September 11, 2013
John SAMUELSEN, as President of Local 100Transport Workers Union of Greater New York, Plaintiff,
NEW YORK CITY TRANSIT AUTHORITY a/k/a MTA New York City Transit and Manhattan and Bronx Surface Transit Operating Authority, Defendants. No. 109909/2010.
This decision has been referenced in a table in the New York Supplement.
Arthur Z. Schwartz, Esq., New York City, for plaintiff.
Martin B. Schnabel, General Counsel, New York City Transit Authority by Robert K. Drinan, Esq., Assistant General Counsel, Brooklyn, for defendants New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority.
MICHAEL D. STALLMAN, J.
In this action, a union alleges that a Memorandum of Understanding and the consolidation agreement that it entered into with defendants violated Public Authorities Law § 1203-a (3)(b), and must be declared void.
By order to show cause, plaintiff seeks a preliminary injunction (1) enjoining and restraining a " Consolidated Pick" involving the selection of jobs by defendants' employees; and (2) mandating each defendant's employees to proceed with picking jobs that are limited to jobs in depots run by each defendant. Defendants oppose the motion.
The background allegations of this action were set forth in the Appellate Division's decision in Samuelsen v. New York City Transit Authority:
" In December 2002, the TA and MaBSTOA executed a Memorandum of Understanding' with the Union (the MOU), which, inter alia, modified the CBA [collective bargaining agreement] to provide for the consolidation of MaBSTOA and TA surface transit operations. The MOU, also referred to as Attachment E,' provided, in pertinent part: The Authority and the Union agree to the elimination of the artificial distinction between MaBSTOA and the Transit Authority.[']
* * *
In August 2003, the parties executed a consolidation agreement, which created uniform probationary employment rules, a uniform disciplinary system, and uniform sick leave rules. It resolved various problems that had arisen in the course of consolidating the TA and MaBSTOA surface transit employees. To further effectuate the MOU, the parties established a joint job pick procedure, which allowed MaBSTOA employees to pick into' TA jobs and TA employees to pick into' MaBSTOA jobs. Under this new procedure, employees of each authority would pick their jobs in an order established by a single, integrated seniority list, known as the Consolidated Seniority List.' Employees hired prior to December 2, 2004, were grandfathered in,' to the extent that MaBSTOA workers had first pick of MaBSTOA' jobs before those jobs were made available to TA employees, and vice versa. Employees hired into either Authority after December 2, 2004 picked from any available job, regardless of whether it was a TA job or a MaBSTOA job."
(Samuelsen, 101 A.D.3d 537, 537-539, 957 N.Y.S.2d 27 [1st Dept 2012].)
Plaintiff, as president of Local 100, Transport Workers Union of Greater New York (Local 100) commenced this action in 2010, alleging that, as a result of the MOU and the consolidation agreement, defendants have " effectively made employees of MaBSTOA employees of the NYCTA for almost all purposes", in violation of Public Authorities Law § 1203-a (3)(b). (Schwartz Affirm., Ex A [Complaint ¶ 21].) The action seeks a judgment, among other things, declaring that " the 2002 MOU and 2003 Consolidation Agreement are void and unenforceable to the extent that they have effectively made employees of MABSTOA into employees of the NYCTA." ( Id. )
Defendants previously moved to dismiss this action. By decision and order dated May 16, 2011, Justice Emily Jane Goodman granted defendants' motion to dismiss. ( Samuelsen v. New York City Tr. Auth., 2011 N.Y. Misc. LEXIS 2415, 2011 WL 2138250 [Sup Ct, N.Y. County 2011].) In a decision dated December 20, 2012, the Appellate Division, First Department, by a 3-2 majority, reversed the lower court's decision, and denied the motion to dismiss.
The majority reasoned:
" the language we are required to interpret is as follows: [MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of [NYCERS]' (Public Authorities Law § 1203-a [b] ). In our view, this plainly means that three separate prohibitions apply to MaBSTOA employees: (1) that they shall not become, for any purpose,' employees of the TA; and (2) that they shall not acquire civil service status; and (3) that they shall not become members of NYCERS. Accordingly, we agree with the Union that, to the extent that the MOU and consolidation agreement, by merging many of the policies of the two authorities, such as probationary employment rules, disciplinary rules, and sick-leave rules, transform MaBSTOA employees into employees of the TA, the agreements violate the first prohibition."
(Samuelsen, 101 A.D.3d at 541, 957 N.Y.S.2d 27.) By order dated May 14, 2013, the Appellate Division denied leave to appeal to the Court of Appeals. Defendants answered the complaint in July 2013.
Almost nine months after the Appellate Division's decision, plaintiff restored the action to the active calendar on September 4, 2013, when plaintiff filed the instant order to show cause, seeking to enjoin a " Consolidated Pick" for the 2013 job pick set to take place on September 30, 2013. As the Appellate Division described, this joint job pick procedure " allowed MaBSTOA employees to pick into' TA jobs and TA employees to pick into' MaBSTOA jobs." ( Samuelsen, 101 A.D.3d at 539, 957 N.Y.S.2d 27.) Not only does plaintiff seek an injunction enjoining a " Consolidated Pick", but plaintiff also seeks an injunction mandating that each defendant's employees pick jobs only within their employer's depots. That is, MaBSTOA employees may pick into jobs only at depots run by MaBSTOA; NYCTA employees may pick into jobs only at depots run by NYCTA.
Defendants oppose the motion.
According to Edwin Melendez, the Chief Officer, Transport Support, Department of Buses for both defendants, " the pick is annual and allows the bus operators to select a bus depot, the tour of duty, regular days off (usually two consecutive days) (RDO') and vacation schedule." (Melendez Aff. ¶ 12.) Melendez describes the annual pick procedure as follows:
" The basic procedure of the pick is that the eligible bus operator with the most seniority has the right to pick first and can select from all positions available at any depot in the Bronx, Manhattan, and Brooklyn.
* * *
Prior to the Consolidation Agreement, bus operators who were employees of MaBSTOA were restricted to work out of depots only in the Bronx and Manhattan regardless of where they resided. Bus operators who were employed by NYCTA could only work out of depots in Brooklyn.
The benefit for bus operators under the Consolidation Agreement is that a bus operator employed by MaBSTOA who lives in Brooklyn can now work out of a depot located in Brooklyn. Likewise, a bus operator employed who lives in the Bronx and is employed by NYCTA may have the choice of picking a job out of a depot in the Bronx or Manhattan.
The Consolidation Agreement provided that the MaBSTOA pick procedure would remain unchanged. MaBSTOA's pick procedure is that bus operators pick their job and their vacation schedule at the same time. The pick procedure for NYCTA is that the bus operators pick their job first and the vacation pick is done at a later time at each depot."
(Melendez Aff. ¶¶ 13, 15-17.) Melendez states, " bus operators have participated in consolidated picks since it took effect in December 2005." ( Id. ¶ 18, 957 N.Y.S.2d 27.)
According to defendants, Local 100 " represents most of the hourly paid operating employees in both NYCTA and MaBTOA," and that there are 7,364 bus operators who are represented by Local 100. ( Id. ¶¶ 5, 21, 957 N.Y.S.2d 27.) Of those, 675 NYCTA employees and 643 MaBSTOA employees work in locations outside of the depots operated by their respective employer. ( Id. ¶ 21, 957 N.Y.S.2d 27.)
" A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor." (Gliklad v. Cherney, 97 A.D.3d 401, 402, 948 N.Y.S.2d 48 [1st Dept 2012].)
Here, plaintiff argues that there is a great likelihood of success on the merits because of the Appellate Division's decision. According to plaintiff, " Although the decision reversed Judge Goodman's dismissal on a CPLR 3211 motion, there is no doubt that the law of the case leaves the Supreme Court little choice but to void the Consolidation Agreement and its progeny." (Schwartz Affirm. ¶ 6.)
" [I]n determining whether law of the case applies, the procedural posture and evidentiary burdens of the litigants must be considered." ( Feinberg v. Boros, 99 A.D.3d 219, 224, 951 N.Y.S.2d 110 [1st Dept 2012].) Here, the majority in Samuelsen acknowledged that " the issues herein are presented on a motion to dismiss pursuant to CPLR 3211." ( Samuelsen, 101 A.D.3d at 541, 957 N.Y.S.2d 27.) Denial of a motion to dismiss, which was the Appellate Division's ruling, does not establish law of the case because it looks only to the sufficiency of the pleadings. ( Tenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, 128 A.D.2d 467, 513 N.Y.S.2d 157 [1st Dept 1987].) " Our holding in relation to the prior motion to dismiss was based on the facts and law presented by the parties in that procedural posture, and no more." ( 191 Chrystie LLC v. Ledoux 82 A.D.3d 681, 920 N.Y.S.2d 324 [1st Dept 2011]; see e . g. Moses v. Savedoff, 96 A.D.3d 466, 947 N.Y.S.2d 419 [1st Dept 2012].)
The majority opinion in Samuelsen appears to indicate that the majority believed that " by merging many of the policies of the two authorities ... the agreements violate" Public Authorities Law §§ 1203-a (3)(b). However, seemingly definitive or categorical language must be construed in its proper procedural context.For example, in Gamiel v. Curtis & Riess-Curtis, P.C. (44 A.D.3d 327 [1st Dept 2007] ), the Appellate Division reversed a lower court's decision granting, on the plaintiff's default, a motion for summary judgment dismissing some of the plaintiff's claims against her attorney. The Appellate Division stated, " we find that plaintiff sufficiently set forth the merit of her claims concerning overbilling and the withholding of her files to preclude summary resolution of those claims." ( Id. [emphasis supplied].) Relying on the Appellate Division's decision, the lower court denied defendants' second motion for summary judgment. On appeal, the Appellate Division reversed the lower court, stating,
" The motion court ... construed our prior order as a substantive ruling on defendants' prior motion for summary judgment....This misconstrued our prior order, which reinstated plaintiff's sixth and seventh causes of action under the lesser standard of proof for vacating a default, and was not meant to preclude a future motion for summary judgment by defendants."
(Gamiel v. Curtis & Reiss-Curtis, P.C., 60 A.D.3d 473, 474, 874 N.Y.S.2d 109 [1st Dept 2009].)
The Appellate Division's decision in Samuelsen was made in the context of a motion to dismiss; thus, it does not constitute a substantive ruling on the merits of whether the MOU and consolidation agreement violate Public Authorities Law § 1203-a (3)(b).
Plaintiff's argument that it demonstrated a likelihood of success on the merits appears to be based entirely on the flawed premise that the Appellate Division's decision was law of the case; thus plaintiff has not demonstrated a likelihood of success on the merits. As defendants indicate, plaintiff presents no factual support of Local 100's contentions in the moving papers.
In reply, plaintiff submits an affidavit from JP Patafio, the Vice President of Local 100. Patafio avers that MaBSTOA employees
" work under NYC Transit rules, under NYC Transit supervisors, with all the benefits of NYC Transit employees other than pension. Their paychecks say NYC Transit Authority' on them, and I believe their W-2s say that their employer is the NYC Transit Authority."
(Patafio Reply Aff. ¶ 3.) However, the reply affidavit may not be considered to remedy any basic deficiencies of plaintiff's moving papers. ( See Batista v. Santiago, 25 A.D.3d 326, 326, 807 N.Y.S.2d 340 [1st Dept 2006]; Migdol v. City of New York, 291 A.D.2d 201, 201, 737 N.Y.S.2d 78 [1st Dept 2002].) Moreover, Patafio's affidavit might provide some evidence in support of its position, but it is not sufficient to meet plaintiff's burden of showing a likelihood of success on the merits.
Neither has plaintiff demonstrated that plaintiff will suffer irreparable injury if the preliminary injunction were not granted. If the MOU and consolidation were to be declared void as contrary to Public Authorities § 1203-a (3)(b), the employees would have to proceed with a different selection of job assignments in the pick. In the moving papers, plaintiff offers no specific examples to illustrate how differences in the job assignments between a " consolidated pick" and a pick within each defendant's respective bus depots either might irreparably injure an employee, or leave an employee without an adequate remedy at law.
In reply, Patafio claims that the " Consolidated Pick" impacts " depot seniority" and location of assignments, as follows:
" These MABSTOA employees, who are not Civil Service Employees, make it impossible for many recent NYC Transit Authority employees to work in NYC Transit facilities, all but one of which are in Brooklyn. Some of my members have been forced to work in the Bronx or Manhattan, and some, because there are not enough jobs available, have been forced to work in NYC Transit facilities in Queens and Staten Island. Queens and Staten Island employees of NYC Transit are represented by other unions who give our members the lowest seniority. When they come back to Local 100's jurisdiction, where depot seniority determines vacation schedules, they will start again at the bottom. This injury, which I believe is irreparable, would not occur if the Consolidated Pick ended."
(Patafio Reply Aff. ¶ 4.) However, this specific example of irreparable harm was improperly raised for the first time in reply. ( Goldstone v. Gracie Terrace Apt. Corp., 110 A.D.3d 101, 2013 WL 4516105, *4, 2013 N.Y.App.Div. LEXIS 5637 [1st Dept 2013]; Brach v. Harmony Servs., Inc., 93 A.D.3d 748, 940 N.Y.S.2d 652 [2d Dept 2012].)
In any event, the purported impact upon location assignments and " depot seniority" is claimed to be a product of the Consolidated Pick, and yet the Consolidated Pick was agreed to by Local 100 when it agreed to the MOU and the consolidation agreement. Put differently, plaintiff is speculating that some of Local 100's members would suffer irreparable injury for a process that Local 100 willingly bargained for and accepted in 2002.
Defendants claim that bus operators have participated in consolidated picks since December 2005. (Melendez Aff. ¶ 18.) Plaintiff does not dispute this. That plaintiff waited for five years to commence an action while Local 100's own members participated in consolidated picks, and waited nine months after the Appellate Division's decision to bring this motion, belies any contention that an employee who works at a job assignment that had been chosen in a " Consolidated Pick" suffers immediate, irreparable harm. Indeed, peremptorily overturning the system now, by motion, would disrupt the reasonable expectations of bus driver members of Local 100 and would give them no recourse.
Plaintiff has not demonstrated that the balance of the equities lies in plaintiff's favor. Indeed, plaintiff's counsel states, " In fact, if anything, the Union's motion may cause dislocation or hardship to the employees it represents, since MABSTOA employees who have been picking into depots in Brooklyn will now have to work in Manhattan or the Bronx." (Schwartz Affirm. ¶ 9.) Thus, it appears that more harm would result if the injunction were granted than the harm that would result if the injunction were denied.
Notably, plaintiff seeks an injunction mandating that defendants conduct the upcoming annual job pick as if the MOU and consolidation agreement were declared void. " [A] mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in unusual' situations, where the granting of the relief is essential to maintain the status quo pending trial of the action.' " ( Jones v. Park Front Apartments, LLC, 73 A.D.3d 612, 612, 901 N.Y.S.2d 46 [1st Dept 2010] [citations omitted].) The injunction that plaintiff seeks does not maintain the status quo, because the status quo is a " Consolidated Pick" among defendants' employees. According to Melendez, " bus operators have participated in consolidated picks since it took effect in December 2005." (Melendez Aff. ¶ 18.)
Because plaintiff has not met the criteria under CPLR 6031 for a preliminary injunction, plaintiff's motion is denied.
Accordingly, it is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied; and it is further
ORDERED that the parties are directed to appear for a preliminary conference on October 24, 2013 at 2:15 P.M. in IAS Part 21, 80 Centre St. Rm. 278, New York, New York.