispute over the prevailing rate of wages for radio repair mechanics during the years 1976 to 1978. Before January 1976, the City paid its radio repair mechanics at a base rate of $9.32 per hour, pursuant to a compromise determination. In July 1976, all of the City's radio repair mechanics, including plaintiffs, filed complaints pursuant to Section 220 of the Labor Law demanding that the Comptroller determine the prevailing rate of wages for the period 1976-1978. In August 1978, pursuant to a compromise determination between the City and the Union, the City offered the radio repair mechanics a base rate of $9.60 per hour for the period of January 1, 1976 through June 30, 1978. The plaintiffs rejected the terms of this compromise determination and elected to pursue their statutory remedies with the City. In September 1980, following an investigation and hearings, the Comptroller found that the prevailing rate of wages was $7.61 per hour as of January 1976, $8.28 per hour as of January 1, 1977, and $9.00 per hour as of January 1, 1978. These rates were less than the rate of wages the City had agreed to pay acceptors of the compromise determination that plaintiffs had rejected. The rate was also less than the actual rate of wages which the City had been paying to those who litigated. The plaintiffs challanged the Comptroller's September 1980 determination in an Article 78 proceeding, Goldman v. Goldin, 81 A.D.2d 1043, 439 N.Y.S.2d 224 (1st Dep't 1981), appeal denied, 54 N.Y.2d 608, 427 N.E.2d 951, 443 N.Y.S.2d 130 (1981), which was finally resolved against them. Thereafter, in April 1982, the City presented a proposed individual wage agreement to radio repair mechanics covering the period 1978-1982. The proposed agreement provided, inter alia, that on execution of the agreement by either acceptors or rejectors of the compromise determinatioin of August 1978, that the radio repair ...

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