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Supreme Court of the State of New York County of Kings SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ........................................................................ X NEW YORK CITY TRANSIT AUTHORITY and Index No. 37467105 MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, (Hon. Bruce M. Balter) Plaintiffs, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, etc., et al., Defendants. MEMORANDUM OF LAW OF PLAINTIFFS IN OPPOSITION TO THE UNION'S MOTION FOR RESTORATION OF THE RIGHT OF DUES CHECKOFF ANDREW M. CUOMO Attorney General of the State of New York Attorney for Plaintiff 120 Broadway - 24thFloor New York, NY 10271-0332 (212) 416-8645 MARTIN B. SCHNABEL Vice-President & General Counsel New York City Transit Authority 130 Livingston Street Brooklyn, New York 1 1201 NEIL H. ABRAMSON Proskauer Rose LLP Attorneys for New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority 1585 Broadway New York, New York 10036-8299 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ........................................................................ X NEW YORK CITY TRANSIT AUTHORITY and Index No. 37467105 MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, (Hon. Bruce M. Balter) Plaintiffs, TRANSPORT WORKERS LNON OF AMERICA, AFL-CIO, etc., et al., Defendants. MEMORANDUM OF LAW OF PLAINTIFFS IN OPPOSITION TO THE UNION'S MOTION FOR RESTORATION OF THE RIGHT OF DUES CHECKOFF This memorandum of law is respectfully submitted by Andrew M. Cuomo, Attorney General of the State of New York, attorney for plaintiffs, in response to the motion on behalf of defendant Transport Workers Union of Greater New York, Local 100, AFL-CIO ("Local 100" or "the Union"), "for an order pursuant to Civil Service Law 5 210 and in accordance with the order and judgment of this Court dated May 12, 2006, reinstating the right [of the Union] to dues deductions and agency fee deduction" (Union's notice of motion dated October 3,2007). This Court's May 12,2006 order and judgment provided in relevant part: Beginning June 1,2007, defendant Local 100 shall forfeit its right to dues deduction for an indefinite period of time, with leave to apply for reinstatement of this right no earlier than September 1, 2007, upon a showing of good faith compliance with the mandates of the Taylor Law, and submission of an affirmation that it no longer asserts the right to strike against any government as required pursuant to Civil Service Law tj tj 210(3)(g) and 207(3). A copy of this Court's May 12,2006 order and judgment is Ex. B to the supporting affidavit of Local 100 President Roger Toussaint, sworn to September 28,2007 ("Toussaint aff."). The order and judgment is based on a decision, order and judgment of this Court, dated April 19,2007, a copy of which is Toussaint aff. Ex. A. This Court's decision, order and judgment is reported at N.Y. City Transit Auth. v. Transp. Workers Union of Am., 2006 N.Y. Misc. LEXIS 4046 (Sup. Ct. Kings Co., Apr. 26,2006), affd, 37 A.D.3d 674 (2d Dep't 2007). This Court's decision, order and judgment conditioned Local 100's application for reinstatement of dues checkoff upon "a showing of good faith compliance with the mandates of the Taylor Law, and submission of an affirmation that it no longer asserts the right to strike against any government as required pursuant to Civil Service Law 5 5 2 10(3)(g) and 207(3)." Id. at *19. The Union's motion is directed toward the Court's discretion, which is reviewable only for the abuse of such discretion. Civil Service Law 5 2 10(3)(f) specifically gives the New York State Public Employment Relations Board ("PERB") - and here, this Court - the discretion to order the forfeiture of the dues checkoff right "for an indefinite period of time." This discretion to order indefinite forfeiture inherently carries with it the corresponding discretion to determine when, and on what terms, to terminate such forfeiture.' The MTA acknowledges the statement of Local 100 President Toussaint that the Union "does not assert the right to strike" under the Taylor Law (Toussaint aff. 7 lo), and agrees that I That this motion is directed to the Court's discretion is also clear from the Court's order and judgment, which provides only that the Union has "leave to apply for reinstatement" upon the satisfaction of the stated conditions. the Union has been in substantial compliance with the mandates of the Taylor Law since the Union ended its unlawful job action. Toussaint aff. 17 7, 9.2 The MTA opposes Local 100's motion for dues checkoff restoration at this time, however, given the extent of the disruption to the public and to businesses caused by the unlawful December 2005 strike and the Union's failure here to address that breach of the public trust by publicly committing to comply with the mandates of the Taylor Law. The general acknowledgment in the Union's papers that the Taylor Law prohibits strikes - given this Union's prior history of resorting to strikes with the full knowledge that such strikes are "illegal" - falls short of a commitment not to engage in such a violation in the future. Simply stated, the Union's statement about what the law requires says nothing about whether the Union will follow the law in its future dealings with the MTA The MTA is mindful, however, of the financial impact of the dues deduction forfeiture, which has been in effect for five months. Local 100's submission indicates that the Union is now at a point financially where it requires a regular stream of dues in order to continue to perform its statutory duties as a collective bargaining representative. The MTA shares the concern that the Union not be reduced to straits that would prevent it from being able to perform those important The MTA disputes a number of Mr. Toussaint's factual assertions with respect to the events following the Union's unlawful strike as those assertions relate to, or purport to characterize, the conduct of the MTA during the time in question. Because those facts are not material to Local 100's application and in an effort to continue the parties down the path of a stable and productive labor relations environment, the MTA has chosen at this time not to respond to Local 100's various characterizations of the MTA's conduct. statutory duties and that could interfere with the promotion of "harmonious and cooperative relationships between government and its employees," the pursuit of which is legislatively- declared to be one of the purposes of the Taylor Law. See Civil Service Law § 200. The MTA believes that the financial impacts upon the Union arising from the dues deduction forfeiture should be seriously considered by this Court, but that in exercising its considerable discretion this Court should also weigh the significant concerns of the citizens and businesses of the City of New York who were so adversely affected by the last illegal strike. The MTA submits that the interest of the public and the Union can both be satisfied by proceeding in a fashion other than reinstating the Union's right to dues checkoff. In particular, the MTA respectfully suggests that this Court conditionally suspend the dues deduction forfeiture required by the May 12,2006 order and judgment, and that the suspension be subject to immediate revocation in the event of a strike or a strike threat. There is extensive precedent for this type of conditional suspension, and such an order is therefore within the Court's discretion here. See New York State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82, 19 PERB 13042 (1 986); Local 252, Transp. Workers Union, 16 PERB 13078 (1983); Amalgamated Transit Union, Local 726, 16 PERB 13033 (1983); Amalgamated Transit Union, Local 1056, 16 PERB 13022 (1 983); Local 100, Transp. Workers Union, 16 PERB 7 3020 (1983); United Fed'n of Teachers, Local 2, 15 PERB 13091 (1982); Lakeland Fed 'n of Teachers, Local 1760, 13 PERB 7 3065 (1980). Indeed, this is the precise manner in which Local 100's dues deduction forfeiture was treated following its 11-day strike in 1980. See 16 PERB 13020, at 303 1. There, Local 100 had established that the Union's loss of dues deduction privileges had resulted in severe impairment of its ability to provide necessary services to bargaining unit employees. Id. at 3030. Based on that evidence, PERB modified its earlier forfeiture order "to the extent that the forfeiture of the dues deduction and agency shop fee privileges, if any, of Local 100 be suspended [and] that such suspension is subject to revocation in the event of a strike or strike threat." Id. at 303 1. A conditional suspension of the dues deduction forfeiture in this case will give this Court the greatest degree of flexibility to act expeditiously in the event that the Union's failure to address its commitment to comply with the Taylor Law in the future was not simply the result of inadvertence. Conclusion For the foregoing reasons, defendant's motion for reinstatement of the Union's right to dues deductions and agency fee deductions should be denied, and instead this Court should conditionally suspend the dues deduction forfeiture, with such suspension subject to immediate revocation in the event of a strike or strike threat by Local 100. Dated: New York, New York October 3 1,2007 Respectfully submitted, ANDREW M. CUOMO Attorney General of the State ~f New York I AttorneBQ& for Plain ' fs & JOEL GRABER Assistant Attorney General Special Litigation Counsel Litigation Bureau 120 Broadway - 24thFloor New York, NY 10271-0332 (212) 416-8645 MARTIN B.
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